Page 87 - Week 01 - Tuesday, 8 February 2022
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Soon after being elected to this role in October 2020, I undertook a detailed review and stakeholder consultation to better understand the ACT’s existing legislation, previously proposed legislation and barriers to it being passed, as well as other available evidence and research. In June 2021 I released an exposure draft bill for public comment. During this period I received 14 detailed written submissions. There was a wealth of social media and online commentary and I met with key stakeholders and survivors to discuss the provisions of the draft bill. Overwhelmingly, support was provided for the introduction of an affirmative model of consent. During the period of consultation I engaged with stakeholders about complex, sensitive and ethical considerations, particularly regarding the impact of the legislation on people with a disability and transgender people, to ensure that the bill is inclusive to their unique needs and considerations of these people in our community.
In March last year Minister Berry announced that the sexual assault prevention and response program would be established to bring together government and non‑government experts to make recommendations to government about sexual assault reforms in the ACT, and a steering committee was established. I presented this bill to the steering committee for consideration.
On 6 December last year Ms Renee Leon, on behalf of the ACT Sexual Assault Prevention and Response Steering Committee, presented the committee’s final report to the ACT government. The committee’s Working Group on Law Reform reviewed my draft bill carefully and, in their final report, gave support and also provided recommendations to strengthen the bill that I present today.
I want to talk just briefly about the provisions of this bill. The bill overcomes the key technical issue which prevented the ACT government from supporting the bill put forward in 2018. It retains the fundamental right of the accused person to be presumed innocent until proven guilty. It achieves this clearly by separating provisions about the definition of consent from fault elements.
The purpose of the proposed legislative amendments is to introduce a new statutory definition of consent, in line with community standards and expectations—one that is based on free, voluntary and informed agreement. The amended principles and meaning bring about a more nuanced definition of consent, shifting it from a position of non-consensual sexual activity being something that is presumed and that can be negated to something that is unassumed and that must be given. It is a communicative, or affirmative, model of consent.
The bill outlines the principles of consent—those being that consent is not presumed, that every person has the right to choose, or not, to participate in a sexual act, and that it involves ongoing and mutual communication and decision-making between the people participating. Secondly, the bill provides a meaning of consent: informed agreement that is freely and voluntarily given, which is communicated verbally or non-verbally by saying or doing something. The bill also clearly articulates a set of circumstances under which consent is deemed not to be given. This is a non-exhaustive list that has been updated from the current Crimes Act.
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