A few weeks ago we commented in this blog on changes to laws on consent in Ireland. Consent is an issue attracting much attention worldwide and there have been changes in New South Wales (NSW) by which people are required by law to give and obtain consent before they engage in a sex act. The new affirmative consent laws came into operation on 1 June 2022, after being passed by the NSW parliament in November 2021.

The Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 implemented consent reforms that aim to:

• clarify consent provisions in the Crimes Act 1900, including that consent is a free and voluntary agreement that should not be presumed;
• clarify that consent involves ongoing and mutual communication;
• strengthen laws to confirm that consent can be withdrawn, and that if someone consents to one sexual act, it doesn’t mean they’ve consented to other sexual acts;
• ensure fairer and more effective prosecutions of sexual offences;
• address misconceptions about consent in trial proceedings;
• improve victim experience of the justice system and juror understanding of the complexities of sexual offending and reporting through the introduction of new jury directions.

Under the new law, a person is not considered to have consented to a sexual act unless they say or do something to indicate they do consent. The new laws require parties to give and obtain consent “at the time of the act”. This means consent that might have been given earlier is not enough. 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.