Affirmative Consent and Investigative Practice
Applying NSW Principles to Institutional Investigations
Affirmative consent means that every person has a responsibility to ensure that sexual activity is based on clear, mutual and voluntary agreement. Consent should never be assumed—it should be communicated.
The introduction of the National Higher Education Code to Prevent and Respond to Gender-based Violence (GBV) has reinforced the importance of affirmative consent as a consideration in university GBV investigations. While affirmative consent has been part of the legal landscape for several years, its principles are relevant when assessing allegations of gender-based violence within higher education settings.
Although university investigations are not criminal investigations and do not make findings of criminal guilt, investigators are often required to consider whether consent was clearly communicated, voluntary and ongoing, alongside the broader circumstances and available evidence. Understanding how affirmative consent operates in practice is therefore critical to conducting fair, thorough and trauma-informed university investigations and to assessing whether conduct is consistent with institutional policies and expectations.
The law in New South Wales recognises that consent is an active and ongoing process. It cannot be assumed because a person does not resist, does not say “no”, has previously consented, or is in an existing relationship with the other person. Rather, each person is responsible for taking reasonable steps, in the circumstances, to ensure that the other person is freely and voluntarily consenting before and throughout sexual activity.
The affirmative consent framework was introduced into the Crimes Act 1900 (NSW) by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 and applies to sexual offences committed on or after 1 June 2022. The relevant provisions are contained in sections 61HF–61HK.
Although this article focuses on legislative reforms in New South Wales, it is important to note that other jurisdictions across Australia have also enacted legislative reforms reflecting the principles of affirmative consent, although the extent of those reforms varies. New South Wales, the Australian Capital Territory, Victoria, Queensland and Tasmania have adopted statutory provisions requiring consent to be actively communicated, while South Australia and the Northern Territory have modernised their consent laws without adopting the full NSW model. Western Australia remains the only Australian jurisdiction that has not enacted a comparable affirmative consent framework.
What is Affirmative Consent?
Under section 61HI, consent means free and voluntary agreement to sexual activity.
Consent may be communicated through words or actions. However, under section 61HJ, a person does not consent unless they say or do something to communicate consent. Silence, passivity or lack of resistance are not enough on their own.
The law also requires reasonable steps to ascertain consent. Under section 61HK, a belief in consent will generally not be reasonable unless those steps were taken before or during the activity.
Consent is Ongoing
Consent is not a one-time event. It must exist throughout the sexual activity and may be withdrawn at any time.
Consent to one type of sexual activity does not imply consent to another, and consent on one occasion does not imply consent on another.
If consent is withdrawn, sexual activity must stop immediately.
The Effect of Intoxication
Alcohol or drug consumption does not automatically negate consent. However, intoxication may affect a person’s capacity to freely and voluntarily agree to sexual activity or to communicate consent.
Where intoxication is such that a person cannot understand the nature of the activity, make a voluntary decision or communicate agreement, they are not capable of consenting.
Intoxication may also affect a person’s ability to perceive whether consent has been communicated. When considering a person’s ability to perceive consent, courts will consider whether intoxication was voluntary/self-induced.
The Role of Third-Party Observations
Third-party observations are often relevant in institutional investigations and may come from people who saw part of the interaction before, during or after the alleged incident. This can include friends, students, staff, security, residential staff or CCTV footage.
Such evidence can help clarify surrounding circumstances, including intoxication, demeanour, behaviour, physical condition, interactions and events immediately before or after the alleged conduct.
However, third-party observations alone cannot determine whether affirmative consent was present. Consent is communicated between the individuals involved and may be expressed in ways that are not visible to others. Similarly, the absence of visible distress, resistance, or objection does not, by itself, indicate consent.
Third-party evidence should therefore be considered with all other available material. The weight given to it will depend on its reliability, relevance and consistency with the overall evidence.
Emerging Judicial Approach in NSW
The affirmative consent reforms commenced on 1 June 2022 and the law continues to develop through the courts. While there have been relatively few appellate decisions interpreting the new provisions, the emerging judicial approach demonstrates several important principles, in particular:
- Consent is assessed by considering all the circumstances of the case;
- Affirmative consent does not require verbal agreement in all circumstances but requires positive communication of agreement;
- Whether a belief in consent is reasonable depends on whether the accused took reasonable steps to ascertain consent, assessed in context rather than by rigid rules.
The focus has shifted from whether a person physically resisted and towards whether there was evidence of active, mutual communication of consent. Similarly, whether a person took reasonable steps to ascertain consent is a factual question that depends on the circumstances of each case rather than a prescribed checklist.
Affirmative Consent and Relevance to Institutional & Misconduct Investigations
Institutional and misconduct investigations are not criminal proceedings and are determined on the balance of probabilities rather than beyond reasonable doubt. The affirmative consent framework assists in assessing conduct by considering whether consent was freely given, clearly communicated and maintained, and whether the evidence supports compliance with these principles.
In assessing affirmative consent, investigators consider the totality of the evidence rather than any single fact. This typically includes the accounts of the parties, contemporaneous evidence, third-party observations and surrounding circumstances.
No single piece of evidence is determinative. Investigators assess the reliability, credibility and weight of all available material to determine, on the balance of probabilities, whether the conduct occurred and whether it complied with institutional policy and principles of affirmative consent.
Affirmative consent is an active, ongoing and context-specific standard that requires clear and voluntary agreement throughout sexual activity. In both legal and institutional contexts, its application depends on a careful assessment of all available evidence, including the surrounding circumstances and the conduct of the parties. Institutional investigations apply this framework on the balance of probabilities to determine whether behaviour complied with policy and the principles of affirmative consent.
Accordingly, investigators working within national higher education institutions should be aware that, although legislative requirements differ between jurisdictions, the underlying expectation of active and communicated consent is now reflected across most Australian consent frameworks and is consistent with contemporary institutional approaches to preventing and responding to gender-based violence.
References
- Crimes Act 1900 (NSW) ss 61HF–61HK; Crimes Act 1900 (ACT), ss 50B–50C and s67; Crimes Act 1958 (Vic), ss 36, 36AA, 36A and 36B; Criminal Code Act 1899 (Qld), ss 348–348A; Criminal Code Act 1924 (Tas), s 2A; Criminal Code Act 1983 (NT), s 208G; Criminal Law Consolidation Act 1935 (SA), s 46; Criminal Code Act Compilation Act 1913 (WA), s 319(2).
- Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW).
- Judicial Commission of NSW, Criminal Trial Bench Book – Sexual intercourse without consent (from 1 June 2022).
Sentara Consulting provides this information for general informational purposes only. It does not constitute professional advice and should not be relied upon as a substitute for independent advice tailored to your particular circumstances.
