"You must explicitly ask for permission to have sex. If it's not an enthusiastic yes, then it's a no," Ms Goward said. "I feel that this is where the law in NSW needs to go. That is certainly the case in Tasmania and I'm hopeful that the Law Reform Commission will come to a similar conclusion." But Mr Speakman said the government was “not committing to any particular outcome” and it wanted to “get the balance right”. Loading Replay Replay video Play video Play video Tasmania does not set the bar as high as "enthusiastic consent" but its laws require a positive indication of consent, meaning a failure to say no cannot be used as evidence of agreement.

Shadow Attorney-General Paul Lynch endorsed the law reform commission review and said "there needs to be very serious consideration of the Tasmanian legislation as a model". Any change in the law is likely to be hard-fought and controversial. Criminal barrister and Australian Lawyers Alliance spokesman Greg Barns, who is based in Hobart, said the Tasmanian law was "unworkable because it fails to recognise the reality of how things happen" in sexual encounters. "The real issue is that these cases are better in a restorative justice setting. Victims prefer it and it is better for defendants," Mr Barns said. But Anthony Whealy, a former NSW Supreme Court judge and law reform commissioner, told the ABC on Tuesday the "best practice example is said to be either Tasmania or Victoria". He said he believed the changes in those states had been successful and it was "generally felt by the law reform commissions around Australia that it has been a move in the right direction".

The government said it commissioned the review last week, ahead of an ABC Four Corners interview with Saxon Mullins, who accused Mr Lazarus of raping her in an alleyway behind the Soho nightclub in the early hours of May 12, 2013. Ms Mullins waived her legal right to anonymity and spoke to the ABC's flagship current affairs program to promote a discussion about NSW sexual consent laws. The interview aired on Monday night. The parties in the Lazarus case accepted that Ms Mullins, then an 18-year-old virgin, had not consented to anal sex with Mr Lazarus. Saxon Mullins on Four Corners on Monday. Credit:Four Corners The case turned on whether he had knowledge that she did not consent, which is a crucial element of the offence of sexual intercourse without consent.

Knowledge includes not only actual knowledge of a lack of consent but recklessness or having "no reasonable grounds" for believing there is consent. The NSW District Court found in 2017 that Mr Lazarus had a genuine and honest belief that Ms Mullins was consenting even though "in her own mind" she was not. He was acquitted of the crime. Judge Robyn Tupman found Ms Mullins had not asked Mr Lazarus to stop - a fact hotly contested during the trial - and "did not take any physical action to move away". Mr Lazarus had been convicted of the crime in 2015 following a jury trial in the District Court and had served 11 months of a maxmimum five-year prison sentence. But his conviction was quashed by the Court of Criminal Appeal in 2016. The Director of Public Prosecutions lost a legal bid for Mr Lazarus to stand trial for a third time, with the Court of Criminal Appeal finding it would be "oppressive to put [Mr Lazarus] ... to the expense and worry of a third trial" in the circumstances of the case.

The NSW review will take into account the experience of sexual assault survivors in the criminal justice system as well as the law in other jurisdictions in Australia and overseas. Karen Willis, executive officer at Rape and Domestic Violence Services Australia, said NSW consent laws included important provisions that should not be lost in any reform process but it was important to recognise that "lack of a verbal no" did not mean consent had been given. "Certainly having something that said saying nothing is not the same is giving consent ... would be a very good inclusion," Ms Willis said. She said NSW also needed to consider whether specialist courts were required for hearing sexual assault cases. Mr Speakman said on Tuesday there was a "systemic problem with sexual assault reporting and convictions". The conviction rate for prosecutions of sexual assault was about 55 per cent, he said, compared with 85 to 90 per cent in other cases.

"We need to have a much bigger picture look at that," Ms Willis said. Mr Speakman said Ms Mullins was "extraordinarily brave" in sharing her story on Four Corners. Loading He said she had endured two trials and two appeals in the NSW Court of Criminal Appeal and there were legitimate questions about whether the law in NSW was "clear enough" and "fair enough". Ms Goward said "in this modern era we need an explicit culture where people actually ask, 'would you like to have sex?' and they be given a clear answer".

"It is not enough to assume that because your victim did not say no that [they] in fact said yes," she said.