Crimes Amendment (Sexual Offences) Bill
Debate resumed from 20 May.
Ms KENEALLY (Heffron) [10.00 a.m.]: The main purpose of this bill is to amend the New South Wales Crimes Act with respect to the equal treatment of sexual offences regardless of whether the victim or the perpetrator is male or female. The bill will also create an equal age of consent at 16 and provide a number of safeguards to protect young people from exploitation. I recognise that this bill evokes public discussion on moral and religious issues. I have listened to the views of many people in the community in the process of deciding how I will vote on this bill. Last night I spoke in this Chamber about how my passion for social justice has its roots in my Catholic faith. I think it appropriate that I include how my faith has impacted my views on this bill.
I will be supporting this legislation for the following reasons: I support tough new penalties on paedophilia, which is a despicable act and one of the greatest affronts to human dignity. As a mother of two young boys I particularly support broadening the law to include stronger penalties on persons in positions of trust—such as teachers, coaches and clergy—who prey upon children. Secondly, in a multicultural, diverse society such as ours there are many views in the community with respect to the morality of sexual behaviour. As a Catholic I recognise that Catholic teaching, while it accepts that homosexual orientation exists, does not condone homosexual activity. But I also note that this teaching is a matter for Catholics to judge with a fully-formed conscience. Further, I note that there is a distinction between what some judge as moral behaviour and what the State accepts as legal behaviour.
Homosexuality was decriminalised in 1984. This bill only creates an equal age of consent for what is already legal activity. Thirdly, 80 per cent of sexual abuse victims are female. I find it unjust that men who prey upon girls receive lesser penalties than those who sexually abuse boys. This bill will make no distinction between the genders of victims and will toughen the penalties across the board for sexual abuse. Fourthly, the Wood royal commission said that an unequal age of consent could encourage corrupt law enforcement practices and possible extortion of young gay men. Consistent laws will be more transparent for the public to understand and easier for the police to enforce.
Finally, as a Catholic, I passionately believe in the gospel message of love, acceptance and tolerance. I want to encourage a society in New South Wales where the stigma of homosexual orientation no longer exists, particularly for young people, and where all persons are accepted and supported, not condemned and criminalised. For these five reasons—particularly tougher paedophilia laws, creating transparent and consistent legislation, and establishing more just penalties for those who prey upon young girls—I will be voting to support the bill.
Mr HARTCHER (Gosford) [10.04 a.m.]: The primary purpose of the Crimes Amendment (Sexual Offences) Bill is to lower the age of homosexual consent for males from 18 to 16. The Premier and the Attorney General introduced the bill into Parliament and a conscience vote will be allowed for Liberal and Labor Party members. The principal argument of the bill's proponent is that of equity—that the age of heterosexual consent is 16 and, accordingly, the age of homosexual consent should also be 16. This argument has merit. People who do not accept the principle of equity need an even stronger argument to justify their position. As the member for Gosford I have consulted my electorate and I have received well-reasoned arguments both for and against. I thank all those in my electorate who have taken time to advise me of their views.
The protection of children in any civilised society must always be paramount. That is the very reason we have age of consent legislation. The decision that I have made and the vote that I will be casting on this bill have been determined by my belief about how best to protect young people. I am aware of the concern expressed by supporters of the bill that sex education will not be legally available to homosexual males until they turn 18, even though many of them are sexually active before that age. This is an important matter and it needs to be addressed. I am also conscious of the medical fact that boys mature, on average, two years later than girls. I refer to the United States National Library of Medicine, an authoritative body established by the United States Congress, which states that females mature earlier than males. The difference in the age entering puberty is, on average, two years. Females are considered sexually, physically and emotionally mature by the age of 17.
The same cannot be said for males until approximately the age of 19. The International Family Health Encyclopaedia states, "Puberty normally begins at about 11 years for girls but at about 13 years for boys." The Encyclopaedia of Family Health, published under the imprimatur of the Australian Medical Association and the New Zealand Medical Association, states, "There is considerable variation in the age of onset of puberty but girls, on average, undergo puberty earlier than boys. The entire process takes about three to four years." It is well-established in a community as a form of consensual, shared knowledge that girls do mature sexually and physically in adolescence faster than boys and that accordingly there is an argument that there may well need to be some special protection of boys as they grow up. At page 1078 of Volume V of the Wood royal commission report, dealing with paedophilia, the commissioner referred to the principal argument against change to the law. Under the heading "The Arguments against Change" he stated:
• physical and emotional development was said to occur about two years later in boys than girls, so that extra time should be allowed for boys to determine their sexual identity and preference...
… The arguments against change turned on the propositions that:
Conscious therefore of my responsibility for the protection of children and conscious that there is a difference in the maturation rates for boys and girls, I believe that there is a valid argument to maintain the distinction of two years between a boy's age of consent and a girl's age of consent. The present law enshrines that distinction in legislation. I believe the protection of children is of far greater importance than the important principle of equity. Accordingly, I do not support the bill and will vote against it.
Mr GIBSON (Blacktown) [10.08 a.m.]: I state from the outset that I will vote against the bill. Like the honourable member for Heffron, I am a practising Catholic and I take my religion seriously. I have no doubt that the three aspects of the bill should be dealt with by three separate bills. The first part of the bill deals with the age of consent for homosexual males, the second part of the bill deals with harsher penalties, and the third part deals with an amnesty. It is a Dolly Dunn clause as far as I am concerned. The age of consent is there to protect children from exploitation. That forms the rationale for retaining the age of consent laws. The question of what is the proper and best age for this consent is very hard to determine. On religion, ethics and morals we all have different opinions.
It is not good enough for people in this Chamber to say that the main reason to change the legislation is that it discriminates between males and females. South Australia and Western Australia have different ages of consent to New South Wales. When one considers that the age of consent varies around the world from 12 in Malta to 21 in other areas, I do not know how it can be said that our legislation is discriminatory. It is poor argument to suggest that we should change the law because it is discriminatory. It is a medical fact that boys mature two years later than girls. As members of Parliament we must consider all these things if we are to protect our children. The argument that the age of consent should be the same for males and females is invalid.
There is no doubt that our society treats 16-year-olds as children: they are not allowed to hold a driver's licence, they are not allowed to watch explicit sex scenes in R-rated movies, they cannot buy cigarettes, they cannot enter financial contracts, and they cannot get married without parental consent. Yesterday the Premier flagged the introduction of legislation to enable people with certain types of illnesses to use marijuana to reduce their pain and suffering. We have not yet seen that legislation, but according to today's news reports, its use will not be available to people under 18 years of age. Therefore that legislation will be discriminatory. If we were politically correct in every situation that could be said to be discriminatory, the State would become unworkable.
For the benefit of the people in my electorate I will put on the record some arguments against lowering the age of consent for males. Lowering the age of consent may encourage male homosexual prostitution by youths who are motivated by financial consideration to engage in homosexual acts. The discrepancy between male and female age of consent could be resolved by raising the age of consent for females to 18 years of age, thus addressing discrimination based on homosexuality in the age of consent laws. If we are so concerned about discrimination, why not raise the age of consent for females to 18? If the age of consent for males is lowered to 16 years then the defence of restricted consent similar to that applying to girls between 14 and 16 could be introduced for 16-year-old boys.
Restricted consent is a defence to some charges of heterosexual sex with a child under the age of 16. Section 17 of the Crimes Act 1900 provides that it is a defence to a charge of sexual intercourse with a child under 16 under section 66C if the person charged and the child to whom the charge relates are not both male and if the child was over 14 years, the child consented to the defence and the person charged had, at the time of the offence, reasonable cause to believe, and did in fact believe, that the child to whom the charge relates was of or above the age of 16 years. On 9 May in the Daily Telegraph Liz Mullinar from the Advocates for the Survivors of Child Abuse said that lowering the age of consent for homosexuals could leave the way open for sex offenders to argue that children as young as 12 years of age look to be 16 years of age. Cases of child abuse are thrown out of court because the man says, "But the boy looked older than 14 or 15."
The Anglican Church and every other church are against these changes. No-one in this Chamber would be against harsher penalties for child abuse. If such a bill were introduced I am certain that it would have the support of the Chamber. To introduce a bill seeking to change the age of consent for heterosexuals combined with harsher penalties and what I call the Dolly Dunn factor—the third part of the bill—is an attempt to blackmail members of this House to support the bill. I have great regard and respect for the Attorney General. He is a friend. But for the life of me I cannot believe that he introduced this all-encompassing bill instead of three separate bills. I note the Attorney General said that if the bill were defeated in this Chamber he would resubmit it on the age of consent, which is what he should have done in the first instance. I probably think more deviously than others, and I believe that the third part of the bill—part 19 proposed new section 49—has been included for a reason. If I ever find out the reason I would be the first to jump up in this Chamber and state it. Part 19 of proposed new section 49 states:
49 Previous consensual homosexual acts
(1) It is a defence to a homosexual offence that is alleged to have occurred before the commencement of the Crimes Amendment (Sexual Offences) Act 2003 that:
(a) both parties were not less than 16 years of age at the time of the alleged offence, and
(b) both parties consented to the act concerned, and
(c) the act concerned would not, if it had occurred after that commencement, otherwise be unlawful.
Today, if a 30-, 45- or 50-year-old person were having an affair or living with a young person of 16 years of age, even if they were both consenting, that person would be charged and probably gaoled. If it were a person in a high position—a member of Parliament, a judge, or the boss of the Independent Commission Against Corruption—that person probably would lose his or her job. That person would be charged and found guilty because today it is against the law. But if we support this legislation, tomorrow those people would be doing nothing illegal. No offence would be committed. Today if I break the speed limit of 80 kilometres per hour and next month the speed limit is increased to 100 kilometres per hour I cannot expect to be exonerated because what I did not is no longer against the law. The same principle applies to any legislation.
The legislation is similar to playing monopoly. If you are a paedophile you do not have to pass "Go" to collect $200 and you do not have a get-out-of-gaol-free card because the legislation says that you will not be charged or fined. If you have committed 100 offences you will be neither charged nor fined under the legislation. I cannot support the legislation. I do not know why part 19 has been included. I cannot understand why we are debating an amnesty for paedophiles. The bill will protect paedophiles. It is hypocritical. We are debating looking after children by lowering the age of consent, but conversely the legislation is a lottery win for paedophiles, which is exactly why I will not vote for it. In my 16 years in this place I have seen a lot of legislation, but I have never seen more vile legislation than part 19 of proposed new section 49.
The legislation is a total sham. I have no doubt that paedophiles will rejoice today because if the bill is passed tomorrow they will not be charged for any wrongdoing. Today it is against the law to live with a 16-year-old person. Any persons doing so would not only lose their job because of bad publicity, they would be charged and found guilty. However, if the legislation is passed tomorrow, they will not be named and they will not be charged because there will be no charge to answer. We had an amnesty to enable people to hand in their firearms, which I can understand, but we are supposed to look after our kids. I cannot understand why we are providing an amnesty for paedophiles. We are not asking the paedophiles to come forward and repent; we are telling them that they will not be charged and they will get off scot-free. It is the worst legislation I have seen in this House. It should have been introduced in three parts. The age of consent and the harsher penalties have been included in the bill as a cover for part 19. I hope the House rejects it.
Mr R. W. TURNER (Orange) [10.19 a.m.]: The National Party has foreshadowed an amendment to split the Crimes Amendment (Sexual Offences) Bill in two: one dealing with the age of consent and another dealing with increased penalties. None of us has any objection to the increased penalties; indeed, we support them. However, some honourable members in the National Party have problems with the proposed reduction in the age of consent. Although the National Party has stated that it will oppose the bill, I have been given the opportunity to speak on it, and I thank them for that. It is another sign that the National Party is flexible and will listen to its members.
This bill provides for the equal treatment of sexual offences irrespective of whether the victim or the perpetrator is male or female. It provides that the age of consent for all persons will be 16 years. Consensual male homosexual acts that have taken place before the commencement of the amendments between persons who were not less than 16 years of age at the time will cease to be unlawful. The honourable member for Blacktown who has just resumed his seat spoke passionately against that last amendment. I do not think it should create that level of passion because there have been no convictions in the past 20 years. It is simply enshrining in law the practice of the past two decades.
I will quote from various letters that I have received. I know that all honourable members have received letters from people supporting each side of the argument. I received a letter this morning from FPA Health, which was Family Planning New South Wales. FPA Health acknowledges as major funding sources the Commonwealth Department of Health and Ageing and the New South Wales Department of Health. The letter states:
The existing legislation encourages stigmatisation and marginalisation of young gay men and exacerbates many significant health issues. The law tells young gay men that they need protection from their sexuality, that it is criminal and that they will be treated more punitively than their heterosexual peers if they are 'caught'. To be considered a criminal while coming to terms with one's sexuality is a burden that no young person should have to bear. At a time when it is widely acknowledged that depression and suicide are increasing, and that young gay men are particularly susceptible to both, it is unconscionable that the law perpetuates stigmatisation and marginalisation.
Yesterday I attended a meeting convened by the Gay and Lesbian Rights Lobby and the AIDS Council of New South Wales. I spoke to three young men: Chris from Nowra, who is 17; Daniel from Newcastle, who is 18; and Alex from Port Macquarie, who is 17. I spoke to them about what it was like to come out at their age. One said he came out at 14, the other at 15 and the other at 17. I also spoke to them about the level of acceptance they experienced in their schools and within their families. Sadly in this day and age, all of them had problems with family acceptance. They were suffering particular vilification within their schools, not only from students their own age but also from some younger and older students. They said that they would probably end up in Sydney because their small towns do not offer the support groups and advice they are desperately seeking.
The young men commented on the fact that some people have said that 16-year-old homosexuals are not mature enough to make the decisions they must make about sexual activity. They disagreed. They agreed that physically and biologically males were not as mature as females, but they said that their mental maturity was the same. I have not heard that point made previously. They saw variations between the physical-biological maturity and mental maturity. I spent a very interesting half an hour with them. They are looking forward to going to university, where they believe there will be more acceptance of their lifestyle because people there are older and generally more understanding. They made the point that lesbians are far more accepted than gay males and that there is very little discussion about homosexuality in the school system, except about how to have safe sex. They said that there is not enough discussion about their personal issues. I received a letter from Mr Frank Barnes from St Peters in which he states:
As a gay man fast approaching 60 who was arrested because of my sexuality over 40 years ago. While luckily not being imprisoned, I came very close to taking my own life a number of times as I felt demeaned by the attitude of my church, family, friends and society to what was seen as my "weakness". I also saw too many of my peers succeed in committing suicide and therefore denied the full life they deserved. I have been fighting for this inequality to be fixed for most of my life as I have been fortunate to have worked through my sexuality in such a way that I have learned to ignore the insults and threats that seem to attach themselves to people who are gay.
Many males and females face that situation. I am sure it happens all over Australia and the world. On numerous occasions in Orange, both male and female residents who have reached the stage at which their children have left home, have had the strength to come out. It is not only young people who are grappling with this issue. People in their twenties through to their sixties have faced their true sexuality, finally making a decision to accept it. That section of the community has not experienced the compassion that has been afforded to young people. We must remember that some older people have succumbed to social pressure and married and appeared to be happy, but that has not always been the case. I also received a letter from John Goldbaum of Potts Point in which he states:
The vast majority of homosexual children are born to heterosexual parents and raised in ordinary families. Many of these parents and families display homophobic prejudices whilst unbeknown to them and their child, their gay child is growing up and internalising such hatred. When the child and/or the families realise they are gay, often in their teenage years, some of these parents and families mete out physical and emotional abuse to that child. This abuse is more common in regional and rural areas and is due to fear and ignorance, which is apparently supported by the National Party. It is no wonder that as a result of this internalised and/or overt hatred, many of these children suffer lack of self-esteem, homelessness and mental illness which causes them to fail to complete their education, turn to illicit drug abuse and often commit suicide. Those boys that survive often succumb to preventable disease because the law denies the appropriate sexual health and advice until they reach the age of 18 years, notwithstanding they are engaging in unsafe sex at an earlier age.
The arguments against equalising the age of consent are generally based on hatred of homosexuals, but are often advanced by the very people who should be most interested in the welfare of both their heterosexual and homosexual children, namely parents, religious institutions and schools.
I have received letters of support from teacher organisations such as the Blue Mountains Teachers Association, the Nepean Teachers Association, and the Lower Blue Mountains Teachers Association. I have also received a number of letters from the Sydney Diocese of the Anglican Church presenting strong arguments against the bill.
I conclude my remarks by outlining a brief history of how I arrived at a better understanding of this whole issue. I have spoken to my son on this topic on many occasions, and the National Party understands my position. My son is a homosexual and because of the understanding of my wife, Diane, and I, he was able to return from Sydney, where he trained at college to become a teacher, and feel comfortable in living in Orange. He is a very close member of the family. He is very close to his sister and her children and he sees them as part of his family. He has a partner, a business and a home in Orange. He is accepted by the friends of my wife and I and he is accepted by the vast majority of people in Orange who have a reasonable understanding of the issue.
A reasonable proportion of the population in Orange are gay, and I hope that over time many other parents will gain as much understanding as my wife and I have. I am aware through letters and conversations I have had with boys whom I met yesterday that in some cases mothers will accept the situation and fathers will not, and that is tragic. In other cases, some brothers and sisters have accepted their sexuality but others have not.
Society has to work through the issue of homosexuality and treat homosexuals as normal human beings. Generally they are very loving and caring people but most importantly they are sons and daughters of parents who agonise about how to handle the situation. My son has often told me that his friends remark about how lucky he is to have parents who are so understanding because in many cases, after telling their parents, homosexuals never see them again, or there is no longer any loving contact between the child and the parents, which is also a tragedy. I hope that by supporting this legislation and voting in favour of the bill, slowly some of the ignorance and fear that exist within the community will dissipate so that homosexuals will be accepted as part of the community and as people who deserve to be treated equally.
I hope that this bill will rid the community of most of the discrimination that homosexuals are currently suffering from. Society has come a long way, but there is still a long way to go. As I said earlier, people are living what appear to be normal lives, but a scratch of the surface reveals that they have not been able to acknowledge their true sexuality. I believe that the underlying issue of where homosexuals are at and who they are is a source of behavioural problems such as excessive alcohol consumption, physical abuse of children, and unhealthy relationships between husbands and wives. The pressures of society requiring people to conform and live what is perceived to be a normal life create enormous problems within families, as well as misunderstanding. The sooner the issue can be acknowledged and counselling services can be provided not only to younger people but to older people who are grappling with the problem, the better society will be. I hope this bill will go a long way towards a better understanding of the whole issue. [Time expired.]
Mr AMERY (Mount Druitt) [10.34 a.m.]: The debate on the Crimes Amendment (Sexual Offences) Bill last night and media reports focused on provisions of the bill relating to the uniform age of consent, which is basically the only matter of contention in the bill. All other provisions, particularly those relating to increased penalties and the removal of the defence of mistaken belief of age in response to charges of carnal knowledge, are most welcome. I have received a deal of correspondence on this matter advancing arguments against the bill because of the removal of that defence. Although I do not have legal advice on how tight the removal of the defence will be, I believe that once people see how the provisions work in practice, most of the criticisms that have been levelled at the bill will be answered.
The main issues in the bill are the age of consent and retrospectivity, which was referred to by the honourable member for Blacktown. If the bill is passed, a 16-year-old boy—a juvenile in the eyes of the law—will be able to decide that he is gay and be in a position to consent to sexual intercourse with another male, no matter how old that other male may be. Retrospectivity provisions of the bill will apply to homosexual acts, as the honourable member for Blacktown pointed out. I remind all honourable members that each member of the House will be free to exercise a conscience vote on this bill. Members on both sides of this House have acknowledged this during debate. Members will be able to vote according to how each of them feels about the proposed change in the law. It is very rare for honourable members to be given a conscience vote in the House.
If honourable members are happy with the changes, they should vote for the bill—it is as plain and as simple as that—and if they are not, of course they should vote against it, irrespective of whether the bill is a Government bill, an Opposition bill, a private member's bill, a Coalition bill or a Labor Party bill. Honourable members who are undecided will have to judge how people in their electorate would want them to vote on the bill. The inherent challenge for them is how they believe the proposition would be received in their electorate if it were put to a vote. The decision on how to vote on this bill is one for each member of this House.
I will vote against the bill. Although I have been told repeatedly, and somewhat arrogantly in some cases, that there is no real argument against a uniform age of consent, I am yet to hear a good argument for the presentation of this bill to this House. Recently I campaigned throughout my electorate and throughout the State, and this issue was not once raised with me. There was no outcry from the community for the changes to the law proposed in this bill. No political party promised the introduction of this legislation as part of its re-election campaign, with the possible exception of the Greens, who, honourable members might recall—I am sure the honourable member for Murray-Darling will—also promised a give-away drugs policy.
In arriving at my decision to vote against the bill I have rejected counterarguments. In the first place I do not care what the law is in other States or in Latvia, Romania, Estonia, Korea or in any other country on the list that has been circulated to honourable members. I am mainly worried about the law in New South Wales. I believe that the position in other jurisdictions has been misrepresented to some extent. An excellent briefing paper provided by the Parliamentary Library shows that in some jurisdictions, for example in Queensland, there are qualifications and variations in the age of consent. The argument regarding the law in other States is selective—in other words, it uses only the examples that suit the proponents of the law. Many of the countries shown on the list provided to members have laws relating to crime, traffic, building codes and equal opportunities—laws that we in this country would never entertain. So the argument comes back to our decision about what the law should be in New South Wales.
Another aspect of the campaign that I reject is the so-called intellectual snobbery that goes with these arguments. For example, as has been said, there are no sensible or rational arguments against the law. It seems that the only people opposing it are the bible-bashers, people who are living in the dark ages and, of course, proponents of the latest cliché, "You are a homophobe." I am confident that I do not fit any of those descriptions. Perhaps my views on these types of issues are conservative—and if so, so be it. However, I reject the intellectual snobbery and arrogance that goes with the debate about people daring to speak out on what is a sensible and practical amendment.
I also do not accept the argument that because a 16-year-old boy is allowed to do many things, he should be allowed to decide on a homosexual activity or lifestyle. I have been provided with briefing notes and other informative documents on the matter. I have been told, for example, that a person can obtain a licence to shoot at the age of 14—I will need to check the legislation; I thought it specified the age of 18—but at a younger age if the person is under the supervision of an adult. I have been told that a 16-year-old can drive a car, but let us not forget that a 16-year-old cannot drive unless accompanied by a licensed driver who is no longer on P-plates.
The bill provides that a man of, say, 40 or 50 would be able to have sexual intercourse, with consent, with a 16-year-old boy—but he would not be able to take the boy to a bar for a drink, and he would be charged if he supplied the boy with a cigarette. That is an absurd provision. I cannot accept such an inconsistency in the law, since inconsistency in the law has been used on many occasions to seek to convince people to support such a proposition. A number of people have expressed to me their opinions on this issue. My office has received many calls, emails and letters, and I wish to acknowledge some of them. Young Labor and Rainbow Labor have written to me and asked me to support the bill. I have read numerous letters to the editors of newspapers, but none has convinced me to support it. On the other hand, I am reassured by other views. An article in the Catholic Weekly of 18 May 2003 reported the Archbishop of Sydney, Dr George Pell, as saying:
Parliament should not enshrine the ideological claim that homosexual and heterosexual activity are morally equivalent.
It sounds a wrong note and makes the task of parents more difficult.
The article stated that Dr Pell had been supported in his stand by the Anglican Bishop of North Sydney, Dr Glenn Davies, who said:
Lowering the age of consent to 16 takes away the onus of responsibility on adults to act with integrity towards young people.
In a strongly worded letter published in the Illawarra Mercury the former member for Kiama, Mr Bob Harrison, wrote:
The manner in which adult persons choose to conduct their sex lives is totally their own business, but society must always protect the welfare of children and minors particularly against insidious advances from paedophiles and perverts who prey on the inexperience and innocence of the young.
Let us not forget that we are talking about people who are, in law, juveniles. Mr Harrison went on to say:
To those people who will try to muddy the waters by claiming that it is discrimination for the age of consent to be 16 for girls and 18 for boys I offer 2 suggestions.
Either they should campaign for an all round age of 18 years or alternatively if it is their wish a 16 year age of consent for both boys and girls having heterosexual sex and an 18 year age of consent for both boys and girls to participate in homosexual sex, which is after all outside the social mainstream.
I reiterate that society has a clear responsibility to enact laws, along with those laws related to the permissible age for drinking, smoking and gambling …
An extremely significant contribution came from a constituent, Richard Johnson of Rooty Hill, who I understand has corresponded with a number of members over some time. When Mr Johnson first made an appointment to see me, he argued very strongly that the age of consent should not be lowered. In a letter to me he wrote:
It is with great sadness and sorrow emotionally for myself, to be writing this letter to you—However when reading the following, I pray my sincerity and courage of conviction will demonstrate why I feel, the way I do.
As a citizen of New South Wales, I would like to express my firm belief and opinion that The Homosexual Age Of Consent is NOT to be lowered to 16, and to REMAIN at the current LAW of 18 Years or Older …
During the period between July 2001 and December 2002, I would be in the true crime statistics, as a Victim of "Crime" under the Sexual Assault Category, I now pray I am in the Adult Survivors of Child Abuse category.
While doing my best to move forward, I have become committed to hopefully ensuring the prevention of Child Abuse in an area I believe I can speak on with confidence.
I do not wish to go into the details of this man's history, but I regard him as a person who has lived many of the experiences that we, in an academic sense, simply talk about, and I take his advice very seriously. [Extension of time agreed to.]
We could argue all day about many of these matters. We can, and will, quote various organisations and individuals and use reports to support one point of view or the other. But at the end of the day, a conscience vote is about what we feel and believe. I do not believe in the concept of gender neutrality, a term I heard on talkback radio some years ago by an activist trying to push these sorts of law reforms. I believe that sexual development in males takes place at a different age to sexual development in females. In the main, a girl of 16 is more mature than a boy of 16.
I believe we should be more cautious when we speak about a male of 16 not just being sexually active but making a decision about whether he is homosexual. Obviously, he may be a homosexual and may live that lifestyle in the future, but this bill allows him to make that decision at 16 years of age. Despite all the comments about equalising the age of consent between males and females, a 16-year-old boy's decision to adopt a homosexual lifestyle is a bigger call. In a letter to me seeking my support for the bill the AIDS Council of New South Wales wrote:
The recently completed Australian sex survey tells us that the majority of young people will experiment with sex between 16 and 18 and that most will do that with people of their own age. Some will do this with members of the opposite sex and some with their own gender. For heterosexual young people this is just a phase in growing up. For homosexual young men this can be a very traumatic time when they are unable to talk with anyone about their feelings for fear that they or their partner will face criminal charges.
I highlight the statement, "Some will do this with members of the opposite sex and some with their own gender. For heterosexual young people this is just a phase in growing up."
At 16 years, young males are in the mainstream of growing up and they should not be confronted by much older men, those of my age and so on. This bill is not about governing the way that 16-year-olds act socially and sexually, it is about sending a clear message to people of my generation and to all adult people in the State that it is inappropriate for 16-year-old boys to engage in homosexual activity. It is prudent to keep the current law in place because at 18 years a male is better able to make such a life-altering decision. I believe that that is very important. The current laws are not there to dictate to 16-year-olds; they are there to warn much older men that a 16-year-old is too young to make such a significant decision.
Finally, I do not agree with the arguments about separating the provisions contained in the bill. Members voting against the age of consent provisions in the bill should not be distracted by the fact that the bill contains many other provisions. There is no need for members to be concerned. The Attorney General has given an assurance that if the whole bill is voted down a new bill will be introduced to cover the provisions that fail on the conscience vote. Whilst I respect what Opposition members are saying about separation, that could be a distraction from the whole debate. At the conclusion of the second reading debate there will be a conscience vote and if the bill goes to the Committee stage a conscience vote will be held on the age of consent provisions. It is unnecessary to have a political fight about the separation of the bill, because if the bill fails, the provisions that we all support will be introduced in a separate bill later in the year. I oppose the bill.
Mr RICHARDSON (The Hills) [10.51 a.m.]: Last night and this morning I listened to this debate with interest. Certainly there has been passion on both sides of the debate. I will not go so far as to say that the bill is the product of a radical left-wing socialist government, but it certainly is true that this matter was not put before the people to consider prior to the recent election. In fact, no hint was given that a bill as contentious as this would be introduced into Parliament so soon in the session. The bill seeks to lower the age of consent for homosexual relations between consenting males from 18 to 16. It also bundles in higher penalties for sexual relations with persons aged under 16 years. As the honourable member for Epping said last night, it was dishonest of the Premier not to separate those two elements of the bill.
A couple of weeks ago the honourable member for Epping attempted to provide for the separation of those two elements of the bill, but the Premier pooh-poohed him for his pains. This morning the honourable member for Mount Druitt said that if this bill does not get up, the Attorney General has undertaken to bring in a separate bill with higher penalties for a person having homosexual relations with under-age males. If that is the case, why did the Attorney General not do the honourable and honest thing and introduce two bills? That would have been the obvious solution to this dilemma. Unquestionably it will be difficult for some members to separate the two issues—indeed, they are two separate issues.
I am sure that most, if not all, members of this House would support higher penalties for sexual offences against children. I state now that I cannot support the lowering of the age of homosexual consent. As the honourable member for Cronulla said, this bill is about the age at which teenagers may engage in sexual acts on equal terms with their partners. That age, if the partner is perhaps in his 30s or 40s, is certainly not 16. At 16, boys may think they are immortal, they may be strong and fit and superficially tough, but they are at a stage of great vulnerability in their lives, an age at which they may be easy prey for older men. This issue is not simply one of treating both sexes equally, as the honourable member for Camden said, because at those ages the sexes are not equal. Physical and emotional development occurs around two years later in boys than in girls. The United States of America National Library of Medicine has reported:
Females mature earlier than males. The difference in age entering puberty is 2 years. Females are considered sexually, physically and emotionally mature by age 17. The same cannot be said for males until the age of 19.
I note that both those ages are one year older than the current age of consent in New South Wales. The International Family Health Encyclopedia states:
Puberty begins at about 11 years in girls … In boys it starts somewhat later, they do not begin to develop sexually until about 13 years.
Those biological facts cannot be overruled by this House. The excellent briefing paper prepared by Rachel Simpson and Honor Figgis of the Parliamentary Library states:
The age at which an adolescent male's sexual orientation is firmly fixed has not been conclusively determined, and while for many it may be below 16, there may be a significant number of youths between 16 and 18 years who are uncertain about their sexuality. The United Kingdom Policy Advisory Committee on Sexual Offences in its Working Paper of the Age of Consent in Relation to Sexual Offences stated that it is of the utmost importance to decide if possible the age by which a young man's sexual orientation usually becomes fixed, because of the risk that a homosexual seduction before that age might turn him towards homosexual behaviour and prevent him from developing as a heterosexual. The Committee concluded:
I am not quite sure why the committee used a double negative; it could be rephrased to state that it is convinced that there does exist a minority of young men aged 16 to 18 who may be in need of protection. The briefing paper continued:
The majority of us, however, take note of the fact that the medical evidence is by no means unanimous and are not convinced that there does not exist a vulnerable minority of young men aged 16-18 who may be in need of protection.
I received a letter from Al Stewart, the Chief Executive Officer of Anglican Youthworks, which stated:
The Committee further consider that: "a homosexual relationship may be disturbing to an immature boy, even though his basic sexual pattern has been established as heterosexual. The likelihood of disturbance increases with the pressure put upon him to consent to homosexual relationships … some boys may be confused about their sexuality and a boy who is so confused is particularly open to exploitation … The fact that the boy consents to homosexual advances does not mean that he is unlikely to be harmed.
That is the central issue for the House today. Are we, as a Parliament, genuinely concerned about protecting our children? Last night the honourable member for Liverpool gave what I regard as a totally predictable speech on this issue. He said that leaving things as they are would tend to criminalise nearly half of the young people between 16 and 18. He said that according to a Commonwealth study, 44.6 per cent of men who have had a homosexual experience had that experience before the age of 18. The honourable member for Liverpool may be very eloquent, particularly in the left-wing caucus, but maths is clearly not his strong point. We were not talking about 44.6 per cent of homosexuals having their first homosexual experience between the ages of 16 and 18, no, not at all. Grulich, et al, in a paper published only last month in the Australian and New Zealand Journal of Public Health found that 41.9 per cent of homosexual men had their first homosexual experience before the age of 18.
Do we really believe that on one day a 16 year old is in need of protection, while they are still young and vulnerable and trying to sort out the issues of sexuality, and on the next day legislation could be passed to make the 16 year old an adult?
Sexual decisions or mistakes made at the age of 16 can have life long consequences for young people.
I have worked in Youth Ministry in Mt Druitt, Liverpool, and the Eastern Suburbs. I also have four children of my own, three of whom are teenagers. I understand fully how vulnerable kids are in their mid-teens and their need to be protected.
Anyone who believes that an age of consent of 16 years will not be taken advantage of by predatory older males is living in a fantasy land.
My question is a simple one. Are we as a society genuinely concerned about protecting our children?
That might lead one to believe that two out of five homosexual men have formed their sexuality between the ages of 16 and 18. In fact, those people represented less than 18 per cent of the sample and 25 per cent of the men had had their first homosexual experience before the age of 16, in some cases at the age of 10. That is what the honourable member for Liverpool is talking about: 10-year-old boys having a homosexual experience. I do not think any member of this House would suggest that we should legislate to make sex with 10-year-old children legal. In fact, this bill increases the penalties for such activities.
Many honourable members who spoke in favour of this bill said that it is about not discriminating against males. We are not discriminating against the vast majority of males. In the major study Sex in Australia, the Australian Study of Health and Relationships just 1.6 per cent of men identified as being gay while 97.4 per cent identified as being heterosexual. The differential age of consent allows young boys time in which to mature and time in which to form their judgment as to their sexuality. Last night the honourable member for Ballina posed the question: What is the appropriate age of consent for homosexual sex? It is 17 in South Australia and 17 in Tasmania—honourable members would be aware that Tasmania was the last State in Australia to legalise homosexuality—and it is the same age for girls.
The question is: Where do we draw the line? Should it be at 17, as the honourable member for Ballina suggested? Should it be at 16, as this bill proposes? Or should it be lowered still further on the basis that, according to Grulich, 24 per cent of gay men have their first homosexual encounter before the age of 16? These results tend to make a nonsense of the arguments that have been advanced in favour of the bill. In his contribution to the second reading debate the honourable member for Camden said that he does not want to make criminals of two 17-year-old males who are having consensual sex. I would assume, equally, that he would not want to make criminals of two 15-year-olds, 14-year-olds or 13-year-olds who are doing the same thing. There has to be a cut-off point. There is either an age of consent or there is not.
I am persuaded by the arguments of the United Kingdom Policy Advisory Committee, of Al Stewart and of the evidence provided in the Grulich report that the age of consent for homosexual males should stay at 18. Nothing I have heard in this debate has changed my mind on that issue. While this bill may not encourage paedophilia—the removal of the reasonable mistake of age defence to carnal knowledge charges deals with that issue—it will certainly encourage sexual relations between persons of vastly differing ages: the gay Lolita. I understand that in some parts of the United States of America there is an upper limit for consensual heterosexual and homosexual sex to prevent predatory males preying on young people. Parliament should consider that issue if it is genuinely attempting to do something about predatory males preying on young people at a vulnerable stage of their development.
New section 49 wipes the slate clean for any offences that may have occurred before the bill is passed by Parliament—if, indeed, it is passed. It is totally dishonest of the Government to put that provision into this legislation. I heard the Attorney General speaking to Sally Loane on ABC radio this morning about that issue. I felt that he was singularly unconvincing in his support of that provision being included. All he could say was that it did not mean that the provision would be a defence to a rapist where a sexual offence had occurred, where a boy had been raped. That does not seem to be the central issue; the central issue is that—although there are no cases currently before the court there may be in the future, perhaps involving a prominent person—a person who would have been charged with having had sex with what was formerly an underage male will have the matter struck out.
That is a real cop-out by the Government, as other honourable members have suggested. It will legalise acts of paedophilia that have occurred in the past. That is absolutely abhorrent, particularly in the context of the argument that I have advanced against the proponents of this bill that we need to decide the age of consent. Parliament and society determine and set an age of consent. We set the age of consent at 18 for homosexual acts, which was done comparatively recently—in the past 22 years. It was decided that that age was appropriate. The men who may have engaged in homosexual acts with a person under the age of 18 knew that they were illegal at the time. It is absolutely reprehensible that the Government is attempting to introduce retrospective legislation that would overturn the criminality of those acts.
Mr ASHTON (East Hills) [11.05 a.m.]: I am pleased to speak in favour of the Crimes Amendment (Sexual Offences) Bill. Of course, this matter has a long history. To my knowledge, it goes back hundreds of years—in fact, we could go back to the ancient Greeks, the ancient Romans and the Egyptians. I am not sure what the age of consent was in ancient Egypt, but I know that they all married their brothers and sisters, which is what eventually led to the decline of that civilisation. The Wran Government—innovative as it was in the early 1980s—attempted to revise the age of consent. While it did not succeed, it showed that Labor governments are prepared to face up to these realities much more than conservative governments.
I recognise that this bill will be decided on a conscience vote, which is a rare situation in this House. I am told it will be the only conscience vote in this House since the early 1980s. There will be conscience votes on other issues, and that is not a bad thing. Therefore, any speech made on this bill is unlikely to persuade other members to change their minds on how they will vote. The passion expressed by the honourable member for Blacktown—understandably so—did not move me one iota to change my mind in relation to this bill. However, the speech of the honourable member for Orange confirmed the absolute necessity for me to vote for this bill. The best we can do is outline why we will each vote the way we will and why we believe what we will do is right.
If we believe in equality in all things—the word "equity" has been used—we should pass the bill. If we believe that it is wrong to discriminate against people of a different race, a different culture or a different religion we must also agree that it is wrong to discriminate against people based on their sexual preference. In 2003 gay men are still discriminated against. Some people fear homosexuals or have the wrong belief that homosexual men will prey on young men more than heterosexual men will prey on young girls. Such attitudes are difficult to change in society. The current law in New South Wales, in 2003, discriminates against young gay men. The law makes it illegal for male teenagers under the age of 18 to consent to sexual activity—if they consent they are regarded as engaging in criminal activity. At present if a consensual homosexual relationship exists between two young men one day short of their 18th birthdays they are both committing a crime.
A person could ring the police to inform them that two people aged almost 18 years of age are living together and demand that they be arrested. Police who did not arrest that couple or who ignored the request would be breaking the law and could be charged with not properly carrying out their duties. Indeed, as the Wood royal commission report stated, police could be regarded as committing a criminal offence if they harass or intimidate that young couple. It is a crime for a young man under 18 years of age to engage in sexual relations, yet no-one has been charged or taken to court. The bill seeks to bring the law in line with community standards. When I was a schoolteacher it was mandatory for us to report that a student may have been beaten by his or her parents. Indeed, if two boys in year 11 or year 12 under the age of 18 were engaged in a homosexual relationship the schoolteacher would be required to report that fact to the principal, who would then call the police and the parents. The law as it stands makes criminals of people who are almost 18 years of age who commit an act they can commit legally when they turn 18. That does not make sense. Members of Parliament are also in a position of trust and we, too, are subject to that anomaly.
The people of New South Wales have caught up with the social changes that have taken place over dozens of years. Attitudes towards sexual preferences have changed remarkably—although not everywhere and not by all people. Some people still regard gay men as a threat to young boys, but they are in the minority. However, young men still suffer as a result of those prejudices. New South Wales is in the invidious position of being the last State to discriminate on the age of consent. We like to think we are the leading State economically, in attracting investment and in relation to construction, yet we are the last State to remedy this anomaly. South Australia changed its laws 28 years ago and Victoria changed its laws 20 years ago. New South Wales is not leading the rest of Australia or even the rest of the world—it is simply catching up.
All honourable members would have seen the charts that list the age of consent in other countries. I have great respect for the honourable member for Mount Druitt. He said he does not care what is done in other countries; he cares about what happens in New South Wales. Sexual behaviour for homosexuals, bisexuals and heterosexuals is legal at the age of 15 in France, 14 in Iceland, 13 in Korea, 16 in Germany, 15 in the Czech Republic, 14 in Austria, 16 in New Zealand and 16 in the United Kingdom. If people from those countries came to Australia and engaged in the same relationship they could be arrested for breaking the law. Accordingly, the laws of other countries cannot be ignored. We are part of the world and we should have laws in line with the rest of the world. In Malta boys can engage in sex with other males at the age of 12, while in Italy the age is 14.
The age of consent varies among the States of America and those who understand American history will appreciate the interesting reasons for those variations—from a more liberal age of consent in the northern and western States to a higher age for sexual behaviour in the mid-west and the famous deep south. Young gay men already suffer considerably given that the vast majority of people are heterosexual. Clearly, gay men are in the minority and history shows that the minority will always be picked on—whether it was the Jews in Germany, the Tutsis or the Hutus in Rwanda, or the people in Aceh who will be bombed into oblivion by the Indonesian Government. Gay women also suffer. They can be ostracised at school, in their workplace or, unfortunately, even by their families. It is ironic that in all States of Australia girls aged 16 can engage legally in lesbian and heterosexual sex. We must either increase the age of consent to 18 years or reduce it to 16 years. From my experience as a high school teacher it would be impossible to tell a young person aged 14, 15 or 16 years that they can get into a club, buy cigarettes and gamble at the age of 18 but they must also be 18 years before they can engage in sexual activity.
People will not be deterred from engaging in sexual activity before 18 years; they will do so when the time suits them and they will be committing a criminal act. We must consider an appropriate age and I believe 16 is the most appropriate. It is ridiculous that a man who is three or four times older than a 16-year-old girl can engage in consensual sexual relations with her. The man may be 60, 70 or even 80 years of age and, although society may not approve, it is still legal. We may have some moral qualms about it and could perhaps set a limit of 2, 3 or 10 years between their ages. Imagine the socialites who could not marry men 50 years older than them and pick up their inheritance! That is the irony of the present law. The Wood royal commission stated that an unequal age of consent could lead to the extortion of young gay men. As I have already stated, police are placed in the invidious position of either having to arrest young gay men if they are found in a sexual relationship, even with consent, or ignoring the fact. If they ignore it, they break the law and could be charged with not fulfilling the duties of police officers. In my view, it is not a crime and I hope that most honourable members agree with that view.
This bill has in-built protections. Honourable members have focused on the age of consent aspect of the bill, but it also provides additional powers to eliminate exploitation. Unfortunately, time does not permit me to go through all of those provisions. However, it is worth mentioning that the bill removes the existing defence of carnal knowledge, where an accused could claim that he or she thought the girl was 16 and that it was legal to engage in consensual sex. That defence was often used in the past. For example, a girl aged 15¾ years could be in a hotel or club having a drink and playing the poker machines and be chatted up by a man, who could then engage her in consensual sexual activity. His defence could be that he thought she was 18 because she was in a club, drinking alcohol and gambling. The accused could plead mistaken age and, on that evidence, most likely would be acquitted. That defence will no longer be available under this bill. The fact that a boy or a girl was thought to be 16 years of age when they were in fact younger will no longer be a defence. I do not believe that the age will gradually be reduced to 15 or 14 years. It will remain at 16 years without exemption.
I support also the measure in the bill that deals with trust. Teachers, doctors, lawyers, sporting coaches, et cetera, are all in a position of trust. Checks and balances are now in place to ensure that they are suitable to take young people away on a camp or a holiday. That aspect is covered in the bill. A list of the proposed changes also indicates that in virtually every case in which there is the difference between the offences, the penalties for those offences will be increased. Not one penalty will be decreased, which is an important aspect as well. There are anomalies in the bill. For example, the maximum penalty for sexual intercourse with a child between 10 and 16—clearly it is impossible for consent to be given; it simply cannot be given between those ages—is eight years in gaol. However, if consensual homosexual intercourse takes place and one partner is a few days short of 18, the sentence is a potential 10-year gaol term.
Last year when the Government was looking at standardised sentences, guideline judgements for judges, it sought the advice of the Crown Advocate about what it could do about the anomalies in legislation. The Crown Advocate said that it could not issue the Government with guidelines until it did something about the inconsistency in the age of consent laws. I have heard some excellent speakers on this bill. I know that it is a conscience vote. I do not expect that I have convinced any members to change their minds and, as I said, no-one will change my mind on it. The honourable members representing the electorates of Camden, Canterbury and Orange spoke very well. I simply leave it to the Parliament to make a decision, but I will be voting in favour of the bill. [Time expired.]
Mrs HOPWOOD (Hornsby) [11.20. a.m.]: I speak in favour of the Crimes Amendment (Sexual Offences) Bill, the object of which is to amend and repeal certain provisions of the Crimes Act 1900 to provide for the equal treatment of sexual offences, irrespective of whether the victim or the perpetrator is male or female. Therefore, the age of consent for all persons will be 16 years, and provisions are made for increased penalties for paedophilia and other acts. I am the parent of two teenage daughters. I have listened very carefully to all the contributions of other members, and I certainly respect all of the views presented. I have spoken to a number of people about this matter. As well, I have received correspondence from a variety of quarters, most of which has agreed with the new legislation.
I have been presented with the following reasons for supporting the bill: it will remove a distinction; it will reduce the social cost of discrimination, reduce youth suicide and promote health by promoting safer sex; it will not encourage sexual activity in itself; it will encourage the reporting of abuse; and it will create legislative consistency. The area I want to speak about mostly in my presentation is that of health promotion. Today I received a letter from Margaret Hansford, the Chief Executive Officer of FPA Health—formerly known as Family Planning NSW—which sets out the main reasons for my support. The letter states:
FPA Health unequivocally supports lowering of the age of consent for homosexual males to the same age that applies to other members of the community. We strongly believe that this action would lead to significant social and legal benefits, both to same sex attracted young men and the community at large …
FPA Health has been a leader in reproductive and sexual health in NSW since 1926. We provide a wide range of services to the women and men of NSW, focusing on regional, rural and remote areas. These services include a 1300-call centre, health promotion, professional education and clinical services as well as a nationally renowned research profile.
The existing legislation encourages stigmatisation and marginalisation
The existing legislation encourages the stigmatisation and marginalisation of young gay men and exacerbates many significant health issues. The law tells young gay men that they need protection from their sexuality, that it is criminal and that they will be treated more punitively than their heterosexual peers if they are "caught". To be considered a criminal while coming to terms with one's sexuality is a burden that no young person should have to bear. At a time when it is widely acknowledged that depression and suicide are increasing, and that young gay men are particularly susceptible to both, it is unconscionable that the law perpetrates stigmatisation and marginalisation.
All young people need easy access to accurate and up-to-date information
The key role for our community should be ensuring that young men and women have easy access to accurate and up-to-date information so that they know the choices available to them in their decision-making about healthy relationships and sexuality. For young gay men, this will only be possible if current legislation is changed so that service providers are free to operate under the law.
I know from many quarters that this is a big problem for service providers. The letter further states:
Young gay men experience reduced access to health and welfare services
Young people are an identified priority group for health information and education programs around sexuality and safer sex practices, and young gay men in particular are in need of specialised information and education. This includes addressing issues such as self-esteem, building relationships and negotiating safe sex. Unfortunately, service providers are often reluctant to provide this support to young men under 18 for a real or perceived fear of contributing to criminal behaviour. In 2003, young gay men should not have to bear this risk to their health …
There is no evidence that age of consent legislation influences young people when they make decisions about when they would like to begin sexual activity. Young men and women aged 16 and 17 years are able to, and do, make their own decisions about their sexuality. Furthermore, research shows that current age of consent legislation in NSW is out of step with the reality of most young gay men's lives, because repeated studies show that the average age of first homosexual activity for young men is well below 18 years.
Therefore, equalising the age of consent so that it is 16 for all people is long overdue. It is unjustifiable that a 16 or 17 year old man can have consensual sex with a girl without fear of retribution from authorities, but the same young man would be committing a criminal offence if he had consensual sex with another male. This reflects an inherent discrepancy, the result of discomfort with homosexuality which we, as a community, should strive to move on from.
Raising the age of consent will only serve to criminalise already occurring sexual activity
In addition, as a response to this issue, there has been a proposal that the age of consent for heterosexual sex needs to be increased to 17 or 18, which FPA Health believes to be totally unrealistic. This view is supported by the 2003 Australian Research Centre in Sex, Health and Society (ARCSHS) study that indicated that the average age that people in Australia become sexually active is 16. Increasing the age of consent for heterosexual sex will only make it harder for young women and men to get the information they need, and criminalise already-occurring sexual activity. Increasing the age of consent to 18 will also restrict health service providers and teachers from providing comprehensive information about human relationships and sexuality, including safer sex messages.
The bill as a whole contains amendments that will protect children from sexual assault. As the Attorney General has already indicated, the bill contains numerous safeguards to protect children from sexual assault, which is a very serious problem with complex solutions. Increasing the age of consent for heterosexual sex will not give increased protection to non-consenting victims of child sexual assault; nor will decreasing the current age of consent for homosexual sex exacerbate it. Homosexuality is emphatically not the same as paedophilia. The current differential age of consent is a discriminatory accident of history. The current legislation was not informed by any piece of sound public policy; nor was it informed by evidence relating to an optimal age of consent. If anything, its existence completely undermines antidiscrimination legislation, and its existence is an embarrassment to New South Wales. I refer to Australia's international human rights obligations that require it to take all necessary measures to eliminate discrimination, including discrimination on the grounds of sexual orientation. In conclusion, I refer to two letters I have received: one is from a constituent and the other is from the parents of a homosexual young man. The letter states:
Please put yourself in the shoes of a parent of a gay 16-17 year old son; you love your son very much. Would you see any benefit in the current law, which is so discriminatory and oppressive …
There is absolutely no reason why the law should treat 16 and 17 year old gay men any differently from 16 and 17 year old heterosexual men, women and lesbians.
One of my constituents states:
I can give you endless statistics to show you how that gay males aged 16 and 17 are having sex in NSW, that the equalisation of the age of consent will not encourage paedophilia (most paedophilic behaviour is not gay related and in fact more often than not perpetrated by a male adult onto a female child—usually from within the family) and how the change in laws will only benefit young people in this state. Let alone the statistics showing the incredible rate of youth suicide that is related to sexuality, especially by young males.
He also states:
I can only dream at this stage of a society in which being gay is not frowned upon and dearly hope that this society will exist for the young people of today. It didn't exist in my teens and it would have made an incredible positive difference to myself and my peers should we have had the privilege of being like everyone else in societies and firstly the laws eyes.
This is 2003 and we must face reality. Harm might be caused by the current legislation. We must reject discrimination and always seek to improve the health of our population.
Mr COLLIER (Miranda) [11.30 a.m.]: As an elected representative given the responsibility of a conscience vote on such an important issue, I believe I have a duty to my constituents to place on record my reasons for voting as I will. I will vote in favour of the bill and in favour of reducing the age of consent for males engaged in homosexual activity from 18 to 16 years. I vote this way in the knowledge that I will not please all my constituents, but that is the price of public life. I intend to vote in favour of the bill and in favour of lowering the age of consent, after carefully weighing the competing arguments for and against put to me by constituents young and old, male and female. I have done so with an open mind, and I have also taken into account my experience as a legal practitioner and my reading on the subject.
It is a fundamental principle of modern civilised societies that all human beings should stand equal before the law regardless of colour, race, sex or sexual preference. In New South Wales—alone among the Australian States—males and females between the ages of 16 and 18 are subject to different laws relating to homosexuality. That is in spite of the fact that homosexuality is not unlawful in this State. Homosexuality takes place between females as well as between males, yet the Crimes Act is silent when it comes to lesbian activity. There is no prohibition on sexual acts between consenting females where one or more of the participants are between 16 and 18 years of age. A female of 17 can lawfully consent to sexual activity with another female, but under the Crimes Act as it presently stands, a male between 16 and 18 cannot lawfully consent to a homosexual act. He is deemed incapable of so consenting. In a State where homosexuality is lawful, that is not just an anomaly, it is plain discriminatory.
That discrimination is compounded by the fact that males and females between 16 and 18 can lawfully consent to heterosexual activity. Their acts are not the subject of criminal sanctions. The sexual preference of young gay men between 16 and 18 makes them unequal before the law. That is not just discriminatory, it is plain wrong. That is not my view alone. As recently as last week I met with a group of 20 young men and women from the Sutherland shire at the Sutherland District Trade Union Club. They were aged between 18 and 25. Although this issue was not on the agenda I took the opportunity to canvass their views. I was unaware and am still unaware of the sexual preferences of any of the group. To a person—male and female—these young people under the age of 25 supported the equalisation of the age of consent. They saw this not so much as an issue of sexuality but as a fundamental issue of human rights, of equal treatment by society and of equality before the law. They support the reduction in the age of consent as proposed by this bill, as I do. I support the leave of the bill: equal treatment of sexual offences regardless of whether the victim or the perpetrator is male or female.
The bill will increase penalties, and in some cases standardise present penalties, for sexual offences. It contains new circumstances of aggravation and higher penalties for these. It seeks to bring greater consistency to penalties for the most abhorrent crime of all—child sexual assault. Having an equal age of consent does not detract from any of these provisions. I am of the view that any sexual act that takes place without consent—at any age and whatever sex—should be prosecuted to the full extent of the law. I believe the penalties should be higher and for that reason I support the bill. I support the view that persons under 16 cannot legally be capable of consenting to sexual activity. I support the provisions that impose penalties on both males and females in positions of trust and that amend the Crimes Act accordingly—for example, sections 73 to 75, which apply carnal knowledge provisions to both male and female teachers, or section 78, which applies incest provisions to any member of the family.
A view commonly put by those who oppose the equal age of consent is that males mature more slowly than females. In many senses, maturity is a vague term. One can talk of physical maturity, emotional maturity, intellectual maturity or behavioural maturity. By and large girls mature physically at a faster rate than boys, but the law as it currently stands suggests that males are either not aware of or have not decided upon their sexual preferences or their orientation until they are aged 18. In this high-tech, media-driven world of the twenty-first century I do not think that is correct. The world has changed since the 1960s, when I was growing up.
Yesterday I spoke to two homosexual men aged 18. They told me they were acutely aware of their sexuality well before they were 18. They admitted having had consensual homosexual experience at the age of 17. That is the reality. Young males below the age of 18 engage in consensual homosexual acts at the age of 16 and 17. Given that that is the case, it is reasonable to expect that police in the course of their work come across young men between 16 and 18 engaged in or having engaged in homosexuality. Of course the police have, but I am told there has been no criminal prosecution by the Director of Public Prosecutions of young men in these circumstances for more than 20 years. One may ask why. Are these young men not breaking the law? Of course they are, yet there are no prosecutions. Clearly the police are showing compassion to these young men, and this law is redundant in the sense that it is not being enforced when it comes to consenting males between 16 and 18 engaging in sexual activity.
It is this same redundant law that prevents young gay men from seeking advice from counsellors and health professionals. It is the same law that makes it so difficult for these men to deal with the constant struggle between acknowledging their sexuality and sexual preferences and the guilt they must surely feel because they know they are breaking the law. This fear of breaking the law has another consequence, and I am convinced that this consequence was unforeseen when the legislation to make homosexual activity between consenting males between the ages of 16 and 18 an offence was introduced. This is the health issue. Young men are fearful of going to doctors because they might be reported to authorities despite the fact that they are engaging in consensual sex. They are not getting the advice they need about HIV, about sexually transmitted diseases or about safe sexual practices. They are not getting the advice they need for their physical, emotional or spiritual health.
I have also spoken to young heterosexuals from the Sutherland shire who have homosexual friends. They confirm that these young men are fearful of going to counsellors, doctors or health professionals lest they be reported to the appropriate authorities, lest their behaviour—which is at this stage criminal—be exposed and they be the subject of ridicule. It is not just an issue for the young men themselves; it is an issue for the health professionals as well. They are giving young men advice about their emotional, physical or spiritual health, perhaps trying to prevent them from engaging in practices that are, from society's point of view, of grave concern.
Yet by doing so these health professionals are in fact, and can be seen to be, aiding and abetting what is in effect a criminal offence. So it is not just an issue of equality; it is also an issue of health, which is of grave concern to me. In letters I have received from constituents raising their concerns about the impact of lowering the age of consent from 18 to 16 it has been stated that by doing so we will be exposing more children to paedophile activity. I understand and accept that that is a concern for the people who express this view. After three years of extensive community consultation by the Wood royal commission in 1997 Justice Wood said this:
… the commission is able to state that it sees no reason … to suppose that legislative change to achieve uniformity in this area would bring about any behavioural shift or that it would, in real terms, expose any more children to the risk of paedophile activity than are presently exposed to the risk.
That is contained in volume IV of the report of the Royal Commission into the New South Wales Police Service. I am sure that it has been canvassed by other members but it is interesting that, according to the research of the Bureau of Crime Statistics and Research, the vast majority—some 80 per cent, I believe—of sexual offences against children involve girls. The Wood royal commission also went on to say that an unequal age of consent can encourage corrupt law enforcement practices and possible extortion of gay men. Consistent laws would be easier for the police to enforce and more transparent for the public to understand. From the legal point of view there are also some difficulties in having an unequal age of consent. In 2001 the Government sought advice from the Crown Advocate about the possibility of a guideline judgment for sexual assault offences. A guideline judgment basically is a judgment handed down by the Court of Criminal Appeal in an appropriate case to give guidance to the courts below—the District Court, the Supreme Court in its criminal jurisdiction and the Local Court—as to the kinds of penalties they should be imposing in particular cases. [Extension of time agreed to.]
The Crown Advocate, who is a Crown Prosecutor, advised that there were obstacles in the way of producing a guideline judgment until the inequality in the age of consent was resolved. He said that the Court of Criminal Appeal would be unlikely to hand down a guideline judgment recommending consistent punishment for child sexual assault offences when the law itself was so inconsistent. As I have said, I have examined my conscience, read the letters written to me and spoken to young gay males and to males and females in my electorate, both young and old. I have come to the conclusion that I must support the lowering of the age of consent and I must support the bill. I do so based on issues of equality and on issues of health, which are of grave concern to me, based on the conclusions of the Wood royal commission and based on the need to reform the law in this most critical of areas. I support the bill.
Mr PEARCE (Coogee) [11.44 a.m.]: I support the bill. Equality before the law is a fundamental tenet of our legal system and a basic Australian value. The current law does not enshrine equality before the law for young gay men between the ages of 16 and 18. Initially I did not intend to speak on the bill. I would have thought that in 2003 any question of removing institutionalised discrimination would not be an issue in this place. The bill advocates a uniform age of consent. It removes the defence of "I am sorry, Your Honour, I thought she was 16." It deals with the circumstance of aggravation, increasing and rationalising the existing penalties for sexual exploitation of children. The basic effect of the bill is to increase the penalties for heterosexual offences to the higher levels that exist for homosexual offences and to provide for a logical increase in maximum penalties for child sex offences in the age brackets 14 to 16, 10 to 14 and under 10.
The bill is drawn on advice from the Crown Advocate, as I understand it. The bill should be viewed in totality. Proposals to separate the various provisions would be counterproductive and, if successful, would probably lead to some fairly perverse results. To cut to the contentious issue, the uniform age of consent, there is a uniformity in the age of consent, albeit at different ages, through most of the jurisdictions in Australia. The only other area where there is an inconsistency is in the Northern Territory, which has a similar situation as in New South Wales with the ages being 16 and 18. In all other jurisdictions there is a commonality of age of consent although it varies between 16-16 and 17-17, but the average is 16-16. The report of the Wood royal commission has been referred to previously in the debate. The commission could not find a rational basis for a continued distinction between the age of consent for heterosexual and homosexual acts. New South Wales law as it currently exists directly discriminates on the basis of sexuality as there is a higher age of consent for those engaging in homosexual as opposed to heterosexual sex. Such discrimination is inconsistent with the philosophy of antidiscrimination legislation in New South Wales and I believe is inconsistent with the beliefs of the overwhelming majority of fair-thinking people in New South Wales.
The higher age of consent has an adverse affect on public health and education policies as health professionals and social workers are restricted in the services they can provide to homosexual males under the age of 18 for fear of prosecution. Sexually active adolescent male homosexuals are stigmatised. Research has shown that gay youths are 3.7 times more likely than their peers to attempt suicide. Gay youths are the most likely to attempt suicide between the ages of 15 and 17, when many are realising their sexual identity. The effect of the discrimination within the law reinforces homophobia and creates a stereotype that older homosexual males are likely to behave in a predatory manner towards adolescent males. In fact, all the statistical evidence would indicate that sexual assault is more likely to involve older males and young females. Existing laws legitimise sexual harassment and assault within schools of gay students.
The Model Criminal Code Officers Committee of the Standing Committee of Attorneys General released a report in 1999 regarding sexual offences to the person. The report found that the age of consent effectively amounts to a determination about when young people should be allowed to exercise autonomy and freedom of choice in sexual relations. Like most honourable members, I have received a great deal of correspondence on this issue and I am not unaware of the public debate that has been generated, notwithstanding the somewhat hysterical headline on the front page of the Daily Telegraph this morning. I believe that most honourable members have received a letter from FPA Health calling for reform of this law. The letter states:
The existing legislation encourages stigmatisation and marginalisation of young gay men and exacerbates many significant health issues. The law tells young gay men that they need protection from their sexuality, that it is criminal and that they will be treated more punitively than their heterosexual peers if they are 'caught'.
FPA Health also identifies the fact that young gay men experience reduced access to health and welfare services. The letter states:
Young people are an identified priority group for health information and education programs around sexuality and safe sex practices, and young gay men in particular are in need of specialised information and education. This includes addressing issues such as self-esteem, building relationships and negotiating safe sex. Unfortunately, service providers are often reluctant to provide this support to younger men under 18 for a real or perceived fear of contributing to criminal behaviour. In 2003, young gay men should not have to bear this risk to their health.
The AIDS Council of New South Wales states:
The recently completed 'Australian Sex Survey' tells us that the majority of young people will experiment with sex between the age of 16 and 18 …
Certainly in the eastern suburbs they might be a little younger. The AIDS Council continues
... and that most will do that with people of their own age …
The unequal age of consent:
creates an environment in which young gay men are less likely to come forward for information about sexual health including STIs and HIV/AIDS for fear of prosecution
reinforces the prejudices of those who perpetrate discrimination and anti-gay violence—particularly between peers in a school environment, and
contributes to low self-esteem among young gay men, with resultant homelessness, drug, alcohol and tobacco use and a rate of suicide 300% higher than that of young heterosexual men.
The Gay and Lesbian Rights Lobby Inc. provided the following quote from the AIDS Council:
AIDS Council of NSW (ACON) chief executive Stevie Clayton said current laws meant gay males were reluctant to come forward for health, education, and welfare services and were 300 times more likely to commit suicide than their heterosexual peers.
"This means they don't get information on HIV/AIDS and other sexually transmitted infections until in some cases it is too late."
The existing laws are putting young gay males under the age of 18 at risk and we cannot allow that to continue. The unequal age of consent in New South Wales is discriminatory and directly contributes to detrimental health outcomes for young gay men. It prevents thorough sex and health education in high schools in which safe sex messages are conveyed. It also excludes 16-year-old and 17-year-old gay men from supportive friendship networks and social contacts with slightly older gay peers who fear innuendo and possible ramifications. I am sure a number of honourable members have received correspondence from the Anglican Archbishop Peter Jensen. It is fair to say that he is not renowned for his progressive views. He states:
The Anglican Diocese of Sydney welcomes and supports the bill's attempts to increase penalties for those who sexually abuse children…
We also agree that it is desirable to have consistency in age of consent legislation.
In fairness to the archbishop, he indicates that the age should be 18 rather than 16. However, in conceding that the age of consent should be consistent he is conceding the core argument of the bill. His letter also states:
When you are called upon to make your vote, please consider the best interests of our children.
I believe that those interests are best served by providing access to support and health services and by keeping them out of the criminal system. Imprisonment is now a possibility for young gay men. There is confusion about the elements of the bill. I mention as an example comments made by the Advocates for Survivors of Child Abuse, a support and advocacy group for which I have enormous respect, and reported in an article in the Daily Telegraph of 9 May which states:
…lowering the age of consent for homosexuals could leave the way for sex offenders to argue that children as young as 12 looked 16.
"We see cases of child abuse thrown out of court because the man says, 'but the boy looked older than 14 or 15'."
That is incorrect. The legislation specifically removes the existing defence of mistaken age in carnal knowledge cases. Whatever may be the current law, young men have sex with each other. Statistics indicate that approximately 45 per cent have their first sexual experience before the age of 18. Therefore, 45 per cent of young men in that age group are committing a criminal offence under the existing law. That is not good enough. Male sexual activity is not dependent on sexual preference. There is no sound basis for retaining different treatment of girls and boys dependent only upon the boys' sexual preference. This bill deserves to be supported in its entirety.
Debate adjourned on motion by Mr Debus.