By Madeline Price (she/they)
I would like to pay my respects to the owners of the land, the Jagera and Turrbal peoples, upon which I reside, and their elders past, present and emerging. I would like to acknowledge that sovereignty was never ceded, and that, even today, I actively benefit from the impacts of the colonisation of so-called Australia. I stand with the Aboriginal and Torres Strait Islander communities in their ongoing struggle for justice, liberation, equality and sovereignty. Always was, always will be.
Content warning: this piece discusses violence, sexual violence, rape and sexual assault
Image: Legislate Affirmative Consent. Source: E.Wilder via Canva
I have been thinking a lot about consent over the past few months, as we work towards reforming Queensland’s current laws around consent. I have been thinking about different models across the globe of teaching about and encouraging practice of consent. I have been thinking about how different countries have implemented legislation around affirmative and enthusiastic consent. I have been thinking about the young people I have spoken to recently, discussing the implications of Queensland’s legislative reforms.
But, most of all, I have been thinking about how you should not need an advanced degree in law to be able to understand your state’s consent laws. And yet, it appears you do.
So, to help break it down to layperson’s terms, here is a rundown of the State of the Nation: what consent looks like in each state of Australia.
Australian Capital Territory
Governing legislation: Crimes Act 1900
Age of consent: 16 years of age
In the Australian Capital Territory (ACT), as per section 67 of the Crimes Act 1900, consent cannot be granted where there is:
The infliction of violence or force on the person (or another person who is present or nearby);
The threat to inflict violence or force on the person (or another person who is present or nearby);
The threat to inflict violence of or on, or to use extortion against the person (or another person);
The threat to publicly humiliate or disgrace, or to physically or mental harass, the person (or another person);
The effect of intoxicating liquor, a drug or aesthetic;
A mistaken belief as to the identity of the other person;
A fraudulent misrepresentation of any fact made by the other person;
The abuse of the other person in their position of authority, professionalism or trust over the person;
The person’s physical helplessness or mental incapacity to understand the nature of the act; or
The unlawful detention of the person.
Significantly, physical resistance to an unwanted act is not required in the ACT. This means that if physical resistance is not possible or does not occur (for example, when a survivor ‘freezes’), this cannot be regarded as consenting to the unwanted act.
New South Wales
Governing legislation: Crimes Act 1900
Age of consent: 16 years of age
In New South Wales (NSW), a person consents to an activity of a sexual nature if they freely and voluntarily agree to the sexual activity (section 61HE of the Crimes Act 1900).
Consent is negated where:
The person does not have the capacity to consent (for instance, due to age or cognitive capacity);
The person does not have the opportunity to consent (for instance, where they are unconscious or asleep);
The person only consents due to threats of force or terror (against themselves or another);
The person is unlawfully detained;
There is a mistaken belief as to the identity of the other person, the relationship (ie: if they are married) with the other person, the nature of the activity, or the purpose of the activity;
There is substantial intoxication by alcohol or any drug;
There is intimidatory or coercive conduct (even if it does not eventuate); or
There is a position of authority or trust.
Similar to the ACT, where a person does not physically resist unwanted sexual activity, this cannot be regarded as consenting to the sexual activity.
Northern Territory
Governing legislation: Criminal Code Act 1983
Age of consent: 16 years of age
Consent, in the Northern Territory, means free and voluntary agreement (section 192 of the Criminal Code Act 1983). This means that where a person does not gain consent or is reckless as to the lack of consent, then a crime has been committed.
Consent is not granted where:
There is force or fear of force to themselves or another;
The person is unlawfully detained;
The person is asleep, unconscious or so affected by alcohol or another drug as to be incapable of freely agreeing;
The person does not understand the nature of the act;
The person is mistaken as to the nature of the act or the identity of the other person;
The person mistakenly believes the act is for medical or hygienic purposes; or
There is a false representation as to the nature or purpose of the act.
The Northern Territory takes the requirement for no physical resistance one step further, by directing the jury that a person is not regarded to have consented to an act where they:
Did not protest or physically resist;
Did not sustain physical injury; or
Have earlier on that or a previous occasion consented to that or a similar act.
This means that juries are explicitly told that consent can be withdrawn at any time, and just because someone doesn’t or cannot physically resist does not mean that they consented.
Queensland
Governing legislation: Criminal Code Act 1899
Age of consent: 16 years of age
In Queensland, consent is defined as an act freely and voluntarily given by a person with the cognitive capacity to give the consent (section 348 of the Criminal Code Act 1899). This means it cannot be given where there is:
Force;
Threat or intimidation;
Fear of bodily harm;
Exercise of authority;
False or fraudulent misrepresentations as to the nature or purpose of the act; or
A mistaken belief as to the identity of the person.
Following years of pressure by activists and advocates for law reform, in August, 2020, the Queensland Government released proposed amendments to rape and sexual assault law in the form of the Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Bill 2020.
These amendments aimed to consider and address the serious problems with the current law, and bring Queensland’s legislation up to speed with the other states and territories across Australia. What we have seen instead, is exactly the opposite.
These proposed amendments contained within this bill:
Make no significant changes to the existing law;
Do not require defendants to show that they took positive steps to ascertain consent (this means that the law does not require affirmative consent);
Ignores the problems with the current law by failing to address the serious issues with the mistake of fact defence;
Undermine attempts to eradicate rape myths from the law; and
Rely heavily on research that has not been published or peer-reviewed, has serious methodological flaws and reveals nothing about the attitudes of Australian jurors.
These proposed amendments have been heavily criticised by sexual assault survivors and advocacy groups, including Rape and Sexual Assault Research and Advocacy and Women’s Legal Service Queensland. These organisations (amongst a whole network of other organisations across Queensland and Australia), are pushing for the following changes to be made to these proposed amendments:
That the definition of consent be changed to include that a person does not consent to an act if the person does not say or do anything to communicate consent to the act; and
That the mistake of fact defence be limited, to include that a mistaken belief by the person as to the existence of consent is not honest or reasonable if the person did not take any positive and reasonable steps, by words or conduct, in the circumstances known to the person at the time of the act, to ascertain that the other person was giving consent to the act.
For those without Law degrees, what these mean are:
That the definition of consent will be yes means yes (verbally or by conduct) and anything else is a no; and
If someone does not take any positive steps (such as asking for consent), then they cannot claim they mistakenly believed that consent had been granted.
South Australia
Governing legislation: Criminal Law Consolidation Act 1935
Age of consent: 17 years of age
Similar to most other states and territories, South Australia defines consent as freely and voluntarily given (section 46 of the Criminal Law Consolidation Act 1935). Consent cannot be freely and voluntarily given where:
There is force or implied threat of force or fear;
There is actual or the threat of degradation, humiliation, disgrace or harassment;
The person is unlawfully detained;
The activity occurs whilst the person is asleep or unconscious;
The activity occurs while the person is intoxicated to the point of being incapable of freely and voluntarily agreeing;
The activity occurs whilst the person is affected by a physical, mental or intellectual condition or impairment;
The person is unable to understand the nature of the activity; or
There is a mistaken belief as to the identity of the person or the nature of the activity.
Tasmania
Governing legislation: Criminal Code Act 1924
Age of consent: 17 years of age
Tasmania is unique in its legislation around affirmative consent. In Tasmania, consent means free agreement (section 2A Criminal Code Act 1924). However, free agreement does not occur where:
A person does not say or do anything to communicate consent;
There is force or reasonable fear of force to themselves or others;
There is threat against them or another;
The person or another person is unlawfully detained;
The person is overborne by the nature or position of the other person;
There is fraud or mistaken belief about the nature or purpose of the act, or identity of the accused;
The person is asleep, unconscious or so affected by alcohol or another drug as to be unable to form a rational opinion; or
The person is unable to understand the nature of the act.
Significantly, where a person does not say or do anything to communicate consent, then consent cannot be assumed. In addition, where a person suffers grievous bodily harm, then that alone is enough evidence to signify a lack of consent (unless the contrary is shown).
Victoria
Governing legislation: Crimes Act 1958
Age of consent: 16 years of age
In Victoria, consent means free agreement where there is no:
Force or fear of force or harm against themselves, another person or an animal;
Unlawful detainment;
The person is not unconscious or asleep;
The person is not so affected by alcohol or other drugs as to be incapable of consent or of withdrawing consent to the act.
Significantly in Victoria, recent law changes have introduced ‘gag laws’, preventing survivors of sexual violence (where the offender has been found guilty) from speaking to the media using their own identity.
Western Australia
Governing legislation: Criminal Code Act Compilation Act 1913
Age of consent: 16 years of age
In Western Australia, consent must be freely and voluntarily given, without being obtained by force, threat, intimidation, deceit or any fraudulent means (section 221BB Criminal Code Act Compilation Act 1913).
Similar to the ACT, where a person does not physically resist unwanted sexual activity, this cannot be regarded as consenting to the sexual activity.
This piece was written as part of the One Woman Project’s campaign to reform Queensland’s consent laws. Read more about this and what you can do here.