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The age of consent varies across Australian states. The idea of an age of consent is designed to protect children, who are incapable of consenting due to their lack of maturity.

Due to the complexity of sexual assault charges, it is important to consult an experienced criminal defence lawyer if the age of consent is an issue.

What is the age of consent in Australia?

In Australia, the age of consent is between 16 and 17 years depending on the state. The below table sets out the age of consent for each state and territory.

States and Territories	Legal Age of Consent
Queensland	16 years
New South Wales	16 years
Victoria	16 years
Western Australia	16 years
Tasmania	17 years
Northern Territory	16 years
South Australia	17 years
Australian Capital Territory	16 years

What is Consent?

Consent is an agreement between persons to engage in sexual activity. It should be clearly and freely communicated.

If sexual activity occurs without consent, a person commits an offence of sexual assault. A person must take positive steps to ascertain whether the other person is giving consent.

There are certain circumstances where consent cannot be given. This includes where it has been coerced, where the alleged victim is substantially intoxicated and where the alleged victim is below the age of consent.

What is a Special Care Relationship?

A special care relationship is one where a person holds authority and responsibility over a person under the age of 18 years. Examples of a special relationship include:

• A healthcare specialist;
• A teacher;
• A religious figure;
• A parent or guardian;
• A grandparent;
• A stepfather or stepmother who is taking care of the child;
• A custodian officer of where the minor lives;
• Anyone who cares for a minor and has a relationship with them.

In these cases, the prosecution must prove a special care relationship exists and that the defendant was aware of the person’s age. The maximum penalty for an offence of sexual intercourse under special care is four years imprisonment if the alleged victim is 17 years old and eight years imprisonment if the alleged victim is 16 years old.

This is a complex area of law. An experienced sexual assault lawyer will be able to provide detailed advice about any defences that are available and the best way to deal with cases that involve an age of consent issue. Contact Astor Legal on (02) 7804 2823 or email us at info@astorlegal.com.au.

What is the Age of Consent in NSW?

The legal age of consent in New South Wales is 16 years old.

An offence of sexual intercourse with a child aged between 14 to 16 years of age carries a maximum penalty of 10 years imprisonment under Section 66C of the Crimes Act 1900.

An offence of sexual intercourse with a child aged between 10 to 14 years of age carries a maximum penalty of 16 years imprisonment.

Engaging in sexual intercourse with a child under 10 years of age carries a maximum penalty of 16 years imprisonment pursuant to section 66A of the Crimes Act 1900 (NSW).

What is the Age of Consent in Qld?

The age of consent in Queensland is 16 years under the Criminal Code Act 1899 (QLD). Section 215 of the Act outlines that involving or attempting to be involved in sexual intercourse with a child under 16 years of age is an offence. The maximum penalties for such crimes are as follows:

Condition	Maximum Penalty
The child is of or above the age of 12 years	14 years of imprisonment
The child is under the age of 12 years	Life imprisonment
The child is under the age of 12 years (attempt)	14 years of imprisonment
The child is under the accused person’s care	Life imprisonment
The child is under the accused person’s care (attempt)	14 years imprisonment
The child is aged under 16 and has a cognitive impairment	Life imprisonment

What is the Age of Consent in Victoria?

The age of consent in Victoria is 16 years of age. The maximum penalties for sexual intercourse with children and young persons are as follows:

Condition	Maximum Penalty
The child is under the age of 12 years	10 years of imprisonment
The child is under the age of 16	6 years of imprisonment
The child is under the accused person’s care and is aged 16 or 17	10 years imprisonment

What is the Age of Consent in WA?

The age of consent in Western Australia is 16 years of age under the Criminal Code Act 1913 (WA). Section 320 of the Act makes it an offence to procure, incite or encourage a child under the age of 13 to engage in sexual behaviour. This carries a maximum penalty of 20 years imprisonment.

If the child is between 13 and 16 years, the maximum penalty is 14 years of imprisonment.

In cases where the child is between 16 and 18 years old and is in a special care relationship with the defendant, a maximum penalty of 10 years is applicable.

If the defendant is also under the age of 18 and has no special care relationship with the complainant, the maximum penalty is 7 years of imprisonment.

What is the Age of Consent in South Australia?

The age of consent in South Australia is 17 years, in accordance with section 49(3) of the Criminal Law Consolidation Act 1935 (SA).

The maximum penalties for sexual assault offences involving children in South Australia are:

Condition	Maximum Penalty
The child is under the age of 14 years	Life imprisonment
The complainant is under 18 years of age and is under the accused person’s care	10 years of imprisonment

What is the Age of Consent in Tasmania?

The age of consent in Tasmania is 17 years pursuant to section 124 of the Criminal Code Act 1924 (TAS).

An offence of sexual intercourse with a child in Tasmania carries a maximum penalty of 21 years imprisonment.

If the complainant is 15 years of age and the accused is 5 years older than the complainant, this can be considered a defence. It is also a defence if the complainant was between 12-14 years of age and the defendant is no more than 3 years older than them.

What is the Age of Consent in the Northern Territory?

The age of consent in Northern Territory is 16 years according to section 127 of the Criminal Code Act 1983 (NT). The maximum penalties for child sexual assault offences in NT are:

Condition	Maximum Penalty
The child is of or over the age of 10 years and under the age of 16 years (including circumstances of aggravation)	20 years of imprisonment
The complainant is under 10 years of age	25 years of imprisonment
The child is of or over the age of 16 years and under the age of 17 years	8 years of imprisonment

What is the Age of Consent in ACT?

The age of consent in the Australian Capital Territory is 16 years pursuant to section 55 of the Crimes Act 1900 (ACT).

Engaging in sexual intercourse with a child under the age of 16 carries a maximum penalty of 14 years imprisonment.

In cases where the child is under 10 years of age, the maximum penalty increases to 17 years imprisonment. If a relationship of special care exists between the defendant and the complainant, there is a maximum penalty of 10 years imprisonment.

Defences to sexual assault

Defences to sexual assault include:

1. Honest and reasonable belief that the complainant was consenting. However, there is some conjecture as to whether this defence still has practical application following affirmative consent laws in NSW;
2. Consent
3. Necessity;
4. Self Defence;
5. Insanity;
6. Duress
7. Identification.