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Family Law - Age of Consent

Date: January 13, 2012

Authors: Angelita Manlangit LL.B.

The concept of age of consent aims to protect young and innocent children from the physical and psychological harm caused by engaging in sexual intercourse before they are mature enough to consent to this kind of action.

Under the Australian law, the “age of consent” can refer to either:
  1. The age from which a person may consent to marriage without parental approval, which is 18 years old in all Australian jurisdiction, pursuant to Section 11 of the Marriage Act (Cth) 1961; or
  2. The age from which a person may lawfully consent to having sexual intercourse.
The age of consent in Australia relies on a number of factors, including:
  • The state in which the person lives in;
  • Whether the person is male or female;
  • Whether the sexual act is between a male and a female; a male and a male; or a female and a female.
The table below sets out the age of consent in each jurisdiction:
 
State
Male – Female Sex
Male – Male Sex
Female – Female Sex
Australian Capital Territory
16 years old
16 years old
No laws
New South Wales
16 years old
18 years old
No laws
Northern Territory
16 years old
18 years old
No laws
Queensland
16 or 18 years old*
16 or 18 years old*
16 or 18 years old*
South Australia
17 years old
17 years old
17 years old
Tasmania
17 years old
17 years old
17 years old
Victoria
16 years old
16 years old
16 years old
Western Australia
16 years old
21 years old
  1. ears old
* Anal intercourse is illegal until the age of 18. Any other sexual acts are legal at 16.
 
In Australia, if a person is accused of engaging in sexual intercourse with another person under the legal age, the legislations provide various statutory defences (except for NSW where the legislation lacks such defences). The first type is when the accused believed on reasonable grounds that the person with whom they engaged in sexual acts with was above the legal age of consent. The second statutory defence relates to a situation where two people are close in age.
 
In New South Wales, Victoria, Western Australia, South Australia, and the Northern Territory, it is illegal for a person to engage in sexual interactions with a person under the age of 16 or 17 years, if the young person is under special care or supervision. A person who provides “special care” may include:
  • School teacher of the victim;
  • Step-parent, guardian or foster parent of the victim;
  • Religious Official or Spiritual Leader of the victim;
  • Custodial officer of an institution of which the victim is an inmate; and
  • Health professional of the victim.

 

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