Note: references to prior convictions mean prior convictions for a child abuse offence. Minimum penalties found in Crimes Act 1914 (Cth) ss 16AAA–16AAB.

The Crimes Legislation Amendment (Coercive Control) Act 2022 (the Act) inserts Div 6A into Pt 3 of the Crimes Act 1900, commenced 1 July 2024. Section 54D(1) in Div 6A creates an offence of abusive behaviour towards current or former intimate partners punishable by a maximum penalty of imprisonment for 7 years. Section 54D(1) criminalises a course of conduct of abusive behaviour by an adult against an intimate partner that:

Section 54F defines abusive behaviour as behaviour that consists of or involves violence or threats against, or intimidation of, a person, or coercion or control of the person against whom the behaviour is directed. Relevant to sexual offences in particular, s 54F(2)(i) provides a non-exhaustive list of behaviour that may constitute abusive behaviour which includes “behaviour that deprives a person of liberty, restricts a person’s liberty or otherwise unreasonably controls or regulates a person’s day-to-day activities.” The legislation includes as an example for s 54F(2)(i) as “making unreasonable demands about how a person exercises the person’s personal, social or sexual autonomy and making threats of negative consequences for failing to comply with the demands”.

Schedule 2 of the Act also inserts s 6A of the Crimes (Domestic and Personal Violence) Act 2007, being a definition of domestic abuse, commenced 1 February 2024. Relevant to sexual offences in particular, a non-exhaustive list of behaviours that may constitute domestic abuse if engaged in or threatened in s 6A(2) includes “behaviour that is sexually abusive, coercive or violent”(s 6A(2)(b)) and a mirror provision to s 54F(2)(i) Crimes Act (s 6A(2)(k)) .

The Amending Act also amends the Crimes (Sentencing Procedure) Act 1999 to include s 54D(1) among the offences to which Div 2, regarding victim impact statements, applies, and the Criminal Procedure Act 1986 to include s 54D(1) in Sch 1 as an indictable offence triable summarily.

The Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 amends the Crimes Act 1900 and the Criminal Procedure Act 1986 in relation to sexual consent. The Act commenced on 1 June 2022. See [1-030] Meaning of “sexual intercourse” and [1-040] Meaning of “consent”/“sexual touching”/“sexual act” below.

The Modern Slavery Act 2018 created new child sexual assault offences in the Crimes Act 1900 to address cyber-sex trafficking. The Act commenced 1 January 2022. Amendments to s 91G of the Crimes Act 1900 create an aggravated offence of using a child for the production of child abuse material, where certain factors are present, and sets out increased penalties for circumstances of aggravation, including imprisonment of up to 20 years (s 91G(3)–(3C)). Sections 91HAA–91HAC created the offences of administering a digital platform used to deal with child abuse material (s 91HAA); encouraging use of a digital platform to deal with child abuse material (s 91HAB); and providing information about avoiding detection (s 91HAC).

The amending Act, relevant sections of which commenced on 1 December 2018 substituted the former s 61HA with a new s 61HA which defines “sexual intercourse” for the purpose of Pt 3, Div 10 of the Crimes Act 1900.

The new consent provision, s 61HE, inserted and expanded the definition of consent to “sexual activity” in the Crimes Act 1900 to include sexual intercourse, sexual touching or a sexual act and applies to offences under under ss 61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF. This section also expanded “knowledge of consent” to include the incitement of the alleged victim or inciting a third person to engage in sexual activity with or towards the alleged victim.

Sections 61L, 61M, 61N, 61O and 61P were repealed with effect from 1 December 2018, although these provisions continue to apply to offences committed or alleged to have been committed before 1 December 2018.

The indecent assault and act of indecency offences found in the former ss 61L–61O were repealed and replaced with offences of sexual touching and sexual acts without consent and sexual touching and sexual acts involving children as follows:

Section 66EA (persistent sexual abuse of a child) was repealed and replaced: Sch 1[20]. Under the new provision:

The jury must be satisfied beyond reasonable doubt that the unlawful sexual relationship existed: s 66EA(5)(a). The jury is no longer required to agree on which unlawful sexual acts constituted the unlawful sexual relationship: s 66EA(5)(c). The new provision extends to a relationship that existed wholly or partly before 1 December 2018 provided the accused’s acts were unlawful sexual acts during the period the relationship existed: s 66EA(7).

The offence of grooming a child under s 66EB(3) was expanded to include circumstances where an adult provides a child with “any financial or other material benefit” intending to make it easier to procure the child for unlawful sexual activity.

Section 66EC created a new offence of an adult providing a person (other than a child) with a financial or other material benefit intending to make it easier to procure a child under that person’s authority for unlawful sexual activity.

Section 73A created a new offence of sexually touching a young person between 16 and 18 under special care. The maximum penalty is 4 years if the young person is aged 16, and 2 years for a young person aged 17. Section 73A(3) defines a relationship of special care. New s 72B includes definitions of an “authorised carer” and a “member of the teaching staff”.

New s 80AF(1) provides for prosecuting a sexual offence (defined in s 80AF(2)) against a child when:

In such circumstances, a person may be prosecuted in respect of the conduct under whichever sexual offence has the lesser maximum penalty, regardless of when the conduct actually occurred: s 80AF(2).

New s 80AG(1) provides a defence to prosecutions for offences against ss 66C(3), 66DB, 66DD, 73 or 73A if the alleged victim is of or above 14 years old and the age difference between the alleged victim and the accused is no more than 2 years: Sch 1[46]. Where the defence is raised, the prosecution bears the onus of proving beyond reasonable doubt that the alleged victim was less than 14 years old or the age difference was more than 2 years: s 80AG(2).

New s 91HAA provides for an exception to an offence under s 91H of possessing child abuse material where the accused possessed the material when they were under 18 years old and a reasonable person would consider the possession acceptable having regard to the matters identified in s 91HAA(b): Sch 1[52].

New s 91HA(9)–(12) provides for additional defences for offences against s 91H:

The amending Act, which commenced 25 August 2017, created new offences to address the non-consensual sharing of intimate images (also known as revenge porn). New ss 91P–91R created personal violence offences for a person to intentionally record or distribute, or threaten to record or distribute, an intimate image of another person without that person’s consent. Each new offence has a maximum penalty of 100 penalty units, or imprisonment for three years.

This amending Act, which commenced on 29 June 2015, repealed the existing basic and aggravated offences of sexual intercourse with a child under 10 under ss 66A(1) and 66A(2) respectively (as implemented by the Crimes Amendment (Sexual Offences) Act 2008). The provisions were replaced by one consolidated s 66A offence, carrying a maximum penalty of life imprisonment. The Act also introduced standard non-parole periods for 13 child sex offences, including under ss 66B, 66C(1), (2) and (4).

This amending Act, which commenced on 1 January 2009, created several new sexual offences:

The amending Act also increased maximum penalties for some offences:

This amending Act inserted a new definition of consent for the purposes of offences under ss 61I, 61J, and 61JA Crimes Act, effective 1 January 2008. This is discussed in the Criminal Trial Courts Bench Book in Sexual intercourse without consent at [5-800].

This amending Act, which commenced on 15 February 2008, replaced the term “malicious” with the modern fault element of “intention or recklessness” in offences under ss 61J, 61JA, 61K, 66C, 80A and 95.

This amending Act inserted a new definition of consent for the purposes of offences under ss 61I, 61J, and 61JA Crimes Act, effective 1 January 2008. This is discussed in the Criminal Trial Courts Bench Book at [5-830].

This Act created a statutory scheme for applications by the Attorney General (NSW) for the extended supervision and continuing detention of persons convicted of a “serious sexual offence” after their sentence has expired. The fact that an application might be made in the future by the Attorney General is not relevant to the determination of a non-parole period: MG v R [2008] NSWCCA 4 at [64]–[79]. The fact that the offender has or may become the subject of an order under the Act is not a matter of mitigation at sentence: s 24A(1) Crimes (Sentencing Procedure) Act 1999.

This amending Act standardised the age of consent for both males and females at 16 years and amended the Crimes Act 1900 by inserting a new range of offences relating to sexual intercourse with a child aged between 10 and 16 years consisting of two offences: sexual intercourse with a child of or above the age of 10 and under 14 years and sexual intercourse with a child who is of or above 14 and under 16 years. Basic and aggravated forms of the offence were created.

This amending Act repealed ss 78H and 78I — homosexual intercourse with a child under 10 years and attempt to commit that offence. It replaced each with gender neutral offences under ss 66A and 66B. The maximum penalties were increased from 20 years to 25 years. The Act also introduced standard non-parole periods for offences under ss 61I, 61JA, 61I, 61M(1), (2) and 66A.

This amending Act, which commenced on 1 October 2001, created the offence of aggravated sexual assault in company under s 61JA with a maximum penalty of life imprisonment.

This amending Act, which commenced on 17 March 1991, repealed ss 61A–61G and inserted ss 61H, 61I, 61J, 61L, 61M, 61N, 61O and 61P. Maximum penalties for sexual offences were also substantially increased (see below). Parliament recognised the particular vulnerability of children less than 10 years of age by increasing the penalties for aggravated indecent assault and acts of indecency. Section 61I created the offence of sexual intercourse without consent and s 61J the same offence but in circumstances of aggravation. The Criminal Legislation (Amendment) Act 1992 amended the definition of sexual intercourse as defined in s 61H to include penetration, to any extent, of the genitalia of a female person or the anus of any person.

Prior to 14 May 1981, sexual assault offences were divided into rape offences and related sexual offences and the term “sexual intercourse” was not defined in the Crimes Act 1900. Under the common law, rape required “carnal knowledge”: penile penetration of the vagina of a woman who was not the accused’s wife without consent: Papadimitropoulos v The Queen (1957) 98 CLR 249 at 261.

The Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996, Sch 3[1] commenced operation on 1 October 1996. The Act amended the Crimes Act 1900 by amending the definition of sexual intercourse to include “sexual connection occasioned by the sexual penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of a person …”: s 61H [emphasis added].

The Crimes Amendment (Cognitive Impairment — Sexual Offences) Act 2008 commenced operation on 1 December 2008. The Act amended the Crimes Act 1900 by inserting a new section defining the term “cognitive impairment”: s 61H.

The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (relevant provisions commenced 1 December 2018) restructures and modernises the language used to describe the sexual offences in Pt 3, Div 10 of the Crimes Act. “Sexual touching” and “sexual act” are defined in the new ss 61HB and 61HC respectively. The definition of “sexual intercourse”, previously in s 61H(1), was inserted into s 61HA.

Meaning of “sexual touching”

New offences of “sexual touching” (s 61KC) and aggravated sexual touching (s 61KD) were inserted into the Crimes Act 1900 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (commenced 1 December 2018). “Sexual touching” is defined in s 61HB.

New s 73A creates a new offence of sexually touching a young person between 16 and 18 under special care: Sch 1[34].

Meaning of “sexual act”

New offences of “sexual act” (s 61KE) and aggravated sexual act (s 61KF) were inserted into the Crimes Act 1900 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (commenced 1 December 2018). “Sexual act” is defined in s 61HC.

The Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (relevant provisions commenced 1 June 2022, LW 13/5/2022) updates and clarifies the definitions of “sexual intercourse”, “sexual touching” and “sexual act” in Pt 3, Div 10 of the Crimes Act (Legislative Assembly, Debates, 20 October 2021, p 7513).

Schedule 1[1] inserts s 61H(4) which provides that, for the purposes of the Division, it is not relevant whether a part of the body referred to is surgically constructed or not. Sch 1 [2], [5] and [20] make consequential amendments to s 61HA(a)–(c) Meaning of “sexual intercourse”, s 61HB(2)(a) Meaning of “sexual touching” and s 61HC(2)(a) Meaning of “sexual act”.

Section 61R was inserted into the Crimes Act 1900 by the Crimes Amendment Act 1989 (commenced 17/3/1991), and read:

Section 61R(2)(a1) was inserted in 1992 (by the Criminal Legislation (Amendment) Act 1992, commenced 3/5/1992) as a result of the decision in R v Mobilio [1991] 1 VR 339. The new subsection provided that “a person who consents to sexual intercourse with another person under the mistaken belief that the sexual intercourse is for medical or hygienic purposes is taken not to have consented to the sexual intercourse”. In 2003, the words “(or any other mistaken belief about the nature of the act induced by fraudulent means” were inserted in s 61R(2)(a1) (by the Crimes Amendment (Sexual Offences) Act 2003, commenced 13/6/2003).

Section 61R was repealed by the Crimes Amendment (Consent — Sexual Assault Offences) Act 2007, Sch 1[1], commenced 1 January 2008.

Section 61HA was inserted into the Crimes Act 1900 by the Crimes Amendment (Consent — Sexual Assault Offences) Act 2007 (the Act), which commenced 1 January 2008. The amendment followed an extensive review of sexual assault in NSW and the adequacy of existing law. The Criminal Justice Sexual Offences Taskforce Report, published in 2006, contained 70 recommendations. A broad range of government and non-government agencies were represented on the Taskforce including those representing women’s and victims’ interests such as the NSW Rape Crisis Centre and the Women’s Legal Service NSW; judicial officers and the Judicial Commission; the legal profession including members of the Bar Association, the Law Society, NSW Public Defenders Office, the Director of Public Prosecutions; the courts; NSW Police, NSW Health, Department of Community Services and academics. See L Wells, “Recent statutory reform of consent in sexual offences” (2008) 20 JOB 1.

The object of the Act was to amend the Crimes Act 1900 to:

The Crimes Legislation Amendment Act 2014 amended s 61HA (commenced 23 October 2014) to apply the statutory definition of consent to attempts to commit sexual assault offences and also negated consent to sexual intercourse in circumstances where consent has been given under a mistaken belief that the sexual intercourse is for health purposes. This expanded the circumstances in section 61HA(5)(c) in which consent is negated, which were then limited to medical or hygienic purposes.

The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (relevant sections commenced 1 December 2018), substituted the former s 61HA with new s  61HA which defines “sexual intercourse” for the purpose of Pt 3, Div 10. New s 61HE, inserts and expands the definition of consent to “sexual activity” in the Crimes Act 1900 to include sexual intercourse, sexual touching or a sexual act (s 61HE(11)). Section 61HE and applies to offences under ss 61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF: s 61HE(1) and is no longer limited, as previously, to “sexual intercourse”. The existing consent provision, s 61HA, was repealed.

Section 61HE(3) has also expanded “knowledge of consent” to include the incitement of the alleged victim or inciting a third person to engage in sexual activity with or towards the alleged victim.

The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 amends a number of Acts to implement recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse and the Child Sexual Offences Review Team. The Second Reading Speech stated that the amendments aim to “rationalise and consolidate our offence framework and improve the chances of successful prosecution of child sexual offences” (Legislative Assembly, 6 June 2018).

The Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021, which commenced 1 June 2022 (LW 13/5/2022), amends the Crimes Act 1900 and the Criminal Procedure Act 1986 in relation to sexual consent.

The amendments arose from the NSW Law Reform Commission (NSWLRC) review of s 61HA of the Crimes Act 1900 (NSW): see NSWLRC, Report 148: Consent in relation to sexual offences, September 2020, p 5. The Attorney General’s reference required the NSWLRC to have regard to: whether s 61HA should be simplified or modernised; the experiences of sexual assault survivors in the criminal justice system; sexual assault research and expert opinion; and the impact or potential impact of relevant case law and developments in law, policy and practice by the Commonwealth, in other States and Territories of Australia, and internationally, on the content and application of s 61HA.

Former s 61HA(3)(c) Crimes Act provided:

The Attorney General’s reference was prompted by community concern over the Lazarus case: Lazarus v R [2016] NSWCCA 52; R v Lazarus (unrep, 4/5/17, NSWDC); R v Lazarus [2017] NSWCCA 279. The Lazarus case, which involved a trial, a retrial and two appeals, highlighted significant issues within the law of consent and the way it is applied in practice, in particular, what constitutes consent to sexual activity (for example, whether and how it should be communicated), and whether and, if so, how the law should address the “freeze” response to non-consensual sexual activity: see NSWLRC, Report 148: Consent in relation to sexual offences, September 2020, p 41.

The NSWLRC report recommended several reforms to the law of consent and knowledge of non-consent: see NSWLRC, Report 148: Consent in relation to sexual offences, p 7.

The amending Act replaces s 61HE (former s 61HA) Crimes Act with a new Pt 3, Div 10, Subdiv 1A “Consent and knowledge of consent” containing new ss 61HF–61HK.

Section 61HF provides that an objective of the Subdivision is to recognise that: (a) every person has a right to choose whether or not to participate in a sexual activity, (b) consent to a sexual activity is not to be presumed, and (c) consensual sexual activity involves ongoing and mutual communication, decision-making and free and voluntary agreement between the persons participating in the sexual activity. “Sexual activity” is defined in s 61HH to mean “sexual intercourse, sexual touching or a sexual act”.

Section 61HI provides a new definition for “consent” generally, including that:

Section 61HJ provides circumstances where there is no consent. Section 61HK updates circumstances where the accused has knowledge of a lack of consent.

New ss 292–292E of the Criminal Procedure Act 1986 provide for jury directions in relation to misconceptions about consent which apply to trials commencing on or after 1 June 2022. See the Criminal Trial Courts Bench Book chapter, “Directions — misconceptions about consent in sexual assault trials”, at [5-200]ff which addresses these amendments and contains suggested directions.

See further the Legislation digest item on the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 on JIRS.