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Australia -- Age of Consent

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Updated 7/2000 (No documentation exists to support this entry).
UPDATED 08/2000!  DOCUMENTATION RECEIVED.  Thank you!
Dear Sir/Madam,

You state that the age of consent in "Queensland the legal minimum age of
consent is 16 years for heterosexual sex and 18 years for homosexual sex"

I live in Queensland, and the age of consent is 16 years, across the board,
except in the case of anal sex (not necessarily homosexual sex) where the
age of consent is 18.

queenslandaustraliaattorneygeneral.jpg (33167 bytes)

SOURCE:   http://www.geocities.com/queerradio/AgeOfConsent.htm

 

 

Just to let you know that I have added a link to your website, on my website, at:
http://www.lexscripta.com/legal/omnibus/consumers.html

I note that your chart lists the Queensland (Australia) age for male-male sex as 18, although the situation is clarified somewhat by the attachment via a hyperlink. The precise legal position is as follows:

Under Queensland law, a somewhat arcane distinction is drawn between anal intercourse (referred to as "sodomy") and other forms of intercourse. For anal intercourse (both homosexual and heterosexual), the age of consent is 18. For all other sexual activities, the age of consent is 16.

The relevant statutory provisions are in the Criminal Code, which can be accessed at:
http://www.austlii.edu.au/au/legis/qld/consol_act/cca1899115/sch1.html

As regards anal intercourse, the relevant provision is s.208, which relevantly provides:

208.(1) Any person who--
(a) sodomises a person under 18 years; or
(b) permits a male person under 18 years to sodomise him or her; or
(c) sodomises an intellectually impaired person; or
(d) permits an intellectually impaired person to sodomise him or her;
commits a crime.  Maximum penalty--14 years imprisonment. 

As regards other forms of intercourse, the relevant provision is s.210, which relevantly provides:

210.(1) Any person who--
(a) unlawfully and indecently deals with a child under the age of 16 years;
(b) unlawfully procures a child under the age of 16 years to commit an indecent act;
(c) unlawfully permits himself or herself to be indecently dealt with by a child under the age of 16 years;
(d) wilfully and unlawfully exposes a child under the age of 16 years to an indecent act by the offender or any other person;
(e) without legitimate reason, wilfully exposes a child under the age of 16 years to any indecent object or any indecent film, videotape, audiotape, picture, photograph or printed or written matter;
(f) without legitimate reason, takes any indecent photograph or records, by means of any device, any indecent visual image of a child under the age of 16 years, 
is guilty of an indictable offence.

Also relevant in s.229B, which provides:
229B.(1)  
Any adult who maintains an unlawful relationship of a sexual nature with a child under the prescribed age is guilty of a crime and is liable to imprisonment for 14 years.
    (9) In this section--     "prescribed age" means--

(a) to the extent that the relationship involves an act defined to constitute an offence in section 208 or 209 -- 18 years; or

(b) to the extent that the relationship involves any other act defined to constitute an offence of a sexual nature -- 16 years.

[removed]
Barrister-at-Law
Queensland, Australia

 

 

 

 

AUSTRALIA'S FIRST REPORT UNDER ARTICLE 44(1)(a) OF THE UNITED NATIONS
CONVENTION ON THE RIGHTS OF THE CHILD December 1995

B. DEFINITION OF THE CHILD IN LAWS
AND REGULATIONS

 

Article 1

For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.

(a) Age of majority

121. In all States and Territories the age of majority is 18. Under the Federal Marriage Act 1961, the legal minimum age for marriage is 18 years. However, with court approval in exceptional circumstances, a marriage may take place if one of the parties has attained 16 years.

(f) Sexual consent

133. In the Australian Capital Territory the age of consent for heterosexual and homosexual intercourse has been indirectly set at 16 years. The Crimes Act 1990 provides that it is an offence for a person to engage in sexual intercourse with another person under the age of 16 years.

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In New South Wales and Queensland the legal minimum age of consent is 16 years for heterosexual sex and 18 years for homosexual sex. In New South Wales a prosecution for an offence for homosexual intercourse with a male under the age of 18 years cannot be commenced where the accused was at the time of the alleged offence under the age of 18 years, without the sanction of the Attorney-General.

The age of sexual consent for a female in the Northern Territory has been indirectly set by the Criminal Code at 16 years. The Criminal Code does not provide for an age of consent for homosexual intercourse, except to make it an offence for males under the age of 18 years to have sexual intercourse or commit any act of gross indecency in private. Once a male has attained the age of 18 years an offence is only committed when it occurs in public.

134. In South Australia the age of consent for heterosexual and homosexual sex is 17 years. In Tasmania the age of consent is 17 years for heterosexual sex. However, the consent of a person against whom a crime is alleged to have been committed is a defence to a charge of unlawful intercourse with a young person under the age of 17 years if at the time when the crime was alleged to have been committed:

* that person was of or above the age of 15 years and the accused person was not more than five years older than that person; or

* that person was of or above the age of 12 years and the accused person was not more than three years older than that person.

135. In Victoria the law does not provide an age of consent for heterosexual or homosexual sex as such, but the Crimes Act 1958 provides a series of offences where sexual penetration occurs with a child between 10 and 16 years. There is no offence of sexual penetration with children of 16 or 17 years, except where a person is in a position of care, supervision or authority over the child.

Under Western Australia's Criminal Code a child under 13 is incapable of consenting to an act which constitutes a sexual offence against that child. Consent is also irrelevant in the commission of sexual offences against a child under 16 years of age.

The age of consent for homosexual sex is set at 21 years.

136. The Federal Human Rights (Sexual Conduct) Act 1994 protects consenting persons over the age of 18 years who are acting in private from arbitrary interferences with their private sexual life. The Act relies on Article 17 of the International Covenant on Civil and Political Rights.

 

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misc info added 9/12/98



Reports from the Law Society
Council supports equalising age of consent
A PRIVATE MEMBER'S BILL SEEKING TO equalise the age of consent for males
and females in NSW has won the support in principle of the NSW Law Society
Council.  The Crimes Amendment (Sexual Offences ) Bill 1997 was introduced in the
Legislative Council by the Hon Jan Burnswood MLC but, not having been printed
when the Council passed its resolution, Council could not respond to the amendment
in specific terms. Equalising the age of consent for males and females was one of the recommendations made by Mr Justice Wood following his inquiry into the NSW Police Service.

Support for the principle of non-discrimination in setting the age of consent is
consistent with the Law Society's existing policy as expressed in the Council's
response to the Model Criminal Code adopted on 23 April 1997.

 

 

Acts Amendment (Sexuality Discrimination) Bill 1997
Second Reading Speech - Hon H Hodgson

Research indicates that:

Between seven and thirteen per cent of the population are gay or lesbian.

115 inquiries were received by the Equal Opportunity Commission from individuals attempting to make a complaint on the basis of sexuality in the 1995/96 year.

77 per cent of Western Australians said homosexuality should be decriminalised in a 1989 poll.

91 per cent of responses to a discussion paper by the Equal Opportunity Commissioner advocating equal opportunity laws based on sexuality supported the proposal.

By the age of 13 most homosexual youths are aware of their attraction to same sex partners.

By the age of 14 most lesbian youths are aware of their attraction to same sex partners.

25-40 per cent of young gays and lesbians attempts to commit suicide.

65-85 per cent of young gays and lesbians feels suicidal.

66 per cent of young gays say they have been discriminated against or harassed on the basis of their sexuality.

70 per cent of gay men report experiencing homophobic abuse.

6 per cent of gay men report being bashed in the past 12 months.

More than 90 per cent of child molesters are heterosexual.

A child is 100 times more likely to be molested by a heterosexual partner of a relative than by a gay or lesbian individual.

INTRODUCTION

Equality is one of the most basic foundations of our democratic society.

And while we all pay lip service to the principle that we are all created equal the reality is that some people are treated more equally than others.

We should all believe in the innate worth of the individual, that the freedoms of the individual must be protected and that all people should have the opportunity to advance to their full potential.

We must not just pay lip service to equal opportunity and social justice for all Western Australians. It is our responsibility to foster a tolerant community.

It has seemed that in Australian society unless you are a healthy, white, Anglo-Saxon, heterosexual male, you are forced to battle to be awarded the status of human being and therefore entitled to human rights recognition.

Throughout our history minority groups have had to battle against hatred and prejudice to achieve that equality - women, indigenous peoples, the disabled and the aged.

Through society's sense of fairness - and often despite opposition from vocal minorities - these groups have all achieved laws that enable them to fight back against oppression and degradation and achieved equality before the law.

The gay, lesbian and transgender communities in Western Australia are not being afforded the right to equality. These sections of the community have no protection from persecution purely on the basis of their sexuality.

Gay men are treated unequally to all others in society in regards to the age at which they can have consenting sexual relations without being branded criminals.

Western Australia has the highest age of consent for gay men in the world today and the worst anti-gay laws in the nation. It is the only state where consenting gay sex between adults is a criminal offence and offenders can be jailed for up to five years.

The bill I present to the House today seeks to overcome these inequalities, these injustices.

HUMAN RIGHTS

Gay, lesbian and transgendered people are not asking for affirmative action nor are they asking for special rights.

They are merely asking for equal rights, the same rights as those given freely to other members of our society - simple human rights.

Human rights are derived from the very nature of being, and it is the role of governments, not to grant human rights but to recognise the rights to which we are all entitled by the very fact that we are human beings.

It is a question of recognising the dignity of every individual in society.

It is easy to give lip service to the ideals of tolerance and acceptance but far more difficult to put those values into practice.

Basic human rights, including the right to freedom of sexuality, are recognised throughout the world in a number of United Nations declarations to which Australia is a signatory.

Australia ratified the International Covenant on Civil and Political Rights in 1980, and the optional protocol of the Covenant was ratified in 1991. Both documents are scheduled to the Human Rights and Equal Opportunity Commission Act.

As a result of this scheduling Australia agreed that laws will be made with respect for individuals and without distinction of any kind; and that there is to be no discrimination to the equal protection of rights under the law.

The Human Rights Committee of the United Nations has found that sexuality is one of the areas in which there should be not distinction or discrimination.

Under the International Labour Convention No.111 - Discrimination in Employment or Occupation (ratified by Australia in 1973) it is unlawful to discriminate on a number of grounds.

Australia adapted the terms of the Convention in the Human Rights and Equal Opportunities Act and in 1990 the Australian Government specifically included sexual preference as a ground of unlawful discrimination.

Western Australia has thus far neglected its duties under these international conventions and has shown itself to be an international dinosaur in its refusal to act justly and fairly.

The experience of gay, lesbian and transgendered Western Australians is that others have made their sexuality an issue in areas such as employment, education, accommodation and the provision of goods and services.

Sexuality is not a "preference" any more than gender, age, disability, culture or any other ground currently protected by equal opportunity laws. To this end, sexuality is an essential part of what makes each of us who, and not what, we are.

It is also true that discrimination in society does not just occur when the victim is in fact gay, lesbian or transgendered, but also when the individual appears to be, independent of their actual sexuality. I was present in the gallery when the Hon. Paul Sulc made his inaugural speech, when he referred to the discrimination that he suffered as a result of the perceptions of others.

Individuals deserve protection against the prejudice, bigotry and often violence aimed at them because of their actual or perceived sexuality because it is their right to be protected against such evils in their everyday lives.

For the Western Australian government not to reach out to those being denied their human rights is tacit approval of that prejudice, of that bigotry and of that violence. It is condoning the actions of those perpetrators who seek, because of their irrational fears, to deny others their human rights.

Every jurisdiction across the nation (except Tasmania, that has laws through one House already) has recognised the right of individuals to be protected against discrimination on the grounds of their sexuality - whether homosexual, lesbian, transgender or heterosexual.

The majority of jurisdictions have also legislated to give homosexuals equal rights as all other citizens to engage in consensual sexual activity with an equal age of consent.

The Commonwealth Government has recognised this by enacting the Human Rights (Sexual Conduct) Act, which provides all citizens over the age of 18 with a defence against criminal charges in respect of consensual sex.

This inconsistency with Federal law makes the current Western Australian legislation vulnerable to a High Court challenge.

In both these fundamental areas of human rights the Western Australian Parliament has neglected its duty and made criminals of otherwise law-abiding citizens because of prejudice.

Western Australia's laws in relation to homosexuality have been condemned by the Human Rights Commission, the World Health Organisation, the Australian Medical Association, Amnesty International and the Chief Justice of the Supreme Court of WA, David Malcom.

Only three weeks ago Commonwealth Human Rights Commissioner, Chris Sidoti, said Western Australia had the most discriminatory laws in the nation in relation to gays and lesbians. He said the discriminatory laws are among the greatest of human rights abuses of which this government isguilty, negatively distinguishing the state from all others.

The bill that I present to this place today seeks to rectify this serious breach of duty and past failures in leadership and to respond to what has time and again been shown to be supported, not only by those in the gay, lesbian and transgender communities, but by the majority of Western Australians.

It does not seek any special consideration for gays, lesbians or transgendered people, but only to be treated the same as other members of society.

It is time for change.

I would now like to outline the basic provisions of the Acts Amendment (Sexuality Discrimination) Bill 1997.

PROVISIONS OF THE BILL

The bill before the House today firstly prohibits discrimination on the basis of individuals' sexuality or transgender identity by inserting new definitions and parts into the Equal Opportunity Act 1994.

The definition of sexuality is exclusive, expressly limiting the ground to bisexuality, heterosexuality, homosexuality or lesbianism. This bill does not cover any other form of sexual identity or sexual behaviour.

Transgender identity is a separate ground for complaint, as the issue of an individual's sexuality is not related to their gender identity.

The bill will insert a new Part into the principal Act that makes it unlawful to discriminate against an individual on the basis of: -

-- The individual's sexuality or presumed sexuality;

-- A characteristic that appertains generally to persons of that sexuality;

or

-- A characteristic that is generally imputed to persons of that sexuality.

This means that complainants need not in fact identify their sexuality in lodging a complaint in respect of an alleged incident of discrimination.

It also applies to discrimination against relatives or associates where discrimination has occurred because of their relationship with such a person.

Identical clauses apply to the ground of transgender identity.

I would like to emphasise here that this bill only deals with the issue of equal opportunity protection for all those that identify as transgendered, and does not consider the legal status of those who have undergone gender reassignment surgery.

A separate bill is currently dealing with this issue. I do signal my intention to ensure that legal recognition will shortly become available to such people.

Each division then sets out specific circumstances in which it is unlawful for discrimination to take place. Where relevant specific exemptions are provided, under which it is lawful for discrimination on the basis of sexuality to occur.

WORK PROVISIONS

The first area dealt with in the bill is discrimination in work.

These provisions are identical to those in the Equal Opportunity Act that extend protection to the disabled, the aged, indigenous peoples and in gender provisions.

For this reason alone I can see no reason for objection by any party to providing EQUAL protection on the basis of sexuality.

The clauses prohibit discrimination when selecting candidates for employment, in the terms and conditions offered in employment, when awarding promotion or opportunities in employment and in dismissing an employee.

Similar prohibitions are made in the areas of commission agents, contract workers, partnerships, professional or trade organisations, qualifying bodies and employment agencies.

Exclusions to having to comply with the provisions are also identical to other grounds of discrimination. The existing provisions provide exclusions for employment for domestic duties in the discriminators home and partnerships of less than six persons.

EDUCATION

It would become unlawful for an educational authority to discriminate against a person because of their sexuality or transgender identity by refusing to admit them as a student, by making special terms or conditions for their admissions, by denying or limiting access to benefits, by expelling them or exposing them to any other detriment.

Again, these provisions are essentially identical to those that appear in the principal Act in relation to other grounds for discrimination complaint.

In relation to religious educational facilities, the general exemption in the Equal Opportunity Act in sections 72 and 73 would continue to provide any freedom those institutions felt they needed in relation to their religious code.

Every individual should have the right to an education regardless of race, gender, age, disability or SEXUALITY. To be able to legally take that right away strips a human being their right to learn and their dignity

GOODS, SERVICES AND FACILITIES

This section would give gay, lesbian and transgendered individuals the same rights to protection against discrimination in the provision of goods, services and facilities as the other grounds for action in the Equal Opportunity Act.

It makes it unlawful to refuse to provide goods, services or make facilities available or to attach special conditions to the provision of goods, services or facilities.

The existing definition of services includes insurance. Many gay, lesbian and transgendered people have been discriminated against in the very important areas of insurance and superannuation, and so it is an aim of this bill to attempt to overcome these inequities.

This will make it possible for gays and lesbians to take care of their same sex partner through superannuation contributions and insurance policies: an issue of immense importance to those in the gay and lesbian communities.

ACCOMMODATION

The right to accommodation is fundamental in our world today - we, as a society, have an obligation to ensure that members of our community are not discriminated against in seeking shelter because of their sexuality.

The provisions here would make it unlawful to refuse an application for accommodation, impose discriminatory terms and conditions for accommodation, defer or give lesser precedence for accommodation, deny or limit access to accommodation or evict an individual based on their sexuality.

It does allow people to discriminate when the person letting the accommodation or a close relative of that person will also be living in the accommodation. This allows people to have the freedom of choice of who they may have residing in their homes.

Religious bodies providing accommodation will also be exempted and charitable or voluntary bodies providing accommodation solely for the use by those of a particular sexuality or transgender identity will also be able to refuse accommodation on the basis of sexuality.

CLUBS AND INCORPORATED ASSOCIATIONS

Clubs and associations may not refuse membership or place special conditions on membership because of an applicant's sexuality or gender identity under this Bill.

And once a member of the club or association there can be no discrimination in the terms or conditions of that membership, access to benefits afforded to members, depriving a member of membership or any other detriment on the basis of sexuality or transgender identity.

The exemption attached to this section is for clubs or associations that has, as its principal purpose, the provision of benefits for people of a particular sexuality or transgender identity.

The sole purpose test must be strictly enforced, with the club or association having to show that its affairs are structured in such a way as to solely benefit individuals of a particular sexuality or gender identity.

DISCRIMINATION IN SPORT

Excluding an person from a sporting activity on the basis of their sexuality or gender identity would become unlawful under clause 35ZB of the bill, and includes administration or coaching activities.

Discrimination will be lawful however, if the sporting activity is specifically conducted only for persons of a particular sexuality or gender identity.

LAND

In disposing of interest in land it would be unlawful to discriminate on the basis of sexuality or gender identity unless the disposal is by will or gift or the land is within an area of land that has as its principal object the occupation by persons of a particular sexual or gender identity.

OTHER PROVISIONS

In all these areas it would then be unlawful to ask a person to reveal his or her sexual or gender identity, as it should not be relevant to the situation.

Of equal importance are the problems the partners of gay and lesbian people face. For example access to their partners in hospitals when they are ill. In many situations, hospitals will not afford next of kin status to a same sex partner, thus denying them visiting rights or the right to be consulted when making medical decisions.

The bill before the House today attempts to remove the discrimination against same sex partners. It acknowledges the rights of these partners and makes those rights equal to those enjoyed by heterosexual de facto partners where discrimination occurs.

By altering the definition of de facto for the purposes of the Equal Opportunity Act, same sex couples will have protection under the ground of discrimination on the basis of marital status and therefore be given rights to see their partners, to be consulted in medical situations and to access employment benefits available to de-facto partners.

The recognition of same sex partners does not extend beyond the scope of the Equal Opportunity Act and does not provide recognition of such relationships for any other legal purpose.

Only the Federal Government could amend the law to recognise homosexual or lesbian marriages - this bill does not, and could not, do this.

CRIMINAL CODE AMENDMENTS

The notion of equality is again the impetus behind changes to the Criminal Code with the aim of EQUALISING, and I emphasise equalising, the age of consent for gay men.

Currently the law discriminates between gay men and all other couples, including lesbians.

At the age of 16 both males and females are free to decide to have sexual relations with the opposite sex, and lesbians are also legally allowed to have sexual relations at 16. The age of consent differs for sexual relations with someone in a position of authority or power, being 18.

For gay men however it is a criminal act to have sex with another man aged between 16 and 21 in all circumstances, with an age of consent set at 21. This bill will make the age of consent for all people 16, retaining the strict enforcement of an age of consent of 18 in situations where one of the parties is in a position of power or authority over the other.

There is no legitimate reason why the age of consent for young gay men should be different than for other citizens, and no reason why a man should be labelled a criminal for having a loving relationship with another male.

The paranoia and uninformed opinion that "dirty old homosexuals" would prey on vulnerable 16 year old boys is a most offensive notion. It is a fact that the overwhelming majority of paedophiles are heterosexual men who violate young girls, yet we hear no objection to an age of consent of 16 for girls who wish to be sexually active.

It is also a nonsense to claim that by raising the age of consent it will give youths more time to really decide if they are homosexual before being "inducted" into homosexuality.

Research indicates that at least 33% (Kinsey) of males have a homosexual experience at some stage in their life, but this does not mean they are gay. We do not criminalise heterosexual activity for youths that are experimenting, and there is no reason to treat gay and lesbian youth differently.

It is a myth that young men are confused about their sexuality when they have their first homosexual experience. In fact no gay man I have spoken to supports this argument.

You cannot structure the law around a myth.

At what age does one become aware of one's sexuality? Study after study indicates that an individual is aware of his or her sexuality by the age of 14. Most of us here today would think it ludicrous to be asked at what age did you realise you were heterosexual, and the same question is equally as ludicrous to ask a gay or lesbian person.

One does not decide to become homosexual or lesbian it is a part of who you are.

It is essential to give homosexuals this respect, to give them equality, as there is no logical reason to deny it.

Finally, this bill seeks to repeal in its entirety the Law Reform (Discriminalisation of Sodomy) Act 1989.

Throughout my consultation with the gay and lesbian community I do not believe I have heard any part of legislation ever condemned in stronger terms than the preamble and amendments to this Act.

It is overwhelmingly rejected as a bigotted and prejudiced, and seen to be used by those who vilify gay and lesbian people to exonerate and justify their hateful behaviour.

IMPACT OF CURRENT LAWS ON SOCIETY

The current lack of laws protecting gay, lesbian and transgender individuals are a tacit approval of prejudice, discrimination and bigotry, which are all merely euphemisms for hatred.

And as a parliament we should not stand for allowing hatred to bloom in our society.

The repercussions of this state's laws oppressing gays, lesbians and gender dysphorics are well documented.

By making adult homosexual activity criminal it sends a message to gay youth that they do not have any value, they are not worthy of compassion or protection.

By forcing youths to hide their sexuality they feel they cannot talk to anyone about their feelings and this further isolates them and increases the stigma they are already forced to feel by a society that approves of denigrating those who are a minority.

Western Australia's current laws validate behaviours of intolerance, alienation, prejudice and sometimes violence.

The suicide rate for gay and lesbian youths in this state is a disgrace and our laws do little to help save them.

The criminal label attached to homosexuality means that a sexually active gay man cannot be recruited to the police service, as his criminal activity (up until he turns 21) would preclude him.

A recent HIV/AIDS scare in our prison system has highlighted another social disaster caused by our discriminatory laws. Condoms cannot be distributed in prisons as the government could then be seen as aiding criminal activity. Men over 18 are imprisoned with men over 21, and any prisoner between the ages of 18 and 21 in an adult jail cannot legally engage in same gender sexual activity.

Not only does this have repercussions on the "inside" of jails, but those men then go back out into society and may spread a variety of infectious diseases back into society.

The religious arguments often used to justify the continuation of prejudice towards gays and lesbians are similar to those used throughout the ages to justify the campaigns against the Magna Carta, to uphold the principal of the Divine Right of Kings, to justify slavery and to continue policies of discrimination and hatred against blacks and women.

We cannot use a moral wrong (discrimination and hatred) to achieve what some see as a moral right (illegality and lack of support for homosexuality and lesbianism).

Our society teaches us to cherish the values of tolerance, acceptance and to do unto others as you would have done unto you. To do other than to support this bill would prove hypocrisy to anyone who subscribes to this basic value system.

To do otherwise is merely hatred cloaked as morality.

CONCLUSION

Discriminatory behaviour is most often the result of ignorance and fear fed by myths, misconceptions and stereotypes, and there are few areas in life that have evidenced this more than sexuality.

This parliament has the opportunity to lead the way, to educate to eradicate ignorance, to alleviate fears and to squash those myths, misconceptions and stereotypes.

We have the chance to promote tolerance and to condemn hatred.

What this bill is really about is whether gay, lesbian and transgendered individuals have a right to exist and be embraced and included in society - I say yes, they do.

And while I do not believe that legislation of itself has the power to change the prejudice that generations of approval of inequality has bred, I do believe that it is this parliament's obligation to initiate change.

To quote Martin Luther King Jr "Morality cannot be legislated, but behaviours can be regulated. Judicial decrees may not change the heart but they can restrain the heartless."

 

Australia's Crimes (Child Sex Tourism) Amendment Act of 1994 specifies (in section SOBA) that "a person must not, while outside Australia, engage in sexual intercourse with a person who is under 16"  (source)

 


The age of consent
Briefing Paper 21/97

by Rachel Simpson and Honor Figgis


EXECUTIVE SUMMARY

An age of consent is designed to protect young and innocent children from physical and psychological harm caused by engaging in sexual intercourse before he or she is mature enough to consent to such activity. Consent in this context refers to full, informed consent, where the person is aware of the consequences of giving that consent. There is no objective means of determining at what age the age of consent should be set, since children mature and develop at different rates. The purpose and applicability of such an age of consent is discussed at Part 2.0 - Why have an age of consent?

The age of consent in Australia depends upon which state the person in question is in, whether the person is a male or female, and the nature of the sexual intercourse the person is engaged in. This can lead to a number of inconsistencies both between the states and between males and females. In addition, the Commonwealth Crimes Act 1914 also includes child sexual abuse offences, that rely on an age of consent. These are discussed in Part 3.1. The provisions in the New South Wales Crimes Act 1900 that rely on an age of consent are discussed in detail in Part 3.2. In Part 4 - Comparative position overseas, the age of consent in a number of overseas jurisdictions is included in tabular form to provide an indication of where Australia stands in relation to the ages of consent in the international context.

The debate surrounding the age of consent raises the broader point of the role of the criminal law. Some argue that the function of the criminal law is to preserve public order and decency, but not to intervene in the private lives of citizens or seek to enforce any particular form of behaviour. However, others argue that the criminal law has a responsibility to prevent harm to society stemming from the moral disintegration of society, and the law therefore can intervene in both the private and public lives of individuals to uphold the shared morality of society. This issue is addressed in Part 5.0 - Philosophical/ethical issues.

The age of consent laws can either remain as they are, or be amended so that they become gender-neutral. If this occurs, then there are two options: the age of consent for females can be raised to 18 years, or the age of consent for males can be lowered to 16 years. The latter option is the one most favoured by the Royal Commission, the Queensland parliamentary Criminal Justice Commission and the Model Criminal Code Committee. The primary argument for lowering the age of consent for males is based on a belied that the existing regime is discriminatory because it imposes a higher age of consent for boys engaging in homosexual sex. The primary argument for maintaining the current age of consent for males revolves around a concern to protect young men from psychological and/or physical harm. The arguments for and against a uniform age of consent of 16 years can be found in Parts 6.1 and 6.2. State Library Web-site http://www.slnsw.gov.au/shop/govlist.htm

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Sexual offences against children and contraception
This document is about sexual offences against children and contraception.

The age at which a young person can enter into a sexual relationship is largely determined by the provisions of the Crimes (Sexual Offences) Act 1980.

It is an offence to take part in, or attempt to take part in, an act of sexual penetration with a young person under 10. The young person's consent is not a defence.

It is an offence to take part in, or attempt to take part in, such an act or an act of sexual penetration with a young person aged between 10 and 16, unless the young person consents and:

1. the accused believed on reasonable grounds that the young person was 16 or over, or

2. the accused was less than two years older than the young person, or

3. the accused believed on reasonable grounds at the time that the act of sexual penetration took place that he or she was married to the young person.

It is an offence for a person to maintain a sexual relationship with a person under 16 who is under the care, supervision or authority of the accused and who is not married to the accused.

It is an offence to take part or attempt to take part in an act of sexual penetration with a young person aged 16 or 17 who is under the accused's care, supervision or authority and is not
married to the young person unless the young person consents and:

1. the accused believes on reasonable grounds that the young person was 18;

or

2. that the accused believed on reasonable grounds that at the time that the act of sexual penetration took place he or she was married to the young person.

There is no law which prevents a doctor from prescribing oral contraceptives to a young person. Some doctors, however, refuse to give contraceptive advice or prescribe oral contraceptives to
unmarried young women without parental consent.

Whether a doctor will give contraceptive advice to a young person without parental consent depends upon the doctor's view of the maturity of the young person. If the doctor believes it is in
the young person's best interests to notify the parents he or she may do so.

A court decision in England stressed that it would be only in the most exceptional circumstances that a doctor should give contraceptive advice and treatment to a girl below the age of 16 without parental consent or contrary to the parents' wishes. However, most family planning associations and public hospitals will prescribe oral contraceptives.

Although the law is not clear in regard to the age at which a person can legally give consent to medical treatment without his or her parents consent, it is probably true to say that a young person may consent to medical treatment if he or she is mature enough to appreciate the nature of the treatment proposed and its likely consequences. Many doctors will give medical  treatment to a young person if he or she is aged 16 years or more.

Many doctors will refuse to perform an abortion on a girl under 18 without parental consent. In Victoria, it is common practice for girls under 16 to be required to have either parental consent or a psychiatric referral before an abortion is performed.

20 January 1998

 

UPDATE:  08/20/00.  From http://www.cqu.edu.au/cch/sexlaw~2.htm

Sex and the Law
No 2
Consent

In the previous column the offence of rape was examined. One of the essential elements of that offence (rape) was the absence
of consent on the part of the complainant. Some forms of sexual activity directed towards another person without the consent
of that person party would not be classed as rape but are still proscribed by law. These behaviours are now called sexual
(formerly indecent) assaults and combine the elements of the offence of assault in conjunction with a sexual or indecent
dimension.

The Qld Criminal Code defines assault as:

A person who strikes, touches, or move or otherwise applies force of any kind to, the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.

Notice that for an act to amount to an assault there must be an absence of true consent on the part of the person subject to the
assault. In Queensland the law relating to sexual assaults is located in section 337 of the Criminal Code. This section has
recently been amended to provide for more substantial penalties in certain situations and to catch a range of offending
behaviours which previously were not subject to sanction, or the available sanctions were disproportionate to the vicious nature
of the offence. In other words some of the conduct, now against the law, was previously not in breach of any law or the only
law applicable was relatively weak in dealing with it.



Section 337 Sexual Assaults.
(1) Any person who-
(a) unlawfully and indecently assaults another person;
(b) procures another person, without the consent of the other person or if the consent if it is obtained by force or
by means of threats or intimidation of any kind, or by fear of bodily harm, of by means of false and fraudulent
representations as to the nature of the act of gross indecency or by personating the spouse of that other person-

(I) to commit an act of gross indecency; or
(ii) to witness an act of gross indecency by the offender or any other person;
is guilty of a crime, and is liable to imprisonment for seven (ten) years.

(2) If immediately before, during, or immediately after the offence the offender is, or pretends to be, armed with a dangerous or offensive weapon, or is in company with another person, the offender is liable to imprisonment for life.

(3) In the case of an offence defined in subsection 1(a) or 1(b)(i), the indecent assault or act of gross indecency consists completely or partly-

(a) in penetrating the vagina, vulva, or anus to any extent with any object or a part of the body other than the
penis - the offender is liable to imprisonment for life; or
(b) in bringing into contact any part of the genitalia or the anus with any part of the mouth - the offender is liable
to 14 years imprisonment.

(4) In this section-
"Spouse" includes a person procured as his or her spouse although not lawfully married to him or her.
"Procure" means knowingly entice or recruit for the purposes of sexual exploitation.

A sexual assault can take many forms. Intentional touching of a female’s breast has been held sufficed Similarly it has been held
that walking up behind a female and making an indecent suggestion constitutes an indecent assault. Where there are
circumstances of aggravation such as pretending to be armed, invasive body penetration and (forced) oral genital or anal
contact, the maximum penalty is higher than for other forms of sexual assault.

The law also makes it an offence to force another person to commit acts of gross indecency or to witness such acts. The terms
"indecency" and ‘gross indeceny" are not defined and so are decided in accordance with contemporary community attitudes.

The Age of Consent
In certain situations the law holds that a person is not able to give consent irrespective of the actual wishes of the person. Sexual activity with persons below a specified age is illegal and the age at which persons are legally able to consent to sexual activity is called the "age of consent".

Typical of the legislation is section 215 of the Qld Criminal Code
Carnal knowledge of girls under sixteen. Any person who has or attempts to have unlawful carnal knowledge of a girl under
the age of sixteen years is guilty of an indictable offence.

If the offence is alleged to have been committed in respect of a girl of or above the age of twelve years, it is a defence to prove
that the accused person believed on reasonable grounds, that the girl was of or above the age of sixteen years.

Section 229B of the Code makes it an offence for any adult to maintain an unlawful relationship of a sexual nature with a child
under the age of sixteen years. This section requires that for a sexual relationship to be established there must have occurred on
three or more occasions an act that constitutes an offence of a sexual nature in relation to a child.

Recent amendments to these sections have in effect raised the age of consent for sodomy (unlawful anal intercourse) for both
males and females to eighteen years.

Commonwealth legislation extends to regulate the sexual activities of Australian citizens overseas. The Crimes (Child Sex Tourism) Amendment Act 1994 effectively fixed the age of consent at sixteen years.

Section 50BA of the Crimes Act 1914 (Cth) provides that:_

A person must not, while outside Australia, engage in sexual intercourse with a person who is under 16.

Penalty Imprisonment for 17 years.




50CA It is a defence to a prosecution for an offence against Division 2 that the defendant believed at the time of the sexual
intercourse or act of indecency that the person in relation to whom the offence was allegedly committed was 16 or over.

Sexual intercourse is widely defined in the legislation to cover acts of vaginal and anal penetration, fellatio and cunnilingus.

Generally there are defences available to offences involving sexual activity with a person under the statutory age. Obviously if
the accused genuinely believed that the person was above that age and there is not the same degree of culpability as the case
where the accused was aware of the true facts.

It would seem that there is a widespread legislative focus that the ‘age of consent’ be sixteen years. The age of majority is
eighteen years so there is the period between sixteen and eighteen years when a minor is deemed able to consent but may still
be vulnerable.

As the law currently stands incest between consenting adults is forbidden.
Incest

Section 222 of the Criminal Code (Qld) Incest by man. Any person who carnally knows a woman or girl who is, to his knowledge, his daughter or other lineal descendant, or his sister or his mother if guilty of a crime and is liable to imprisonment for life.

It is immaterial that the carnal knowledge was had, or that the attempt was made with the consent of the woman or girl.

Section 223 Incest by adult female. Any woman or girl of or above the age of eighteen years permits her father or other lineal ancestor, or her brother or her son, to have carnal knowledge of her, knowing him to be her father or other lineal ancestor or her brother or her son as the case may be, is guilty of a misdemeanour and is liable to imprisonment for three years.

It is a defence to a charge of the offence defined in this section that the woman or girl was at the time when she permitted her father or other lineal ancestor, or her brother or her son to have carnal knowledge of her, acting under his coercion.

Updated 01-2001:

Source:  http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/


Australia - Australie - Australia Canberra
I. The Australian Federal Legislation

Crimes (Child Sex Tourism) Amendment Act 1994 is an amendment to the Crimes Act 1914. The bill became law on
July 5, 1994. The law criminalizes sexual intercourse with a person under sixteen (16) years of age while outside of Australia, and carries with it a maximum sentence of seventeen years imprisonment. Inducing a child under sixteen (16) years of age to engage in sexual intercourse is also a crime under the law. Furthermore, there are two sections of the law that make it an offence to encourage, advertise, benefit from, or assist a person to travel in order to sexually exploit minors under sixteen (16) years of age.

These sections are directed at travel agents and tour operators, pedophile networks, advertisers, and expatriate Australian bar and brothel owners who participate in sex tourism. The maximum penalty for these offences is also seventeen years imprisonment. Those who can be charged with an offence include Australian citizens or residents of Australia, Australian corporations, or any other corporate body whose principle activities are carried out in Australia.

THE " CHILD SEX TOURISM AMENDMENT ACT, 1994 ", PART III.A,  ‘CHILD SEX TOURISM’
Division 1-Preliminary,General, Section 50 AD concerning ‘Who can be prosecuted for an offence committed overseas’

" A person must not be charged with an offence against this Part that the person allegedly committed outside Australia unless, at the time of the offence, the person was
(a) an Australian citizen; or
(b) a resident of Australia; or
(c) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(d) any other body corporate that carries on its activities principally in Australia. "

‘Sexual intercourse with a child under sixteen (16)’, Division 2, ‘Sexual offences against children overseas’, Section 50BA
" A person must not, while outside Australia, engage in sexual intercourse with a person who is under sixteen (16).
enalty: Imprisonment for 17 years. "

Division 5, ‘Video link evidence’, Section 50EA concerning ‘When court may take evidence by video link
" In a proceeding for an offence against this Part, the court may direct that a witness give evidence by video link if
(a) the witness will give the evidence from outside Australia; and
(b) the witness is not a defendant in the proceeding; and
(c) the facilities required by section 50EC are available or can reasonably be made available; and
(d) the court is satisfied that attendance of the witness at the court to give the evidence would
(i) cause unreasonable expense or inconvenience; or
(ii) cause the witness psychological harm or unreasonable distress; or
(iii) cause the witness to become so intimidated or distressed that his or her reliability as a witness would be significantly reduced; and
(e) the court is satisfied that it is consistent with the interests of justice that the evidence be taken by video link. "

Division 5, ‘Video link evidence’, Section 50EC concerning ‘Technical requirements for video link’
" (1) A witness can give evidence under a direction only if
(a) the courtroom or other place in Australia where the court is sitting ('the Australian point'): and
(b) the place where the evidence is given ('the overseas point') are equipped with   video facilities that
(c) enable appropriate persons at the Australian point to see and hear the witness give the evidence; and
(d) enable appropriate persons at the overseas point to see and hear appropriate persons at the Australian point.
(2) In subsection (1): 'appropriate persons' means such persons as the court considers appropriate. "

III. Others forms of Child Sex Abuse
‘Inducing a child under sixteen (16) to engage in sexual intercourse’, Section 50BB of the " Crimes (Child Sex Tourism) Amendment Act "

" A person must not induce a person who is under sixteen (16) to engage in sexual intercourse with a third person outside Australia and in the presence of the first-mentioned person. Penalty: Imprisonment for 17 years. "

‘Sexual conduct involving a child under sixteen (16)’, Section 50BC of the " Crimes (Child Sex Tourism) Amendment Act "
" A person (‘the first person') contravenes this section if, while the first person is outside Australia
(a) the first person commits an act of indecency on a person who is under sixteen (16); or
(b) the first person submits to an act of indecency committed by a person who is under sixteen (16); or
(c) the first person commits an act of indecency in the presence of a person who is under sixteen (16) (‘the child'), and the first person intends to derive gratification from the child's presence during the act; or
(d) the first person submits to an act of indecency committed in the presence of a person who is under sixteen (16) ('the child'), and the first person intends to derive gratification from the child's presence during the act; or
(e) the first person engages in sexual intercourse with another person in the presence of a person who is under sixteen (16) ('the child'), and the first person intends to derive gratification from the child’s presence during the sexual intercourse.
Penalty: Imprisonment for 12 years. "

‘Defence based on belief about age’, Section 50CA of the " Crimes (Child Sex Tourism) Amendment Act "
" It is a defence to a prosecution for an offence against Division 2 that the defendant believed at the time of the sexual intercourse or act of indecency that the person in relation to whom the offence was allegedly committed was sixteen (16) or over. "

‘Defence based on valid and genuine marriage’, Section 50CB of the " Crimes (Child Sex Tourism) Amendment Act "
" It is a defence to a prosecution for an offence against Division 2 that
(a) at the time of the sexual intercourse or act of indecency, there existed between the defendant and the person in relation to whom the offence was allegedly committed a marriage that was valid, or recognised as valid, under the law if
(i) the place where the marriage was solemnised; or
(ii) the place where the offence was allegedly committed; or
(iii) the place of the defendant’s residence or domicile; and
(b) when it was solemnised, the marriage was genuine.Defence must be proved on balance of probabilities. "

‘Benefiting from offences against this Part’, Section 50DA " Crimes (Child Sex Tourism) Amendment Act "
" (1) A person contravenes this section if
(a) the person does an act , or makes an omission, whether within or outside Australia, with the intention of benefiting, whether financially or not, from conduct of a kind that would constitute an offence against this Part; and
(b) the act or omission is reasonably capable of resulting in the person benefiting from such conduct;
-whether or not that conduct in fact occurs or has occurred.    Penalty: Imprisonment for 17 years.

(2) An example of an act covered by paragraph (l)(b) is profiting from an arrangement that
facilitates an offence against this Part. "

‘Encouraging an offence against this Part’, Section 50 DB of the " Crimes (Child Sex Tourism) Amendment
Act "
" (1) A person contravenes this section if
(a) the person does an act, or makes an omission, whether within or outside Australia, with the intention of encouraging conduct of a kind that would constitute an offence against this Part (other than this section); and
(b) the act or omission is reasonably capable of encouraging such conduct ; whether or not that conduct in fact occurs.
Penalty: Imprisonment for 17 years. "

IV. Child prostitution
‘Inducing a child under sixteen (16) to be involved in sexual conduct’, Section 50BD of the " Crimes (Child Sex Tourism) Amendment Act "
" (1) A person ('the first person') must not induce a person who is under sixteen (16) to commit, to submit to, or to be present while a third person commits an act of indecency that
(a) is committed outside Australia and in the presence of the first person; and
(b) is not committed by or on the first person.
(2) A person ( the first person ) must not induce a person who is under sixteen (16) to be present while a third person engages in sexual intercourse with a fourth person outside Australia and in the presence of the first person.

 

EMAIL RECEIVED:

Hi, You have the wrong information for the state of Victoria, Australia, The age of consent did not change here on 1/1/2001. I don't know who told you that.  Its still 16 across the board, except where theres a fiduciary relationship. Its 18 if there is.   And people 10-16 can't be prosecuted if theres less that 2yrs age difference.   For further information refer to Crimes Act (Vic) 1958 at www.austlii.edu.au

 

NSW - New Information  09-2000

The laws governing child sexual assault are also found in this division of the Crimes Act. Section 66A prohibits sexual
intercourse with a young person under the age of 10. The offence is punished more severely than rape, and note that lack of
consent is not an ingredient of the offence see s77. Neither does the prosecution have to prove knowledge that the person is
under age. Attempting to commit this offence is a separate crime: s66B. Sexual intercourse with a child between 10-16 is an
offence under s66C, as is an attempt to do so: s66D. With respect to the later two offences, mistaken belief that the child is
over 16 may be raised as a defence: s77(2).
Source:  http://law.anu.edu.au/criminet/trape.html

Rape and Consent:  http://law.anu.edu.au/criminet/tartrape1.html

Rape and Consent:  http://law.anu.edu.au/criminet/tartrape2.html

Crimes and Laws - Victoria:    http://www.dms.dpc.vic.gov.au/sb/1997_Act/A00465.html

Sex involving Children Laws:    http://law.gov.au/publications/croc/crochciii.html

 

Under the Child Sex Tourism Act, police can prosecute Australians who engage in sexual activities overseas with children under the age of 16, even if these acts are not illegal in the country in question.  
(from http://www.woza.co.za/forum/paedophileo.htm)

 

 

 

here are some websites directing you to the Crimes Act

and so on in the various states, they are accurate

http//www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/

http//www.austlii.edu.au/au/legis/cth/consol_act/ca191482/

http//www.austlii.edu.au/au/legis/act/consol_act/ca190082/

http//www.austlii.edu.au/au/legis/nt/consol_act/cca115.html

http//www.austlii.edu.au/cgi-bin/disp.pl/au/legis/nsw/consol%5fact/ca190082/?query=title+%28+%22crime%22+%29

http//www.austlii.edu.au/au/legis/qld/consol_act/cca1899115/

http//www.austlii.edu.au/au/legis/tas/consol_act/cca1924115/

http//www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/

http//www.austlii.edu.au/au/legis/vic/consol_act/ca195882/

http//www.austlii.edu.au/au/legis/wa/consol_act/ccaca1913252/

 

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