Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Bill 2020
Plain English Summary
Overview
This bill bundles several unrelated reforms: it clarifies Queensland's sexual consent laws in the Criminal Code based on Law Reform Commission recommendations, reforms the legal profession's Fidelity Guarantee Fund, strengthens alcohol-fuelled violence measures for licensed venues and nightlife areas, bans wagering inducements to protect online gamblers, and makes other miscellaneous amendments.
Who it affects
Victims of sexual assault benefit from clearer consent laws, online gamblers are protected from predatory inducements, licensed venue patrons and staff face stronger ID scanning and banning rules, and previous Fidelity Fund claimants may receive additional payouts.
Sexual consent and mistake of fact
Implements Queensland Law Reform Commission recommendations to make existing case law on sexual consent explicit in the Criminal Code. The changes codify that silence does not equal consent, that consent can be withdrawn at any time, and that a defendant's voluntary intoxication is irrelevant when assessing whether a mistaken belief about consent was reasonable.
- Silence or inaction does not by itself amount to consent to a sexual act
- Consent can be withdrawn by words or conduct, and any act continuing after withdrawal occurs without consent
- Courts may consider what a defendant said or did to check for consent when assessing a mistake of fact claim
- Voluntary intoxication of the defendant cannot be considered when deciding if a mistaken belief about consent was reasonable
Legal Practitioners' Fidelity Guarantee Fund
Reforms the fund that compensates people who lost money through a dishonest solicitor. The Queensland Law Society must now make additional payments, plus interest, to claimants who were previously underpaid because of statutory caps that have since been found to be unfairly applied.
- Statutory caps on fund payouts can only be applied when the fund risks becoming insufficient to meet liabilities
- Queensland Law Society must make top-up payments plus interest to previously underpaid claimants
Tackling alcohol-fuelled violence
Strengthens the regulatory framework for licensed venues and nightlife areas. Police banning notices can now last up to one month instead of 10 days, ID scanning rules are tightened, safe night precincts must be reviewed every three years, and decisions on liquor and gaming machine applications must be published when public objections are received.
- Police banning notices extended from 10 days to up to one month, with review period increased from 5 to 15 days
- New offence for staff who fail to ensure ID scanning compliance at regulated premises (max 10 penalty units)
- Vexatious banning offence created for licensees who ban investigators (max 200 penalty units or 1 year imprisonment)
- Licensee bans automatically removed 30 days after a licence transfer unless the new licensee requests they stay
- Decisions on liquor and gaming machine applications must be published online when objections are received
Wagering inducement restrictions
Bans online wagering operators and racing bookmakers from offering sign-up bonuses, referral rewards, or incentives to keep accounts open. Operators must also get express consent before sending direct marketing and allow customers to easily opt out. These rules implement the National Consumer Protection Framework for Online Wagering.
- Wagering operators prohibited from offering inducements to open accounts or refer friends (max 200 penalty units for corporations)
- Free bets must allow customers to withdraw winnings at any time without turnover requirements
- Direct marketing requires express consent and operators must provide an easy opt-out mechanism
- Operators must take reasonable steps to identify the location of bettors (max 100 penalty units)
Bill Story
The journey of this bill through Parliament, including debate and recorded votes.
▸Committee26 Nov 2020View Hansard
Referred to Legal Affairs and Safety Committee
The Legal Affairs and Safety Committee examined the bill over approximately three months, receiving submissions and holding public hearings. The committee unanimously recommended the bill be passed. Beyond the bill itself, the committee urged the government to undertake urgent consultation on addressing sexual violence in Queensland more broadly, including examining the experience of women in the criminal justice system, and to consider how the Criminal Code applies to youth offenders. The Queensland Government supported all four of the committee's recommendations.
Key findings (5)
- The bill implemented five recommendations from the Queensland Law Reform Commission's extensive review of consent and mistake of fact laws, based on analysis of 135 rape and sexual assault trials and 40 appellate decisions.
- The QLRC found that Queensland's existing laws did not require extensive change but would benefit from being made more explicit in the Criminal Code.
- Submitters raised broader concerns about sexual violence in Queensland beyond the scope of the bill, prompting the committee to recommend urgent stakeholder consultation.
- The Youth Advocacy Centre raised concerns about how the Criminal Code amendments would apply to young people, particularly those aged 10 to 17.
- The bill also included amendments to the Legal Profession Act 2007, Liquor Act 1992, Gaming Machine Act 1991, and Police Powers and Responsibilities Act 2000.
Recommendations (4)
- The committee recommends that the Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Bill 2020 be passed.
- The committee recommends that the Attorney-General undertake consultation with key stakeholder groups as a matter of urgency in regards to addressing sexual violence in Queensland, including examining the experience of women in the criminal justice system and possible future areas for reform.
- The committee recommends that the Attorney-General give consideration to the application of Chapter 32 of the Criminal Code as it relates to youth offenders.
- The committee recommends that further amendments be made to permit the Fidelity Guarantee Fund to provide resourcing for measures likely to have a material effect in minimising the risk or magnitude of misappropriations.
Committee report tabled
▸Second Reading24 Mar 2021View Hansard
▸28 members spoke25 support3 mixed
Supported the bill as fixing a loophole in the context of mistake of fact, while acknowledging concerns from advocacy groups that the amendments do not go far enough.
“I am encouraged by the conversation she has started nationally and how that conversation will be distilled and continued locally.”— 2021-03-25View Hansard
Moved the second reading as Attorney-General, defending the bill as implementing all five QLRC recommendations and announcing the Women's Safety and Justice Taskforce for broader reform.
“Codifying existing case law in the Criminal Code will strengthen and modernise the law in relation to rape and sexual assault offences.”— 2021-03-24View Hansard
Supported the bill as an important first step in eliminating violence against women, emphasising that legislation alone is not enough and education and attitudinal change are also needed.
“Let me say to all survivors that the Palaszczuk government hears you, it supports you and it believes you.”— 2021-03-25View Hansard
As shadow Attorney-General, supported the bill while noting the QLRC was not asked to draft affirmative consent provisions and that more work is needed on the treatment of survivors in the system.
“Given the extensive and thorough work of the commission and recognising the value of the amendments suggested, the LNP will be supporting this bill.”— 2021-03-24View Hansard
Did not oppose the bill but argued it was severely inadequate, tabling amendments to introduce an affirmative consent model and restrict the mistake-of-fact defence. All three amendments were defeated.
“While I will not be opposing this bill given it simply codifies existing case law into legislation, I implore the House to support my amendments today which would genuinely improve the experiences of victims/survivors of sexual assault in our justice system.”— 2021-03-25View Hansard
Supported the bill as a sensible approach drawing on his 25 years of criminal defence practice, cautioning that moving to a pure affirmative consent model could cause more harm than good.
“I support the passing of this legalisation as a sensible approach to a complex issue and a commitment by the government that this is the first step in a holistic review of the experiences of women in the criminal justice system.”— 2021-03-24View Hansard
Supported the bill as a step in the right direction towards eliminating sexual violence, while acknowledging the need for broader cultural change and consent education.
“Reforming our consent laws so that our criminal justice system works better for victims is an ongoing process, but it is a step in the right direction towards eliminating sexual violence in our society.”— 2021-03-25View Hansard
Supported the bill as shadow education minister, emphasising the importance of consent education in schools alongside legislative reform and the role of community leaders as role models.
“Kindness, understanding, empathy and compassion are the cornerstones of respectful relationships and these qualities must be further instilled in our young Queenslanders as a key component of school based education programs.”— 2021-03-24View Hansard
Supported the bill drawing on his experience as a former police officer investigating sexual offences, noting the bill is not perfect but is a solid benchmark to work from.
“The bill as it is is not perfect but, along with my colleagues, I commend the bill to the House.”— 2021-03-25View Hansard
Supported the bill as a committee member, calling on men to challenge problematic behaviour and stereotypes rather than looking for loopholes in morality.
“Stop looking for a loophole in morality or in a moment. Do not look for a reason as to why this sort of behaviour is okay.”— 2021-03-24View Hansard
Supported the bill as part of the government's broader commitment to gender equality and addressing sexual violence, linking consent reform to wider issues of pay equity and women's representation.
“As women and men call for their governments to protect women by holding men to account, we are not grandstanding. What this government is doing is taking action where it counts, keeping women safe and holding perpetrators to account.”— 2021-03-25View Hansard
Supported the bill as a committee member, noting this is only a start and that further reform including attitudinal change, education and better service responses will be needed.
“I do not believe that this matter ends with this legislative debate. If anything, I suspect this is only a start.”— 2021-03-24View Hansard
Criticised the bill for merely codifying existing case law and failing to introduce an affirmative consent model, arguing it is dismissive of survivors' experiences and represents a missed opportunity.
“The law is not working and to simply codify that law is unbelievably dismissive of the experience of survivors.”— 2021-03-25View Hansard
Supported the bill as a committee member, emphasising it as a first important step and praising the establishment of the Women's Safety and Justice Taskforce for a holistic review.
“As long as the blame rests with the victim we will never make real progress.”— 2021-03-24View Hansard
Supported the bill drawing on her experience as a former police officer, providing a detailed technical explanation of how chapters 5, 26 and 32 of the Criminal Code interact on consent and mistake of fact.
“I absolutely understand why many submitters feel that this bill does not go as far as it should, but the QLRC had a specific remit and it has made recommendations. We commit to implementing those recommendations.”— 2021-03-25View Hansard
Did not oppose the bill but filed a statement of reservation, criticising that the changes sought by sexual assault survivors and frontline organisations were not included and prioritised.
“I do oppose, and that is that changes sought by our sexual assault survivors and frontline organisations were not included and prioritised.”— 2021-03-24View Hansard
Supported the bill, noting it codifies existing case law and that the LNP will not oppose it, while acknowledging stakeholder disappointment that it does not go far enough.
“The LNP will not be opposing this bill and appreciate that these amendments to the code are necessary to 'clarify, reinforce and update the current operation of the law'.”— 2021-03-25View Hansard
Supported the bill as Education and Racing Minister, speaking to both the consent amendments and the wagering inducement restrictions, and urging women to come forward.
“This is a warning shot to perpetrators in that when you ask what has changed and when you ask what is going to happen, the answer is: we will no longer be silent.”— 2021-03-24View Hansard
Supported the bill as part of the government's ongoing commitment to women's safety, emphasising the importance of consent education for young people alongside legislative reform.
“I am so proud to be part of a government that is listening to women, that believes women and is doing what we can to address these critical issues for women.”— 2021-03-25View Hansard
Supported the bill as a former lawyer, describing the mistake-of-fact defence as a loophole that needs to be changed, and criticising the government for not acting sooner.
“Quite frankly, no means no. Too many have been able to sail through this hole in our law, leaving victims to rightfully ask why the law has not been on their side.”— 2021-03-24View Hansard
Supported the bill as at least a step in the right direction, while questioning the government's decision to proceed before broader consultation could take place and highlighting the low conviction rates for sexual offences.
“In closing, I support any amendments to archaic laws in order to better protect and support Queenslanders.”— 2021-03-25View Hansard
Supported the bill as former minister for women, sharing a constituent's account of her traumatic experience navigating the criminal justice system after sexual abuse to illustrate why broader reform is needed.
“This is a step, and I want to say that this government, this Attorney-General and this Premier are absolutely committed to doing what needs to be done to make this okay.”— 2021-03-24View Hansard
Supported the bill as part of a continuum of reform to end domestic, family and sexual violence, acknowledging the importance of the Women's Safety and Justice Taskforce.
“I commend the bill to the House. I am proud to support the bill. I see it as part of a continuum of reform and the review will be an important part of that continuum.”— 2021-03-25View Hansard
Supported the bill as necessary to clarify the law, while urging the government to give the Law Reform Commission broader direction to investigate sexual assault legislation and rape culture as a whole.
“While this bill does not seek to address all the questions we have and the changes we need, it is better than what we had and it is at least a small step in the right direction.”— 2021-03-25View Hansard
Supported the bill and also spoke to the amendments strengthening police banning notices in safe night precincts, increasing the initial banning duration from 10 days to up to one month.
“There is no doubt we are at a turning point. As a society, we want to see a defining change made in the way women are treated.”— 2021-03-25View Hansard
Supported the bill and shared personal experiences of sexual assault to underscore the urgency of legislative reform and cultural change on consent.
“I do not need pity. We do not need pity. We need action and we need to fix the way we see women in our society.”— 2021-03-25View Hansard
Supported the bill and provided a detailed technical analysis of how the QLRC recommendations interact with the Criminal Code's provisions on consent and mistake of fact.
“We simply must ensure that the legislation in Queensland not only provides the best protections available today but also continues to be amended where necessary.”— 2021-03-25View Hansard
In reply, defended the bill as implementing all five QLRC recommendations and criticised the Greens amendments as poorly drafted, confusing and lacking human rights compatibility assessments.
“This government has not ruled out support for an affirmative consent model in this state. As I have stated publicly on a number of occasions, this is something that the task force will consider as part of its review.”— 2021-03-25View Hansard
▸In Detail25 Mar 2021View Hansard
Insert new sections 346A and 346B establishing objectives and guiding principles for chapter 32 of the Criminal Code, including recognising the high incidence and under-reporting of sexual assault, and providing guidance to courts on circumstances in which rape and sexual assault occur.
Amend clause 8 to introduce an affirmative consent model requiring each person involved to take all necessary steps to ascertain consent, requiring consent to be clearly and positively expressed, and providing a non-exhaustive list of consent-negating circumstances including being asleep, unconscious, or under threat.
Amend clause 9 to restrict the mistake-of-fact excuse by requiring defendants to show they took positive and reasonable steps to ascertain consent, and removing the defence where the victim was intoxicated, unconscious or asleep.
Government amendments 1-2 to clause 2 setting commencement dates: Part 6 (other than sections 24A and 24B) to commence 1 May 2021; sections 24A and 24B to commence 1 July 2021.
Government amendment 3 inserting new clauses 24A and 24B to amend the Legal Profession Act 2007 regarding expenditure from the Fidelity Guarantee Fund, allowing payments for compliance programs, auditing tools for law practices, and establishing annual reporting requirements to the Minister.
Vote on a motion
Procedural vote related to the government's amendments during Consideration in Detail of the Criminal Code (Consent and Mistake of Fact) bill.
The motion was agreed to.
A formal vote on whether to accept a proposal — this could be the bill itself, an amendment, or another motion.
▸Show individual votesHide individual votes
Ayes (51)
Noes (36)
▸1 procedural vote
Vote to grant leave
Procedural vote to grant the Attorney-General leave to move government amendments during Consideration in Detail relating to commencement dates and Legal Practitioners' Fidelity Guarantee Fund provisions.
Permission was granted.
A vote on whether to grant permission — for example, to introduce an amendment or vary normal procedure.