Consent & Legal Sexual Activity for the State of
From the website of Queer Radio, the gay & lesbian Community Radio program on 4ZZZ fm102.1
(The hyperlinks go to government sourced Adobe Acrobat pdf files)
In 1990, following electoral promises of sweeping social reforms in line with the recommendations of The Fitzgerald Inquiry (that were long overdue in our famously “redneck” state), the newly installed Labor Party Government, led by Premier Wayne Goss, established a Parliamentary Criminal Justice Committee (PCJC) to hold public hearings and produce a Report based on the Criminal Justice Commission’s May 1990 Information Paper on Reforms In laws Relating To Homosexuality. With (our former Premier) Peter Beattie MP as Chairman, the PCJC called for submissions and held hearings on 6th August 1990 and 7th August 1990 at which notable local Gay Community representatives and professionals presented. Also speaking were religious conservatives who vigorously opposed law reform.
The PCJC Report No.2 of 1990 was “laid on the table of the Legislative Assembly” in October 1990. NB: with the original pdf file of that Report only the first 58 of 80 pages can be scanned for text using Adobe Acrobat, so I have prepared another pdf file in which all 80 pages of text can be scanned.
It is important to note that the PCJC Report No.2 of 1990 had strongly and specifically recommended (Recommendation 7) that there be true equalisation of the age of consent at 16 for sexual activity for both males and females. Recommendation 7 is: “"THE AGE OF CONSENT FOR HOMOSEXUAL ACTS IN ACCORDANCE WITH THE PRINCIPLES OF SEXUAL EQUALITY AND ANTI-DISCRIMINATION BE THE SAME FOR MALES AS IT IS FOR FEMALES, IRRESPECTIVE OF WHETHER THE SEXUAL ACT IS HETEROSEXUAL OR HOMOSEXUAL.”
This was the only Majority Recommendation of the 9 in that Report which was not included in the Bill which was presented to Parliament.
The higher minimum age for anal intercourse exists only because of a “behind closed doors” decision by the Goss Labor Cabinet, to console a few of Labor’s own ultra conservative MPs who had been opposed to any decriminalisation of homosexual sexual activity. This is a fact which was confirmed to me in a face to face conversation with former Attorney-General Dean Wells at the State Library of Queensland in October 2010 – Dean said “That’s pretty much how it happened”..
Sections 208 and 209 of the 1899 Criminal Code were the ones which, prior to November 1990, had criminalised all sex between men – and “in accordance with the principles of sexual equality and anti-discrimination” both of those Sections should have been removed completely from the Code. However, they were instead reworded to criminalise anal intercourse involving any person “not an adult” (at that time the Criminal Code considered anyone aged 17year or over to be an adult).
Hansard shows that in the passing of the Criminal Code And Another Act Amendment Act No 93 of 1990 not one word was spoken about the higher age for anal intercourse. Members of Parliament were either fully in favour of decriminalisation or fully opposed to it. The only MPs who would have given a damn about the higher minimum age for anal intercourse would have been those few conservative Labor MPs to whom Premier Wayne Goss had been pandering.
The Criminal Code And Another Act Amendment Act No 93 of 1990 therefore passed into law a higher minimum age of at least 17 for anal intercourse, with a maximum penalty of 7 years imprisonment .
As per http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/CriminLwSexOA78.pdf (page 15):
Criminal Code and Another Act Amendment Act 1990 No. 93
Recommendation 9 of the PCJC Report No.2 of 1990 was for the inclusion of a “Preamble” to the legislation to stress that the “decriminalisation” of homosexual sexual activity did not mean that Parliament should be seen to either "approve or condone" homosexuality. Committee Chairman Mr. Peter Beattie MP wrote in the PCJC Report No.2 of 1990 that he personally supported the first 8 recommendations, but was vigorously opposed to including a Preamble which he believed to be an unnecessary, potentially obstructive legislative move, with only negative legal aspects.
The Preamble does read like an insulting apology for enacting reform, however it also clearly states one key reason why it was enacted at that time - and that's the very real threat of HIV/AIDS, closing with: "AND WHEREAS rational public health policy is undermined by criminal laws which make those who are at high risk of infection unwilling to disclose that they are members of a high risk group". It is appalling that they got away with passing legislation which allowed the health of 16 and 17 year olds to be undermined by this very Criminal Law.- especially 16 and 17 year old same sex attracted youth who are at high risk of infection and who have been made unwilling, by this law, to disclose that they are members of a high risk group.
The public was never informed about the reason for the higher age to consent regarding anal intercourse, nor was it clearly explained that other male to male sexual acts were legal for those aged 16 and over. The “preamble” serves only to reinforce the misinformed attitude that all male to male sex for those under 18 is not only undesirable but also quite possibly illegal. Even today very few people (maybe 1 in 5 from my experience) know the true interpretation of the law regarding age of consent and legal sexual activity.
An opportunity to get rid of our state’s Sodomy Law was missed when the 3rd February 1996 Mundingburra by-election resulted in a Liberal/National Party dominated Government which repealed a Labor-formulated June 1995 complete revision of the Criminal Code which would otherwise have taken effect in June 1996. It is important to note that Labor’s 1995 Revised Criminal Code had contained no higher age for any particular sexual activity – ALL sex involving a person aged under 16 years was to be clearly illegal.
Several months later the Borbidge Government then pushed through their Criminal Law Amendment Act 1997 (Act No 3 of 1997) - which received "Assent" on 3rd April 1997. This Act extensively amended many areas of the 1899 Criminal Code to reflect National Party sentiments - including anti-homosexual attitudes. In Sections 208 & 209 they replaced the term “not an adult” with a defined minimum age of 18 (up from 17 in the 1990 Act). They also doubled the maximimum penalty, to 14 years imprisonment, and changed the legal term of the offence from “unlawful anal intercourse” to “sodomy”. There was absolutely no debate or objection by the Labor Party Opposition regarding this part of the Bill. Therefore there was also no attempt to establish a definition of the meaning of the term “sodomy” under Queensland Law, or to question the minimum age of 18.
On 29th November 2002 Queensland Parliament passed the Discrimination Law Amendment Act 2002 which reformed a wide range of areas in the Queensland Ant-Discriminition Act 1991 such as couples (whether same sex or de-facto), including transgenders (“gender identity”) and “sexuality” in protection under existing Anti-Discrimination and Anti-Vilification legislation, and also included amendments to stop schools being able to hire and fire based purely on sexuality or marital status. Age of consent was not an issue raised in this Bill.
An October 2008 amendment to the Criminal Code Sections 208 and 209 had actually worsened the effect of the "sodomy law". Section 209 - attempting to engage in sodomy - was deleted and the wording was incorporated into Section 208, which meant that the penalty for attempting sodomy had been doubled from a maximum of 7 to 14 years.
Attorney-General Kerry Shine actually reviewed the Sodomy Law element of the Criminal Code and yet decided to make it worse, when he was personally well aware that the Queensland Anti-Discrimination Commissioner had recommended 3 years earlier that it be deleted altogether and she had reminded him, in person, just a year earlier that she was definitely serious about the need for that reform.
The Criminal Code and Other Acts Amendment Act 2008 Act No. 55 of 2008 (assented to 23rd October 2008): http://www.legislation.qld.gov.au/LEGISLTN/ACTS/2008/08AC055.pdf
The current version of the Queensland Criminal Code is at: http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/CriminCode.pdf
An opinion which has been unofficially and indirectly expressed to me is that reform is not likely to come voluntarily from this Government, and that suitable grassroots lobbying by youth themselves (those least empowered by the law) would be necessary in order to help convince the Government that action is both justified and urgently needed.
- John Frame (17th January 2012).