Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Hansard source

As I said in my previous answer, the previous definition of 'consent' was relevant under the previous law to determining whether material was offensive or not, but the elements of the new offence do not require the material to be 'offensive' and so that previous definition is obsolete. The definition of 'consent' applied to the requirement for material to be offensive, and that requirement doesn't exist anymore. Therefore we don't need the definition. Having said that, as I said in my previous answer, it would be expected that the court would rely on the ordinary meaning of the term 'consent', and I explained what that is.

You did just raise the point about cross-examination, Senator Cash, so I thought I might point out here that the new offence requires the person alleged to have committed the offence to either know that the victim does not consent or be reckless as to the lack of consent. Whether a victim is involved in a prosecution to give evidence will be determined on a case-by-case consideration, based on the individual circumstances and admissible evidence. It should also be noted that Commonwealth criminal offences are typically tried in state courts, which will apply state and territory procedural and evidence laws. Many states have specific frameworks for the evidence of special witnesses, including alleged victims of sexual offences.