Page 1301 - Week 04 - Thursday, 5 May 2022
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directly from stakeholders, including victim-survivors, and the ACT government is listening to these victim-survivors as they share their stories and advocate for reforms not just to the law and the criminal justice response but also to address the underlying causes of sexual violence and improve support services.
Initial work in anticipation of the recommendations of the steering committee has already commenced, including collaborative work involving the Director of Public Prosecutions, ACT Policing, the Victims of Crime Commissioner and the Coordinator-General for Family Safety to improve the justice system, including by reflecting on past cases.
I acknowledge that Dr Paterson has also worked closely with a range of different stakeholders to make sure that this bill reflects the voices of those who have experienced sexual violence as well as of those who provide services related to sexual violence.
I also recognise that the bill builds on the recommendations and the model provisions proposed by the New South Wales Law Reform Commission in its 2020 report entitled Consent in relation to sexual offences. The New South Wales Law Reform Commission conducted a comprehensive inquiry, consulted widely and received almost 200 written submissions. However, this bill does go one step further than the recommendations of the New South Wales Law Reform Commission by introducing an affirmative consent model. This implements the recommendation of the ACT Sexual Assault Prevention and Response Steering Committee and reflects the views of many advocating for consent reforms who thought that the New South Wales Law Reform Commission did not go far enough with its recommendations. Notwithstanding this, I do note, however, that the New South Wales parliament recently passed a similar bill to introduce an affirmative consent model.
The laws for sexual consent need to be simple and strong. This bill recognises that, firstly, consent to participate in an act should not be presumed. Secondly, every person has the right to choose not to participate in a sexual act. Thirdly, a consensual sexual act involves ongoing and mutual communication and decision-making.
While these changes will not address all of the issues with the criminal justice system, they will introduce a positive concept of consent into ACT law and signal what our community considers to be appropriate behaviour. This bill introduces a communicative model of consent that is underpinned by the principles of bodily autonomy and personal responsibility. Every person has the right to choose whether they participate in a sexual act. Every person has the responsibility to determine whether the person with whom they are engaging in a sexual act has communicated informed consent freely and voluntarily.
In addition, the bill clarifies that a person who does not physically or verbally resist will not be taken to have consented to a sexual act on that basis alone. A person may freeze and be incapable of resisting a sexual assault, or they may surrender out of fear. The surrender and freeze response are two of the most commonly reported responses reported by victim-survivors, yet there is a common misconception that these are not a natural response to sexual violence.
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