Message from the President

01/06/2021

On behalf of the New South Wales Bar Association, I acknowledge the media release made on 1 June 2021 on behalf of 23 of its senior members, in response to a statement I made as President of the New South Wales Bar Association last week. Robust discussion about law reform is one of the important contributions the Bar makes to civil society and is to be welcomed.

Sexual assault is an abhorrent crime. It is, and has always been, the position of the Association that the criminal law must respond with clear and unambiguous rules regarding lack of consent.

Through submissions made in the law reform process, the Association has supported changes, including recommendations from the New South Wales Law Reform Commission, that will promote this objective, such as: definitional changes to “sexual touching” and “sexual act”; directions to juries on specific misconceptions; and precluding an accused person from relying on self-induced intoxication to show that they were mistaken about consent.

The Association has expressed its concerns with several other proposals, including: those that would deem consent to be absent even when it was, in fact, present and those that appear overly broad and which could criminalise many consensual sexual relations. The Association also opposes the breadth of some recommendations that would capture all forms of fraudulent conduct and nagging behaviour, legislating an absence of consent, rather than leaving the issue of whether the conduct resulted in an absence of consent to the jury.

Much will depend on the way that the proposed new provisions are drafted and the Association looks forward to seeing the precise model in draft legislation.

Consent is an extremely important issue. It is necessary and appropriate that there be widespread and informed community discussion regarding the direction of law reform in this area.