NSW implements affirmative consent laws in June 2022

People in NSW are now required by law to give and obtain consent before they engage in a sex act. The new affirmative consent laws came into operation on 1 June 2022, after being passed by the NSW parliament in November 2021.

What is consent?

Consent is defined in the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 as a free and voluntary agreement "at the time of the act".

The wording "at the time of the act" is crucial. It means consent that might have been given hours earlier is not good enough, and that consent should not be presumed because of what happened in previous sexual encounters.

The new law is designed to clarify that consent can be withdrawn, and that if a person consents to one sexual act, it does not mean they consent to other sexual acts.

Sexual consent cannot be presumed

The law now states that sexual consent involves ongoing and mutual communication and that consent can't be presumed. However, the government said it should not change anything for people already having consensual sex.

Under the new law, a person is not considered to have consented to a sexual act unless they say or do something to indicate they do consent. In other words, you can't assume consent just because they haven't said no, or don't fight off an advance.

The law says people can't consent if they are heavily affected by drugs or alcohol, are unconscious or asleep, or are manipulated or threatened into consenting.

Law Reform Commission report on consent in relation to sexual offences

Under the previous law in NSW, a person could escape conviction for sexual assault if the court found the accused had reasonable grounds for an honest but mistaken belief consent was given.

That issue came up in a controversial case which prompted the government to ask the Law Reform Commission to review sexual consent laws and make recommendations. (Please see Consent in relation to sexual offences, NSW Law Reform Commission.)

NSW Attorney General Mark Speakman adopted the commission's recommendations, which included the new law on consent. (Please see Consent law reform, NSW Communities and Justice media release.)

New consent laws intended to make prosecution of sexual offences fairer

Changing the consent law is aimed at ensuring a fairer and more effective prosecution of sexual offences and improving the experience of victims in the justice system.

From now on, a person charged with sexual assault has to demonstrate they had a reasonable belief consent had been given, and also that they took steps to ascertain it was given.

It remains to be seen whether the new consent law will improve the way sex offences are handled in the justice system.

There are bound to be difficulties in establishing what happened between two people when they tell different accounts, especially if they are required to take steps to obtain consent for every single sexual act.

Even if one person has given every indication of consent, will a court have to decide if the other person is guilty because they did not actually ask for consent for another form of sexual activity?

The consequences are severe. The penalty for sex without consent is set under the Crimes Act 1900 and remains up to 14 years in jail.

NSW Government information on new consent laws

The NSW government has released information on the new sexual consent laws. (Please see the Sexual consent laws page on the Communities and Justice website.)

A government education campaign called Make No Doubt sets out to make the new laws clear. The new consent law will be reviewed in three years.

Karina Sultana
Criminal law
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.