| This month's legal beagle will look at the age of sexual
consent in Australia. The column will ignore laws dealing with paedophilia,
and instead concentrate on circumstances where all parties are
'consenting'. However, it should be noted that the laws in various states
impose different requirements for consent where a person in a position of
authority is involved.
While policy grounds will probably rarely see these rules enforced to
the letter of the law, it is still important for young people know where
they stand when it comes to sex.
Contrary to what some may expect, consent laws vary from state to
state, and in many cases, on the sexual act in question. In fact, after
examining the various ages of consent, the recent Federal
Attorney-General's Model Criminal Code suggested a uniform age should be
adopted Australia-wide, but could not agree on what age that should be.
Skip Ahead to a Particular state:
South Australia
Tasmania
New South Wales
Western Australia
Queensland
Victoria
ACT
Northern Territory
Age
of Consent Laws Summary Table
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ACT
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NSW
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Victoria
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Queensland
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South
Australia
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Tasmania
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Northern
Territory
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Western
Australia
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Homosexual
Age of Consent
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16
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18
(male), 16 (female)
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16
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18 (all anal sex)
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17
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17
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18
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21 (male) |
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Heterosexual
Age of Consent
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16
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16
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16
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16
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17
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17
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16
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16 |
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Unique
Provisions
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2
year gap defence,
harsh
penalty
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Harsher
penalty for male
homosexual sex.
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Reasonable
belief of marriage defence, harsh penalty
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Male
and Female anal sex treated differently to heterosexual sex.
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Marriage,
reasonable belief, accused under 17 defences.
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No defence for breach of
homosexual section
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Different penalties for
public and private homosexual sex
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Highest consent law in country
(21) |
South Australia
In South Australia the age of consent for both homosexual and heterosexual sex is 17.
However, a person will not be convicted if at the time of the sexual
intercourse their partner was 16-years or older, and
- The person was 17 or younger, OR
- The person rationally believed their partner was over the age of 17
There is also a marriage defence, in that the law does
not apply to those couples that are married. The maximum penalty for such an offence is 7
years imprisonment.
Tasmania
Homosexuality has been the centre of much debate in Tasmania, and until
recently, homosexual sex was outlawed completely. However, under sections
124 and 127 of the Tasmanian Criminal Code the age of consent for both
heterosexual and homosexual sex is now 17 years. The legislation offers a
defence to all forms of sexual intercourse, if the person reasonably
believed their partner was over 17. However, the act offers a separate
defence for heterosexual and lesbian sex only. This defence requires that:
- The person was not more than 5
years older than their partner, who was 15 or older, or
- The person was not more than 3
years older than their partner.
The fact this defence does not apply to homosexual male sex may be a
throw back to the time when homosexuality was an offence in Tasmania.
The Act also includes a separate offence of maintaining a sexual
relationship with a person under 17.
New South Wales
In New South Wales the age of consent
for lesbian and heterosexual sex is 16 years. Strangely however, the age of consent for male homosexual sex is 18 years. Even more
puzzlingly, while the maximum punishment for lesbian or heterosexual sex
with someone under 16 is eight years jail, the maximum punishment for
homosexual sex is 10 years imprisonment.
Western Australia
Under the Western Australian Criminal Code, it is an offence to have
lesbian or heterosexual sex with a person under the age of 16. However,
the Act offers two defences, which require:
- The person reasonably believed their partner was over 16, or
- The person was married to their partner
However, under section 322A of the WA Code, the age of consent for male
homosexual sex is the highest in Australia at 21 years. It is offence in
Western Australia to give or receive anal sex from a man under 21.
However, a defence is available if the accused can show they reasonably
believed the victim was over 21.
Queensland
Queensland's legislation is also framed differently. Under section 208
of the
Queensland Criminal Code it is an offence to have anal sex with either a
male or female under the age of 18. The act also expressly states that a person can neither give nor receive anal sex from
someone under 18. This section offers no defence.
Alternatively, under section 215, the age of consent for heterosexual and
lesbian sex is 16 years. The Act expressly includes the 'attempt' to have
sex with a girl under 16 as an offence. Unlike section 208, section 215 includes a
defence, which requires:
- The person reasonably believed their partner was over 16, and.
- The partner was over 12 years of age.
ACT
Under section 92E of the ACT Crimes Act, the age of consent for all sexual
intercourse is 16 years. However, a defence is available for a person that:
- Reasonably believed their partner was 16 or older, OR
- The person was not more than 2 years older than their partner, the
partner consented to the intercourse and was over the age of 10 years.
It is worth noting that under the ACT Crimes Act certain
situations preclude consent being formed, including the effects of alcohol
or drugs. Despite this defence, the ACT legislation is relatively harsh,
given it imposes a maximum penalty of 14 years imprisonment.
The ACT also has a separate offence of 'maintaining a sexual
relationship' with a person under 16 years. A sexual relationship is
maintained if a person has had sex with their partner three or more times.
Victoria
Under the Victorian Crimes Act, the age of consent for all forms of
sexual intercourse is 16. However, the legislation does offer a number of
defences. Firstly, the legislation does not apply to married couples.
Secondly, consent will be a defence if the person:
- Reasonably believed their partner was 16 or over, or
- Was not more than 2 years older than the victim, or
- Reasonably believed they were married to the victim
This final defence is unique to Victoria and it is strange that the
other states that offer marriage as a defence do not also offer a defence
of reasonable belief of marriage. Victoria also imposes a relatively harsh
penalty, with a maximum term of 15 years imprisonment.
Northern Territory
Finally, as appears the norm, the Northern Territory Government has
managed to frame their legislation differently again. Under that state's
Criminal Code it is illegal to have sex with a female under 16 years. This
effectively covers both heterosexual and lesbian sex, but would not cover
an adult female having sex with a male under 16. The Act imposes a more
severe penalty if the person is 18 or older and their partner is under 14.
However, the act offers a defence, if the person can show they reasonably
believed the female was over 16.
The position is different for male homosexual sex, as the
Criminal Code states it is an offence to 'privately' have homosexual male
sex with someone under 18. Again, the Act imposes a more severe penalty if
the person is an adult and their partner is under 14. However,
the act does offer a defence if the person can show they reasonably
believed their was 18 or older.
Whether an act is performed is public simply increases the penalty, but
is not material to the age of consent.
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