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With affirmative consent laws expected to be introduced in Queensland, the state is on track to go from being arguably the most archaic in Australia in regard to sexual assault legislation to the most progressive. By Bri Lee.

Queensland affirmative consent laws follow NSW example

Queensland Premier Annastacia Palaszczuk (left) looks on as the minister for Justice, Women and the Prevention of Domestic and Family Violence, Shannon Fentiman, speaks to the media.
Queensland Premier Annastacia Palaszczuk (left) looks on as the minister for Justice, Women and the Prevention of Domestic and Family Violence, Shannon Fentiman, speaks to the media.
Credit: Darren England / AAP Image

Queensland is on track to become the next state to legislate an affirmative consent model, following the publication of the second “Hear her voice” report from the Women’s Safety and Justice Taskforce. Updates to the definition of consent and the operation of the “mistake of fact” excuse are among the 188 recommendations. Others relate to specialist training for police, prosecutors and the judiciary; specialist case management lists for the District Court to lessen multiyear wait times; and the specific acknowledgement of “stealthing”, in which a condom is removed without consent during sex, as rape.

Queensland’s treatment of complainants is arguably the most archaic in Australia, but advocates say if the Palaszczuk government accepts and acts upon the report in its entirety it could see the state become the most progressive jurisdiction in the country.

In relation to consent legislation specifically, the report recommends: “consent must be freely and voluntarily ‘agreed’ rather than ‘given’ ”; that “if the person who alleges the sexual violence has suffered resulting grievous bodily harm, those injuries must be taken to be evidence of a lack of consent unless the accused person can prove otherwise”; and that a defendant’s voluntary intoxication can no longer be used to their benefit when claiming they mistakenly believed the complainant was consenting.

Critically in the Queensland context, the “mistake of fact” excuse was a source of significant disagreement within the law and community. The “Hear her voice” report recommends the operation of the “mistake of fact” excuse change, so that “an accused person’s belief about consent to sexual activity is not reasonable if the accused person did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consented to the sexual activity”.

In practice, this means that if the complainant presents evidence demonstrating they did not consent, and the defendant seeks to defend their belief that the complainant did consent, the defendant will need to have actually said or done something to check consent with that person. An accused still retains the right to silence and presumption of innocence and there are provisions to safeguard the effect of these requirements on defendants who have cognitive or mental impairments. The shift is one in attitude and clarity: sex needs to be an ongoing agreement between two people. Consent can never be presumed and can also be withdrawn at any time.

What is noticeable throughout the country – most recently in New South Wales, Victoria and now, potentially, in Queensland – is a significant shift in the voices and perspectives being prioritised during consultations and inquiries into the justice system. As the “Hear her voice” report notes, the majority of legal stakeholders strongly supported “the retention of the status quo, opposing any kind of reform of the law on consent and mistake of fact … Their strong view that the law should not be changed at all, however, is in stark contrast with almost every other stakeholder group”. Historically the fight for consent reform has seen survivors and advocates come up against the opinions of powerful legal stakeholders, and progress thereafter halted.

The new precedent, set by NSW and possibly to be repeated in Queensland, is for state law reform commissions to make conservative recommendations that please the legal establishment before the government ultimately acts on community-driven and survivor-led consultation. In November 2021, NSW passed affirmative consent legislation through parliament despite the NSW Law Reform Commission being unwilling to recommend that degree of progressive reform. Those laws came into effect on June 1 alongside a new public awareness campaign. Attorney-General Mark Speakman invited survivor and advocate Saxon Mullins to be present at the announcement of the affirmative consent commitments and spoke explicitly about listening to survivors and to the community.

Mullins, who is also director of advocacy at Rape & Sexual Assault Research & Advocacy (RASARA), welcomed the news from Queensland. “I was really worried that the changes we saw in NSW would happen in a vacuum, especially after Queensland’s last disappointing review into this legislation. In the sexual violence space, it feels like we get a massive wave of momentum, make one change, and decide that’s good enough and on to the next thing. I am beyond thrilled to be wrong, beyond thrilled that we’re still talking about it, that changes are still being made.”

In a press conference on July 1, the Queensland attorney-general and minister for Justice, Women and the Prevention of Domestic and Family Violence, Shannon Fentiman, said the proposed amendments were about “strengthening the law around mistake of fact, and bringing it more into line with some of the changes that we’ve seen in NSW and Victoria. It does go a little bit further than some of those jurisdictions, in fact, in their recommendations; it does say that if a complainant suffers grievous bodily harm, it is taken that consent was not agreed to, which I think is a very good thing”.

Premier Annastacia Palaszczuk said the government hoped to consider the taskforce’s recommendations “within the next four to six weeks” and advocates were optimistic that the government would accept and act on the report because of the positivity with which Fentiman spoke about it, as well as her recent public comments about the community being “ready” for an affirmative consent standard in Queensland.

Margaret McMurdo, chair of the Women’s Safety and Justice Taskforce, wrote in the introduction to this latest report: “I came to realise that because the justice and corrections systems were principally designed, and until comparatively recently, administered, by men and with a male perspective, they do not focus on the needs of women victims or women offenders. This was a confronting reality for a woman who had been a barrister or judge for 40 years.”

The practice director of Women’s Legal Service Queensland, Julie Sarkozi, said: “Good on her for saying that, because it’s one of the things that I think is really the biggest problem when it comes to the criminal justice response to survivors of domestic and family violence and sexual offences … that they’re predominantly women, and the criminal justice system has been designed by men.” Sarkozi’s organisation has been advocating for an affirmative consent model since 2017, and Sarkozi said the reforms were “really exciting”. She also spoke about the recommendations for a victim’s commissioner being powerful, and said that having a separate sexual offences list in the District Court meant “they’re taking seriously how detrimental lengthy trial processes are for victim survivors”.

New provisions would also allow survivors a “right of review” process where they disagree with police discontinuing an investigation, or do not agree with the prosecution accepting a plea bargain with the defendant in their matter.

Sarkozi was also happy to see the report mention the Women’s Safety and Justice Taskforce’s request for survivors to be allocated representatives. “Hear her voice” recommends the government “consider whether there is a need for funded legal representation for survivors”.

Sarkozi explains that “if a victim does not have their own legal representation, everything they say to [the] prosecution has to be disclosed”. She gives an example of a survivor saying to the prosecutor that they’re frightened about the case, can’t sleep, and have started seeing a therapist, and the prosecutor then having an obligation to tell the defence that the complainant is attending counselling, which they then may be cross-examined about. “So that relationship of client confidentiality is not there in the relationship between the victim and prosecution, and so one of the arguments that we made was that there should be an independent lawyer or a lawyer for the victim. If not for the whole process, then at least for some of those preliminary procedural processes like special witness applications, protected counselling, communications application, even ground rule hearings.”

In the Victorian Law Reform Commission’s 2021 report “Improving the Justice System Response to Sexual Offences”, it recommended a pilot scheme for separate legal representation that “would focus on the substantive legal entitlements of complainants, and their rights to privacy and dignified treatment”. That pilot is yet to begin. In November 2021, the Victorian government committed to introducing affirmative consent laws, but this is also yet to be finalised. Dr Rachael Burgin, chief executive of RASARA, said Victoria is still in “a consultation stage” and “no time line is clear”. But, she says, “I think we will end up with affirmative consent.”

Fentiman spoke about the taskforce’s recommendations going much further than those of the Queensland Law Reform Commission in 2020: “The community really has come a long way in the last few years and I think that’s testament to the fact that we have had women marching the streets saying enough is enough when it comes to sexual assault.”

Sarkozi was critical of the Queensland Law Reform Commission’s 2020 report as well. “It fell so far short of community expectations … it was really disappointing and quite honestly it didn’t make sense why they resiled from recommending an affirmative model of consent.”

Saxon Mullins says: “Survivors coming forward and continuing this conversation has been invaluable. I don’t think we’d be here without so many survivors coming forward, all with different stories but the same demand: this has to change. And it will.” 

National Sexual Assault, Domestic and Family Violence Counselling Service 1800 737 732

This article was first published in the print edition of The Saturday Paper on July 9, 2022 as "Fundamental consent".

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Bri Lee is a legal academic and the author of Who Gets to Be Smart.

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