Sexual consent laws in Queensland: An overview
Queensland's sexual consent laws are contained in both statute and the common law.
Section 348(1) of the Criminal Code refers to consent “‘freely and voluntarily given by a person with the cognitive capacity to give the consent”. The section then sets out a non-exhaustive list of circumstances where consent is not “free and voluntary” such as where it is obtained by force, threats, intimidation or use of a position of authority.
In February 2021, the Legal Affairs and Safety Committee of the Queensland State Parliament tabled its report into the Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Bill 2020. The Bill clarifies the definition of consent in several ways, including:
- a complainant or victim who fails to say “no” by words or action cannot be taken to have given consent. In other words, absence of objection does not mean consent
- consent may be withdrawn at any time prior to or during sexual activity
- in considering whether it was reasonable for an accused person to have a mistaken belief about consent, a jury may consider anything that he or she did to ascertain whether the other person was consenting
- an accused person’s voluntary intoxication is not relevant to whether he or she reasonably believed the person was consenting.
The case of R v Makary  2 Qd R 528 is one of the main Queensland Court of Appeal cases about consent. The decision makes clear that consent involves two aspects.
First, a person must mentally wish to engage in a particular act. Put another way, the decision to say “yes” must manifest in the mind of the person consenting.
Second, the person must “give” consent. They need to represent or communicate their consent in some way, either through words or actions. As noted above, failure to say “no” does not amount to consent.
To be consent, the person must be consenting to the particular act that is performed. For instance, agreement to kiss a person does not amount to consent to then have sexual intercourse.
The law in relation to consent in Queensland was very comprehensive reviewed by the Queensland Law Reform Commission. You can find a copy of the Commission's 2020 report here.