NSW Affirmative Consent Reforms Bill introduced to Parliament; scheduled for debate

By DANIEL LO SURDO

A long-awaited Bill containing affirmative sexual consent reforms was introduced to NSW Parliament last week ahead of a parliamentary debate scheduled for November. 

The Bill contains an affirmative consent model, which specifies that “consent to a sexual activity must not be presumed” and that “consensual sexual activity involves ongoing and mutual communication, decision-making and free and voluntary agreement between the persons participating in the sexual activity”. 

It will also update the language of provisions of the Crimes Act 1900 relating to sexual offences and allow judges to make directions to juries about consent in trials relating to certain sexual offences under the Act. 

“This is a big reform, it was a long time coming, and is a significant step in eliminating sexual assault – so that we can all participate in society equally without fear,” State Member for Newtown Jenny Leong said. 

“So many have campaigned so hard for the introduction of affirmative consent laws in this state.” 

Change to the state’s sexual consent terminology and law comes after the NSW Law Reform Commission recommended last November to ‘strengthen’ and ‘simplify’ consent law. 

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City Hub reported in June that the government would adopt all 44 of the Commission’s recommendations, and also specify that “an accused person’s belief in consent will not be reasonable in the circumstances unless they did or said something to ascertain consent”. 

While the Bill remains in parliament and will be subject to debate, Ms Leong credited the proposed legislation to “some incredibly strong survivor-advocates, feminists, experts and activists who have never given up”. 

“Thank you to Saxon Mullins, who led the way to this reform with strength and care – bringing other young activist-survivors, experts and women with her,” she said. 

“Credit must also go to Dr Rachael Burgin and Rape Reform NSW, Rape and Domestic Violence Services Australia, the Women’s Legal Service NSW, Women’s Safety NSW [and] Women’s March Sydney.” 

As part of the amendments made to the Crimes Act, references to an “offender” will now be replaced with “accused person”, while a “victim” will be changed to a “complainant”. 

In the 24 months up to June 2021, NSW recorded a 21 per cent uptick in sexual assault offences. This growth has largely been credited to the public discussion around rape and sexual assault, which has empowered many survivors to come forward and report incidents to the authorities. 

Sexual assault was the state’s only major offence that saw an increase in the past 24 months and has been the consistent trend of growth throughout the past five years. The City of Sydney LGA recorded 305 cases of sexual assault from July 2020 to June 2021 and has seen a 6.5 per cent increase in cases over the past five years.