Crimes Amendment (Sexual Offences)
Bill 2003

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend and repeal certain provisions of the Crimes
Act 1900 (the Principal Act) to provide for the equal treatment of sexual
offences irrespective of whether the victim or the perpetrator is male or female.

In particular, the Bill repeals certain provisions that apply solely to male
homosexual acts. The result will be that, in future, certain types of sexual
offences by any person, whether male or female, against any other person,
whether male or female, will be dealt with on the same bases, including as to the
age of the victim, the defences available to the accused and the penalties for the
offence. The age of consent for all persons will be 16 years.

Consensual male homosexual acts that took place before the commencement of
the amendments between persons who were not less than 16 years of age at the
time will cease to be unlawful.

The Bill also makes other amendments with respect to sexual offences against
children. The Bill increases the penalties for having sexual intercourse with a
child between 10 and 16 years of age (currently 8 years imprisonment or, if
under the authority of the offender, 10 years imprisonment) as follows:

(a) where the child is between 10 and 14 years of age—16 years
imprisonment (or 20 years imprisonment in circumstances of
aggravation),

(b) where the child is between 14 and 16 years of age—10 years
imprisonment (or 12 years imprisonment in circumstances of
aggravation).

The circumstances of aggravation are extended to those applicable to cases of
sexual assault offences, including taking advantage of the intoxication of the
victim.

The current penalty for having sexual intercourse with a child under 10 years of
age is 25 years imprisonment. Sexual assault of a child under 16 years of age also
carries a penalty of 20 years imprisonment.

The Bill also removes the current statutory defence of a person who has
consensual sexual intercourse with a child under 16 years of age that the child
was over 14 years of age and appeared to be over 16 years of age.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day to be
appointed by the Governor by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the
Principal Act set out in Schedule 1.

Clause 4 is a formal provision that gives effect to the amendments to the other
Acts set out in Schedule 2.

Schedule 1 Amendment of Crimes Act 1900
Equal treatment of sexual offences
Schedule 1 [18] repeals a number of separate offences relating to homosexual
acts with males between 10 and 18 years of age. The result will be that sexual
assault and offences against children will be dealt with by the same set of
provisions that apply irrespective of whether the victim or the perpetrator is male
or female. It will also result in a uniform age of consent, namely 16 years.

Schedule 1 [12] recasts sections 73–75 of the Principal Act (which make it an
offence for a male teacher or parent to have carnal knowledge of a female pupil
or child under 17 years of age). The revised offence will apply to both males and
females. The proposed offence will not apply if the persons concerned are
married to each other. References to parents are omitted and dealt with in the
revised incest offence—see Schedule 1 [15].

Schedule 1 [15] recasts section 78A (Incest) of the Principal Act, which makes
it an offence for a male to have carnal knowledge of a close female family
member over 16 years of age, or a female to allow a close male family member
to have carnal knowledge of her. The revised offence provides that any person
who has sexual intercourse with a close family member of or above the age of
16 years will be guilty of incest. Schedule 1 [16] makes a consequential
amendment.

Schedule 1 [20] provides for the equal treatment of offences relating to child
prostitution, irrespective of the gender of the child concerned.

Sexual offences against children
Schedule 1 [9] replaces section 66C of the Principal Act to increase the penalty
for having sexual intercourse with a child between 10 and 16 years of age, as set
out in the Overview above. Schedule 1 [2], [3], [10] and [11] make
consequential amendments concerning alternative verdicts.

Defences
Schedule 1 [14] amends section 77 of the Principal Act to remove the current
statutory defence of a person who has consensual sexual intercourse with a child
under 16 years of age that the child was over 14 years of age and appeared to be
over 16 years of age. Schedule 1 [13] makes a consequential amendment.

Definition of “sexual intercourse”
Schedule 1 [1] amends the definition of sexual intercourse in section 61H to
ensure that the definition applies for the purposes of all the sexual offences in the
Principal Act. The amendment is consequential upon the replacement of the term
carnal knowledge by other amendments contained in the Bill. Schedule 1 [5],
[12] and [15] make consequential amendments.

Law revision
Schedule 1 [8] repeals an obsolete offence of men procuring “illicit carnal
connection” by fraud and Schedule 1 [4] makes a consequential amendment.

Schedule 1 [17] and [19] repeal an obsolete provision relating to guardianship
of certain incest victims and replace it with new section 80AA, a general
provision that allows a court to refer the matter to an appropriate child protection
agency where a person is convicted of any sexual offence and the victim is under
the authority of the offender.

Savings and transitional
Schedule 1 [21] inserts a new Part 19 into the Eleventh Schedule to the Principal
Act. The new Part contains a transitional provision (new clause 49) which
provides that it is a defence to an offence of homosexual acts alleged to have
occurred before the commencement of the amendments made by this Bill that
both parties were not less than 16 years of age at the time of the alleged offence,
that the act was consensual, and that the act would not otherwise be unlawful
after that commencement. The new Part will also contain transitional provisions
relating to former offences transferred from the main body of the Principal Act
by Schedule 1 [7]. Schedule 1 [6] amends section 63 of the Principal Act to
clarify the location of the transferred provisions.

Schedule 2 Amendment of other Acts
Schedule 2 contains amendments to the Criminal Procedure Act 1986 and the
Young Offenders Act 1997 that are consequential upon the amendments to the
Principal Act contained in Schedule 1.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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