CRIMES AMENDMENT (SEXUAL OFFENCES) BILL
Debate resumed from 11 November.
The Hon. J. P. HANNAFORD
[11.07 a.m.]: Previously I indicated to the House that I proposed to move suspension of sessional orders so that all members who wished to speak on this matter for 20 minutes could do so, rather than having a three-hour time limit. I did not proceed with that proposal as it was pointed out to me that for a long time I had been an advocate of allowing private members’ business to be dealt with without filibusters and that members who came to the House with a proposition should be allowed to have the House consider it. The three-hour time limit was imposed for that to take place.
It would have been inconsistent of me, even in this most important matter, to depart from that principle. I, therefore, will not do so. I was also reminded that if this bill passes through the second reading stage there will be no time limits or limits on the number of members who may speak during the third reading stage to discuss the general principles of the bill. Therefore, I have not proceeded with that approach. I also indicated that I would circulate amendments that I propose to move during the Committee stage. Unfortunately, I did not receive the amendments from the Parliamentary Counsel until 15 minutes ago.
However, I circulated the discussion paper giving the background of the amendments I proposed to move. I will address that discussion paper so it is on the record. I proposed to move an amendment to allow the age of consent for consensual sexual behaviour for males and females to be uniformly 17 years. Consequentially, the age of consent for heterosexual activity would be increased from 16 and for homosexual activity reduced from 18. At that time I also indicated to the House that I did not believe any such changes could be justified on the basis of seeking to avoid discrimination between heterosexual and homosexual
activity. I took the view that that was not the issue. On the last occasion I said:
The issue should be the protection of young people from the predatory behaviour of adults.
I also indicated on the last occasion that I would propose the most comprehensive package of reforms for the protection of young people from predatory behaviour. That is exactly what I wish to do. When this matter was debated in this House in 1984 and the 18 years age limit was proposed, I supported it on the basis that 16-year-old males were not sufficiently mature to make judgments in this area and to be able to resist the predatory overtures of adults. The age of 18 was more suitable.
Some honourable members may recall that I supported the bill during the second reading stage and most of the Committee stage, but that I decided that I was not happy with certain aspects of the bill and finally voted against it at the third reading stage. I was subject to some criticism at that time. Again, on this occasion, I have indicated that I will move a package of amendments. Again, if I am not satisfied with the bill I will not support it and I will oppose its third reading.
I have taken the view that 16 is not an adequate age of maturity for young males to be induced into homosexual behaviour by predatory adults, and that 16 is not necessarily a suitable age at which young males should be making decisions in relation to consensual behaviour of this kind. At the same time, I also believe that 16 years of age, in this day and age, is still not an adequate age for young females to be making those decisions. This is a value judgment that will be made differently by different members of the community. I believe 17 is an adequate age. For that reason I will move my amendments during the Committee stage.
I indicated that I would pursue a number of other amendments, which I will now outline. At present, where there is underage sexual activity the accused is afforded a defence if the child is over 14 years of age and consented to the activity and the offender had reasonable cause to believe and did believe the child was of or above the legal age. I propose to eliminate this defence, with one exception, so that in future all adults will know there is no defence to sexual activity with a person under 17 years of age. The exception is sexual activity between two young people where there is only a two-year age gap between them and where the younger person is of or over the age of 16.
The effect of these amendments would be to create the following regime. There will be no defence to sexual activity involving a person under the age of 16. Where the offender is an adult and the younger person is under 17, there will be no defence to that sexual activity. Where the young person is of the age of 16 and the offender is no more than two years older than the young person, the offender can claim a defence that the young person consented to the sexual activity and the offender had reasonable cause to believe and did believe that the young person was of or above the age of 16 years.
The Wood royal commission report recommended a version of such a defence. It acknowledged that there should be an age limit on the use of this defence, and it proposed there should be a two-year age gap. Effectively, for anyone outside that two-year age gap there would be no defence. However, as the Wood royal commission left open the suggestion that between the age of 14 and whatever is to be the age of consent, that two-year age limit would be available as a defence. I have proposed increasing the 14 years to 16 years of age.
I take the view that Parliament should not be saying to the community that it is legally okay to have sex between the age of 14 and the age of consent. Again that is, perhaps, a moral judgment the House is being asked to make, but we are often asked to make such judgments. I believe we should not be saying to the young people in our community that it is okay to have sex under the age of 16 in certain circumstances. Currently, section 73 creates an offence if male teachers, fathers and stepfathers engage in sexual activity with young persons over the age of 16 and under the age of 17.
I propose to enlarge this provision, as recommended in the Wood royal commission report, to apply to all persons who may be in a position of trust in relation to the victim. Wood recommended that persons standing in a position of trust should include parents, step-parents, foster parents, guardians, custodians, schoolteachers, religious advisers, health professionals or any other persons providing instruction or services to or having the care or supervision of or authority over the child and not being married to that child. I also propose that the age limit be increased to 18 from the current 17.
The Hon. J. R. Johnson:
Will that include de factos?
The Hon. J. P. HANNAFORD:
Yes, it will. At present a person in a position of trust could lawfully engage in sexual activity with a person over the age of 17. If we are going to make the age of consent 17, in that situation we should increase the
age to 18. Today it is normal for children to be at school until they are 18 years of age, and we should not say it is okay for teachers to have sex with people who are 18 but not with those who are 17. The message to teachers should be that it will not be just a civil matter for disciplinary action but also a criminal offence.
I also propose that defences under section 91D (2) of the Crimes Act for people engaging in acts of child prostitution be completely removed. The effect of this amendment will be to completely remove, without exception, any defence to child prostitution. The Crimes Act provides increased penalties if the sexual activity involves a child under the age of 10. I propose that the increased penalties shall apply to any sexual activity involving a child under the age of 14. I also propose a provision for the confiscation of all assets used in connection with an act of child prostitution and all assets derived from child prostitution.
I have in mind that if someone uses a car to prowl the streets of our suburbs to pick up children for sexual activity that is associated with prostitution, that person will lose the vehicle as well as face criminal charges. If people lease out premises for child prostitution, those premises will be confiscated. Certain defences exist within the confiscation of assets legislation. I do not propose altering those. I also propose a new provision to make it an offence for any person to provide or be concerned or associated with the provision of alcohol, drugs or similar substances to a child when any sexual offence has been committed with the child and such substances have been involved.
The clear evidence to Wood was that predators were prepared to provide kids with such substances as part of engaging in sexual activity. If that occurs, there should be an add-on penalty, and the proposal is that the add-on penalty be five years over and above the ordinary penalties. I have not adverted to a number of other matters in the memorandum that I circulated to the House, because I was seeking advice from Parliamentary Counsel as to whether the Government had yet implemented these matters from the Wood royal commission report.
I am advised that the Government has not addressed the following matters in the Wood royal commission report, and the amendments that have been circulated to the House cover these matters. I will quickly outline them to the House, and I apologise that they were not included in the memorandum that was distributed to all members. The Wood royal commission report volume 5, at page 1084, advocated the creation of a criminal offence of loitering for sexual gratification. The Wood royal commission indicated such a crime existed in South Australia and Victoria but there was a gap in New South Wales. Wood said in his report:
It is a common behavioural practice for paedophiles to loiter in areas where children gather and to watch, photograph or film or to engage in discussion with them. Particularly does this occur in the vicinity of schools, public toilets and places such as beaches, swimming pools, sporting arenas, parks and the like, where children gather.
I have included in my proposed amendments provisions to make that an offence, as Wood recommended. Wood also recommended that a special offence be created in relation to group sexual activity. He said that one of the behavioural characteristics identified in relation to clinical paedophiles was their capacity to collect a group of children and to encourage or permit members of that group to engage in sexual conduct with each other in the presence of the paedophile. I have proposed, as Wood recommended, that a criminal offence be created in relation to that matter.
Wood also recommended at page 1086 of the same volume to which I referred earlier that there be a tidying up of the definition of "act of indecency". I have picked up on that matter in my proposed amendments so as to tighten that area. I indicated to the House on the last occasion on which this matter was debated that I did not believe it was appropriate for what I can best describe as the Burnswoods bill - a simple bill in relation to the age of consent - to go ahead in its present form. The bill has been referred to as legislation relating to discrimination and the need to achieve equality. That is not a principle that the House should be adopting.
I also said on the last occasion that this matter was debated that the House should be adopting another principle - to make changes in this area for the greater protection of young people in our community. We should be prepared to grapple with and overwhelmingly pursue that task. For that reason I have put forward what I have described as a most comprehensive package of reforms to deal with the remaining issues raised by the Wood royal commission - reforms that should be embraced by any Parliament. If this package of reforms is adopted by the House we can all, with good conscience, say: As a result of this activity we have improved the situation for young people in this State.
The Hon. I. COHEN
[11.22 a.m.]: I strongly support the Crimes Amendment (Sexual Offences) Bill. I am already on the record as saying - I contributed in debate on this bill in October - that I
support the private member’s bill introduced by the Hon. Jan Burnswoods as I believe there is an overwhelming case for the equalisation of the age of consent for sexual acts. I am pleased that this bill is once again being debated in the House. The Greens oppose all laws which discriminate against lesbian, gay, bisexual and transgender people, and thus support the equalising of the age of consent for heterosexual and homosexual acts.
I congratulate those lesbian and gay activists in the community who have been working consistently and effectively to promote the cause enshrined in this bill. I hope that, after today, there is a significant move forward on this significant human rights issue. An unequal age of consent presents a number of problems. A discriminatory age of consent is inconsistent with the underlying principles and philosophies on antidiscrimination legislation in New South Wales, and reform of the law to bring about a uniform age of consent of 16 years for both heterosexual and homosexual activity has had the support of the Anti-Discrimination Board since at least 1982.
A discriminatory age of consent has potentially adverse effects on public health and education by driving underground those who should be receiving advice on safe sex, permitted to obtain condoms, or provided with relevant health and education services. The preservation of existing laws risks stigmatising sexually active adolescent male homosexuals, making it more difficult for them to come to terms with their sexuality, increasing the incidence of depression, emotional disturbance and suicide and inappropriately bringing them into contact with the criminal law when their female or heterosexual counterparts are free of such risks.
The appearance of discriminatory treatment risks reinforcing homophobic bias and creating a false stereotype that homosexual males are likely to behave in a predatory fashion towards adolescents. Existing law tends to legitimise sexual harassment and assault within schools of older gay pupils, leading to some taking their lives and others opting out of further schooling. The reservation of a criminal constraint upon a form of activity by adolescent males, which is not uncommon, lends itself to extortion and corrupt practices by police. The Wood royal commission recognised that the present laws create a situation which is ripe for selective policing, extortion and corruption. Justice Wood recommended an equal age of consent to better reflect community standards.
Whether the age of consent is raised or lowered, it is unlikely to have any real impact on the incidence on sexual exploitation of young males or females. It is unrealistic to expect that, by reason of legislation, adolescents will defer sexual activity until some arbitrary age of consent. Similarly, it is unrealistic to ignore the circumstance that very many, if not most, adolescents in contemporary society are sexually active by the age of 16 years, whether they are male or female. This debate should not be one of moral arguments. As Commissioner Fitzgerald of the Queensland Fitzgerald inquiry said:
Where the moral issue is one upon which there is room for serious divergent opinions, the legislature should interfere only to the extent necessary to protect the community or any individuals with special needs.
Supporters of an equal age of consent include the New South Wales Anti-Discrimination Board, the Law Society, the Family Planning Association, the National Youth Roundtable, the AIDS Council of New South Wales and the Parents and Citizens Association. As I stated in the House in October, I am disappointed that the bill was introduced by a private member and not by the Government. As I remember rightly, the Government promised at the 1995 election to introduce this legislation. The Government should have kept its promise.
However, I congratulate the Hon. Jan Burnswoods for following through on this issue. The Greens strongly support an equalisation of the age of consent at 16 years for both heterosexual and homosexual people in our community. I believe that this is a step in the right direction to provide social justice and human rights for an important part of our society.
The Hon. PATRICIA FORSYTHE
[11.27 a.m.]: I strongly oppose the bill that was introduced by the Hon. Jan Burnswoods. I do so for a number of reasons. As a parent and a mother I believe that 16 is too young as an age of consent. Notwithstanding the arguments put forward by the Hon. Jan Burnswoods relating to an equalisation of the age of consent, I have to determine whether we should perpetuate what I believe to be fundamentally wrong in the first place, that is, to reduce the appropriate legal age of consent to 16. I have thought a great deal about this matter.
People might have noticed in the Daily Telegraph
editorial of today some figures relating to the retention rate of students staying in school until year 12. In 1980, 35 per cent of New South Wales students stayed in school until year 12; today 78 per cent stay in school until year 12. More and more young people are staying on at school. The average age at which women now marry is in their late twenties, whereas a generation ago it was 21.
Having regard to people’s life expectancy and to many other issues, I still believe that 16 is very young. Why would I support legislation to reduce the age of consent - to provide this equalisation - when I do not accept that that should be the age of consent?
It is difficult to change our social mores. It is difficult to change something that has been legally accepted. When some families move interstate they discover that the age of consent in some States is 17. If we agree to reducing the age of consent to 16 we will have to do a great deal in the area of public education. What Justice Wood recommended in relation to this matter is not what this bill purports to do. What Justice Wood said had much more to do with paedophilia; he said much more about a package of measures designed to assist child protection.
I have listened to what the Government has had to say about this issue, but I have heard nothing that suggests that it will introduce a package of measures to protect children in the way in which I think the royal commissioner meant for them to be protected. This bill merely addresses one aspect of what he was trying to achieve. He certain talked about a greater level of public consultation than that which was the basis for this legislation.
I then have to consider the amendments proposed by my colleague the Hon. J. P. Hannaford. Indeed, he has given learned consideration to how we might do something about child protection. He argued that 17 years was a better age - a compromise and equality. I am persuaded by his argument and believe that would be better, because I genuinely believe that 16 years is too young for the age of consent. The law relating to young women aged between 14 and 16 years should be removed.
I am persuaded by many of the amendments, but I am still considering whether to support the second reading of the bill, or whether it would open the door for something with which I fundamentally do not agree. However, I strongly indicate that if the package of proposed amendments is not successful, I would not support the bill at the third reading stage because I am not persuaded by its supporting arguments. If we are to go down this path I would want a long period of consultation. Equally, consideration must be given to the fact that young people are often denied access to counselling and health support services because of the age of consent issue.
We need to rethink some of the decisions that underpin that issue and make services more accessible. Young people should have access to counselling and support services, even in relation to homosexual sex, so that young men under the age of 18 can seek guidance. We need to deliver better messages to young people in schools to help them address some of those issues. With so many more young people remaining at school until year 12, the last thing we need is this sexuality layer, which must be viewed in a different way than we viewed it.
Even in the last generation young women left school at 15 and were in the work force and on the way to being married at about 21. So many things have changed. It is time we took stock of whether 16 years should remain the appropriate age of consent for young women; we have not yet embarked on that debate. I will not support the bill introduced by the Hon. Jan Burnswoods because I fundamentally oppose the principle upon which it has been established, that is, 16 years as the legal age of consent.
The Hon. J. F. RYAN
[11.33 a.m.]: I have had a long and deep think about this bill. I have come to the conclusion that it is appropriate that we debate this issue. My speech will be short because I am aware of the time limit and I do not wish to prevent other honourable members from putting their position on the record. Today there is not time to adequately consider all the complexities of the issue, and I will not attempt to do so, nor will I outline every aspect of my point of view. This debate should be primarily about child protection, not only the needs - although legitimate - of young gay men.
I cannot and will not support this bill in its current form because it does not adequately address relevant child protection issues. If this bill is passed in its current form I am concerned that it will be possible for adults to have casual homosexual sex with a child between the ages of 14 and 16 years and escape prosecution by merely making the claim that they were not sure about the age of the child. I believe that homosexuality is immoral, but I do not believe that it should be considered criminal.
I believe a strong case exists for a non-discriminatory age of consent for homosexual sex, and the best reasons for supporting that case were outlined in the eloquent speech given by the Hon. D. T. Harwin. It is important to give young gay people advice about where their sexuality is leading them and what dangers and other complexities in life may occur if they pursue that lifestyle. It is necessary to be able to give advice to young girls, for example, about birth control.
Therefore, there needs to be some flexibility between the law and our moral views. I was impressed by the authoritative speech of the Hon.
J. P. Hannaford, who proposed addressing this issue with a package of child protection reforms. That is a sensible approach to the matter. I believe that those of us in this House who, like me, have a generally conservative approach to moral matters should take a long look at this bill and the approach suggested by the Hon. J. P. Hannaford.
It is sad to say that if we examine how this issue has been addressed over time, the voting trends are obvious. At some time this bill in this form will be passed unless we make a sensible attempt to provide a package of child protection reforms that will last for a long time. We must start facing facts and negotiating a stronger position for the future about child protection issues in return for giving some ground on issues such as non-discriminatory age of consent. Perhaps some flexibility can be achieved about the actual age at which it will be considered a criminal act when young people have sex.
Our criminal law has dozens of examples of when it does not necessarily enforce commonly held moral views - particularly about divorce, adult homosexual sex and, for that matter, something I believe to be morally wrong: sex outside marriage. I believe that any young person who chooses to have any sort of sex outside marital commitment is making an ill-advised and stupid personal choice. However, I do not believe that young kids having sex at the age of 16 are criminals, and they should not be subject to the criminal law. They should receive advice, counselling, assistance and guidance from older people; I do not believe it is appropriate to give them a trip to the law courts.
This is an opportune time for us to consider a legislative package for child protection in return for giving some sensible ground about the issue of age of consent for homosexual sex. I would propose, as an element of the package of child protection, a provision that permits young people aged from about 14 years to 18 years to give consent to have sex with their peers, that is, those who are roughly the same age as they are. However, there should be no argument if an adult has casual sex with a young person. No legal question should arise. The law should be strong and should be enforced in a better way than it currently is.
One reason that we have more of what I believe to be one of the greatest moral obscenities in this city is the existence of the place called The Wall, where adults pick up young people for casual sex, clearly in breach of the law and in the full knowledge that if they are taken to court they can make out a defence that they did not know the person’s age, and thus they escape prosecution. Our current child protection laws are a joke and are being exploited. Those laws need to be strengthened in some of the ways that the Hon. J. P. Hannaford suggested.
However, I reluctantly part company from the Hon. J. P. Hannaford because I do not believe that the relevant age of consent should be 16 or 17 years. The reality is that many young people aged 14 years and over engage in sex when they are at school. I do not believe that should be a matter for the criminal law, in particular in regard to young girls. Most of us would agree that a young girl who makes a choice to have sex at the age of 14 years should have access to birth control. If she does not, a bad situation can be made infinitely worse if that behaviour continues.
Sensible flexibility must be extended to those who are, for want of a better word, experimenting with sex at a young age. They must be given guidance and assistance, but they should not be treated as criminals. We need to address some of the issues with regard to child protection that are currently dealt with inadequately in our laws. The approach suggested by the Hon. J. P. Hannaford is a good one. One of the elements of the package could be stronger protection for parents to enable them to give guidance to children under the age of 16 who leave home to have a sexual relationship.
Some of the provisions in our child protection laws are not strong enough. One of the concerns that parents have is that if the age of consent is dropped their children will tell them that it is their right to have sex at a young and tender age. I have a great deal of regard for young people. I would endeavour to give my own family as much choice as possible. But I do not believe my 14-year-old has the right to have sex without some guidance or control from me. Constituents of mine told me that their very young daughter is living in a caravan park with an 18- or 19-year-old. The parents are unable to take legal action to bring the child home.
One of the elements of a child protection package might be to strengthen the capacity of parents to take action in such circumstances. It is a matter of exercising some level of commonsense. I know that some honourable members will have concerns about aspects of this law, but it is a good thing that we are debating it. There is not the opportunity to debate all the details of the package.
There are concerns about how these laws will affect censorship and the portrayal of sexuality by young people if we set an age of consent that
appears to be too young. We must ensure that it not possible for the media to exploit those opportunities through our censorship laws by saying that they are portraying something that is legally permissible. I believe that this matter should be the subject of further debate. Because the capacity for debate at the second reading stage is so limited and because the proposals suggested by the Hon. J. P. Hannaford are worth pursuing, I will vote today for the bill to proceed.
Reverend the Hon. F. J. Nile:
The Hon. J. F. RYAN:
I do not believe it is a shame. It would be a shame to prevent this debate from taking place. However, we are amateurs playing a professional game. Although honourable members have had genuine reason, and even some skill and capacity, to consider amendments to the bill, very few of us know what those amendments would produce. I believe, as many other honourable members have said, that this issue should be taken up by the Government. The Government has the capacity to consult the community, obtain good legal advice, and generate a package that will have the overwhelming support of the community, and probably members of this place.
I cannot support a bill that is not sponsored by the Government. No matter what form the bill is in during the second reading debate, I will vote against its third reading if it goes that far. I do not need to further explain myself. Time is limited. There is an opportunity to think and there is an opportunity to debate the issues. However, to ensure that I am not making a decision which in any way compromises child protection in this State, I could not support a bill that is constructed in piecemeal fashion on private member’s day without some capacity for additional community consultation, and oversight and preparedness by the Government to take responsibility for its impact.
I cannot support the third reading of this bill no matter what form it takes while it continues to be debated in this fashion. But because I believe the Parliament has a right to consider this matter, because debate is limited, and because we need to support enhancing child protection, I am prepared to support the bill at the second reading stage under those circumstances.
The Hon. R. S. L. JONES
[11.44 a.m.]: New South Wales is out of touch with most of Australia. The age of consent for male-male sex in the Australian Capital Territory is 16; in the Northern Territory, 16; in Queensland, 16; in South Australia, 16; and in Victoria, 16. Western Australia is completely out of step with the rest of the world, with an age of consent of 21. Recently the House of Commons agreed to equalise the age of consent at 16. Many other countries have even lower ages of consent. In Albania it is 14; Belarus, 16; Belgium, 16; Bulgaria, 14; Canada, 14; Colombia, 14; the Czech Republic, 15; Denmark, 15; Spain, 12; Greece, 15; Iceland, 16; Ireland, 17; Luxemburg, 16; Montenegro, 14; New Zealand, 16; Norway, 16; Poland, 15; Portugal, 16; San Marino, 14; Serbia, 14; Slovenia, 15; and Sweden, 15.
The United Kingdom Wolfenden report noted that its medical witnesses were unanimously of the view that the main sexual pattern is established in the early years of life. The majority of the witnesses held that it was usually fixed by the age of 16 years. In other words, people at the age of 16 know whether they are heterosexual or gay, and they will engage in that sex no matter what the law says. When Neville Wran passed legislation to legalise homosexual sex he said, on 10 May 1984:
I reiterate that the bill is not designed to cure all existing anomalies relating to homosexual practices contained in the Crimes Act. I would expect that such anomalies would in due course be the subject of a separate review of the Crimes Act as a whole.
It took 15 years and a private member’s bill to address those anomalies. Young Labor is very supportive of the legislation to equalise the age of consent. The President of Young Labor, Chris McGrath, said:
It is clear that younger people in particular support the change to a uniform age of consent which would not differentiate on the basis of gender or sexuality.
The Teachers Federation - which, quite rightly, is demonstrating noisily in Macquarie Street today - supports the removal of existing gender discrimination in relation to the age of consent. In 1992 a national study found that 9 per cent of girls and 10 per cent of boys had their first sexual experience before the age of 13, so many people indulge in sex well before the age of 16. Michael Marris, a New Zealand psychologist and author of Teenagers: A Parent’s Guide for the ‘90s
What’s the argument that 16 year olds should have sex? Yes, there’s an argument that says teenagers shouldn’t risk pregnancy or sexually transmitted disease. But within the framework of a good relationship, sex at that age is normal.
The Reverend Harry Herbert, Executive Director of the Uniting Church’s Board of Social Responsibility, says:
The [Wood Royal Commission] recommendation concerns my previous argument that 16 is a good age for people [to be
judged to be] competent to make up their own minds for sexual decisions.
There is no evidence that other States which have non-discriminatory age of consent laws have a higher rate of child abuse than New South Wales. Justice Wood said that amending the existing legislation would not bring about any behavioural shift or expose any more children to the risk of paedophile activity than are presently exposed to that risk. Victoria, a State with non-discriminatory laws, has a significantly lower rate of child abuse than New South Wales.
The State with the lowest rate of per capita child abuse is Tasmania, which has non-discriminatory laws. The royal commission made the recommendation, but the Government has been very slow to take it up, mainly because of some arch conservatives in Cabinet. The Wood royal commission reported:
The Commission is able to state that it sees no reason to perpetuate a distinction between consensual homosexual and heterosexual activity. In coming to this view, the Commission had a regard to: the circumstances that the present legislation is, on any view, discriminatory and anomalous in its application; the need for the law to recognise current social mores and practices, and the circumstance that most adolescents are totally sexually active by the age of 16 years; and are very much better informed about sexual matters through education, films, magazines, television, radio and otherwise than past generations . . . the desirability of ensuring that the needs of young people for advice on safe sex, support and education are not denied to them because of the illegality attaching to their conduct.
The Commission recommends the following:
Removal of Gender Discrimination in Existing Laws
- consideration be given with appropriate community consultation to the introduction of legislation under which: a gender neutral approach is taken, and in which the existing distinctions between heterosexual activity involving children, including the defences and maximum penalties available is removed; the common age of consent is set at 16 years, subject to exceptions in relation to child prostitution and to adults standing in special relationships, in each of which cases it is set at 18 years.
The Wood royal commission, which was very thoughtful and careful in its deliberations, came to that conclusion. Many other countries, including the United Kingdom, New Zealand and most other States already have a non-discriminatory age of consent. It is about time New South Wales caught up with the rest of the world.
The Hon. M. J. GALLACHER
(Leader of the Opposition) [11.50 a.m.]: I speak today on the Crimes Amendment (Sexual Offences) Bill and put on the record from the outset my opposition to the bill and my resolute determination to vote against it. My views on this issue are not based on some latent prejudice. In fact, I strongly support the philosophical right of an individual to choose whichever lifestyle he or she desires, provided it does not in any way interfere or harm either another person or the society in which we live.
It was this very belief on the rights of the individual that brought me to the Liberal Party. However, it is important at this time to make the distinction that individualism in its purest form cannot operate in complete isolation. We in our society interact with literally dozens, if not hundreds, of people every week. As a direct result the laws governing the rules by which we operate as a community are enacted. Those laws are designed not primarily to stop actions but to protect individuals living in a collective society from the unwarranted and unacceptable actions of others.
The position I have taken on this bill acknowledges the argument put forward by the supporters of equality of age. However, I cannot accept that by lowering the line of acceptability we are not also increasing the level of vulnerability of those whom this bill purports to represent. I listened closely to the debate last week, and in particular to the worthy contribution of my colleague the Hon. D. T. Harwin. I was heartened to hear that supporters of this bill have also focused on the significant impact that the threat of paedophilia presents and the importance of child protection in the minds of honourable members in deciding their position on this bill.
I, too, acknowledge the widespread confusion that has permeated our society that paedophilia and homosexuality are one and the same. Whether this perception is promoted either intentionally or accidentally is both unfortunate and wrong. As the Hon. D. T. Harwin rightly pointed out, paedophilia is an act that is not limited to either sexual preference. Age is the determining factor, and it is the question of age that we are debating today. As I said, I accept that our society has, rightly or wrongly, developed its culture of freedom, but I also recognise that on questions such as these there will be distinct division of views, not only in this Chamber but also in the wider community.
Significant arguments have been put forward with regard to the maturation rates of boys and girls. However, it was correctly pointed out earlier that there is a distinct lack of scientific evidence to support one proposition or the other. It therefore falls upon members of this Chamber to base their decision on their own life experiences. I am no
different. In my many years as a police officer I observed clear differences between the maturity of 16- and 17-year-old boys and that of girls of a similar age.
In fact, I often found that girls aged between 14 and 15 years acted more like boys of 16 and 17 years and held similar views and attitudes to that age group. I do not suggest that I have conducted an in-depth analysis of the issue, other than 16 years of interaction and observation, but there may be some credence to this argument. A certain percentage of young males aged 16 to 17 years come under the notice of police because of antisocial or unlawful behaviour. I believe also that it is during this time, when many are allowed to leave the family home at night to attend social functions or meet with friends, that they are most vulnerable.
There is no way that I could support any changes to the legal system that would allow the lowest scum on this earth - paedophiles - easier, lawful access to 16- or 17-year-old boys. I believe that once the legal age of consent is lowered for young males, as this bill proposes, the door will open just a little bit further to allow paedophiles access to boys who are even younger. This is not a question of equity; it about protecting the vulnerable.
I do not believe that the passage of this bill will deliver the levels of protection for homosexual students, who are the subject of harassment or violence, that have been alluded to in the course of this debate. Education and tolerance are extremely important if people who live a lifestyle contrary to the majority are to be accepted and respected. However, that same harassment and violence is not limited to homosexuals; individuals from differing ethnic or religious origins are also victims of ignorance and prejudice. I urge all honourable members who have any doubt in their minds about this issue to vote on the side of caution and vote no.
If honourable members have any doubt with respect to the maturation of young males, I refer them to the fine work that the shadow minister for community services, Stephen O’Doherty, has done on the subject of boys education. I congratulate the honourable member for Hornsby on the work he has done in promoting equity for boys in a far more positive way than this bill does today.
Of course, preparedness to debate this issue is not solely limited to members of this Parliament. Others outside this place are equally committed to the defeat of this bill. One such person is Senator Bill Heffernan, who has worked tirelessly on this issue since the Hon. Jan Burnswoods first put it on the notice paper some time ago. I would like to thank Bill for the time and effort he has put into this issue, in addition to the many other matters he has elected to confront in recent times. I conclude by simply urging all honourable members to consider this not as a matter of equity but as the Parliament upholding its responsibility to protect the vulnerable in our society. I seek the support of honourable members.
The Hon. Dr A. CHESTERFIELD-EVANS
[11.56 a.m.]: The purpose of the Crimes Amendment (Sexual Offences) Bill is to amend the Crimes Act as it relates solely to sexual offences committed by a male on another male. It is also to repeal certain provisions that apply solely to male homosexual intercourse with the result that, in future, certain types of sexual misconduct perpetuated by a person against another person will be dealt with on the same basis, irrespective of the sex of the perpetrator or victim.
Consequential amendments to the Act include an amendment to extend the offence relating to unlawful carnal knowledge by teachers, fathers or stepfathers of females up to the age of 17 years irrespective of consent to include offences against males. The Wood royal commission recommended, in recommendation 81, that the age of consent for homosexuals should be changed from 18 to 16 years. Under the current Act a male under the age of 18 who has sexual intercourse with another male can serve up to five years penal servitude. An equal age of consent for heterosexuals and homosexuals is an Australian Democrats policy prerogative and our record on equality for homosexuals is very progressive.
Females can engage in consensual homosexual activities legally at the age of 16, but a 16-year-old male cannot. Support for this bill comes from Family Planning of Australia New South Wales - for health reasons - the Gay and Lesbian Rights Lobby, Parents and Friends of Lesbians and Gays, the AIDS Council of New South Wales and the Law Society of New South Wales. I would like to make some general social comments about this bill and the way the issue is being handled.
People cheer when a child for the first time rolls over, crawls, walks, goes to school, and rides a bike. But when a child wants to have sex, everyone is very worried; nobody knows what to do. For years there have been arguments about whether children should be educated about contraception and so on. Parents seem to have great difficulty coming to terms with children’s sexuality. They cannot see it as a normal part of child development.
It is a medical fact, and well documented, that the age of maturity has been falling for a number of years, possibly due to better nutrition. There are many arguments about that. But children are maturing sexually at a younger age. At the same time the age of economic independence is later because of social and economic factors. There is a longer period of interregnum or development through adolescence which must be faced by children and which parents must come to terms with.
Perhaps the most significant single event to occur as a child becomes an adult is the development of sexuality. Historically, parents have been less help than they might have been with this, and sometimes they have even been a hindrance. The difficulties confronting sex educators in actually coming to terms with the realistic issues being encountered by young people in a religious framework is that, traditionally, in common parlance the word "moral" is equivalent to not having sex at all. That makes matters difficult, although I think some progress has been made.
As legislators, we have to face what actually happens, not what we might like to happen or what, with some rosy memory of long ago, we think should have happened. It is interesting that no-one has mentioned any research to date on what percentage of people of either sex had sex by the age of 16.
Pursuant to sessional orders business interrupted.