CRIMES AMENDMENT (SEXUAL OFFENCES) BILL
Debate resumed from an earlier hour.
The Hon. Dr A. CHESTERFIELD-EVANS
[2.30 p.m.]: The Parliament should deal with facts. It should consider, at some point in this debate, what actually happens, including the percentage of adolescents who have had sex by varying ages, so that it does not pass laws that bear no relationship to reality. Laws have an impact on the population and influence behaviour. In some cases that influence is very strong and in other cases the Parliament has very little influence.
I suggest that in relation to emerging adolescents, the law is a very distant consideration in interaction among adolescents. As that applies to emerging sexuality and emerging adulthood, sometimes that can be a good thing. Sex education and life education are now better than they used to be. I suggest that is probably because the educators have run ahead of the views of the more conservative elements in society that are often expressed in the law.
Some years ago I attended a health promotion conference in Finland. America, which had the most repressive laws against sex education, also had the highest rates of teen pregnancy. Americans were tearing their hair out over the conservatism of the Legislature and the difficulties that it created in practice for those who were trying to help adolescents as they went through that period. The Leader of the Opposition said that girls are more mature. I wonder whether that is because they are exposed to the rough and tumble of their emerging sexuality earlier than boys because of the interaction between the two sexes.
When I attended boarding school I became aware that homosexuals had a very hard time. If the difference between the two sexes is institutionalised in law, that effectively means that the law states that one type of sex is preferred over another, which creates a stigma. If there is also an unrealistic cut-off limit in terms of age as puberty develops, that increases the difficulty, and the taboos that are enshrined in law will be reflected in the behaviour of the peer group. Those circumstances make life extremely difficult for homosexual people.
There is no doubt that it is more difficult for sexuality to emerge in gay adolescents than in heterosexual adolescents. It is very important that honourable members should consider this legislation from the point of view of equality between different sexual preferences and orientations. It should be considered from the perspective of adolescents. We should ask ourselves how we would feel if we were in their situation rather than pontificate about what happens to people who are 30 or 40 years younger than we are.
Obviously we do not want paedophiles and other sexual deviants in positions of trust, with opportunities to exploit young people who have a right to expect protection from the law. A big difference in the ages of people who are involved in a sexual relationship and differences in power within a relationship are very important. The bill should be supported because it provides equality for the emerging sexuality of young people, irrespective of their sexual orientation.
Those who would want to prescribe attributes are also the first to say that people should have privacy in their sex lives. When legislation stipulates what they can do, it effectively amounts to legislating for what will happen. That should not be the case in a consenting sexual relationship. Adults should view adolescent sexuality from the perspective of helping adolescents to develop rather than inflicting their confusions and prejudices on those who are going through a difficult time in their lives. I urge honourable members to support the bill and the amendments that further its aims.
The Hon. P. J. BREEN
[2.36 p.m.]: I support the Crimes Amendment (Sexual Offences) Bill, although I do so with some concerns. As honourable members have already heard during the debate, many people fear that lowering the age of consent for male homosexual sex is exposing younger men to sexual predators. That is a misapprehension. Sexual predators have no regard for a person’s age. To allow the injustices of the present law to stand for that reason is, in my opinion, a serious error.
The better argument might be that many young boys at 16 years of age have no idea about sex and sexuality, but the same can be said for many young girls for whom sex at 16 years of age is quite legal. The whole purpose of the bill is to equalise the age of consent so that consenting sexual activity of all kinds is legal at the age of 16. As the law in New South Wales presently stands, male homosexual activity is not legal until both parties reach 18 years of age.
In this regard New South Wales is out of line with several Australian States and Territories. Many young people who are sexually active at 16 and 17 years of age in New South Wales are being criminalised. The age of consent in Victoria, the Australian Capital Territory and under Commonwealth law is 16 years regardless of sex or sexuality. In Tasmania and South Australia the age of consent is 17 - the age which the Hon. J. P. Hannaford mentioned in regard to his foreshadowed amendments.
In New South Wales and the Northern Territory male homosexual sex is not permitted until 18 years, whereas in Western Australia a young man must be 21 before he does it, so to speak, with one of his mates - who must also be 21 - although he can do it with his girlfriend if she is just 16. The discrimination involved in the operation of these various laws is obvious. More importantly, the present imbalance in the law actually puts the health of young boys in jeopardy because they fail to get proper medical advice when they may be in high risk categories for sexually transmitted diseases.
Stevie Clayton of the AIDS Council of New South Wales informs me that young people who are under the legal age will often avoid treatment, or will even avoid getting advice about their activities, because they fear that they will be stigmatised as criminals. This is a serious problem for young men aged 16 and 17 years. Instead of being treated as criminals they should be receiving advice and treatment from health workers whose job it is to save lives and prevent the spread of disease. Under the present law, health workers are also at risk whenever they provide information about safe sex for 16- or 17-year-old male homosexuals. Section 78Q (2) of the Crimes Act provides:
Any person who solicits, procures, incites or advises any male person under the age of 18 years to commit or to be a party to the commission of an act of homosexual intercourse, or an act of gross indecency, with or towards a male person shall be liable to imprisonment for 2 years.
That provision means that health workers are prevented from counselling gay youth about safe sex. For a detailed treatment of the problems caused to health workers by section 78Q (2) of the Crimes Act, I direct honourable members to pages 47 and 48 of a 1992 publication by the Anti-Discrimination Board entitled "Discrimination - the Other Epidemic: Report of the Inquiry into HIV and AIDS Related Discrimination".
We have two problems with regard to medical advice and treatment given to young men engaging in homosexual activity. The first and most serious problem is that young men will often avoid treatment and advice because of the stigma associated with criminal conduct. The second problem is that health workers are liable to be prosecuted and imprisoned for up to two years for giving advice to young men about safe sex.
In supporting the bill I would like to place on record that I do not approve or disapprove of homosexual sex. My support for the bill is only to remove some anomalies in the law which I believe
place young men at risk and unfairly discriminate against them. My concerns are medical and legal, not moral. I firmly believe that the real danger for young men engaging in homosexual sex is not paedophiles or perverts, or even the possibility of purgatory; what young men need to be concerned about is germs and police officers.
By mentioning police officers in the context of this debate, it is not my intention to cast aspersions on the overwhelming majority of members of the Police Service who are honest, hard-working citizens, who have a difficult job in seeking to enforce the law. But as the Wood Royal Commission into the New South Wales Police Service found, the age of consent for consensual male sex ought to be reduced to 16 years because the law as it stands provides "an opportunity which is rife for selective policing, extortion and corruption".
Honourable members might wonder how police would use the age of consent for corrupt practices. Let me offer an example. A couple of years ago police sent a questionnaire around Goulburn and Berrima gaols, asking inmates whether they had engaged in under-age sex with John Marsden or two other high-profile members of the Sydney legal profession. For those inmates who ticked the under-age sex box the rewards included the possibility of a $20,000 payout from the Victims Compensation Tribunal.
Two former prison inmates, John Pearce and Brett Parratt, told me that they falsely alleged that they had under-age sex with John Marsden in order to get money. I do not recall where those two people were gaoled. The opportunities under the present law to exploit someone like John Marsden, who likes to draw attention to his sexuality, are endless. Many young men aged 16 and 17 solicit gay men for sex. Section 78K of the Crimes Act provides that a male person who has homosexual intercourse with another male person aged 16 or 17 shall be liable to penal servitude for 10 years.
There are no exceptions for soliciting, and child prostitution is a separate offence which carries a penalty of 10 years. A person with no prior convictions who simply touches a male person aged 16 or 17 on the genitals can expect to go to gaol for three years - no ifs or buts. A person would go to gaol for three years even for touching the 16- or 17-year-old on the outside of his pants. I do not refer to these matters to shock or scandalise honourable members, but simply to point out the vulnerability of gay men to exploitation by corrupt police, as noted by the Royal Commission into the New South Wales Police Service.
Gay men are a persecuted minority and they deserve the protection of the law, whatever we might think about their sexual proclivities. I recall that in 1994, when Deirdre Grusovin used her privileged position in the lower House of this Parliament to attack John Marsden by calling him a pederast, many of us went scurrying for a dictionary. The Macquarie Dictionary
defines "pederast" as someone who has male homosexual relationships, especially those relationships "between a male adult and a boy".
That appalling description is often used to denigrate and vilify people whose sexual preferences happen to be different from those of the overwhelming majority of us. By leaving the age of consent at 18, we increase the opportunity to denigrate and vilify gay men, not only in Parliament but in schoolyards, workplaces, education institutions and the home. I urge honourable members to give this legislation objective and dispassionate consideration. It will not be easy.
Until a few days ago I had intended to vote to retain the age of consent for consensual male sex at 18, primarily out of concern for my 16-year-old nephew. I did not want him exposed to moral danger, particularly in the form of sexual predators of the kind already outlined in this debate. But what if my 16-year-old nephew were to exhibit a pattern of behaviour that suggested he was more interested in young boys than young girls? What if he had pink hair, and traded in his skateboard for a tutu? What if I knew he was engaged in consensual male sex with his mates? He would be a criminal, and so would I if I advised him how to circumvent the law. His doctor could not give him medical advice about safe sex without also being a criminal. My nephew would become isolated and marginalised on account of his sexuality, and his life would be a misery.
I urge honourable members to think outside the circle on this issue. The circle is heterosexual sex, the dominant paradigm, or perhaps it might be called the normal relationship - whatever that means. For most of us, homosexual male sex is a mystery, but it is wrong to approach this bill from that perspective. Instead we ought to move outside the circle and think about the age of consent from the point of view of those gay men and boys who must deal with issues of criminality and health every day of their lives.
I turn now to the amendments foreshadowed by the Hon. J. P. Hannaford. My initial reaction was to reject them on the basis that they are simply muddying the waters on the bill. I agreed with an interjection by Reverend the Hon. F. J. Nile that the amendments properly belong in a separate child protection bill. But as I said a few moments ago, initially I was inclined to leave the age of consent at 18; perhaps 17 is not such an unreasonable proposition, which is the main thrust of the proposed amendments.
Many of the amendments foreshadowed by the Hon. J. P. Hannaford are also worthy of support; for example, the amendments seek to remove the defence of child prostitution. Many recommendations of the Wood royal commission are incorporated into the foreshadowed amendments. The abiding difficulty with the amendments is that they would immediately turn thousands of young women who are doing it at 16 into criminals, which is exactly the problem we are trying to address for young men. One step forward and two backwards!
The Hon. J. P. Hannaford and the Hon. J. F. Ryan said that they will not support the bill without the amendments. I am also inclined to think that the bill has little chance of success in the lower House without the amendments, and for this reason alone they may be worthy of support. I suspect that this decision rests with the Hon. Jan Burnswoods, who is responsible for the bill. I commend the bill to the House with a question mark over the amendments.
Reverend the Hon. F. J. NILE
[2.48 p.m.]: On behalf of the Christian Democratic Party, supporting churches, Christians and other religious groups, I strongly oppose the Crimes Amendment (Sexual Offences) Bill, which was introduced by the Hon. Jan Burnswoods, a member of the Australian Labor Party, without, I understand, caucus approval. In her second reading speech she stated:
The purpose of the bill is to repeal the New South Wales Crimes Act provisions that apply solely to male homosexual intercourse.
The honourable member made the purpose of the bill very clear when it was introduced. Schedule 1 to the bill will make many amendments to the Crimes Act. Item  of schedule 1 will omit sections 78H, 78I, 78K, 78L, 78N, 78O and 78Q of the Act. Those sections relate solely to sexual offences committed by a male on another male. There is quite a lot in this bill. Often members do not study the ramifications of bills. The main purpose of this bill is to lower the age of consent for males, while the female age of consent is 18.
The bill uses the phrase "male homosexual intercourse" because that is the politically correct way these things are now described. The same thing occurred in the debate over the shooting galleries - they were called safe injecting rooms. All these terms blur the real meaning of what is being discussed. The Crimes Act used the old terminology and referred to the abominable crime of sodomy or buggery. Those words are still used in some other countries. The Deputy Prime Minister of Malaysia has been charged with the offence of sodomy.
I admire the Hon. Jan Burnswoods’ tenacity in pursuing this issue without deviation to the left or the right. She often interjects to tell me I am obsessed, but I think in this case that description applies to her. Some honourable members may not remember where the word "sodomy" came from. It came from Genesis 19:23. I assume that was the first time it was mentioned in historical records. It referred to the destruction of Sodom and Gomorrah, and especially the ancient city of Sodom because of its widespread practice of sodomy or buggery.
Hence, the name of Sodom was used for thousands of years - until recently in this country - to describe the act of sodomy, and it is still used in other countries. As I said, Malaysia still uses it. From a Christian perspective this activity is unnatural, immoral, sinful and, especially, unhealthy. Genesis 18:20 says, in relation to the destruction of the city of Sodom:
Then the Lord said "the outcry against Sodom and Gomorrah is so great and their sin so grievous.
That is why Christian nations and other religions - I know the Moslem religion has perhaps stricter laws than western nations - prohibited this sinful activity. New South Wales repealed the section of the Crimes Act dealing with that activity. The word "abomination" came from Leviticus 20:13:
If a man lies with a man as one lies with a woman, what they have done is an abomination.
"Lies" is used to describe the act of sodomy. There is no doubt it is sinful and unnatural, and all members of this House must give careful consideration to what we are debating and will vote on today. That is why the Labor Party and the Liberal Party have allowed a conscience vote on this issue. The National Party -
The Hon. R. T. M. Bull:
It did not need to.
Reverend the Hon. F. J. NILE:
It did not need to because of the subject we are debating. We
know it is unhealthy because of the high-level of infection of gonorrhoea and syphilis and, in recent years, HIV-AIDS, which in many cases is transmitted by anal sex acts. Why do we have an age of consent law in the first place? Obviously, homosexual activists want to weaken the law and finally abolish it. I can quote dozens of articles from those groups stating they want to abolish it. At this stage it is a matter of lowering the age limit. A prominent lawyer, Mr David Buchanan, was reported in the Daily Telegraph
of 15 April 1997 as saying:
. . . research suggested some youths "both enjoy and . . . believe they profited from sex with an older man".
There are certainly people with very different views from the majority of members of this House. The purpose of the age of consent law is not so much to do with boys aged 16, 17 or 18 involved in sex with each other. The prime purpose is to protect boys from older men. Surveys have shown that many teenagers do not know what the age of consent law is. However, there is no doubt, contrary to what the Hon. P. J. Breen said, that older men very clearly understand the age of consent law. It may not work in every case but I believe it is a restraining influence. An older man may think he can seduce a boy with gifts or threats, et cetera, to be involved in so-called consenting sex, but that man knows that if the boy reports it he can be charged under the age of consent law. It is important that that law be retained.
Pursuant to sessional orders debate interrupted to allow the mover to speak in reply
The Hon. JAN BURNSWOODS
[2.56 p.m.], in reply: I regret that not all members who wished to speak in this debate have been able to do so, but I thank members who tried to speak very briefly to enable as many as possible to speak. This has been one of the best debates in this House in my experience, with a high level of commitment and sincerity. Members’ staff have been very helpful to me. Introducing a private member’s bill on an issue on which my party has allowed a conscience vote means that I have had to talk on several occasions with many members and their staff.
I place on record my gratitude and respect for the co-operative attitude taken, even by members who are vehemently opposed to the bill. The debate has been important. I thank my colleagues in the Australian Labor Party, particularly those who oppose the bill, for recognising that we should have a conscience vote on issues like this and for treating the debate accordingly.
I pay tribute also to the Hon. Dr B. P. V. Pezzutti and particularly the Hon. J. P. Hannaford of the Liberal Party not only for ensuring that Liberal members can exercise a conscience vote but also for the efforts they put into pursuing amendments that would progress the bill and enable members with varying opinions to come together. Nevertheless, I will stress in a minute that I have some grave reservations about several of the Hon. J. P. Hannaford’s amendments and that I am very much opposed to others.
I will be incredibly proud if this bill passes its second reading. In fact, I will be proud if it does not, because one of the achievements so far is that almost every honourable member who has spoken placed on record the belief that we should end the discrimination and inequality towards gay men and boys in our community. The foreshadowed amendments of the Hon. J. P. Hannaford deal with an equal age of consent of 17. The amendments the Hon. Dr B. P. V. Pezzutti foreshadowed - and I am sorry he is not here today - dealt with a legal age of 16 and other measures. Even Reverend the Hon. F. J. Nile’s foreshadowed amendment deals with an equal age of consent of 18.
Obviously I do not support the amendments foreshadowed by the Hon. J. P. Hannaford, but I am glad that the majority of honourable members, despite their differing views about sexuality, have put on the record their commitment towards ending the injustice, inequality and discrimination that has existed in this State towards gay men and boys since homosexual activity was decriminalised in 1984. Some honourable members referred to my tenacity in proceeding with this bill. I remind them that back in 1984 amendments to this effect were proposed. So, many people were committed to this cause prior to my taking it up. I introduced a bill identical to this bill in 1997, and it was partly debated but then lapsed. I have been keen to continue with this cause.
The debate that we have had, the activity and discussion in the community, and the efforts of people representing the gay community - some of whom are here today - have made a number of honourable members and people in the community think about these issues. Some of the matters raised in debate are not strictly relevant to the bill. I instance child protection, which was referred to by the Hon. J. P. Hannaford when speaking about his proposed amendments. I said in my second reading speech that those issues are important. However, the fact that they are important does not mean that they should be included in this bill. I set out deliberately to make this a narrow bill, partly because I wanted to focus debate on the unequal age of consent in New South Wales.
This private members’ bill deals with an issue on which my party allows a conscience vote, so I restricted it to measures on which members would have a conscience vote. It does not, for example, deal with child protection and child prostitution - which is also the subject of one of the amendments proposed by the Hon. J. P. Hannaford - because the Government has policies on those matters. This Government has a proud record of introducing extra child protection, particularly since the report of the Wood royal commission, and introducing legislation to deal with those issues.
Some honourable members will want to support some of the Hon. J. P. Hannaford’s proposals in that respect. I have some sympathy for some of his proposals, but that does not mean that I think I should have included them in this bill. If the House chooses to deal with the issues raised in the amendments proposed by the Hon. J. P. Hannaford, so be it. The only other comment I make about the Hannaford package is that I believe that this House has to think carefully before proceeding to effectively criminalise a great deal of behaviour by heterosexual young men and women that has always been legal in this State.
That is one of the huge problems about the argument for an equal age of consent of 17. There are many other arguments. Are we to go down the path of effectively criminalising this behaviour, with all that that means, having regard to the issues raised by the Family Planning Association? Pregnant young women have enough problems to face without also facing the prospect that their partner might be charged with a criminal offence.
Honourable members have considered all those sorts of issues. As I said earlier, I will not support a number of the Hannaford amendments, but I recognise and respect the views of honourable members who would like to support some of them. I doubt whether all honourable members will support all the proposed amendments, and members might vote differently on different amendments.
Finally, I repeat the basis of my bill. There is no place in the legal system for this form of discrimination on the grounds of people’s sexuality. If sexual intercourse, for instance, between a heterosexual woman and a 16-year-old boy is legal and if sexual relations between two 16-year-old girls are legal, I can find no reason why we, as a community, should continue to criminalise behaviour between, say, a 16-year-old or 17-year-old boy and a man.
Provided we deal with the important matter of child protection it is not our role to interfere in decisions or in the individual morality of members of our community. Provided we protect young children I do not believe that we, as legislators, should lay down rules that suit us but clearly do not suit the majority of the community. The statistics on the real sexual practices of adolescents in our community suggest that the age of 16, for instance, is a reasonably suitable age at which young people may have a sexual relationship. We have to recognise that many young people under 16 are having sexual relations. Once again I thank all honourable members who participated in debate on this bill.
If there is a majority vote on the second reading motion it will reflect that members have fundamental differences of opinion. Nevertheless, I firmly respect the views of all those who have spoken in this debate and who said we should have much more debate on individual issues. The only way for us to have that debate is for honourable members to vote for the second reading of this bill and then go into Committee and deal with those issues one by one. I expect those issues to be dealt with in the fine spirit in which debate has taken place on this bill.
Question - That this bill be now read a second time - put.
The House divided.
Mr Breen Mr Primrose
Ms Burnswoods Ms Rhiannon
Dr Chesterfield-Evans Mr Ryan
Mr Cohen Ms Saffin
Mr Corbett Mrs Sham-Ho
Mr Egan Mr Shaw
Mrs Forsythe Ms Tebbutt
Mr Harwin Tellers
Mr R. S. L. Jones Mr Hannaford
Mr Manson Mr Macdonald
Mr Bull Mrs Nile
Mr Della Bosca Rev. Nile
Mr Dyer Mr Obeid
Mr Gallacher Mr Oldfield
Miss Gardiner Mr Samios
Mr Gay Mr Tingle
Mr Hatzistergos Mr Tsang
Mr Johnson Tellers
Mr M. I. Jones Mr Kelly
Mr Moppett Mr Lynn
Question resolved in the negative.