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As NSW announces major changes to its sexual consent laws, the state’s attorney-general, Mark Speakman, explains why he pushed ahead with these nation-leading reforms. By Bri Lee.

Mark Speakman on NSW consent laws

New South Wales Attorney-General Mark Speakman.
Credit: AAP / Joel Carrett

On Tuesday this week, the New South Wales attorney-general, Mark Speakman, announced a significant shift in the state’s consent laws. Standing beside him was Saxon Mullins, a survivor–advocate and co-director of Rape and Sexual Assault Research and Advocacy as well as NSW Police Force Commissioner Mick Fuller and NSW Education Minister Sarah Mitchell. “We have heard the voices of victim survivors loud and clear,” Speakman said.

NSW would be “going further” than the NSW Law Reform Commission recommended, he said, and introducing an affirmative consent standard. If a sexual assault defendant wants to be able to claim they had a belief the complainant was consenting, they’ll need to be able to indicate they actually said or did something that gave rise to that belief.

“We are now leading the way in this space, and hopefully other states can look to NSW and enact their own reforms,” Mullins said of the decision.

The question of affirmative consent has been intensely debated in NSW since Mullins told the public of her own sexual assault in Sydney’s Kings Cross on Four Corners in 2018.

Most recently, it was reanimated by Chanel Contos, who gathered more than 6000 testimonies from Sydney school students who say they were sexually assaulted by their peers. On Wednesday Contos’s petition to the NSW parliament hit 20,000 signatures, triggering a parliamentary debate of consent education in schools.

Attorney-General Speakman has also taken a lead in reforming Australia’s defamation laws, widely agreed as having a “chilling effect” on public interest journalism. Newspaper editors around the country are sitting on critical stories of sexual abuse that could’ve been published years ago if there were laws to protect responsible journalism, such as those in England, Canada and New Zealand. It was also one of Kate Jenkins’ 55 recommendations in the Respect  @  Work report – that Australia’s plaintiff-friendly defamation laws were preventing whistleblowers from speaking out about workplace harassment.

I spoke with Mark Speakman about these three separate but interconnected issues.

Bri Lee I want to start with consent. What got you over the line in taking the consent standard one step further than what the NSW Law Reform Commission recommended?

Mark Speakman Look, at the end of the day, I think it basically came down to common sense, and respect and decency. If two people are to have sex, each should be satisfied that the other one wants to take part. The Law Reform Commission went part of the way in saying that you don’t have consent unless it’s communicated – unless there is something said or done to indicate consent. It didn’t go quite the rest of the way – that if something hasn’t been said or done by one party that that other party must do something to ascertain that there is consent. So, I think it’s just a matter of common sense in relationships. Don’t presume there is consent, don’t presume if somebody isn’t protesting or resisting in any way that you have consent. Just be respectful and ask for consent, and make sure the other party has said something or done something – that consent is present.

BL With this press conference, my understanding is you were trying to send the message that by being so firm about the definition of consent, and the expectations of the defendant’s state of mind, you’re actually helping everyone, in that it clarifies the situation.

MS I’m not going to pretend that there won’t be grey areas. And obviously in an area like this where there’s contested evidence and often uncorroborated contested evidence, those conflicts will still remain. But I think if anything this reduces the grey area because you’re now requiring people to say something or do something that is overt, rather than relying upon the absence of something.

BL The police commissioner said at the press conference, “I’ve got to re-educate the entire organisation in terms of this”, referring to the NSW Police Force. What do you understand that looks like? What does that mean?

MS Well, police will have to be educated about what the new changes are to the law, just like there’ll be education and training for the judiciary and for prosecutors and lawyers who practise in this area, generally. I think that’s what he’s referring to. I mean, there’s a broader piece, which is part of our research project, about what is the experience of a sexual assault complaint in the justice system. And maybe that research will produce ways that police can handle complaints better, more empathetically, more trauma-informed, and no doubt the courts can do that as well.

BL Where’s that research up to?

MS One of the recommendations of the Law Reform Commission was to have a research project funded by the Department of Communities and Justice into the experiences of sexual assault complainants in the criminal justice system. So, we’ve announced [on Tuesday] we’re doing that. We’re still on the design stage at the moment and I’ve spoken to at least one stakeholder about how it might work, but we’ll be getting BOCSAR [Bureau of Crime Statistics and Research] involved in that as well.

BL Why have you decided to take a leadership role on defamation reform compared to many other attorneys-general?

MS Well, I can’t answer for what they may or may not have done. [Laughter] Look, defamation law is now 16 years old. Technology has dramatically changed in the meantime … It’s not just technological change, but most defamation cases involve fairly minor amounts of damage and harm to the plaintiff.

So, part of the reform process that we’ve now enacted in NSW, [and that] starts on the 1st of July, is to have a serious damage threshold to try to weed out cases that fall into that category before they go too far and the tail wags the dog – which is the threat of any civil litigation – that eventually, the costs, the legal costs become so enormous that they drive the process rather than what was the underlying dispute.

The other thing driving it was the chilling effect on public interest journalism, that Australia seemed to have the most restrictive defamation laws of any liberal democracy. There’s a little bit of a contest among lawyers as to whether a media organisation has never relied on qualified privilege – there was a bit of pushback on that proposition – but if there has ever been a successful defence, it’s very rare. So it’s been generally hard to rely on that, so that’s why we’ve got to introduce a public interest defence, drawing on elements of New Zealand and the UK, to make it easy to engage in responsible public interest journalism.

And then the second stage is the liability of intermediaries and whether our laws at the moment, in relation to reporting to employers and disciplinary bodies and so on, have a chilling effect on that reporting. We have absolute privilege and qualified privilege in our defamation law. Absolute privilege protects things like what is said in parliament, what is said in court and tribunals, because it’s said to be in the public interest that witnesses and parliamentarians can have free flow, if you like, without the fear of defamation suits. If a witness for example gives false evidence in court, well, there is the prospect of a criminal charge for perjury. Qualified privilege doesn’t give you quite the same protection. So there aren’t cases that I’m aware of where somebody has been successfully sued for reporting sexual harassment, for example. There might be cases but I haven’t come across them. But the real question is whether the possibility that might occur has a chilling effect on the reporting in the first place.

BL What are the barriers you see ahead because, obviously, defamation reform has to be uniform across the country.

MS There will be a short period where we won’t have uniform law in Australia. That’s because in July 2019 all states and territories and the Commonwealth agreed, and for reasons that I can’t fathom, some states and territory are saying, “We haven’t been able to get around to doing it yet.” I don’t understand the difficulty, because it wasn’t just a vague agreement in principle – we agreed the precise wording, the exact wording of the amendments. So, NSW reached the stage where we said we’re just going to go ahead and do it, otherwise it’ll never happen if we keep waiting for some jurisdictions to catch up … So come 1st of July, NSW, Victoria, South Australia and Queensland will have enacted. There’s legislation in the ACT parliament that may not be ready by July 1 but it’ll be ready pretty soon after that. I’m pretty confident that Tasmania won’t be far behind – their election, apparently, delayed things. Western Australia says they can do it sometime this year. So, it’s only the Northern Territory that’s an outlier.

BL I did want to talk about education. Why did you feel it was important to have the Education minister at the press conference this week?

MS Because at the end of the day, these reforms are about social change, not just a criminal justice response narrowly. You can’t have a police officer in every bedroom around the country, in every bar or pub, places where people meet each other, or on dating sites. There has to be a social norm. It’s important in schools that young people understand respectful relationships, and it’s not just about the mechanics of consenting to sex, but respectful relationships, generally. But it’s important that we have a big education piece across the community so the community understands these new laws, and that they lead to social change, and not just the kind of general community that will listen to free-to-air, or pay TV, but vulnerable communities, Indigenous communities, cultural and linguistically diverse communities, so that the message gets out there about what’s an appropriate social norm.

BL At the press conference, and then I think again today, you used the phrase “common human decency” to basically describe the standards that we should be able to expect.

MS Yeah, well, I say that because some people said, “Oh, this is all very hard and it’s too high a standard and what does it mean”, but at the end of the day, you shouldn’t have sex with someone unless you know that they want to have sex with you, and it’s not that hard to ask a question, or have some kind of act. It’s not unromantic. It doesn’t kill the mood, the joy of the moment, you don’t need to film it, you don’t need a long contract, you just need a very simple question, or a very simple gesture that indicates that someone wants to have sex with you.

BL What was your response to learning about some of the testimonies that Chanel Contos was gathering?

MS Gobsmacking. I’ve read a lot of them. I haven’t read them all, because there’s so many of them, but I’ve read quite a number on their website. It’s just… it’s just shocking. And it’s sad, this lack of respect for women. It’s just gobsmacking.

BL At the press conference the Education minister only really spoke about educating young people about the new laws. Do you see a role in teaching about ethical consent, as well as legal consent?

MS I do, I do see a role in teaching, because the criminal justice system just sets minimum standards. There’s a difference between what ought to be criminalised and what is appropriate, moral behaviour. I mean, for example, adultery is not criminalised, but most people would disapprove of adultery. The kind of very minimum standards that the Crimes Act will impose, I would hope people would go above and beyond that – in an enthusiastic way.

This article was first published in the print edition of The Saturday Paper on May 29, 2021 as "Gauge of consent".

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