Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Bill 2020

Kindly accept this submission in relation to the above Bill.

The QCCL was established in 1967 and has as its objective the protection of Queenslanders’ individual rights and liberties.

This submission addresses two aspects of this legislation. The first is the changes in relation to mistake and consent. The second is the changes in relation to police banning powers.

Mistake and consent

For the committee’s ease of reference, I enclose a copy of the Council’s submission to the Queensland Law Reform Commission. https://www.qccl.org.au/newsblog/consent-and-the-excuse-of-mistake-of-fact-review

That submission opposed proposals to abolish the defence of mistake in relation to the issue of consent in sexual assault cases, on the basis that a person who makes a genuine mistake about the central feature of a crime cannot be said to have the necessary guilty mind for that crime. There may be a legitimate reason (for example cultural background or learning difficulties) why an accused person misinterpreted the complainant’s behaviour. This is particularly so in the context of sexual interaction.

However, we also recognised, contrary to much discussion in the community, that Queensland law already requires an assessment as to whether a person’s belief about a fact is not only honest but also reasonable.

In other words, Queensland law departs from a strict subjective approach to criminal responsibility when it comes to this defence.

Furthermore, we recognised that the object of promoting and protecting female sexual freedom justified a departure from the purely subjectivist approach.

We submitted that the law should reflect the proposition that in determining whether or not an accused’s belief that a person was consenting was reasonable, the jury should be able to take into account whether the accused was aware of circumstances which would lead a reasonable person to inquire further into the issue of consent. So that if the circumstances known to the accused were such that a reasonable person would not or might not take further steps to ascertain consent, then the accused will not be required to take any further steps either.

We went on to note the opinion expressed by one of our members that in everyday practice directions to juries in Queensland already reflect that proposition.

We note that the Commission in paragraph 7.77 of its report essentially agreed with that assessment.

In our submission, having regard to the potential educative effect of a change to the law, we proposed that a statutory jury direction be enacted reflecting this proposition or alternatively that the law be amended to expressly state this proposition.

The final recommendation of the Commission reflects the latter view and is to be enacted by clause 348A (2) of the Bill. We support this amendment.

Other amendments are made which we also support, namely in section 348(3) to provide that consent is not simply to be inferred from silence, in section 348(4) to confirm that consent can be withdrawn and finally in section 348A (3) to confirm what is already the law, that intoxication cannot be taken into account in assessing the reasonableness of a person’s belief.

Banning orders and licence scanning

For the record, we restate our opposition to these arrangements.

The Council accepts that of course licensees are entitled to comply with their lawful obligations by sighting proof of age. However, in our view the copying of a driver's licence represents a gross violation of the right to privacy.

We certainly would have no objection to licensed venues being supplied with photographs of persons who are banned by Court orders from their premises. This no doubt is a necessary and proportionate measure to effectively enforce such orders

The QCCL opposed the grant to the police of the power to ban persons from being in or around licensed venues. These are a type of preventative measure which tend to be based on over predictions of the likelihood of further offending and on the assumption that the person in question cannot be changed and cannot be trusted to comply with the law

In any event the move on power is entirely adequate.

We characterized the proposed power as transparently open to abuse. It is most likely to be used against indigenous and other disadvantaged members of the community as had been the case with the move on power.

We oppose the amendment which increases the period of the banning order made by a police officer to one month.

Somewhat reluctantly the QCCL accepts the power which has been granted to the Court to issue banning orders. That at least has the advantage that the orders are made by a Court in the context of a sentencing regime having heard argument and been presented with evidence.

Our opposition to the police issuing these banning orders, is reinforced by the frank admission by the Queensland Alcohol-related violence and Night-time Economy Monitoring report, at page 694, that these bans are intended as a form of punishment. As noted above, these types of orders are usually characterised as preventive in nature. Though it has always been our view that they are in fact punitive. The frank acknowledgement that these orders are in fact punitive, means in our view that they should under no circumstances be issued by a police officer. Under our system, the infliction of punishment is the exclusive domain of the judiciary. It should not be being inflicted by police officers.

We trust this is of assistance to you in your deliberations.

9 September 2020