The NSW Government’s Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021 passed the NSW Parliament with almost unanimous parliamentary support in November 2021.
These reforms were informed by extensive stakeholder consultation, legal research, case law analysis and drafting undertaken by the NSW Law Reform Commission.
In May 2018, the NSW Government tasked the NSW Law Reform Commission with undertaking a “review and report on consent and knowledge of consent in relation to sexual assault offences”. The inquiry’s terms of reference specified factors that the NSW Law Reform Commission should have regard to in undertaking this inquiry, including “Sexual assault research and expert opinion” and “The impact or potential impact of relevant case law and developments in law, policy and practice by the Commonwealth, in other States and Territories of Australia, and internationally”. The terms of reference did not refer to statistics.
The NSW Law Reform Commission detailed its research methodology from [1.39]-[1.56] of its Report.
The Report stated that its research methodology included (footnotes omitted):
(a) “inviting preliminary submissions from members of the community and key organisations and agencies. We received 110 preliminary submissions, representing an unprecedented level of engagement at the preliminary stage of a review. We held meetings with some of the key agencies and organisations with knowledge of the law of consent and its practical effect.”
(b) “In October 2018 we released a Consultation Paper which examined the elements of s 61HA (as it then was) and invited views on whether the law needs to change. We received 36 submissions in response to the Consultation Paper, largely from legal agencies and advocacy groups.”
(c) “In order to encourage people who otherwise might not participate in a law reform process to have their say about the law of consent, in October 2018 we published an online survey using SurveyMonkey. Respondents accessed the survey through Facebook, Twitter, our website or our mailing list… The number of responses was significantly larger than we have ever received to a Commission survey. In total, 3858 people accessed the survey.”
(d) “Between February and December 2019, we consulted with a wide range of groups and individuals. These included judges, prosecutors, defence lawyers, community legal centres, advocacy groups, police representatives, health professionals, community organisations and academics. Consultations took place in metropolitan and regional NSW, as well as in Victoria and Tasmania. During the interstate visits, we spoke to legal experts about the approaches to consent in those States, and what they perceived to be the benefits and disadvantages of these approaches.”
(e) “We conducted significant research into legislation, case law and law reform reports from NSW, other Australian states and territories, and internationally.”
(f) “We also undertook an extensive review of academic literature on issues relating to consent and sexual offending”.
(g) “To obtain a sense of the themes and issues raised in sexual assault trials, we reviewed a sample of transcripts of 16 trials conducted in the District Court in 2017– 2018. The trials involved at least one charge of sexual assault (although some involved multiple charges, including related offences such as aggravated sexual assault). The sample included a mixture of:
trials resulting in guilty and not guilty verdicts
jury and judge-alone trials, and
trials heard in central Sydney, suburban Sydney and regional courts.
We also reviewed a sample of reasons for judgment issued by judges in 12 judgealone trials. This research has informed our review and we refer to relevant transcripts and judgments in various chapters of this Report.”
(h) “We released Draft Proposals in October 2019 and invited public responses…We received 51 submissions in response. We have taken these responses into account in preparing our final recommendations.”
While Chapter 2 of the Report referred to data, including from the Australian Bureau of Statistics, the Bureau of Crime Statistics and Research (BOCSAR) and others, the limitations of these statistics were acknowledged by the NSW Law Reform Commission at [2.1]-[2.6]. No datasets were cited in the bill’s Second Reading Speech in the Legislative Assembly on 20 October 2021 or on 12 November in the Legislative Council.
The development of the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 was informed by further consultation, undertaken by the NSW Government independent of the NSW Law Reform Commission’s processes, during drafting of the bill. As stated in the Second Reading Speech, this consultation involved more than 20 targeted stakeholders, including service providers, the legal profession, experts and academics.
On Friday 12 November 2021, my office informed me of advice received that evening from BOCSAR that there was a data error in the Report in which incorrect BOCSAR figures were included and that work was underway to correct this publication.
On Monday 15 November 2021, BOCSAR advised the NSW Law Reform Commission Secretariat of a BOCSAR data error in the Report.
On Tuesday 16 November 2021, BOCSAR advised the NSW Law Reform Commission Secretariat and my office that it had discovered that the Report contained some inaccurate BOCSAR statistics. BOCSAR advised that accurate data was currently being prepared.
On 16 November 2021, my office requested advice from BOCSAR as to what processes and approvals occurred prior to and at the time the data was released, and what changes BOCSAR was proposing moving forward to address these issues
On 19 November 2021, BOCSAR advised that the inaccurate statistics resulted from human errors in the data processing and that the corrected data remained consistent with the NSW Law Reform Commission’s assessment that the rate of legal actions and convictions for sexual offences are low. BOCSAR advised that changes had now been implemented to BOCSAR’s processes.
I requested BOCSAR take further steps with a view to promoting the accuracy of data provided in response to data enquiries moving forward.
I am advised that the NSW Law Reform Commission issued a statement on 6 December 2021, which is available at https://www.lawreform.justice.nsw.gov.au/Documents/Current-projects/Consent/NSWLRC%20Statement%20-%20Report%20138%20-%206%20Dec%202021.pdf .
The timing and content of that statement are matters for the NSW Law Reform Commission as an independent statutory body constituted under the Law Reform Commission Act 1967 (NSW).
The NSW Law Reform Commission’s statement notes at [1.5] that “The NSW Law Reform Commission considers that, although there have been changes to the figures and percentages, these do not affect our conclusions in the report, which remain supported by the correct data.”
