Refinements to Queensland consent laws proposed by the Queensland Law Reform Commission have been passed following a strong debate in Queensland Parliament.
The debate on the Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Bill drew impassioned contributions from members of Parliament on all sides of the political divide acknowledging that more needs to be done in our criminal justice system to be responsive to the needs of victims of sexual assaults and rape.
In closing the debate, the Attorney-General and Minister for Justice, Minister for Women and Minister for the Prevention of Domestic and Family Violence, Shannon Fentiman, said:
“The codification of existing case law with respect to consent and mistake of fact is an important measure to ensure the law is accessible to all. The Bill will assist judges to provide properly informed directions to a jury and will inform discussion and education to change attitudes and prevent sexual violence.
“This legislation is only one component of the work needed to eliminate sexual violence from our community and ensure access to justice for women. I have canvassed the work of the newly established Women’s Safety and Justice Taskforce in my second reading speech and take this opportunity to reiterate the critical role that the task force will play in addressing these issues.”
In response to calls for elements of the systems used in other jurisdictions, the Attorney-General said:
“You cannot simply pick up legislation from another jurisdiction and drop it into Queensland law. The Government understands that there are many in our community who want a stronger affirmative consent model in Queensland’s Criminal Code. All members want to improve the quality of justice outcomes for women in Queensland.
“Preserving the rights of the accused to a fair trial and improving outcomes of victims of sexual violence should not be seen as mutually exclusive goals. This Government believes that with careful, considered, evidence-based law reform both ends can be achieved.
“Public confidence in the criminal justice system to deliver justice fairly and accurately is a critical part of stable democracy. That is why we have established this taskforce, bringing together experts from a range of disciplines to make sure we get the balance right.”
On the broader context of reform and the Bill, Shadow Attorney-General Tim Nicholls said during the debate:
“Given the extensive and thorough work of the commission and recognising the value of the amendments suggested, the LNP will be supporting this Bill.
“Having said that, we remain open to the consideration of further legislative changes that, as I said in my opening remarks, are strongly supported by the evidence and that deliver a better system and outcomes than that which it seeks to replace. That must be the key to changes to this system: they must deliver a better outcome than that which they seek to replace.”
The QLRC report had already canvassed many of the issues which arose in the debate on the Bill inside and outside of Parliament. With respect to the issue of affirmative consent, the QLRC noted in its report:
“5.38 In the Commission’s view, two significant aspects of the current law relating to the definition of consent reflect what has been variously described as an affirmative, communicative or positive consent model, namely:
• consent is a state of mind, but it must also be ‘given’ (that is, communicated); and
• mere failure to manifest an absence of consent by words or actions is not sufficient to prove that consent was given.
5.39 The current law requires consent to be communicated by the complainant. Mere silence and passivity at or before the time of a sexual act do not communicate consent. On a practical level, this may encourage the party initiating sexual contact to make positive efforts to ascertain consent.”
And in noting the state of awareness of the current law in Queensland, the QLRC said:
“5.43 The Commission recognises, however, that the existing aspects of an affirmative consent model may not be widely understood in the community. This is, in the Commission’s view, partly a consequence of some of those matters being found in case law rather than in the express terms of the Criminal Code.”
If you require assistance, support or referral information in relation to a sexual assault, contact the Sexual Assault Helpline. The following Queensland Government websites also provide further resources and contact information:
QLS members can access LawCare for counselling and assistance for themselves, staff and immediate family. Login via the QLS website for 24-hour confidential information or for appointments call 1800 177 743.