*Age Of Consent & Legal Sexual Activity for the State of
From the website of Queer
Radio, the gay & lesbian
Community Radio program on 4ZZZ
fm102.1 in
Homosexual law reform history in
(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 recommended (Recommendation 7) the full equalisation of the age of
consent at 16 years for sexual activity and consequently full equal treatment
under the law. However, in November 1990 the “Criminal Act And Another Act
Amendment Bill”, amending the 1899 Criminal Code, which was presented to
Parliament by Labor's Attorney General Dean Wells, actually proposed amendments
to declare anal intercourse illegal for anyone "not an adult" under
Queensland Criminal law (meaning someone not yet 17 years of age). There was no
comment or debate from either side of Parliament to justify inclusion of the
proposed higher age. 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
date
of assent
commenced
Recommendation 9 of the Attorney General's
Bill also proposed 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):
The current version of the Queensland
Criminal Code is at:
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 (31st January
2010).
Last updated 25th February 2010