Acknowledgements

Executive Summary

Introduction

The Research Process

NSW Age of Consent legislation

Homosexual Age of Consent in Australia

Homosexual Age of Consent worldwide

Primary arguments against equalisation

Primary arguments in favour of equalisation

Professional organisations’ positions

Material from Australian Royal Commissions and Government
Enquiries

Conclusions

Bibliography

Thematic list of references

MAJOR REPORT - 2001

THE AGE OF CONSENT
AND GAY MEN IN NEW SOUTH WALES

Section Three - Homosexual Age of Consent in Australia

In the provision of each state's criminal codes the consent of the young person remains irrelevant to the sexual offences against children. There are widely divergent ages of consent throughout Australia at present. Moreover, there are sometimes different ages of consent within jurisdictions on the basis of gender or sexuality (as in NSW), by specific acts, or in terms of the context in which certain specific acts take place. Victoria and the ACT In Victoria and the ACT the age of consent is 16. Offences which apply make no distinction as to the gender or sexuality of the offender or victim (Vic Crimes Act sections 45-46; ACT Crimes Act sections 92E, 92K). South Australia and Tasmania In both of these states the age of consent for both homosexual and heterosexual sex is 17 years. Homosexual sex was prohibited in Tasmania until 1997 (SA Criminal Law and Consolidation Act section 49; Tas Criminal Code sections 124, 127). New South Wales In New South Wales distinctions in the age of consent are based on sexuality and gender: the age of consent for heterosexual and lesbian sex is 16 years; the age of consent for male homosexual sex is 18 years. Homosexuality was decriminalised in NSW in 1984 (NSW Crimes Act sections 66C, 78K). West Australia In West Australia it is an offence to sexually penetrate a child under 16 yrs. The age of male homosexual sex is 21 years--one of the highest in the world. The age of consent for lesbian sex is covered by the general offence so the age of consent is 16 years (WA Criminal Code sections 320-321 and section 332a). It should be noted that this position is currently under parliamentary review Queensland In Queensland the age of consent for vaginal intercourse is 16. The age of consent for anal intercourse with a male or female person is 18 years (Qld Criminal Code sections 208, 215). Northern Territory In this territory it is unlawful to have sexual intercourse or commit an act of gross indecency with a female under 16 years. For males it is unlawful to have sexual intercourse or commit acts of gross indecency with other males under 18 years. Moreover in the Northern Territory all homosexual acts committed in public are illegal irrespective of age (NT Criminal Code sections 128, 129, 132 and 188(2)). The NSW homosexual male age of consent legislation thus stands alongside West Australia and the Northern Territory as one of the least liberal in the nation. With moves afoot in Western Australia to equalise the male homosexual age of consent at 16 years, NSW may soon take its place as one of the least progressive states in this area of criminal law. It should also be noted here that this state of affairs is far from the outcome publicly envisaged by the NSW Labor Premier Neville Wran when he introduced legislation to legalise homosexual sex in 1984. At the time he contended that the disparity between male heterosexual and homosexual ages of consent was a short-term compromise to expedite the legalisation bill in the face of conservative elements on both sides of the house--one which would be remedied when any resultant controversy had died down. The disparity was not intended be a permanent state of affairs (Bolger 1998; Simpson and Figgis 1997, 1999). Premier Wran commented at the time: The bill is not designed to cure all existing anomalies [specifically the unequal ages of consent] relating to homosexual practices contained in the Crimes Act. I would expect that such anomalies would in due course be the subject of a separate review of the Crimes Act as a whole (cited in Bolger 1998: 54).