Sydney lawyer Margaret Cunneen SC says new affirmative consent laws will delay ‘real cases’

Ex-NRL star Jarryd Hayne’s lawyer has panned new consent laws as “unfair for genuine victims” amid concerns an influx of sex cases will further clog the NSW justice system.

Lawyers are bracing for an influx of sexual assault cases in an already stretched judicial system when new consent laws come into effect on Wednesday.

The new NSW laws would mean all parties have to say or do something to give consent before any sexual activity.

Barrister Margaret Cunneen SC, who is representing former NRL star Jarryd Hayne in his third trial on sexual assault allegations, said the new laws would see an influx of sex cases.

“There are so many sex cases in the system now it is just ridiculous and no doubt there will be more because of this,” she said.

She said the influx of new cases would result in delays that “hold up the real cases with merit and be very unfair on genuine victims and anyone wrongly accused has to wait longer to have his or her name to be cleared”.

Margaret Cunneen SC is critical of the new laws, anticipating a delay in the outcome of cases as a result. Picture: Sam Ruttyn

Margaret Cunneen SC outside Sydney’s Downing Centre courts. Picture: AAP Image/Dean Lewins

Law Society of NSW president Joanne van der Plaat said it was unclear if there would be an increase in prosecutions as a result of the reforms.

“Sexual assault matters already make up a substantial proportion of cases before the District Court,” she said.

“With each of those cases, the Director of Public Prosecutions must be satisfied that any trial has reasonable prospects of success and its prosecution would be in the public interest.

“The Law Society of NSW will monitor the operation of the reforms with interest and looks forward to providing our views when the statutory review of the legislation commences within three years six months of its commencement.”

A screenshot from the Make No Doubt sexual consent campaign.

The state’s Make No Doubt sexual consent campaign.

But NSW Attorney-General Mark Speakman said the government had spent six months with police and courts preparing for when the laws are brought in.

“These reforms are not just about holding perpetrators to account, but changing social behaviour with clearer rules of engagement, therefore driving down the rate of sexual assaults,” he said.

“The NSW Government is working with agencies to ensure judicial officers, lawyers and police are well-informed about the changes to consent law.

“This includes the Judicial Commission of NSW, which provides a continuing education and training program for NSW judicial officers.”

This comes as counsellors said they were expecting a wave of children to come forward with sexual assault claims once consent education becomes mandatory in schools.

Specialist counselling services warned they did not have the capacity for the expected surge, with wait lists already blowing out to 18 months in some parts of the country.

President of the Law Society of NSW Joanne van der Plaat.

Full Stop Australia CEO Hayley Foster. Picture: Supplied

Hayley Foster, chief executive of Full Stop Australia, a charity which advocates for sexual and domestic violence survivors, said services were already chronically underfunded.

“We are a system in crisis,” Ms Foster said.

“The reality is we won’t be able to cope with extra numbers, as we can’t cope now.

“We will be in uncharted territory.”

The Daily Telegraph recently revealed there were long wait list for counsellors and huge black spots across Australia where there were little to no sexual assault services.

Starting next year the new curriculum, which is being rolled out in every state and territory, will look at topics such as age-appropriate consent and respectful relationships.

It will also cover information around gendered stereotypes, coercion and power imbalances.

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