ACT government passes affirmative consent laws

Labor backbencher Marisa Paterson's bill passed the territory's parliament with support from all members on Thursday afternoon.

The amendment to the Crimes Act seeks to clearly define what consent is and is not, with a statutory definition of consent to be included that is based on free and voluntary agreement.

The bill also clearly articulates circumstances when consent is not given. These include cases where a person does not say or do something to resist the act or cases where a person may have consented to another act with the same person.

It also makes clear that a person can withdraw consent at any time.

Dr Paterson told the Assembly she was proud to be the one to bring the bill to fruition.

"It has long been recognised that the ACT needs to introduce a communicative model of consent," she said.

"The people that I stand here today that I really want to recognise today are victim-survivors, those people who have been sexually assaulted in our community, Again, I want to say how deeply sorry I am for what has happened to you.

"I'm so sorry, if you live with this in silence. I'm so sorry if you never found justice.

"I stand here to put into law that every person has a right to choose not to participate in a sexual act."

An affirmative model of consent is one based on people communicating agreement of consent, essentially a "yes means yes" model rather than "no means no".

Dr Paterson first released an exposure draft of the amendment to the Crimes Act last year and consulted with the sector and the community. The bill was introduced to the territory's parliament in February.

It was not the first attempt to introduce affirmative consent laws in the ACT. Former Greens crossbencher Caroline Le Couteur attempted to put through a similar bill in 2018, but this was halted after the justice and community safety committee recommended a number of changes were needed due to clear technical issues.

A controversial element of Ms Le Couteur's bill was that a perpetrator would have to prove they knew, or would have known, consent was freely given.

There were concerns this would put an onus of proof on the perpetrator, meaning it would go against the key pillar of the Australian legal system of innocent until proven guilty.

Attorney-General Shane Rattenbury acknowledged Ms Le Couteur's work on the matter. He said that introducing a positive definition of consent was an important part of the Labor-Greens power sharing agreement.

"By making it clear that consent needs to be sought and given, it changes the status quo when it comes to engaging in sexual activity. No longer are we presuming that a person is consenting unless they indicate they are not," Mr Rattenbury said.

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Opposition Leader Elizabeth Lee said she welcomed the bill and the fact that Dr Paterson had responded to concerns from lawyers around possible unintended consequences.

But Ms Lee said it was important that more needed to be done around changing culture and attitudes.

"Law reform is important and it is incumbent on us, as leaders of our community and as elected members who have the privilege of making laws that impact everyone in our community, to ensure that our laws reflect as much as possible, what we as a society have deemed acceptable and unacceptable," she said.

"There is no place in our society for sexual assault, no place for sexual activity without consent, and no place for there to be any doubt about consent when it comes to sexual interactions."

Dr Paterson said she used the findings from the inquiry into Ms Le Couteur's, along with a NSW law reform commission report that was handed down. NSW passed affirmative consent laws last November.

The ACT is in the process of reforming sexual assault laws after a scathing report of the territory's responses found victim-survivors are faced with a system that fails to meet their needs. It also found people were often retraumatised through their experiences in the territory's justice system, community and government agencies.

Minister for Women Yvette Berry is leading work on the ACT government's response to the report, which is ongoing.

"The impact of this bill will not be limited to legislative change alone," Ms Berry said.

"Legislation can be a meaningful mechanism for community education and cultural change. Reforming the law of consent in this case will support our efforts in the ACT to address and dispel myths about consent, and shift community attitudes towards respectful and equal sexual relationships."

The bill will be reviewed after two years.

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