The Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023 has been introduced to Queensland Parliament.  In January 2024, the Legal Affairs and Safety Committee recommended that the Bill be passed.

Much of the Bill is focused on implementing recommendations arising out of the Women's Safety and Justice Taskforce Hear Her Voice reports.

One of the reforms proposed by the Bill is to legislate for affirmative consent in Queensland.

The law of consent for sexual offences is contained in s348(1) of the Criminal Code (Qld).  As at the time of writing, consent is defined as “freely and voluntarily given by a person with the cognitive capacity to give consent”.  Consent is not “free” and “voluntary” if it was obtained by force, threats, intimidation, fraud or exercise of authority.

The new bill proposes to require a party to a sexual act to say or do something to ascertain that the other party consents to the act.  It also explicitly states that a person who does not offer physical or verbal resistance to an act is not, by reason only of that fact, to be taken to consent to the act”.

Queensland case law already recognises an affirmative consent model, although arguably it is more restrictive than that contained in the Bill.  In the leading case of R v Makary [2018] QCA 258, the Court of Appeal held that “The giving of consent is the making of a representation by some means about one’s actual mental state when that mental state consists of a willingness to engage in an act.” 

Where the new Bill departs from the existing law is the clear statement that consent is not communicated by remaining silent and/or doing nothing.  Queensland case law currently recognises that, depending on the factual circumstances, silence and/or lack of resistance does not equate to consent, but does not necessarily constitute lack of consent either.  This reflects the range of complex, nuanced and non-verbal communicative behaviours implicit in many human interactions.

The new meaning of consent, and in particular the requirement to take positive steps to ascertain consent, is a significant shift in how the legal system deals with sexual offences where lack of consent is an element, such as rape and sexual assault.  One potential consequence is that persons charged with a sexual offence will have to carefully consider whether to evidence at their trial about the positive steps (if any) they took to ascertain consent. The proposed new laws may also impact the directions that a judge must give a jury sitting in a criminal trial.

Now that the LSAC of the Queensland Parliament has prepared its report on the Bill, the government must respond within three months.  The Bill will then be introduced to the Queensland Parliament for debate in due course. 

This article is general in nature and does not constitute legal advice.