Consent law reform

Last published on 25 May 2021

Sexual consent laws will be strengthened and simplified under NSW Government reforms designed to protect victim-survivors and educate the community.

Attorney General Mark Speakman acknowledged the growing calls across the community for reforms to respond more effectively to the scourge of sexual violence in this country.

“No law can ever erase the trauma of sexual assault, but we can send the message that survivors’ calls for reform have been heard,” Mr Speakman said.

The key reforms include stipulating that:
(a) a person does not consent to sexual activity unless they said or did something to communicate consent, and
(b) an accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent.

The reforms respond to recommendations made in NSW Law Reform Commission (LRC) Report 148 (PDF 3,140 KB). In May 2018, Mr Speakman asked the LRC to review consent laws.

The LRC’s final report was published in November 2020, following significant community engagement with this issue.

The LRC received 110 preliminary submissions, 36 submissions in response to its Consultation Paper, and 51 submissions in response to its draft proposals. Almost 3900 people accessed its online survey.

The Government is supporting, or supporting in principle, all 44 of the LRC’s recommendations, except to go further by clarifying that an accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent.

“This means we will have an affirmative model of consent, which will address issues that have arisen in sexual offence trials about whether an accused’s belief that consent existed was actually reasonable,” Mr Speakman said.

“No one should assume someone is saying ‘yes’ just because they don’t say ‘no’ or don’t resist physically. Steps should be taken to make sure all parties are consenting.

“I particularly thank survivor Saxon Mullins for her extraordinary bravery in sharing her story and tireless advocacy for victim-survivors, which have contributed to this historic reform.”

Survivor Advocate and Director from Rape & Sexual Assault Research & Advocacy, Saxon Mullins, welcomed the proposed reforms, which she described as a huge leap forward for consent laws in NSW.

“After so many years fighting for this, it’s almost hard to believe we’ll actually have affirmative consent laws in NSW,” Ms Mullins said.

“I know there’s so much more to do in this space, but this is a huge win for survivors, and I’m so grateful for all the survivors and academics who’ve paved the way for this to happen.

“I thank the Attorney General for going the extra step to ensure affirmative consent will be law in NSW.”

NSW Police Commissioner Mick Fuller said police are committed to preventing sexual assaults and supporting victims who come forward.

“As police, our primary role is to support victims who courageously come forward to police to report sexual assault and any reform that improves confidence in the judicial process is supported,” Commissioner Fuller said.

“I have already stated publicly that I have real concerns about low prosecution rates for sexual assault matters, and a clear definition of consent is integral to improving better outcomes for victims.

“I support the Government’s reforms to consent laws, which will provide certainty to victims and police as we embark upon prosecutions of these degrading and violent crimes.”

Amongst other changes, the reforms also introduce five new jury directions available for judges to give at trial to address common misconceptions about consent.

“These directions will support complainants by ensuring their evidence will be assessed fairly and impartially, and that juries will be able to better understand the experiences of sexual assault survivors,” Mr Speakman said.

“I thank the Law Reform Commission and lead Commissioner, the Honourable Acting Justice Carolyn Simpson AO, for a thorough and thoughtful report.”

Minister for Education Sarah Mitchell said that schools and parents play significant roles in changing societal attitudes and will be important partners in supporting these reforms.

“All school sectors have committed to tackling the issue of consent through a Statement of Intent, promising increased engagement with students, staff, police and parents on the challenges of sexual assault and consent for young people,” Ms Mitchell said.

“The Government will improve the resources available for teachers and students, updating both the curriculum and the resources used to support students’ understanding, to reflect the changes brought about by these legal reforms.

“We will also work with parents and carers to develop specific resources so that families are part of the solution as we continue towards a culture where sexual violence is never acceptable."

Minister for Women Bronnie Taylor said while anyone can be a victim of sexual violence, statistics show that women and girls are far more likely than men and boys to experience sexual offences.

“Women and girls are more likely to experience sexual violence and this is particularly the case for women with disability, Aboriginal and Torres Strait Islander women, women from culturally and linguistically diverse communities and those in regional NSW,” Mrs Taylor said.

“Today marks a turning point for our State. We have a chance to address the systemic issue of sexual violence and improve access to justice for all victim-survivors across NSW.”

The NSW Government today also committed to fund a research project designed to improve our understanding of victim experiences with the criminal justice process, and a targeted education program for judges, legal practitioners and police.

Another public education campaign is also under development to commence later this year, which will build on the success of the Government’s #makenodoubt campaigns.

A Bill to give effect to the reforms will be introduced to NSW Parliament later this year.

If you or someone you know has experienced sexual assault, support is available from those who are trained to help: call NSW Rape Crisis on 1800 424 017 or 1800 RESPECT on 1800 737 732.

Download Media Release and fact sheet: Consent law reform (PDF , 584.3 KB)