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Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Bill 2020

Members may be aware, from media coverage, that a Bill concerning consent and mistake of fact is currently before the Queensland Parliament.

QLS supports the measures introduced by the Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Bill 2020 (the Bill). The Bill was introduced into Parliament on 26 November 2020, and the second reading of the Bill is scheduled to be moved at the next parliamentary sitting on 23 March 2021.

The Bill adopts recommendations made by the Queensland Law Reform Commission (QLRC) in its ‘Review of consent laws and excuse of mistake of fact‘ report, and aims to clarify the existing law around consent, bringing the legislative principles in the Criminal Code 1899 (Qld) (the Code) in line with case law and contemporary standards.

The QLRC’s recommendations are based on its thorough investigation and analysis of the criminal and case law applying to rape and sexual assault. The amendments proposed by the QLRC and adopted by the Bill are consistent with the interpretation of the Code by courts, and provide express clarity around consent, when consent it is taken to be given and withdrawn, and how the excuse of mistake of fact is to be applied.

QLS supports evidence-based and objective law reform which builds on a rigorous examination of the law and its efficacy. QLS also supports the inquiry into women’s experiences in the criminal justice system and the obstacles in the system that present barriers to just outcomes for victims and accused persons.

The definition of ‘consent’ is a central concept in rape and sexual assault cases and is defined in section 348 of the Queensland Criminal Code as follows:

(1) … consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.

(2) Without limiting subsection

(1), a person’s consent to an act is not freely and voluntarily given if it is obtained –

(a) by force; or

(b) by threat or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

(e) by false and fraudulent representations about the nature or purpose of the act; or

(f) by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.

This definition of consent under Queensland law mandates that consent must be given and communicated.

QLS welcomes and supports the amendments that will codify existing case law into the Code, promoting consistency and making the law more accessible to the public, judiciary and legal profession.

In supporting the Bill, however, QLS acknowledges the long-lasting trauma associated with rape and sexual assault cases, regardless of the legal outcome.

Recent media reports continue to demonstrate an urgent need for changes in how our society responds to victims, particularly in the early stages of medical assistance and reporting to police. More needs to be done to prevent, respond to and improve the standard of responses to sexual violence.

The Society looks forward to participating in the consultation process of the wide-ranging review into the experience of women across the criminal justice system to be undertaken by the Women’s Safety and Justice taskforce, led by Margaret McMurdo AC.

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