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NSW affirmative consent laws: what do they mean and how will they work?

New laws require parties to give and obtain consent ‘at the time of the act’ from 1 June 2022

Campaign image for consent laws, NSW Government
Advocates say new affirmative consent laws in NSW bring legislation in line with already held public attitudes. Photograph: NSW Government
Advocates say new affirmative consent laws in NSW bring legislation in line with already held public attitudes. Photograph: NSW Government

New affirmative consent laws took effect in New South Wales on Wednesday after passing parliament last November.

We take a look at what these laws will mean for people across the state.

What are the new laws and what is affirmative consent?

The new laws require parties to give and obtain consent “at the time of the act”. A person is not considered as having consented unless they say or do something to indicate that consent has been given.

A person cannot consent if they are so intoxicated that they cannot choose or refuse to participate and they cannot consent if they are asleep or unconscious. A person will also not have a reasonable belief that there is consent unless they have done or asked something to make sure.

Swinburne law lecturer and executive director of Rape and sexual Assault Research and Advocacy, Rachael Burgin, said the changes are bringing the law into line with already held community expectations.

“You cannot say, for example, ‘I assumed someone was consenting because they didn’t fight back or they didn’t say no’,” Burgin told the Guardian. “Instead, people who want to have sex with somebody must say or do something to make sure that they have the consent of the other person or persons. That’s the real crux of it.”

Consent is defined as a free and voluntary agreement at the time of the act, Burgin says.

“The inclusion of those words – at the time of the act – means that it’s not something that happened hours before,” she says.

The reforms apply to any offence committed, or alleged to have been committed, on or after 1 June 2022.

Why have these changes made?

Burgin puts it simply: “We got here on the advocacy of one woman: Saxon Mullins.”

Mullins, who is now the lead advocate at Rape and Sexual Assault Research and Advocacy, came forward with her own story in 2018 as part of a Four Corners program that showed the issues embedded in the state’s consent laws.

The ABC investigation focused on the case of Sydney man Luke Lazarus, who was found not guilty of sexual assault on appeal.

Lazarus was initially found guilty at his first trial. This was overturned on appeal, and was then found not guilty during a retrial when judge Robyn Tupman found he had a “genuine belief” that Mullins consented. That ruling was later overturned but the court of criminal appeal did not order another trial.

After the program aired, NSW attorney general, Mark Speakman, referred consent laws to the Law Reform Commission for review before new laws were drafted and then passed in 2021.

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What does that mean for the way people engage in sexual activities?

For people who were already having consensual sex, it should not change anything, according to Burgin.

“If people are worried that it’s going to ruin their sex lives then they should be having a long, hard look at the nature of their sex lives,” she says.

“This is not changing the way consensual sex works. It’s common-sense law that aligns with public attitudes.”

How will people know about these changes?

The NSW government last week launched an education campaign on social media and dating apps to show young people how easy it could be to have consent conversations.

It’s hoped the short videos – depicting scenes that young people could find themselves in – would equip the target group of 16 to 24-year-olds with the tools to give and ask for consent, and respect when someone says “no”.

Mullins said that, unlike the federal government’s widely panned milkshake consent video, the ads were tackling the issue head-on.

“Talking around the issue feeds into that uncomfortable awkwardness that people sometimes feel trying to initiate these conversations,” she said. “That’s the main difference between that and some other campaigns we’ve seen that have tried to be coy in a space where you cannot be coy.”

But advocates are still calling for more work to be done to educate the wider population and change attitudes towards women more broadly.

What else can be done?

While advocates and campaigners are celebrating these laws coming into effect, there are widespread calls for more education and better funding for services like the NSW sexual violence helpline run by Full Stop Australia. Organisation head, Hayley Foster, was concerned that survivors looking for support would not be able to find it due to underfunding of services, with a third of calls to the helpline going unanswered.

“This campaign, alongside the law change, may well mark the beginning of a new era of respectful relationships, but it is essential that that’s supported by services,” she said. “It’s a terrible feeling to go home knowing that people are calling our line and can’t get through.”