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22 May 2003
Crimes Amendment (Sexual Offences) Bill
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About this Item
Sex; Homosexuality; Child Abuse
Ryan The Hon John
Rhiannon Ms Lee
Hale Ms Sylvia
Wong The Hon Dr Peter
Moyes Reverend The Hon Dr Gordon
Cusack The Hon Catherine
Cohen The Hon Ian
Burke The Hon Tony
Jones The Hon Malcolm
Gallacher The Hon Michael
Gay The Hon Duncan
Nile Reverend The Hon Fred
Bill, Second Reading
Page: 985
Second Reading
Debate resumed from 21 May.
The Hon. JOHN RYAN
[5.20 p.m.]: Many colleagues have indicated that their considerations of this bill have been difficult. Perhaps because I have been a member of this House a little longer than some enables me to say that the bill has not presented me with any difficulties in sorting through the issues. Because the fate of the bill rests with a conscience vote, I thought it appropriate to explain to the House and the public at large how my conscience is being exercised with regard to the issues presented by the bill. I make no apology for the fact that I am a committed Christian. The values outlined in the
New Testament
entirely affect my conscience on issues of morality and practice.
It may surprise some to hear that I have no difficulty in supporting many of the provisions of this bill. Even when I pick up my bible and examine in detail the requirements that are part of the Christian faith, I have no difficulty coming to the conclusion that there are many good things about this bill. With one slight improvement, which I understand is being worked on by one of the members of this House, I believe that this bill will actually produce for the public of New South Wales, particularly the young people of New South Wales, an enhanced child protection outcome. In my view, that makes this bill superior to any of the other bills that have come before this House dealing with the same issue. In my view, that is the most important issue for honourable members to consider.
Much has been said about this legislation in the context of how it will affect people's morality and moral practice, and how it will affect gay rights. Important as those issues are, by far the overwhelmingly important issue that will determine how I vote on this bill is the child protection outcome that it will deliver. I can explain my priorities by reference to the
that quickly comes to my mind. My interest in the Christian faith might be seen as some sort of mediaeval rambling that is outdated and irrelevant; I understand that, but I ask honourable members and readers of
who might feel that way to simply allow me the courtesy of explaining how my mind works.
Jesus is my friend and has been an important part of my life, and I believe He is relevant today. I have no difficulty at all in picking up my
, understanding its principles and finding my way through the issues raised by this bill. One of the first passages of the
that comes to my mind in considering the issues before the House is Matthew, chapter 18. Aside from being an instructive passage of scripture, in my view it is one of the benchmark passages of world literature. It tells the story of how Jesus was asked by some of his disciples, "Who then, is the greatest in the Kingdom of Heaven?" Jesus called over a small child, stood him in the middle of the group, and said to everyone present:
Truly I say to you, unless you are converted and become like children, you will not enter the kingdom of heaven.
Whoever then humbles himself as this child, he is the greatest in the kingdom of heaven.
And whoever receives one such child in My name receives Me.
But whoever causes one of these little ones who believe in Me to stumble, it would be better for him to have a heavy millstone hung around his neck, and to be drowned in the depth of the sea.
There is no mistaking the almost violent imagery in that passage of scripture. Some people might even find it difficult to accept that the Lord Jesus would use such language when referring to such a severe punishment. But the point it makes is that child protection is an overwhelmingly important responsibility for people who follow the Christian faith. This passage from the
is applicable because the section of the Crimes Act that may be amended by this bill is not primarily about gay rights or morality; its primary function is the protection of children. As I stated in the House recently, since being appointed the shadow Minister for Community Services the protection of children has to be the primary focus of my political priorities also. This presents an opportunity for the two to mesh happily.
Another consideration to bear in mind is what the
teaches about the practice of homosexuality. There is no question that the
teaches homosexuality is not a moral option for Christians in good standing. One commonly cited piece of scripture that makes that all too plain is the first chapter of Romans, which was written by the apostle Paul. In the interests of brevity, I will selectively read parts of it; I am sure that its message will be clear. Paul writes:
For the wrath of God is revealed from heaven against all ungodliness and unrighteousness of men who suppress the truth in unrighteousness …
For even though they knew God, they did not honour Him as God or give thanks, but they became futile in their speculations, and their foolish heart was darkened.
Professing to be wise, they became fools …
For this reason God gave them over to degrading passions; for their women exchanged the natural function for that which is unnatural,
And in the same way also the men abandoned the natural function of the woman and burned in their desire toward one another, men with men committing indecent acts and receiving in their own persons the due penalty of their error.
And just as they did not see fit to acknowledge God any longer, God gave them over to a depraved mind, to do those things which are not proper.
Being filled with all unrighteousness, wickedness, greed, evil; full of envy, murder, strife, deceit, malice; they are gossips, slanderers, haters of God, insolent, arrogant, boastful, inventors of evil, disobedient to parents,
Without understanding, untrustworthy, unloving, unmerciful;
And although they know the ordinance of God, that those who practice such things are worthy of death, they not only do the same, but also give hearty approval to those who practice them.
It is perfectly clear, particularly from verse 27 of that passage, that this is a list of practices that attract the judgment of God. I need to outline my full perspective in case some should get a misguided idea of what I believe the
teaches about homosexuality. It should not be thought that homosexuality is a special type of sin to be regarded as more sinful than others such as greed, gossiping, arrogance, being unloving, untrustworthy or unmerciful—behaviour that is equally bad in practice to God and to Christians as the practice of homosexuality. Some of the correspondence I have received from my fellow Christian brothers and sisters is lacking that perspective. All sin is wrong to God.
Homosexuality is not wrong for Christians because God has some sort of special worry about men having sex with men. The issue is not, as one might put it, the plumbing. The problem of homosexuality for Christians is that, by definition, it involves having sex outside marriage. For Christians, sex is not some urge that is waiting to be resolved by physical contact. It has a greater purpose of being part of the glue that cements the relationship between a husband and a wife—a relationship that in most cases results in children and provides them with a nurturing environment. For the sake of completeness, I mention two other Christian views about these matters. It is not sufficient for Christians to have a clean record physically on sexual matters. Jesus taught that sex was more than just a physical act; it was also an attitude of the heart. In Matthew 5:27, to those listening to his teachings he said:
I say to you that everyone who looks at a woman with lust for her has already committed adultery with her in his heart.
Also importantly—and I mean this earnestly, particularly to those members of the House who do not share my Christian faith—this morality that is set out in the scriptures is not there for the purpose of allowing Christians to self-righteously benchmark ourselves against the rest of the world. Our attitude—and I always hope that people might see this in me—is that these standards are set out in order to allow us to see clearly how we individually fall short of God's perfect ideal. That attitude could have been no more eloquently expressed than in that famous writing from St Paul in Romans:
For we know that the Law is spiritual, but I am of flesh, sold into bondage to sin.
For I do not understand what I am doing, for I am not practising what I would like to do, but I am doing the very thing I hate.
That is how many Christians find themselves. They know the standard, but they are not surprised that they are unable to meet it. The last thing I would want to communicate to anyone in speaking about this is that I regard myself as a standard of moral rectitude, or special. Neither do I regard myself in any way worthy to judge the conduct of anyone. I too freely admit that I regularly do wrong, and because I am human I really cannot help it. The
contains many interesting stories. The Old Testament does not advise Christians to use government fiat as a means to enforce morality. Punishing people with sanctions such as gaol for not following Christian morality would be a form of fundamentalism that I do not find when I read my
. In the
there is a most famous story about Jesus's teaching that I am sure everyone well knows. I recognise the difficulty in using this passage for definitive teaching as far as Christians are concerned, because some of the most reliable ancient transcriptions of the
do not include this passage of John 8:2-11, in which Jesus meets a woman caught in adultery. The woman was about to be punished by the townsfolk. The chapter reads:
But Jesus went to the Mount of Olives.
Early in the morning He came again into the temple, and all of the people were coming to Him;
He sat down and began to teach them.
The scribes and the Pharisees brought a woman caught in adultery, and having set her in the centre of the court,
They said to Him, "Teacher, this woman has been caught in adultery, in the very act.
Now the Law of Moses commanded us to stone such women: what then do You say?"
They were saying this, testing Him, so that they might have grounds for accusing Him. But Jesus stooped down and with His finger wrote on the ground.
But when they persisted in asking Him, He straightened up, and said to them, "He who is without sin among you, let him be the first to throw a stone at her."
Again He stooped down and wrote on the ground.
For me there is wonderful drama in the way in which this story is written. I can just picture Jesus surrounded by people screaming at Him, a woman who was clearly in distress, and Him saying something and writing on the ground to distract their attention, then standing up. No-one could deny the wisdom of what He said. The chapter continues:
When they heard it, they began to go out one by one, beginning with the older ones, and He was left alone, and the woman, where she was, in the centre of the court.
Straightening up, Jesus said to her, "Woman, where are they? Did no one condemn you?"
She said, "No one Lord." And Jesus said, "I do not condemn you, either. Go. From now on sin no more."
I wonder what might have happened if this woman had said to Jesus, "Well, thank you, sir, for saving me from such a horrible death. But, frankly, I like my life just as it is, and I plan to continue sleeping around." Does any Christian honestly think that Jesus would have whistled up the crowd to return and stone her to death? I am absolutely certain that that would not have happened. Some Christians believe that Jesus knew that woman's heart before he started the conversation. Is there any suggestion that he would not have intervened but would have allowed the people to stone the woman? That would be an abhorrent view of Jesus. The principle that I suggest comes out of this passage is that Jesus did not seek to enforce Christian morality on people. He advised them to do it, of course, because it is wise and good and pleasing to God.
In a sense the
suggests that adults, particularly with regard to sexual conduct, make decisions for themselves that God will ultimately judge, and we have no business stoning people or gaoling them for those decisions. Another passage also gives a hint on how legislators might treat sexual conduct. Jesus was teaching about divorce. The Book of Matthew reads:
Some Pharisees came to Jesus, testing Him and asking, "Is it lawful for a man to divorce his wife for any reason at all?"
Effectively, Jesus answered: No, divorce is not morally appropriate, or acceptable to God. The survey asked Jesus why Moses allowed divorce. They were referring to provisions in the Old Testament, and in the
to allow people to divorce. Jesus replied:
Because of your hardness of heart Moses permitted you to divorce your wife; but from the beginning it has not been this way.
And I say to you, whoever divorces his wife, except for immorality, and marries another woman commits adultery.
The point of that story was that Moses was, among many things, a legislator. I imagine a legislator, in ruling the tribes of Israel, would model the sorts of things that Christian legislators such as I and perhaps other members of this House would do. Essentially, in the face of the widespread practice of divorce Moses had a difficult decision to make. He could have not legislated and thus permitted conduct that was obviously offensive to God. He could have allowed marriages to split up, as they would, and children, property and other issues not to be determined. Instead, Moses faced the fact that divorce was going to happen and provided a regulatory scheme for it to happen at least in an orderly fashion.
In some instances we Christians are confronted with the same issue for adults. If there is a widespread practice that we are unable to stop and if it does not break up the orderly conduct of the world, we may be in a position where we have to regulate it in such a fashion that it protects the vulnerable. Following that, people who have weighed up the issues will make decisions for themselves, and will go forward and confront the judgment of God at some other time. On some occasions we have to allow men and women to exercise their own moral choice and take the spiritual consequences. We do our best, and the rest is left to God. I have often said that I could never hope to create the Kingdom of God with such a paltry piece of equipment as the Constitution of the State of New South Wales. It will not happen.
I do not know why Christians sometimes persist in thinking that they can legislate to create good conduct, because it is impossible. It is as likely as a doctor creating eternal life by surgery; it might be a good effort and might create some benefit, but we cannot bring a person back to life by surgery or medicine; and we will not create the Kingdom of God by using the Constitution, laws and statutes of New South Wales. The Kingdom of God is a miracle of God, more powerful and more profound than anything we can hope to create on earth. As the great hymn
I Vow to Him My Country
We may not count her armies, we may not see her King;
Her fortress is a faithful heart, her pride is suffering;
And soul by soul and silently her shining bounds increase,
And her ways are ways of gentleness and all her paths are peace.
That is what I believe the Kingdom of God consists of, and as a humble member of the New South Wales Parliament I have no chance of achieving that ideal, no matter how much effort I put into the laws I might make. Obviously we have two important principles guiding us in making up our minds on this bill: first, the benchmark with regard to children and the need to protect them; and, second, morality with regard to homosexuality, or sexual immorality—it can also be fornication or just sex outside of marriage. Those issues are to be dealt with by adults who are left to make their own decisions.
In making laws in New South Wales I do not want to gaol young men and women—which is the modern day equivalent of stoning them—because they make a choice that I might regard as immoral, unwise or foolish. Some people lose sight of the fact that, when we make conduct illegal and subject to a criminal penalty, those people who offend will wind up in the criminal justice system, which can be damaging. If they are convicted, their fingerprints will be taken and they will face a prison sentence. Young people who choose to have sex should not come under the purview of the law. In many instances they need help and not that sort of sanction. That is the last thing we want to do. Young people are vulnerable and it is necessary to protect them from those who simply misuse the wonderful, God-given gift of sexuality by abusing young children. The problem is: Where does protecting children start and end? We have to allow adults to make their own choices.
In the end it comes down to choosing an appropriate age. After considerable reflection—and I do not propose to give my reasons for reaching this decision—I think 16 is a fair age. We have to face the fact that many young people engage in sexual activities. If we set the barrier for consensual sex at an age that is higher than 16 we will end up criminalising many decent young people in New South Wales. Nobody wants to do that. I understand the sorts of difficulties that have been referred to by some honourable members. How we do we protect young people aged 16 to 18 from those men and women who might prey on them—whether it is homosexual or heterosexual predation? One of the downsides of the current legislation is that it provides unequal protection. Boys are protected from homosexual predation, but girls are left entirely unprotected.
One of my daughter's friends, who is like a lost soul and who was having a really tough time at home, used to come to our house occasionally—and she still does. This young girl, who is under 14 years of age, came under the influence of a young lesbian aged over 18. The couple were seen by the whole neighbourhood kissing and being extremely intimate in a local neighbourhood park. In my view, that is an example of predation. It was totally inappropriate conduct. If such conduct leads to sexual activity—and I believe it did in this case—the law cannot intervene, which is simply not acceptable. We have to amend the law and provide appropriate protection for everyone: men and women, girls and boys. The issue relating to how the sex occurred is totally irrelevant. Many provisions in the current law must be amended.
Another issue that is of great concern to me is that it is possible, under current law, to use the defence of mistaken age. Believe it or not, some people who have come before our courts have used that defence. The Attorney General in another place said that he was not aware of any such incidents. I know of one case in Campbelltown that involved the deputy mayor. He was charged with the criminal offence of having sex with an under-age boy. His defence was not that he did not do the deed; his defence—which was successfully argued and he was acquitted—was that he did not know the age of the individual involved. I just cannot comprehend a more offensive outcome. If an adult has sex with a young person and there is a remote possibility that that young person is under the age of 16, the adult has to establish the age of the young person before engaging in sex with him or her. I cannot accept as an excuse, "I am taking a risk." That adult is taking a risk with a young person and that, in my view, is inappropriate.
The bill, which is acceptable in most part, could do with one refinement—a refinement that was discussed in this House the last time the matter was debated. I refer honourable members to the speech of the Hon. John Hannaford, who suggested that this predation most commonly was carried out by someone in a position of trust, someone older who has sex with a young person who might even consent to it. However, all honourable members recognise that adults can influence young people. Even though a young person might consent to such sex we need to provide some extra layer of protection in this legislation. It might sound strange to some honourable members, but I believe that it would be criminal for someone my age to have casual sex with a young person aged 16, 17 or 18. As an adult I would have a responsibility at least to engage in an extended relationship with that person, or marry that person. So there is justification for an additional layer of protection in this bill.
If that layer of protection is included in this bill it will be one of the most outstanding pieces of child protection legislation in this State. I understand that one honourable member is working on an amendment of that nature. I look forward to seeing that amendment and to hearing comments in relation to it. As I understand it, the wording of that amendment will be couched in terms similar to an amendment that was foreshadowed by the Hon. John Hannaford. The last time this matter was debated in this House I voted in favour of the passage of the amended legislation. If we combine those provisions in this legislation children in this State will be protected from predators, there will be an equal age of consent, and all forms of sexuality will be covered. People will know that the age of consent is 16. At the moment that is not the case. The age of consent for homosexual acts may be 18, but at present it is a case of whether or not someone looks 18—a critical factor when determining whether or not to prosecute.
I will listen with interest to the speeches that are made by other honourable members, but I believe that our aim should be to create superior legislation to protect our children. If this bill is amended in the way in which I outlined earlier, it will protect our children. I raised with the Attorney General the issue of mistaken age and he was courteous enough to write to me. For the benefit of honourable members I will read part of the Attorney General's letter into the record. The Attorney General said:
The Bill will amend the Crimes Act of 1900 to create an equal age of consent to sexual activity of 16. Presently the Crimes Act of 1900 provides for a differing age of consent for heterosexual intercourse of 16 years and the homosexual age of consent of 18 years. The present laws have serious detrimental impacts on the mental health of young men but also on public health generally.
The Attorney General deals with an issue that was of some concern to me and he then states:
Importantly, the Bill provides for a number of safeguards to protect young people from exploitation:
(a) The Bill removes the existing defence to carnal knowledge of "mistaken age". Under existing law, an offender may claim that he/she thought that the young person was of legal age. The Bill strips away that defence and sets an absolute uniform minimum age of sixteen, without exception.
I understand that the term "without exception" means that it is not possible for someone to argue that a case is not proven beyond a reasonable doubt because the offender did not know the young person's age. That is a magnificent child protection outcome: 16 means16; there will be no doubt about that. That is an outcome worth having. The Archbishop of Sydney wrote to me urging me not to support the bill. However, the issues about which he is concerned would be addressed by that amendment. I have not had an opportunity to ask him, but he might be prepared to accept this bill if it addressed the question of age. Honourable members might find interesting this statement by the Archbishop:
We also agree that it is desirable to have consistency in age of consent legislation. But this would be best achieved by raising the age of consent to 18, preserving the exemptions that stand for partners of a similar age.
The Anglican Diocese of Sydney, in holding to Biblical teaching on the matter, asserts that the only appropriate place for sexual expression is in the context of marriage. Given that this is not the choice for many citizens in this State, the law has a specific obligation to protect teenagers from exploitation and abuse.
I accept that. He continues:
The question of the matter is at what age can a teenager participate in a sexual relationship on equal terms with their partner? Perhaps the legislation needs to concentrate more on the age difference between partners rather than setting an arbitrary age limit. However, if an age limit is to be set, we argue that 16 is too young.
The Archbishop's point is that he would like an equal age of consent to be set at 18 because he is worried about unequal terms. The amendment addresses that issue. The Archbishop argues that it is not possible to set an arbitrary age of consent. I agree that any age that we set will be arbitrary but, sadly, we must specify an age because the law requires it. Given that it may not be possible to draft law in the exact terms that the Archbishop has requested, it does not take a genius to realise that some of the issues with which the House will deal in the future could address the Archbishop's concerns. He might agree when it is explained to him that the bill will be amended to produce a superior outcome.
All members of Parliament, including me, have received endless emails on this subject and I have tried to reply to the majority of them. Of course, many letters are standard so I have given a standard reply. However, I have paid particular attention to the letters of those people, such as ministers of religion, who wrote asking me to vote against the bill for religious reasons. I replied by giving a potted version of my views on the matter and I was astonished by how many responded to my letter saying, "Thank you for explaining it. We understand that this is a complex question and we are grateful that you are working through the issues with such diligence. We continue to offer you our prayers as you consider the issue." They did not question my Christian faith or suggest that I was doing something wrong but appreciated that I was dealing diligently with complex issues. I compliment my Christian brothers and sisters on taking that view.
We are considering serious issues in this bill, and the most important outcome of this debate will be superior child protection measures. I have one reservation about passing the bill without further amendment, but the Attorney General said that he might address that issue later. At the outset I expressed concern that if we set the arbitrary age of consent at 16 some young people might wind up before the courts unable to offer any explanation as to why they committed an offence. A lawyer friend told me that this problem is commonly solved by the two individuals involved concocting a story that the sex was consensual, with the younger partner admitting to having lied by claiming that he or she was the appropriate age. The charge is then dropped.
That sort of farce should not be played out in our courts but that is what happens: the mistaken age defence helps many young people to avoid a criminal record. What will happen to young people when we establish an age of consent of 16? At some stage we might have to produce a defence that allows an 18-year-old or 19-year-old to explain that sex with a partner who is under the age of consent was consensual. It is interesting to note that the Australian Law Reform Commission considered those sorts of issues. It developed a model age of consent bill that, although it absurdly suggested an age of consent of 12, attempted to resolve some problems by offering what it called a conditional age of consent.
That said, I understand that most honourable members are happy to equalise the age of consent at 16. This is a hard task. It is difficult for the public to understand the details of this bill, which has been sensationalised in some sections of the media as being an adventure or some sort of radical crusade. I do not believe it is. We are simply confronting hard issues and making decisions that accord with public views. If we make laws that generally accord with public sentiment and public values, those laws will be respected and enforced. It has been pointed out that the law prohibiting homosexual sex before the age of 18 has been, by and large, unenforced. I wonder why!
I suspect it is because many police officers and members of the public do not want to confront that issue because they know that the law does not accord with people's views in this area. I do not necessarily agree with the public view because I recognise that, as a committed Christian, I am often in the minority. However, when trying to construct an orderly society, we must have some regard for general public views. If this debate results in an Act of Parliament that protects children better, removes anachronisms and difficulties in existing law and espouses a view that is largely supported by the community—if people nod their heads and say, "Yes, this is the right line to draw in the sand"—that law will be better enforced and respected, and all of us will have done something of which we can be proud. I commend the consideration of this bill.
Ms LEE RHIANNON
[5.56 p.m.]: No-one deserves to be prosecuted for his or her sexual preference. In fact, today there are very few places where that is possible. Regrettably, New South Wales is still one such place. The Greens are pleased that legislation to equalise the age of consent for gay men is before the House but we are disappointed that it has taken so long. Why did the Coalition not change the law when it was in power? Why has it taken Labor until its third term in office to do the right thing? That is a story that deserves to be written one day. For now, the priority is to pass the Crimes Amendment (Sexual Offences) Bill. I urge all members to leave aside any personal prejudices and support this bill.
Many reasons have been advanced for supporting the bill. One suggestion, which is way off course but worth considering, is that it will ensure that New South Wales is no longer embarrassed during the Gay and Lesbian Mardi Gras. That is obviously not the reason we support the bill, but it is worth contemplating the extraordinary situation that the lack of political will on the part of leaders of successive governments has produced in this State. New South Wales, and particularly Sydney, derives so much from the diversity of the gay and lesbian community in this State. Culturally, economically and socially we are all better off for having a strong, articulate and engaged gay and lesbian community.
Gay and lesbian people deserve the same rights as heterosexual people. This bill goes a long way towards delivering those rights. Let us remember that when we deny laws that would provide equality for gay men, we deny many other rights as well. So long as the present discriminatory laws stand, we are effectively denying gay men vital health information about safe sex practices, we are denying them dignity and we are denying many of them a full life, as these laws contribute to the high rate of suicide among young men.
It is excellent that this bill is being debated today. However, it is not good that the Labor Party has allowed its members a conscience vote on this issue. I must ask: When do Labor members stand up for their policies? When equal age of consent laws were introduced in other States Labor members were not automatically allowed a conscience vote. In Western Australia, which adopted equal age of consent laws last year, there was no conscience vote. I have been unable to find a single State in which there was a conscience vote on this issue. Even when Labor gets to the line on a vital issue such as this it cannot quite get it right. The Labor Party should implement its policy: that is what being a political party is all about. For the record Australian Labor Party policy states:
… anti-discrimination laws [are] to be reviewed on a regular basis to ensure they reflect a commitment to eliminate discrimination on the grounds of sex... sexuality, age... wherever it is practised.
Gay law reform is an important part of antidiscrimination policy, not some abstract issue of personal conscience. I recognise that for some members this issue is difficult to resolve. I urge honourable members to consider this bill within an Australian context. If this bill is passed it will bring New South Wales into line with all other Australian States. In South Australia the age of consent for men and women is 17 years. This was achieved in 1975, nearly 30 years ago, by replacing the word "girl" with "person" in its legislation. In Queensland the uniform age of consent is 16 years for all forms of sexual activity, except anal intercourse. For that sexual act the age, regardless of gender, is 18 years. In the Australian Capital Territory it is 16 years. In 1997 Tasmania got its act together and equalised the age of consent at 17 years. Most people do not have the fear of imprisonment hanging over them for having sex. Why should gay men?
In discussions about this bill this week, I sometimes heard it stated that these days no gay men are charged for having sex with men aged between 16 and 18 years. Even if that were the case, it is not an argument for not equalising the age of consent. But, sadly, men have been charged. It may not be common, but it does happen. The
Sydney Star Observer
reported that a Nowra postman, Kerry Hutton, was gaoled for three years from 1998 to 2001 for having sex with a 16-year-old man. That should not and would not have happened if this legislation had been enacted. I have been moved by many of the letters and emails I have received on this matter. On 19 May Frank Barnes from St Peters wrote:
As a gay man fast approaching 60 I was arrested because of my sexuality over 40 years ago. While luckily not being imprisoned, I came very close to taking my own life a number of times as I felt demeaned by the attitude of my church, family, friends and society to what was seen as my "weakness". I also saw too many of my peers succeed in committing suicide and therefore denied the full life they deserved. I have been fighting for this inequity to be fixed for most of my life as I have been fortunate to have worked through my sexuality in such a way that I have learned to ignore the insults and threats that seem to attach themselves to people who are gay.
You must be aware that the major cause of young male suicide, particularly in rural areas, is sexuality; you must be aware that the current legislation caused some young men to be denied advice that could stop them becoming infected with life-threatening illnesses; you must be aware that young men are subjected to bullying, violence and murder because the current law implies that being gay makes you a second class citizen and thereby open to physical and mental attack.
Paul Knobel, an honorary research associate at the University of Sydney, wrote to me to point out that there is a contradiction between laws relating to sexual acts. The Anti-Discrimination Act prohibits discrimination on homosexual grounds. But the Crimes Act 1900 has the legal age of sexual consent at 16 for heterosexuals and 18 for male homosexuals. Michael Woodhouse, Co-chair of the new Mardi Gras group wrote:
The current laws serve no purpose other than to send a message to young gay men that they must hide their sexuality from their family and peers. In our experience, many gay men come out before the age of 18. The greatest danger to the health and safety of these young men comes from their fear of talking to their parents and being unable to discuss their sexuality with their peers. The current law only feeds that fear, distancing young people from their families.
Over the last year, the Mardi Gras organisation was rescued due to the support and donations of members of the community. This came not only from the gay community but the mainstream population. The support that we received demonstrates that the people of New South Wales support equal rights for gay men and lesbians, particularly where they improve the chances of young people. This bill will be understood as an uncontroversial step toward a better society.
The Greens have received many emails and letters at our parliamentary office. We endorse his assessment of the support of this bill across New South Wales. Mr Woodhouse continued:
Mardi Gras is an internationally recognised event that makes a major contribution to local employment and tourism. As a result, Sydney has built a reputation as a diverse, exciting city where people live their lives without unnecessary interference from government. It is little wonder that international visitors fail to understand why the same State that hosts the world's biggest parade of its kind, is also the State with the most discriminatory laws in the land.
This bill is about lives. If this bill passes I believe in some cases it will save lives. It will certainly improve the quality of life for all gay men and in turn make our society a better place. This bill deserves the support of all honourable members of this House. Gay men deserve the rights enjoyed by others.
Ms SYLVIA HALE
[6.07 p.m.]: Many of the arguments have already been canvassed in this debate so I shall be brief. The Greens support this bill. We believe it is important to bring an end to discriminatory laws that are based, not on a rational consideration of the issues, but on prejudice, fear and misinformation. I have heard, as have many others over the past few days, of the anguish experienced by young gay men who, like all teenagers, need to work through issues associated with their sexuality. But these young men have to do it burdened by the knowledge that their behaviour is criminal. The current law creates an environment where young gay men are dissuaded from accessing health and support services because of a fear of prosecution. Only this morning I spoke to a 17-year-old young man who said:
I go to the doctor pretty regularly for HIV tests, but I am always worried my GP will report me to DOCS, but some of my mates don't get tested because they are scared of being reported.
He said something else that disturbed me—and this highlights the inequity and iniquity of the current Act. He told me he has two 17-year-old friends in a relationship who live in fear because, at their school in rural New South Wales, bullies threaten to report them to the police for their illegal relationship. At a time when young people are grappling with their sexuality, that is the last thing these two young men should have to contend with. I want to turn for a moment to youth suicide. Young people taking their own lives is something no society can afford to accept or ignore. The links between low self-esteem, depression and suicide are well documented. Young gay men, particularly in rural areas, have a suicide rate 300 times greater than their heterosexual counterparts.
The Hon. John Ryan:
Three hundred per cent.
Ms SYLVIA HALE:
Three hundred per cent greater than their heterosexual counterparts.
Against this backdrop, what does the current law tell young gay men? As I heard from Chris this morning, it tells them that they are criminals. It tells them to hide their sexuality or they might get "caught". It drives their activities underground and it stigmatises, marginalises and sets them apart from their peers. All young people today face challenges associated with the use of alcohol, tobacco and other drugs. It is vital that young people have access to the full spectrum of health and support services if they are to successfully navigate these issues and make sensible decisions. The last thing young gay men need is a criminal record or anything that alienates them from those services.
There is no justification for this law. It is one of the most blatant pieces of discrimination in New South Wales. But, more importantly, the current law creates an environment that drives young gay men from health and support services at a time in their lives when they need to be accessing them most. I am pleased to support this bill. I am particularly proud that so early in my parliamentary career I have the opportunity to help right an obvious wrong and assist the gay community to finally receive the equal treatment they have sought for so long.
The Hon. Dr PETER WONG
[6.11 p.m.]: I welcome the chance to speak on this bill, which has been constructed to repeal and revise certain sections of the Crimes Act 1900 in order to remove gender bias references and to better reflect changing social attitudes and circumstances. Clearly the issues—and there are many—are highly personal to a great many people, as is borne out by the extensive correspondence I have received on the matter. Yet herein lies the biggest challenge to all honourable members: how best to serve the public interest fairly and objectively without over-representing personal views and judgement.
As a matter of social justice I feel compelled to support a uniform age of consent across the board. The present hindrance to this is a two-year difference in the legal age of consent between heterosexual or lesbian relationships and male homosexual relationships. On this crucial decision of whether to retain or remove this point of difference rests many considerations. Great credibility has been given to the current staggered age of consent on the basis of the common belief that male adolescents are slower to reach maturity than females in this age bracket. In my years as both a parliamentarian and a doctor I have found no rigorous, independent research supporting this as a widespread phenomenon.
What I do know is that all young people should be assured of access to education, support and counselling in order to promote stable emotional and personal development during adolescence. This State's legislation will continue to fail in this respect as long as it denies a subsection of adolescents—namely, young gay men—access to such resources under the current two-tiered framework for age of consent. The persistent atmosphere of social stigmatism and isolation, supported by non-uniform legislation, contributes heavily to the worrying levels of depression, risk-taking behaviour, suicide, substance abuse and family breakdown prevalent among the young gay male population.
This form of marginalisation and discrimination is also detrimental to the effectiveness of public health campaigns, including education on safe sexual practices, prevention of sexually transmitted diseases and AIDS prevention initiatives. It has been put before both Houses that the issue of uniformity could be alternatively addressed by raising the age of consent for all adolescents. The well-known and well-respected Dr Brian Pezzutti, a former member of this House, was a vocal advocate for such a move—for example, raising the level of the age of consent to 17.
The Hon. Patricia Forsythe, in her second reading speech on this bill, raised the relevant point that at least some 16-year-old adolescents lack the emotional and psychological maturity to make sound choices regarding their sexuality. As a doctor, I am inclined to share that view although, conversely, it raises the impracticality of developing legislation to cater for the enormous variances in the maturity of individual adolescents. And who are we to determine who is mature and who is immature? Should we make that judgement on a case-by-case basis? Of course, that would be virtually impossible.
Further concerns centre on the potentially increased risk of exposure to predatory behaviour which might accompany a lower age of consent. It is difficult to allay such fears in view of continuing revelations of systematic child abuse that have been uncovered in recent years. The level of research and statistics in this area remains limited because. First, sexual abuse and paedophilia are notoriously difficult to diagnose and verify; second, the stigma attached to acknowledging abuse can be difficult to overcome; and, third, victims often cannot recognise its impact until much later in life. From what reliable evidence exists, it seems that sexual predatory behaviour and paedophilia tend to involve offenders in a perceived position of authority or trust, and victims are more likely to be young children rather than 16 to 18-year-old adolescents.
This bill addresses the repugnance of such abuses of trust with a harsher system of penalty, which includes a graded system involving longer sentences for child sexual assault and tightening loopholes used in defence against child sexual assault allegations. I venture to say that no honourable member would oppose this harsher view taken with regard to child sexual abusers. I would advocate further specificity being introduced to address the wide spectrum of "authority figures" and "positions of trust" that have been, and could be, implicated in child sexual assaults.
The many differing opinions in this House guarantee an arduous debate on the right direction for this bill. It has been heartening to see the level of passion and the emotion conveyed by honourable members in both Houses. Parties on both sides of the debate have raised numerous points of merit backed by extensive research and personal experience. However, I am concerned about the persistent divide that continues to distance many honourable members from the objectivity required for effective legislation. In particular, I relay my concerns pertaining to issues of social justice and equality. Lastly, as a Christian, I fully endorse the speech made by the Hon. John Ryan. As a Christian, I believe that God is loving and just. On the justice issue, therefore, it is not for us to judge the morality of one another. It is for us to love and to forgive. Whatever our sexuality, we should respect them and at least love them.
Reverend the Hon. Dr GORDON MOYES
[6.18 p.m.]: As honourable members know, the Crimes Amendment (Sexual Offences) Bill is a bill for an Act to amend the Crimes Act 1900 to provide for the equal treatment of sexual offences against males and females, to increase the penalties for sexual offences against children, and for other purposes. I appreciate the comments that have been made by other honourable members tonight. I appreciate particularly the contributions made by the Hon. Dr Peter Wong and the Hon. John Ryan, especially as they have given us a Christian testimony of faith about themselves and about all that they believe. I appreciate the support that they have given for many of the scriptural positions, including family, children and the sanctity of marriage. Child protection is a Christian responsibility. But so also is the defence of sexual integrity within marriage.
For Christian people homosexual intercourse is not a Christian option. It is an option for people who are not Christian and it is an option for people who do not want to be an obedient Christian. But you cannot be a Christian who is in obedience to the scriptural teaching and live in anything other than a chaste, monogamous marriage of people of different sexes. The Christian Democratic Party recognises that you cannot legislate morality, and we would not try to do that. But we can defend the defenceless. We can care for those who are voiceless. We can speak on behalf of those who cannot defend themselves. We can provide guidelines for the uncertain. We can provide safeguards for those who find no other way out, as has already been mentioned by a number of people, apart from suicide, despair, mental illness, oppression, anxiety or any other issue.
Therefore, I raise a voice on some of these issues. Let me express some of my concerns. The first is a political comment. The Government brought the bill into this House and the other place as a matter of priority as a payback to the Greens for their support in the last election. It is a real scandal that the Premier did not notify the community that the Government intended to introduce the bill, in the same way that he did not notify the community that it would raise issues like the medical use of cannabis. They are important issues, and we will speak on them. But it is an absolute scandal that the Premier, in announcing and promoting these two issues within a matter of a few weeks after the election, should have kept silent right through the election process as if the opinions of the community did not matter at all.
The Hon. Michael Egan:
The Premier made his views crystal clear.
Reverend the Hon. Dr GORDON MOYES:
The attempt to hoodwink the community is an absolute scandal. If the Premier had some of the same concerns as the Treasurer then he would have raised the matter in public. It is not meant to be kept as a silent issue.
The Hon. Michael Egan:
It was not a silent issue
Reverend the Hon. Dr GORDON MOYES:
It was not meant to be an issue not brought before the public. It was not to be an issue that was kept under wraps and then brought out only in the Parliament.
The Hon. Michael Egan:
It wasn't.
Reverend the Hon. Dr GORDON MOYES:
The Treasurer should know, with his great experience in the Parliament, that in a democracy the people have a right to know and the people have a right to know early.
The Hon. Michael Egan:
The Premier made his views crystal clear.
Reverend the Hon. Dr GORDON MOYES:
On both of those issues the Treasurer was wrong and his Premier was wrong. There is no way that the Treasurer can defend the position.
The Hon. Michael Egan:
The Premier made his views crystal clear.
Reverend the Hon. Dr GORDON MOYES:
The Government was silent when it should have spoken. It was wrong when it should have been right. It kept hidden what should have been brought out into the open.
The Hon. Michael Egan:
The Premier made his views crystal clear.
Reverend the Hon. Dr GORDON MOYES:
The Treasurer cannot defend that. With all of his experience, which he tells us about constantly, the Government got the numbers only because it kept from the people the real essence of this bill. Shame on the Treasurer!
The Hon. Michael Egan:
My view is on the public record.
Reverend the Hon. Dr GORDON MOYES:
The Treasurer, with his experience, should have never allowed it to happen. However, we recognise that the Treasurer still has much to learn in spite of all of his experience. The Government was fearful of facing the people in an election. There is no doubt that the Government does not have a mandate to bring either this bill or the medical use of cannabis before the House. However, I am happy to debate the content of the bill now. The Christian Democratic Party is happy to consider the concerns put forward by the public. Concern about child exploitation and paedophilia is on the rise. It is something that hurts us deeply. On behalf of many people within the Christian Church we are deeply conscious of those parts of the Christian Church, Catholic and Protestant, in which members of the church have broken the law, abused children and brought shame upon us all. There is no sense in which we would exclude those, nor would I find one moment of comfort in trying to provide protection for such people.
As the head of the Wesley Mission I provide and am responsible for the employment of a large number of people. We have some 3,500 staff and employ about 200 additional staff every two months. In every introduction to our orientation program for new staff members, which we deliver every two months, we make the point that if they injure the vulnerable, if they hurt those who are children, if they make it more difficult for the disabled, if they steal from people who are defenceless, if they abuse people who are suffering from any form of illness, whether it be vulnerable women or children in care—in one year we have 5,800 children in care—they will be dismissed immediately and handed over to the police, and a chaplain will be appointed to visit and explain to their family. But they will be dismissed, they will be charged and they will be brought before the bar of justice. We will never conduct an inquiry, but we will hand over to the court processes anybody who abuses.
If that process had been followed the Governor General, Dr Peter Hollingworth, would not be in his current position and much of the Catholic Church would not be viewed as it is today. We have no support for paedophilia, paedophiles or those in positions of trust who abuse others. I will refer to this again later. However, with the rising tide of concern about child exploitation and paedophilia it is absolutely the wrong time to seek to lower the age of consent. The public expects the toughening of the law not an easing of it. The public expects protection of children and youth, not their increased accessibility to adults. Because of the increase in abuse against young females as well as young males we need stronger laws to apply to those who abuse children regardless of background and whether they are in family units. All abuse against children is abhorrent. The Christian Democratic Party welcomes provisions within the bill that will strengthen the penalties against those who abuse children.
Most honourable members would know that the most frequent excuse given by those who abuse children and others is that they thought the child was older. This will no longer be an excuse where the child is under 16 years of age. But lowering the age of consent to 16 will add to the age confusion. It will become more difficult to determine the age of such a person. Although we welcome increased penalties for those who would use this excuse, it will become much more difficult to determine the age of a person being abused. If the onus is upon shopkeepers to determine the age of a person to whom they sell tobacco products, or if the onus of proof is upon a hotelier to ensure that the person is of right age, the onus of proof ought to be on anyone who has sexual intercourse with a young person.
The Deputy-President (The Hon. Christine Robertson) left the chair at 6.30 p.m. The House resumed at 7.30 p.m.
Reverend the Hon. Dr GORDON MOYES
[7.30 p.m.]: Before the dinner break I was saying I had concerns about the Government not announcing its intention to introduce this bill, or the bill relating to the medical use of cannabis, and that this was an attempt to hoodwink the community. The Treasurer then suggested that the views of Government members were well known. I contend that the views of Government members do not necessarily amount to policy. During the dinner break I noted in today's newspaper the following comment by the journalist David Penberthy.
Having been less than candid with voters about two contentious social policies, Bob Carr yesterday seemed less than prepared.
On the age of consent and the cannabis reforms, the Premier has become tangled in the details of both proposals.
The implications of the retrospectivity clause in the consent Bill, and the confusion over the home cultivation of marijuana, are important questions hanging over these reforms.
They are likely to be the subject of flip-flopping by Mr Carr.
His former minister, Richard Amery, said in opposing the consent bill yesterday that neither party had mentioned the proposal during the election campaign.
A fair point. With an open debate ahead of the election, Mr Carr could have not only kept the voters in the picture, but sorted out the details of these proposals.
I agree with David Penberthy. Earlier I said there was growing public concern about child exploitation and paedophilia, which are more prevalent today than at any time over the 40 years I have been involved in public policy. It seems foolish to lower the age of consent at the very time when the public expects a toughening of the law. The most frequent excuse given by those who abuse children is that they thought the child was older. I am pleased that the bill will ensure that this will no longer be an excuse.
Lowering the age of consent will only aid confusion about age: it will make it more difficult to determine the age of a person. A number of members have said that the suicide rate among young gay men is higher than that for heterosexual young men. Indeed, one member sought to make the point that the suicide rate is 300 times higher in young gay men. That is not true. In fact, it is 300 per cent higher. It seems that the member may have been confusing figures with percentages. However, suicide by any young men, whether they be heterosexual or homosexual, is to be deplored.
Lowering the age of consent will increase feelings of confusion, uncertainty and guilt—which are the major causes of suicide—among those who have not yet emotionally matured. It will simply push those feelings back not to 16 years of age but 14 years of age. It is true that heterosexual youth are 300 per cent less likely to suicide. There is an uncertainty because heterosexual youth know what are acceptable standards, and by staying within them they are less likely to suicide. The key point in the argument about suicide is certainty of bounds. Lowering the age of consent will simply create greater confusion.
Obviously, no member of this House wants to see a lowering of the age of suicide. Yet, that will be one of the unintended outcomes of lowering the age of consent. If an age of consent of 16 creates confusion, guilt and uncertainty in 16-year-olds, imagine what it will do in 14-year-olds! We do not believe in lowering the age of suicide. I have been committed to eradicating suicide in the community. Over many years I have run a number of programs, including LifeForce, one of the largest community-based anti-suicide and suicide prevention programs. We do not want our officers working with low-aged suicide.
The Christian Democratic Party would affirm equality of age for male and female heterosexual and homosexual young people. However, because of the uncertainties at 16 years of age, we urge the raising of the age of consent for males and females to 18 years. Rather than lower the age of consent for boys having homosexual sex to that of heterosexual girls, equate them at 18 years of age. Eighteen years of age is the usual age for leaving school these days, it is the age at which young people are able to buy tobacco products, and it is the age at which they can buy alcohol. If 18 is the age at which young people can buy alcohol or tobacco or leave school, it would seem that 18 is a good minimum age at which a person can have a sexual experience. I will speak about the current practice in a moment.
We welcome the provisions that enable the prosecution of all authority figures—such as parents, teachers, step-parents, and church and club leaders—who abuse children. There can be no excuse for predators in a position of authority abusing young children. I am concerned about the term "consensual relationship", a term that has been bandied around this House and the other place by a number of members. Anyone with experience in counselling young people who have been abused knows that many older people are able to coerce younger people and thereby claim consent. Manipulation is their methodology. The term "consensual relationship" is simply loaded with problems. I encourage honourable members to avoid that phrase in their discussion.
The Christian Democratic Party is concerned that those who are against lowering the age of consent are under attack both in the press and within some lobby groups, and are called, in a slurring and abusive fashion, homophobic. Trying to protect youth from HIV-AIDS, sexually transmitted diseases, and emotional and psychological confusion is far from being homophobic. I am very concerned about homosexual rape in prisons. I have a track record of being concerned for prisoners who are subject to sexually transmitted diseases and HIV-AIDS. Through the Wesley Mission I have placed staff within prisons to develop a system of support for prisoners who suffer from homosexual rape.
I note that the National Centre in HIV Social Research found that 81 per cent of all students show negative attitudes towards homosexuality. I would encourage students to learn more about sexuality and to never equate their views with violence, aggression or homophobia. I am concerned that some people want to lower the age of consent, and that that would create confusion with school age males. They are the ones who are less able to deal with some of the problems they already have to face, namely, some emotional, psychological and psychiatric issues. I believe that lowering the age of consent will increase the incidence of disease among younger people and will increase suicide among young males. LifeForce, the counselling and training service that operates in communities in regional areas throughout Australia, has been successful in training thousands of people in the community to note the signs of suicide in young people, to identify those who are most at risk, and to seek to put in place strategies that will help the community to support young men.
Most young men who commit suicide are aged between 16 and 24 years. In rural areas they mainly do so by using their father's gun. Most of them are unemployed and live in small rural towns with populations of fewer than 10,000. That is why over past years I have been responsible with my staff for working in scores, if not hundreds, of small rural communities to train sporting coaches, high school principals, doctors, social workers, and local shire and community health service workers how to recognise the signs of sexuality that are causing people to be terribly confused or loaded with guilt which may lead them to commit suicide. I am pleased to say that this work has had quite a considerable beneficial impact. Honourable members may be aware that at long last, after successive years of increased youth suicide rates, in recent years there has been a levelling off of the gross numbers of young men who kill themselves, and now the beginning of a decline. I hope that will continue.
There is no provision in the bill for increased government support for counselling services, although mention is made in passing that counselling is extremely important. The organisation I have served for the past 25 years, Wesley Mission, runs Lifeline, which has 70 centres throughout Australia. Lifeline has taken something between three million and four million calls over 40 years. We literally take suicide calls daily and we have made quite a contribution to the improved mental health and wellbeing of the citizens of Australia. Yet I note that the Government's bill makes no provision to support counselling services, despite the fact that lowering the age of consent will result in an increased demand on all counselling services to work with young people who are working through sexual identity crisis issues.
This week I listened to concerns of the Gay and Lesbian Rights Lobby. It was one of many occasions when I have sat down with gay and lesbian young people to discuss their concerns and beliefs, and I appreciated the contribution they had to make. They said that young gay men are less likely to seek information about sexual health, including sexually transmitted diseases and HIV-AIDS, because of the fear of prosecution. There is an easy way of handling that, but apparently that has not occurred to anybody on the Governments side. If young people are fearful about asking for health information, there is no reason why we could not pass a bill that excludes doctors, teachers, counsellors and health workers from prosecution for responding to requests for advice on health issues and safe-sex matters.
The fear of young people that they will be prosecuted or reported to the Department of Community Services, or that the doctor or health professional will be reported and prosecuted, is in fact baseless. No medical practitioner has been prosecuted for giving correct advice on health issues. Nevertheless, the Gay and Lesbian Rights Lobby persists in this belief. The Government could quite easily assuage this belief, not by lowering the age of consent for young people but by making sure that doctors, teachers, counsellors, health professionals and the like are excluded from prosecution if they respond to a request for advice on health issues and safe-sex matters.
The Gay and Lesbian Rights Lobby also said to me that they believe that the current law contributes to low self-esteem among many gay young people. The intriguing point is that when we seek to protect their welfare, guard their health and protect them from exploitation, we would not think that would lower their self-esteem. It should raise their self-esteem because it means there are heterosexual people in the community who value them, who value their good health, and who want to protect them from exploitation.
I recognise that some people believe they are born gay. The incidence of that has been a matter of dispute over some years. Some years ago there was a belief that 10 per cent of people are born gay, but that figure is not accepted by researchers anywhere in the world. In fact, most of the research shows that the incidence is between 1 per cent and 1.7 per cent. I would not argue about a percentage point, but I want to say that while we believe that the role of legislation is to protect minorities—irrespective of whether they are 1 per cent of the community or slightly more—we believe also that that protection has to be based on truth. One of the representations perpetrated in this debate is that some of these issues purportedly affect far greater numbers of people than is the reality.
I wrote to honourable members of the Legislative Council to convey some very personal views. I place on record my appreciation of the number of letters I received from honourable members thanking me for being open and honest with them about my own background and understanding of this issue. In my note to honourable members I said I have three concerns. Whilst respecting their views and being what I regard as very gentle in my presentation to them, I urged them to vote against the bill.
I said I knew from my own experience what it was like to be approached by paedophiles. In my earlier life I was much slimmer and fairer and more athletic. The all boys government high school I attended had a number of paedophiles on the teaching staff, and a number of them had a very bad reputation for approaching boys. During my six years there, every single one of my group of friends was approached by one or more of those teachers. Two of the teachers were later convicted and sentenced to gaol, but not until after we had passed through their hands, if honourable members will pardon that terrible pun. I was also a member of an all boys community choir. Among the choir leaders and choir conductors were a number of paedophiles who, year after year, approached many of the boys for sexual encounters. A number of them were very effective in the way they managed to get young boys into their home and within the field of abuse.
Only one of those men was convicted. To my knowledge the rest escaped prosecution, despite the fact that to my knowledge they probably abused several hundred boys. Throughout my school life I was an athlete and a footballer. In both clubs there were older men who preyed upon younger boys for sexual exploitation. To my knowledge, none of them was ever prosecuted. I also went to a gymnasium where I lifted weights and did body building. Again, among the instructors were some paedophiles. Right through that early period in my life, in almost every significant area of contact between the ages of 9 and 17 years, I was aware that scores of boys were abused. I passed through that age group and left all of that behind, but the abusers continued, moving with every new generation of young boys who came into the school classes, the choir, the athletic teams, the football teams, those who attended the gymnasium, and the like.
Since becoming an adult I have worked in a number of fields. I worked for some years as a probation and parole officer. In my experience in that field, every single young man with whom I came in contact on parole in the prison system or on probation had been sexually abused. Most had been raped by men who were many years older. There was no question in my mind that boys over the age of 16 who had been sexually abused—and I refer to boys of 16 basically because they were the only people I came into contact with on parole or probation—had become antisocial as a result; they were not fitting into the community and they were not relating to their parents or to their peers.
Over the past 25 years I have been involved in lecturing counsellors. I have trained some 2,000 counsellors in that time, and I have found from lecturing on issues relating to sexual abuse people with psychiatric disorders and those suffering emotional and mental conflict, that the level of sexual abuse among clients rates very highly. In more recent years I have had the privilege and responsibility of running the largest network of psychiatric hospitals in New South Wales. Included in this network are public institutes that treat eating disorders such as bulimia, anorexia nervosa and others. Seventy-two psychiatrists work with us in this network, and in discussions with them I have found that that almost inevitably the problems of patients stem from the fact that they have been sexually abused—and not only as little children but also as teenagers.
My third area of concern is of a personal nature, and it arises from my experience as a young teenager, my professional experience as a counsellor and trainer of others, and in my role as a parole and probation officer. I realise that there are many people who want this bill passed, including a lot of people who want it passed most eagerly. Many people in good conscience support this bill. I respect that and I honour people for their point of view. However, there are some who support this view—I am not saying they are members of this House—and who want to support this bill for the most doubtful of all motives: they want homosexual acts with youths as young as possible. We must not do anything to encourage those who find enjoyment in abusing others.
I foreshadow that in Committee I will move an amendment seeking to split this bill so that members can vote on lowering the age of consent quite separately from issues concerning child protection provisions of the bill, which I know that all members of the House would respect and would be anxious to support. I also have received many letters and emails from people who want members to speak as I have spoken tonight. I note that Archbishop George Pell made the very interesting point that he believes the Parliament should not enshrine in law the fact that homosexual partnering equates to heterosexual marriage. He is not only speaking from his experience in Roman Catholic and Christian doctrines; he is also making a very significant point on community relationships as a whole. Homosexual partnering, no matter how loving or endearing, does not equate to heterosexual marriage. Archbishop Jenson has indicated the viewpoint of the Anglican Church. I will not read his letter because a number of members have already made reference to some of the points in it.
I conclude this part of my contribution by saying that Christians must not only believe in doctrine, they must also learn to behave. Every Christian is under this trust and obey concept. We must believe what is right and we must also practise what is right. There is no place within the Christian faith or belief for those who say they believe but do not practise the morality that is given to them. I personally have no time for those who say they are Christian but then behave in an unChristian fashion. I have not spoken about this matter to my esteemed leader, the Reverend the Hon. Fred Nile, but I remind him that he was a guest some time ago on the television program "Hypothetical" presented by the lawyer Geoffrey Robertson. I recall that Reverend Nile was seated deliberately alongside a well-known lesbian who claims her Christian belief enriches her immoral behaviour, not restricts it.
Robertson asked Reverend Nile if he thought it would be desirable for Australia to have a Christian Prime Minister. Anybody knowing Robertson could see the trap in the question, and I am quite sure Reverend Nile was alert to it at that time. But it was expected that he would say, "Of course I believe Australia desired a Christian Prime Minister". "Well", retorted Robinson, "what about this lesbian Christian sitting next to you as Prime Minister?" He said, "Her example might make an additional 50,000 Christians; she might also influence 5,000 people to become lesbians—would you like that?" Robertson thought in his usual way that he had placed the Reverend Fred Nile on the horns of a dilemma—a logical trap. But Reverend Nile knows as well as I know, and as well as many others in this House know, that Christians are expected to balance beliefs and behaviour, and you cannot have a Prime Minister who believes Christian truths but who does not obey the demands of scripture. That is exactly the position that we take. We have not only to believe, we have also got to behave.
I take the view personally that 16 is not an adequate age of maturity for young males or females to be initiated in homosexual or lesbian behaviour, particularly if that initiation is done by predatory adults. The gay and lesbian lobby quotes the age of first intercourse for both sexes, heterosexual or homosexual, as 16 years of age. I believe that that statistic is true. If that statistic is true, then it is far too young for us to be legislating that that age should be the age of initiation. It is a value judgement—should it be 16, 17, 18? The safest and most responsible position is to have an equal age, but at the highest possible level. That is why I argue for 18 years of age.
People may be quite knowledgeable about the retention rates at Higher School Certificate level in our schools. Figures show we are increasing the average age of students in schools. At the same time the average age of marriage is increasing. It is interesting to hark back to the social conditions that existed when 16 was the age for young women. In those days young women had an average school leaving age of 15, and they had an average marriageable age of 21. Today we live in a totally different environment and that is why the age component should be raised in both cases. The law toughens penalties for adults engaged in sexual relations with under-age children, but it should include penalties for adults who have sexual relationships with children after providing them with alcohol or behaviour altering drugs. That is a lack in the law, and yet it is becoming a practice.
We have heard the excuses given by people for their behaviour—their drinks were spiked or they had been given drinks on Friday nights in various hotels around town, and so on. This has become quite a practice. The law should pick up the point that adults who engage in sexual relations with under-age children after providing them with alcohol or behaviour altering drugs ought to be severely punished. The law is lacking in this regard. Although there are severe penalties for paedophiles, there should be equally severe penalties for paedophiles who loiter in areas where children gather, to watch them, to film them, to video them, to seduce them. In a number of cases brought before the courts recently of men—teachers—who have been charged with paedophilia, the accused have been found in possession of videos taken in children's playgrounds, on outings, in camps, at beaches, in video parlours, and the like. The Government should introduce law to make it an offence for someone to loiter in places where children gather with the express purpose of sexual exploitation.
A matter that ought to be covered by the bill but is not is the growing practice among paedophiles and others of encouraging under-age people to engage in group sex activities. Some paedophiles encourage children into groups, into camps, into weekends away, to engage in sexual activity in the presence of adults. I do not speak lightly about this, because on two occasions involving two separate teachers at the high school I attended, a teacher came to see my mother's home—my mother was a widow—to tell her that because of good advances I had made in my school work the school had granted me a kind of scholarship, which was a week's holiday with the teacher, travelling in his car, staying in his tent, travelling around Mount Kosciuszko. The purpose of that offer was to gather together a group of young students and to encourage them into group sexual misconduct, so that teachers could be gratified by their particular sexual propensities.
This bill should provide heavy punishment for paedophiles who gather children into groups and encourage them into sexual activity in the presence of other adults. My concern with this bill has been about the lowering of the age of consent, which creates the problem pointed out by Mark Skelsey in today's edition of the
Daily Telegraph
By lowering the age at which a male can have sex to 16 years, male teachers may now lawfully have sex with boys aged 16 or 17. That is intolerable situation. I am sure honourable members would be concerned that boys at school at the age of 17 are having sexual relations with their teacher. Teachers in positions of power and authority should not be allowed to get away with such behaviour.
Young people who choose to have any kind of sex outside marriage are unwise and ill-advised, but they are not criminals; they should not be subject to the criminal law. They need counselling; they do not need gaol. We are not into throwing stones, and we are not into throwing youth, or children, into gaol. We are into seeking to help people achieve better quality of life and better quality family life. Honourable members will recall the contribution of my colleague Reverend the Hon. Fred Nile to the Family Impact Commission Bill, which is a good bill because it emphasises the need for families in the community. I felt so strongly about this ideal that I have become the publisher of the quarterly journal
Marriage Works
, the point of which is to publish articles by psychiatrists and psychologists who have spoken with people in young or poor marriages, to enable them to improve the quality of their life. Sex within marriage is God's intention, God says yes to sex but it in God's way, with the partner God has chosen, in a heterosexual relationship that is permanent. Sexual maturity and happy marriage is the most significant and most difficult form of social relationship. There is abundant research that indicates how significant that should be.
I close with a very simple analogy. I was flying home one Sunday afternoon in a small aircraft travelling at 6,000 feet. Suddenly on the port side, less than 400 yards away, I saw two eagles slowly rising on the thermals. I was fascinated by them. Because the small aircraft was travelling relatively slowly I had the opportunity to observe the two eagles for some time. I was very interested in their behaviour because I realised that at 6,000 feet they were mating. I made a study of the Australian wedge-tailed eagle and discovered some very interesting things. For example, the great wedge-tailed eagles have a wing span of 2½ metres. I found their habits, their courting and the way they choose their mates of great interest. An eagle has a marriage that is literally made in the heavens.
Eagles court each other at about 5,000 feet and whirl about with displays of diving and feather work—which is what I was watching on that Sunday afternoon. The courting consists of the eagles diving and rolling high in the air, and when the moment comes the two mate. Once they have chosen each other, they remain together for the rest of their lives. They mate in a very remarkable way. They fly to about 5,000 feet, go into a steep dive and at incredible speeds at one point or other they become linked, with the female taking the underside position. They link talons. When they get close to 1,000 feet from the ground they break free from one another and fly back up into the sky. Now, some of you blokes might think you are good; but what I saw in the eagles was an incredible capacity for mating. Once they have mated they start to court. They find a tree and set about nesting. They build a nest on a large platform sometimes 10 feet wide and there the eggs are laid. Eagles never fight. When the eggs are laid the male and female take it in turn to hatch the eggs.
The male eagle will hunt and bring back food for his mate. Sometimes they hunt together and soar in the sky singing to each other. When the eggs hatch, immediately the male provides good things around the home and cares for the little eaglets. The male eagle has a very interesting habit. While the female is on the nest the male will take off and fly a long way until he finds some green plant. He will pluck it up and bring it back to the nest and place it in the nest. It is a love gift for his wife! He does that every day. Male eagles have been known to fly 400 miles to get greenery to bring home at night. The eagles feed together. I ask some of you guys out there: When was the last time you brought some flowers home for your wife? As the young eagles grow up they are taught to fly and eventually to leave home. But the two parent birds stay together for the rest of their lives. People often say that marriages are made in heaven. With eagles we have a good example of that.
I do not believe that we should define people by their sexual practices. To define people by a label that says they are of this sex, or that sex, or another sex, demeans them and limits their ability to rise above their current practices. As a Christian I believe that people can change, that they can live within boundaries, and can live creatively despite their tendencies and urges. In this bill I see some things I would commend but there is much more to be concerned about in it. As I said, I foreshadow that I will be moving some amendments in Committee.
The Hon. CATHERINE CUSACK
[8.07 p.m.]: I have carefully considered the case against this bill. Public opinion is divided, my church opposes it, and as the mother of two young boys I share the aspirations and fears of any parent. I believe that those opposed to the bill are not necessarily homophobic; there is a genuine concern for young boys. Those opposed to the bill are motivated by a sense that we need to protect boys from that inexperience and vulnerability of youth, at least until the age of 18—which is the legal age for consumption of alcohol, the right to vote and the age at which society gives full rights of citizenship to our children.
In addition to those reservations I have received uninformed and clearly homophobic comment. I simply set that aside as irrelevant to this important debate. However I do not dismiss and condemn all the opponents of the bill, as it is not possible to criticise the intent of a person whose prime concern is the welfare of our children. At the same time, it is clear to me that many organisations and individuals whose prime concern is also the protection of our children support the bill. The case they present is compelling. In weighing the case and reaching my decision, which is to support the bill, I have been influenced by a number of considerations. In the time available I have tried to research the views of the people who are affected by this legislation.
I point out that this bill will not personally impact of any member of this Parliament. They may feel strongly because individuals with whom they are closely connected are affected, but that is very different to being in the target group for this legislation. I have been advised by the Children's Commissioner that her youth reference group strongly supports the legislation and that the most authoritative study on the topic shows that 50 per cent of the 1,000 gay young men in the cohort study had engaged in homosexual sex by the age of 16 and 90 per cent by the age of 18. The study also found that young gay men's first sexual experience overwhelmingly involves consensual sex with a partner of the same or similar age. It found that 98 per cent reported that their first homosexual experience was consensual and 92.6 per cent reported that it was with a partner of the same age or slightly older.
In addition, all the evidence suggests that in reaching a decision to begin sexual activity of any sort, young people are not influenced by the current law, which prescribes the age of consent. In other words, our vote here tonight or next week will not alter their behaviour, and this means that continuing a differential age of consent has no credibility whatsoever in law or in reality. That is a significant point. The fact that our laws in their current form are irrelevant to the decisions of these people means that continuing the present arrangement is totally lacking in or devoid of credibility. My research has found overwhelming uniformity of view by young gay men affected that the current position is harmful and must change. I accept that discrimination is indeed harmful to those who are targeted by it. There is no question in my mind that legislating different standards for different groups is indeed discrimination. It may be intended to be caring and motivated by instincts to protect, but there can be no question on either side of this debate that it involves according lesser rights to one group versus another and is therefore a classic case of discrimination.
In my inaugural speech I spoke of John Stuart Mills's dissertation on the
Tyranny of the Majority
. In a similar vein Lord Hailsham has written of the dilemma of democracy. This refers to the concept that 51 per cent of the vote constituting a democracy therefore determines which view on an issue should prevail. This can often be unpleasant for the remaining 49 per cent, but it is nevertheless the way in which democracy works. The dilemma is the extent to which the 51 per cent can all get together to completely exterminate the interests and rights of the 49 per cent, the 20 per cent or even the 1 per cent minority in an our community.
As a Liberal I believe there are obvious principles that limit the extent of the mandate of the 51 per cent. A clear principle is that legislation cannot target an individual or groups; it has to be universal. Nothing is more deeply offensive to liberalism than to ascribe the general characteristics of the group to an individual who happens to be a member of that group. The idea that boys are immature and therefore every boy aged 16 and 17 should have certain rights deleted is an incredible and dangerous road to take. I realise that is not the intention of the opponents of this bill, but there is a definite parallel in the course of Nazism ascribing so-called undesirable characteristics to Jews. The principle is the same: one cannot ascribe and target groups in our community because the path where that can lead is dangerous.
Reverend the Hon. Dr Gordon Moyes has commented on an adverse experience he had at school when he was a younger, fairer, slimmer and more athletic boy. I was reminded of comments by my sister that it is the physically beautiful boys and girls who are more likely to become the subject of undesirable intentions, especially by paedophiles. She suggested that rather than legislating a discriminatory age of consent for boys, Parliament should instead discriminate perhaps on the basis of beauty. Such a law would more effectively capture the target group we are seeking to protect. In this analogy I felt she captured the stupidity of what the current law seeks to achieve. I am convinced that the current law has no good effect and that altering it will relieve the significant harm currently being caused to an entire population group in our community.
I am not male, I am not gay and my personal life experience does not give me any useful guidance on this matter. I must also admit that I have not pondered the gay lifestyle in the way that some of my colleagues appear to have done. I do not understand that lifestyle and I am sure members of the gay community do not understand mine. I am not interested in being in their shoes and I am sure they are not interested in being in mine. However, just because I have not experienced the same discrimination does not mean it does not exist and certainly does not mean that I can turn a blind eye. The absolute evil of discrimination, intended or unintended, is the evil of making a person feel small, dirty or lesser than their fellow citizens and it frankly leaves me shaking with anger.
Indeed, my duty to stand against it, as I do tonight, is possibly the most important stand I can take in this Parliament. Members in this House want to do the right thing with this bill but they still have their doubts. I understand that those members know their duty but they still hesitate—this is human. However, when it comes to public policy there can be no avoidance of risk. On this issue there is no such thing as a status quo vote because the message and the harm will only be magnified if, after all this effort, after the consideration and bravery of so many colleagues whom we hold in high regard in another place, it is blocked. The impact will be to create a new level of damage contrary to every democratic principle that brings us to this Parliament.
In concluding, I cannot leave unsaid an important feature of the passage of this bill. Although I am loath to presume upon the intentions of my colleagues I must make this point for fear of its loss. Almost one-third of the Liberal Party is female and it is possible that every single one of us will support the bill. Of course, this reflects our liberal philosophy and our place in politics. It intrigues me that women have, on balance, a more dispassionate view on this issue. This, I hope, will make the difference. There can be no doubt that if women had equality in this Parliament the bill would easily pass—and I find this ironic on a large number of levels. This conscience vote is an opportunity to stand by our principles and serve our fellow citizens, whose worth and dignity are no less than our own. It is a rare chance to nail our colours to the mast and say, "This is Australia in 2003. We believe in our great democracy, in the strength of our diversity and the preciousness of individual liberty and life." This is our chance. I urge the House to not default on this historic responsibility.
Mr IAN COHEN
[8.17 p.m.]: I speak briefly on the Crimes Amendment (Sexual Offences) Bill as one of three Greens who, since coming to this House in 1995, have strongly supported the rights of gay and lesbian people. I have promoted the promise of an equal age of consent made by the Carr Labor Government when it was elected in 1995. I am pleased to follow the Hon. Catherine Cusack, who made an exceptional contribution to the debate. I thank her for her fantastic contribution. I support the bill. In the past the Hon. Jan Burnswoods introduced a private member's bill, which I totally supported, although it had been our expectation that in its first term the Carr Labor Government would introduce a Government bill of this nature. This bill has much more strength, but I commend the Hon. Jan Burnswoods for her consistent support for this reform. For many years she has done an excellent job in championing this cause in the Parliament. It is interesting that the Greens will not accept a conscience vote on this occasion but, as we tend to have similar views and an appreciation of this human rights issue, a conscience vote is not necessary. We would not be standing as the Greens in this House if we did not strongly believe in the advancement of equality and justice that this bill represents in Australian society.
The Greens believe that there is an overwhelming case for the equalisation of the age of consent for sexual acts. The Greens are opposed to all laws that discriminate against lesbian, gay, bisexual and transgender people, and thus support the equalising of the age of consent for heterosexual and homosexual acts. I congratulate those lesbian and gay activists in the community who have been working consistently and effectively to promote the cause enshrined in this bill. I hope that, after today, there is a significant move forward on this significant human rights issue. An unequal age of consent presents a number of problems. A discriminatory age of consent is inconsistent with the underlying principles and philosophies of antidiscrimination legislation in New South Wales. Reform of the law to bring about a uniform age of consent of 16 years for both heterosexual and homosexual activity has had the support of the Anti-Discrimination Board since at least 1982.
A discriminatory age of consent has potentially adverse effects on public health and education by driving underground those who should be receiving advice on safe sex, permitted to obtain condoms, or provided with relevant health and education services. The preservation of existing law risks stigmatising sexually active adolescent male homosexuals, making it more difficult for them to come to terms with their sexuality, increasing the incidence of depression, emotional disturbance and suicide, and inappropriately bringing them into contact with the criminal law when their female or heterosexual counterparts are free of such risks. The appearance of discriminatory treatment risks reinforcing homophobic bias and creating a false stereotype that homosexual males are likely to behave in a predatory fashion towards adolescents. Existing law tends to legitimise sexual harassment and assault within schools of older gay pupils, leading to some taking their lives and others opting out of further schooling.
The reservation of a criminal constraint upon a form of activity by adolescent males, which is not uncommon, lends itself to extortion and corrupt practices by police. The Wood royal commission recognised that the present laws create a situation that is ripe for selective policing, extortion and corruption. Justice Wood recommended an equal age of consent to better reflect community standards. Whether the age of consent is raised or lowered, it is unlikely to have any real impact on the incidence of sexual exploitation of young males or females. It is unrealistic to expect that, by reason of legislation, adolescents will defer sexual activity until some arbitrary age of consent. Similarly, it is unrealistic to ignore the circumstances that many, if not most, adolescents in contemporary society are sexually active by the age of 16 years, whether they are male or female. This debate should not be one of moral arguments. As Commissioner Fitzgerald of the Queensland Fitzgerald inquiry said:
Where the moral issue is one upon which there is room for serious divergent opinions, the legislature should interfere only to the extent necessary to protect the community or any individuals with special needs.
Supporters of an equal age of consent include the New South Wales Anti-Discrimination Board, the Law Society, the Family Planning Association, the National Youth Roundtable, the AIDS Council of New South Wales, and the Parents and Citizens Association. It is fantastic that the Government, at this rather late stage, has kept its promise. The Greens strongly support an equalisation of the age of consent at 16 years for both heterosexual and homosexual people in our community. I believe that this is a step in the right direction to provide social justice and human rights for an important part of our society. I commend the Government for introducing this bill.
The Hon. TONY BURKE
[8.24 p.m.]: I thank all honourable members for the quality of their conduct in this debate. I, probably more than most people, have been a pretty constant observer of conscience debates in the parliaments of this nation. Some of them can be absolutely destructive to the relationships of people in the Chamber and to the future of the Parliament. However, during this debate all honourable members have shown a level of decency that I, as a new member, can only say is impressive and welcoming. I wish to acknowledge one person in the Labor Party with whom I have dealt on many issues over the years. During the debate I was expecting her to attempt to tear me to bits. I appreciate the decency and goodwill that have been shown to me by the Hon. Jan Burnswoods. This is a conscience vote.
The Hon. Duncan Gay:
It won't last long!
The Hon. TONY BURKE:
I am relishing it while I can. For a long time I have believed in the importance and value of the conscience vote. If the commitment we show to our political parties is so strong that it goes against our fundamental values we may be left with no politics. I am pleased that at no stage throughout this debate has any pressure been put on me—something for which I am grateful. I am also grateful for the letters that I have received—some of them more than others. I am probably less grateful to the two people, on different sides of the debate, who told me that I would go to hell at the end of this debate. When I became a member of this Chamber I wondered why it was red. I acknowledge the lobbyists that I have met, including Ryan Heath, Somali Cerise and lobbyists from all political persuasions, whose aim it has been to provide whatever assistance they could. Some information that I have received has been particularly helpful and I am sure that all honourable members are grateful to the Parliamentary Library at times like this.
However, no document has been of more assistance to honourable members than the Wood royal commission report. Even if people do not agree with all that is contained in the report they will probably not find a better exposition of the issues than that which is found in that document. Regrettably, some of the information that I have received has been unhelpful. A number of assertions have been made about the Wood royal commission that I believe are plainly inaccurate. At various stages it has been said that this bill is before the House because of the recommendations in the Wood royal commission report. That is not reflected in the executive summary of the Wood royal commission. Paragraph 14.42 of the Wood royal commission report states:
In summary, the Commission recommends that there be a review of the relevant portions of the Crimes Act 1900 summarised earlier, in consultation with the community.
The report then refers to issues that are contained in the bill. To my way of thinking, recommending that there should be a review after consultation with the community is quite different from recommending specific change. It would be doing an injustice to the document to pretend that it does not recommend that this issue should form part of a review; I acknowledge that from the start. Those who have claimed that we are debating this bill because the Wood royal commission wants this change are stating something that does not stand up to scrutiny. I have tried at length to get to the bottom of another figure that reflects an increase in the rate of suicide among gay males—I am not sure whether it applies equally to lesbians—of 300 per cent. If that figure is accurate it is a significant increase. I have tried to find documents that contain footnotes that would enable me to substantiate that increase. Some documents have footnotes but, when I go to them, I find that they refer to reviews of the literature. The reference in the literature to the figure of 300 per cent directed me to another document that has a subheading "A review of the literature".
If anyone is able to provide the actual document it would be helpful for everyone because, no matter what conclusions people reach, authentic data will never get in the way. The closest I was able to get was a December 1998 document from Youth Studies Australia entitled "Better Dead Than Gay? Depression, suicide ideation and attempt among a sample of gay and straight-identified males aged 18 to 24" by Jonathan Nicolas and John Howard. I presume that it is a different John Howard from the Prime Minister. If that is the study from which the 300 per cent suicide rate figure is drawn, it is worth noting a few things.
First, the study involved 110 people who were not recruited at random but who were in part self-selected. The relevant sample that the 300 per cent figure comes from is not those 110 people but only 20 people. Although those people were not asked the reason that they had attempted suicide, more than half, or 56.3 per cent, of those who had attempted suicide had been the victims of a sexual assault previously. For the figure then to be used to show a specific link with the issue before us today, that is, the differential in the age of consent, involves a good degree of intellectual dishonesty. I may not have the right document; I have tried hard to find the document and that study is the closest I have been able to find.
A simple piece of research that would have been helpful—I have not been able to find anyone who has done such research—is the relative rate in States that have age of consent equal with that of New South Wales. All of that information would be of assistance. I have tried to find it simply because if literature shows an increase in the suicide rate of 300 per cent, that is a very powerful and important figure that I do not think anyone could easily walk away from. This study to which I have referred is only a study of attempted suicide; all of those 20 people are still alive.
Most of the objections to the legislation that I have received—and I shall say a bit more about this in a moment—deal with predatory behaviour. Indeed, most people argued about predatory behaviour. A couple referred to kids with kids but, basically, people referred to a person in a position of power and a young person. There are two responses to that which I think have been unhelpful. The first response is that it does not happen much. Hopefully, few things in the criminal law happen often. Whether it happens much or not, the issue in criminal law is whether it should happen. I certainly have concerns about predatory behaviour, whether it relates to heterosexual relationships or homosexual relationships. The second response is that I should not be so concerned about the predatory behaviour arguments because real paedophilia refers only to kids under the age of 10. That argument is unhelpful and I was relaxed in rejecting it as one of the matters that I should consider.
This legislation has been crafted not only to deal with the age of consent. I know that most speakers have dealt with the age of consent issue, but the reality is that the bill deals with a number of issues. Generally, the Government presented the bill as simply increasing the penalties for some offences or retaining the status quo for other offences. However, I have noticed two changes, and I am prepared to be corrected if there is something in the common law or somewhere else that covers these offences in another way. In this bill the maximum penalty for the offence of a father sleeping with his 16-year-old daughter is reduced from eight years to seven years imprisonment, and the offence of a stepfather sleeping with his step-daughter has disappeared altogether. I do not know whether that has been done deliberately. Those offences used to be contained specifically in the provisions relating to teachers.
This bill inserts a new section which refers to parents but specifically deals only with relationships that have existed since birth. On the face of it, the offence relating to stepfathers appears to have been removed from the legislation. I have some concerns about that when we are being asked to vote on the bill in its entirety. Once again, if more information is available I would love to be proved incorrect. Positively, in this bill—and I refer to comments by the Hon. John Ryan—the defence of mistaken identity has disappeared. Some people have argued that removing the defence of mistaken identity is not a big change because it is rarely, if ever, used in court. I think someone told me that it has never been used in a court case.
However, that does not tell the true or full story, because whether or not a defence has been used in court does not show the full operation of an Act. When a defence exists, that has a bearing on whether the police pursue a matter. In terms of current practice, although it might not have said this on the face of the legislation, it would appear that the age of consent for a person having sex with a younger person in a heterosexual relationship has in fact been 14 and the age of consent for a person having sex with a younger person in a homosexual relationship has in fact been 16. That needs to be borne in mind in the context of the whole bill.
Immediately after I conclude my speech I will circulate an amendment. One concern that was continually raised was the issue of predatory behaviour, which I have already referred to. One argument that arose immediately—it is contained in a thorough briefing from the Gay and Lesbian Rights Lobby, in a document entitled "The need for an equal age of consent in NSW"—is that predatory behaviour against 16-year-olds and 17-year-olds does not apply only in homosexual relationships; it applies also in heterosexual relationships. I do not consider that to be an argument for saying that we do not need to do anything. I see it as an argument for asking, "Where is this bill deficient in the context of predatory behaviour?"
I read the Attorney General's second reading speech in the other House. In that speech the Attorney General referred to the fact that it would be an aggravated offence for people under the age of 16 if the older person had authority over the younger person. Immediately I thought that if the phrase "under the authority of" was used in the second reading speech it would be easy to craft an amendment that would adopt the same principle and to apply it to the legislation. At the outset I must say that on any count this legislation will be carried at second reading. Presuming that that occurs, I will be supporting my amendment, which is probably no surprise. My amendment deals with the current provision relating to persons in positions of authority, which refers only to teachers. The maximum penalty for the offence of a teacher having sex with a student under 16 years of age is eight years imprisonment.
Clearly, teachers are not the only persons in positions of authority. It is offensive to think that we must watch only for teachers. Many other people hold positions of authority. Therefore, keeping the age of consent at 16 years is illogical. It is a tough argument to say that it is an offence for a maths teacher to have sex with a year 11 student at the beginning of the year, and perhaps be sentenced to eight years imprisonment, but it is not an offence if the maths teacher has sex with the year 11 student at the end of the year. I am concerned that that is the position in this bill. My amendment will not touch the teacher provision—although I am happy to consider forms of words to remodel that provision—but will expand the definition of predatory conduct against a 16-year-old or 17-year-old to any person who is in authority over that teenager. I propose a penalty of four years imprisonment, but I am happy to reconsider it in the interests of consistency. I made this suggestion several times in the hope that it would be in the bill as drafted. But that did not happen.
An Opposition member referred me to some of the amendments that were moved in Committee the last time that this issue was debated and, as a consequence, I discovered that the principle enshrined in my amendment appears in a document. I was told that my amendment was unworkable by those who claimed that the bill had to be enacted as it was a recommendation of the Wood royal commission. Therefore, I was surprised to read the following statement. The passage in the Wood Royal Commission report that I quoted previously is followed by three dot points, the first of which deals with equalising the age of consent. The second dot point refers to:
… creating an offence in relation to an extended group of persons standing in special relationships … as specified in paragraph 14.40 … to which the defence of consent but honest and reasonable mistake would not apply.
Paragraph 14.40 refers to a "position of trust", and states:
It would define such persons to include parents, step-parents, foster parents, guardians, custodians, schoolteachers, religious advisers, health professionals, or any other person providing instruction or services to, or having the care of supervision of or authority over the child, and not being married to that child. No occasion arises in the view of the Commission to repeal the offence of incest.
Although I do not believe that is a formal recommendation of the Wood royal commission, if it is claimed that this bill is an embodiment of the commission's recommendations then I reckon my amendment is also. I have dealt only with the position of someone with authority over young people aged 16 or 17. I have read the recommendations of the Wood royal commission and I would be very happy if an appropriate form of words could be drafted to expand the provision to refer to a "position of trust"—to use the language of the royal commission. My amendment will be circulated shortly but I will happily withdraw it from circulation if a provision that covers the full gamut of predatory conduct finds its way into the House.
What are the practical implications of this legislation? Much has been made of those implications but it is difficult to believe that the bill will make the slightest bit of difference to kids with kids. We must remember that this bill is about not necessarily what ought to happen but at what point people should find themselves on the wrong side of the criminal law. The bill fails to deal with several of the recommendations of the Wood royal commission regarding predatory conduct. It is interesting to note that, under the Crimes Act, police only ever seriously pursue allegations of predatory conduct and, in doing so, are faced with the 14-16 effective ages defence. This bill is not impressive.
I am not sure that it was intended to omit all that was left out of the bill, but certainly no justification has been given in this House or in the other place for those omissions. I believe we should work through some amendments that would not change the actions of the police with respect to predatory conduct in the context of homosexual relationships but give police new powers to deal with predatory conduct in the context of heterosexual relationships. Some people will say that I should support the second reading of the bill, move my amendment in Committee and take it from there. However, nothing will force me to vote for the second reading of this bill in its present form. For the reasons I have outlined, I intend to oppose the second reading of this bill, in the full knowledge that we will proceed to the Committee stage any way. I look forward to considering the amendments then.
The Hon. MALCOLM JONES
[8.45 p.m.]: I sympathise with the issues that confront young homosexual men. However, as the courts do not currently impose sentences on young gay men who are in breach of the age of consent, I cannot see how the Crimes Amendment (Sexual Offences) Bill will change their lives substantially. It serves no purpose other than to bring court practices in line with the law. I think the accessing medical facilities argument is a red herring for the same reason. I am yet to hear of a doctor, hospital or medical agency refusing treatment on the basis of a gay man being under the age of consent.
Like the honourable member for Orange, I have a gay son, whom I love dearly. My primary concern is his welfare. My priority is to protect young gay men from, not expose them to, predatory, manipulative older gay men. However, in that context, I believe the bill contains more negative aspects than positive ones. I am not prepared to sign off on a deal that will assist in any way the Dolly Dunns or Philip Bells of this world. I am sure that lowering the age of consent will assist in any number of ways the abhorrent lifestyles of the legion of paedophiles who every night seek to entice young men in the areas around Central station or along the Darlinghurst wall. Mission Beat workers can direct any doubting members to locations where they can best observe this practice. The police are fully aware of these predatory activities but continue to turn a blind eye.
I am sure that this bill will be passed—albeit without my support. I am pleased at least that its retrospective clauses will be removed. I do not particularly care about New South Wales conforming to other States or other countries; that is not a valid argument. Similarly, the argument about gender-based equity in age of consent laws is not valid. The important issue to me is simply not to give paedophiles any more latitude than they currently enjoy. I considered voting for the bill as a gesture of solidarity with my son. However, the prevention of paedophilia must take priority.
This bill has received very special treatment this week. Last night the Legislative Council suspended sitting for about 40 minutes until the ringing of a long bell and then the bill was debated for only a further 40 minutes. We are sitting tonight—a Thursday night—to debate the bill but not vote on it. I find that bewildering. I wonder why this bill is receiving such special treatment. As far as I know this issue was not part of any election promise made to anyone at the last election—although it was, as Mr Ian Cohen pointed out, an election promise in the 1995 general election. But that was eight years ago. The introduction of this bill three weeks into a new parliamentary term makes me curious as to why it is receiving special treatment at this particular time. I ask the Government to respond to my questions in order to avoid provoking undue curiosity. I oppose the bill.
The Hon. MICHAEL GALLACHER
(Leader of the Opposition) [8.50 p.m.]: I am pleased to speak in the debate on the Crimes Amendment (Sexual Offences) Bill. At the outset I indicate that I intend to oppose this legislation. That will probably come as no surprise to those I have spoken to in the past couple of days. Those who heard me speak on a prior bill will know that the position I am taking is consistent with the position I took during earlier debates in this Chamber. I have listened intently to the debate on this matter. Like the Hon. Tony Burke, I too congratulate all honourable members on the way they have conducted themselves during the debate on a matter of extreme sensitivity and importance to all of us. Each and every one of us has come to debate the matter from different perspectives.
The Hon. John Ryan gave an outstanding presentation of his interpretation of his Christian beliefs with respect to the age of consent, the subject of this legislation. Others have brought their own perspective to the debate and I too wish to take the opportunity to put on the record my reasons for opposing the legislation. I acknowledge the argument that those supporting the legislation have put—an argument seeking equality and fairness—and in normal circumstances I would have given that considerable weight when making my decision whether to support the bill. However, the legislation goes beyond questions of fairness and how homosexuals are treated under the law. I realise the obvious pain and discomfort many have gone through because of the way the law treats them. I am concerned about the point raised earlier by the Hon. Tony Burke: the predatory implications of this legislation.
Honourable members know of my employment prior to becoming a member of Parliament, but what I have not spoken about often and what few would know is that when I first joined the New South Wales police service, instead of being sent to a police station, where most trainees were sent, I was picked out for some reason for something special. I found out that the reason was that at the time I was the shortest member of the New South Wales police service. I weighed about 65 kilograms; I was little more than a racing greyhound. At the academy, when we were waiting to find out what stations we were going to, my name was left out. I approached the senior sergeant on the parade ground and said, " You have missed my name." He said, "No, we haven't, we have somewhere very special for you to go." I said, "Where is that?" He said, " You are going to the vice squad." At that stage I thought a vice was for holding wood or metal in place. As an 18-year-old I had absolutely no idea where the vice squad was.
I love it when I hear parliamentarians talking about baptisms of fire and the challenges they have had to face. Finishing school in October and coming out of the police academy in February to find myself shortly thereafter walking in the front doors of the vice squad was a baptism of fire of mammoth proportions. It introduced me to a world that I would suggest most honourable members—I would like to think all honourable members—would have no real understanding of. It is a subterranean world. It is frightening. I pray that none of you or your families have to see it. There are predators; there are people who pursue the children we are entrusted to protect. Unfortunately, the boat has left the dock when it comes to young women, but it is my view that there is still an opportunity for us to protect young boys and keep them from harm as best we possibly can.
I acknowledge that there are people who feel, rightly so, that the inequality in the system has dealt them an unfair hand, but we can protect children from being infected by these grubs who live in this subterranean world. We have the opportunity to do so by voting against this legislation. We should ensure that children are not infected by these people and that they have every opportunity to grow and develop in the best possible environment. This legislation, for all its good intentions of ensuring equality, at the same time allows the people who live in this subterranean world—the predators that I have spoken about—far greater access to our children, and we cannot let that happen. I listened closely to what the Hon. Tony Burke had to say and to his proposed amendments. They seem sensible and, consistent with the position I have taken, I believe they provide the greatest opportunity to stop those who wish to prey on children. However, the problem is that the legislation as a whole is not preventative; it is reactionary. After a child has been affected or interfered with by one of these people it is too late to apply the Crimes Act. The offender may well go to gaol—or he may not—but the child will serve a life sentence.
When I went to the vice squad at the age of 18 I was shown the Kings Cross area. I saw the prostitutes working on the street. I took on the role of a trainee police officer in the vice squad. I was supposed to stay in that position for only three months but I stayed at its request for six months. I will never forget that six months. Darlinghurst Road was bright and well lit and the prostitutes were all on sale. Everyone could see them; they were very visible. It was confronting. Then I was taken to a different area in Darlinghurst. It was dark, and people younger than I was were standing around under trees around Green Park near St Vincent's Hospital, within a stone's throw of Darlinghurst police station. I would have thought, in the shadow of the church on Oxford Street, that that would have been a safe area. Cars with only one person in them, often expensive cars, kept driving past. These people were not stopping and talking to the young boys to ask directions. There were two different worlds. There was an inequality in the way prostitution was exposed in this area as well. What I saw at that time will stay with me forever.
I do not apologise for the position I have taken in relation to this legislation. I acknowledge the argument about inequality, but there is no argument when it comes to protecting children. I intend to support the amendments foreshadowed by the Hon. Tony Burke. I am also concerned about the issues relating to teachers and the provisions in this legislation for incest. I am concerned about sexual intercourse with a child of 16 or 17 years of age by someone in a position of authority. The matters raised by the Hon. Tony Burke warrant clarification from the Minister in his reply. Equally, we need to ensure that the law will come down hard on anyone who dares to even consider interfering with or assaulting children. This legislation does that, but we have to go further and prevent them from getting near our children. For those reasons I oppose this legislation.
The Hon. DUNCAN GAY
(Deputy Leader of the Opposition) [9.00 p.m.]: Like the Leader of the Opposition I oppose the bill. Other speakers have quoted from the
and, much to the disappointment of some and the relief of others, I will not quote further from it as I believe it is totally inappropriate to do so. I have been moved by what has been said by speakers on all sides of the debate, but no-one spoke more poignantly than Russell Turner in the Legislative Assembly—it was only a short contribution—and he has now been joined by the Hon. Malcolm Jones. Both of those fathers have gay sons and they expressed their concerns in an outstanding way. Those members and their families have continuing and strong emotional bonds with their sons, but they have taken a different point of view. Russell Turner reinforced his understanding of his son and his support and belief in him in a noble way. The Hon. Malcolm Jones indicated that at one stage his son was in a vulnerable position which he did not want other boys to find themselves in.
As honourable members know, the National Party has decided to vote against the bill. Many contributions have referred to the way a conscience vote should be interpreted. When a bill similar to this was last before the House, who is to say that members who voted at that time did not vote in accordance with their conscience? Who is to say that when members of the National Party made the decision to vote against the bill—and with one exception they were all of the same view—that we did not do so in accordance with our conscience? That is the same as someone who believes that a conscience vote should be a vote that reflects what is right for society rather than what is right for them. They are all valid arguments. In this debate no-one has belittled the differing points of view and decisions that have been made. Only gay people, their families and friends understand the problems of being gay.
I want to put my feelings on record. That might appear to be gross, but I do not intend to offend anyone. I do not have a problem with consensual sex between two 16-year-olds, whether they are homosexual or heterosexual. I do not have a problem with homosexuals who are 16 and 17 years old, 17 and 18 years old, or a 19-year-old and a 21-year-old. They are in a common age group and no-one is in a position of influence and experience to improperly prevail over them. An argument has been put about the different ages at which males and females mature. On average, females reach maturity or adolescence probably two years before boys.
That is not always the case, and that is not a perfect example. If a 16-year-old boy was asked about his understanding of the world, his maturity and his ability, he could be the equal of a 21-year-old or 22-year-old. It would not be uncommon for another 16-year-old boy to only have the maturity, understanding and worldliness of a 12-year-old. Boys differ greatly depending on their family, background and maturity. If the provisions of the bill were applied to that 16-year-old with the maturity of a 20-year-old or a 21-year-old we should not limit his potential relationships to someone who is 21 years old. It is unlimited: it could be someone who is 25, 30, 35, 40 or older.
The amendments foreshadowed in a previous speech need to be looked at carefully. Perhaps I have put my concerns inelegantly and crassly, but they are my concerns. I understand that Scandinavian legislation addressed the age differences. I do not have a copy of that legislation because I have not done the research. We were presented with a simplistic graph showing the countries with a 16-year-old age of consent but the issue is just not that simple. In getting this right we have to be careful not to give fuel to the bigots of the world and encourage the Jean Lennanes of this world who undertake mad witchhunts.
We should not encourage appalling situations such as with Franca Arena naming a judge. Franca was standing at the far microphone and I was sitting at the table when she named Judge Yeldham. I lent across the table to Franca and asked, "Franca, what if he is innocent?" Looking back on it, I think he was. I think he was a victim of his age, his homosexuality, his class, and a witchhunt. I believe that he made mistakes around the edges but he was not a deliberate paedophile. In all these considerations we have to be very careful in what we do. I suspect that I will be criticised by the gay lobby, but I hope I am not. I am probably one of the few Gays that will not be outed on this issue. I hope the gay lobby is as understanding as the many members of that lobby whom I have met. They are my concerns. I indicate again that I will not support the bill but I will support the amendments foreshadowed by the Hon. Tony Burke.
Reverend the Hon. FRED NILE
[9.12 p.m.]: As honourable members would anticipate, the Christian Democratic Party opposes the Crimes Amendment (Sexual Offences) Bill. Both members of the party, in following their consciences, oppose the bill. The bill is described in its introduction as an Act to amend the Crimes Act 1900 to provide for equal treatment of sexual offences against males and females and to increase the penalties for sexual offences against children and for other purposes. But as has been shown in this debate, it is actually a bill to lower the age of consent. However, I am pleased that the Australian Labor Party Government will allow its members a conscience vote, as will the Liberal Party. Conscience votes are allowed only on certain bills, and this is one. I understand that conscience votes will also be allowed on the Greens' euthanasia bill and a bill dealing with human embryos. The National Party has taken a party position on the bill. Some people might criticise it for that but I think that view can be justified because the party's position on lowering the age of consent is very clear.
For the interest of some of the new members I say that in speaking to the bill my position is different from that of most members of Parliament in that I worked full-time as a director of the Festival of Light Community Standards Organisation from 1974 until I entered Parliament in 1981, and maintained an honorary role from then until 2002. I am now acting in the role until a successor is found. Because that organisation has as its aim the promotion of purity, love and family life, it took a certain position—with which I obviously agreed—on many of the proposals presented to Parliament dealing with homosexuality, the age of consent, pornography, and family law and divorce. I was a paid campaigner on those issues so I had to investigate the propositions involved. From 1981 when I was elected to Parliament I have opposed what I regard as the liberalisation of laws or the repeal of laws that had been on the State's books for many years.
My position meant that as well as studying the bills as presented I had to study the immediate and long-term effects. This meant studying what was happening with these issues in other countries, especially the United States of America. Most of the issues arose in that country and that is where the gay and women's liberation lobby groups originated. In due course they also developed in Australia. Study of the issues and the organisations gave me a wider perspective than perhaps some members have when they look solely at a bill as presented in this Chamber. I have an extra burden because I often have information about the strategies of various organisations on issues. They have a clear-cut agenda in regard to those issues. A minor or innocent change that they support is often part of a wider strategy disclosed in the internal material of those organisations. Sometimes I am able to obtain such information through people in the organisations sending documents to me or it may come across my table in various other ways. So my attitude toward the bill is influenced by that background.
Some new members may not realise that I moved the motion that sent the paedophile reference to the Wood royal commission into police corruption. I had been working with members on both sides of the House. The Hon. Deirdre Grusovin had a very strong concern about paedophilia. For some years we had been discussing how to get an inquiry into the paedophile network. It was almost impossible: the doors were locked on that issue. But following various events it became a high-profile issue. The Hon. Franca Arena, in her enthusiasm and perhaps naivety, took up the issue vigorously. I was advised that the Labor caucus passed a motion to expand the royal commission into the paedophile network. I was very pleased when I heard from people who let me know what goes on within caucus that the decision had been made.
Then I received further information that next day the motion had been overturned and therefore would not be put into effect. I was able to obtain a copy of the motion. I moved it in the upper House, in the belief that, as it had been passed by caucus, Labor Party members in the upper House would be likely to support it. After a debate in this place the motion was passed. The result was that the royal commission into police corruption had added to its inquiries a paedophile reference. That was a complicated way of progressing the matter—it probably complicated the royal commission as well—but we were unable to find another way in which to proceed. That was the best we could do.
Many good things came from the royal commission. The Hon. Tony Burke has referred to one result that was used in a negative way. I refer to the use of the words and the report of Royal Commissioner Justice Wood as if he were the main proponent of the move to lower the age of consent. The honourable member covered that issue in his speech. Though I was deeply involved and concerned about these issues, I cannot recall any public announcement that the royal commission was inquiring into that matter—in other words, inviting submissions from church groups, parental groups and other concerned organisations. I now know that many homosexual groups made submissions urging the lowering of the age of consent. Other submissions may have been presented opposing that view, but there certainly was not any widespread publicity about that reference, as there should have been.
As the person who had moved the motion to institute an inquiry into the paedophile network, it was a million miles from my mind that the royal commission would even consider the question of lowering the age of consent, and consequently support its lowering, even by way of the wording of a review. That was the exact opposite of the intention of the reference, which was to expose the paedophile network; to find out why no action was being taken by police regarding that network; to consider ways to increase police powers, if necessary by legislation; to look at ways to strengthen age of consent laws; and, if anything, to raise the age of consent and give honest police—there seemed to be a number of corrupt police, because they had information on which they did not act—a weapon to use against the paedophile network and individual paedophiles, that is, an age of consent law.
Basically, paedophiles seduce children. Later, I will explain how. The ages of those children can, in the context of the law, range from sub-teenagers up to 18 years, or perhaps older. Paedophiles seduce them in such a way that technically the child is regarded as having consented. If the child has so consented, and there is no age of consent law, it is very difficult to lay charges against the offender. The strongest weapon that police have is an age of consent law. That is because, notwithstanding that children might say they consented, went with the offender or slept with him willingly, the offender is guilty of a criminal offence of breaking age of consent laws. This bill concerns age of consent laws, the purpose of which is to protect children from sexual abuse by adults who would seek their consent and seduce them.
No-one said, "Let us have age of consent laws to prohibit two 16-year-old teenagers from having sex." That was never the purpose of this law. It certainly did not start from that point. From the tenor of debate on this bill, it could seem that the original intent of the law was to stop teenagers having sex. That never was, and still is not, the purpose of the law. To emphasise that point, I ask: Has anyone been aware of a government education campaign quoting age of consent laws and telling teenagers, "You are not to have sex"? Of course not. Adults know that is the law—perhaps teenagers should know it too, but most teenagers would be ignorant of it. Even if they knew about that law, they would still be indifferent to it. I repeat, the aim of age of consent laws is to protect children under the age of 18 years from adult paedophiles. Some might think that is not correct, but I can substantiate my statement with historical documents.
I agree with Reverend the Hon. Dr Gordon Moyes, who became involved in a bit of an argument with the Treasurer about the Labor Government's mandate for this bill and its controversial bill about the use of cannabis or marijuana for medical purposes. In the interchange in the House the Treasurer said something like, "You should have known the Premier's opinion." We all know the Premier's opinion, as we all know the opinion of the Hon. John Brogden. But the fact that a prominent member of Parliament has an opinion does not enable us to draw the conclusion that the minute the election is conducted we will be presented with legislation reflecting that opinion. That is another question. The usual protocol for elections is for members who propose introducing legislation, certainly where there is some controversy about it, to announce that intention in their campaign or policy speeches or as soon as they get an opportunity to do so. The mere fact that the member of Parliament has an opinion does not equate to legislation.
Some members will have opinions on many issues. Mr Carr might have strong opinions on many issues. But we cannot expect bills to be introduced on those issues. The point I make to members is that knowing the opinion or stance of a member on a particular issue does not automatically mean we will be faced with debating a bill—as we are now, in the first few weeks of this sitting of Parliament. Not only was this bill not announced; it almost appears to be accorded priority by the Government. It could normally be assumed that governments, when re-elected, would have some grandiose ideas that they wish to give effect to by way of legislation. We are now debating an age of consent bill, and we may soon be debating another bill regarding medical use of cannabis, or perhaps others that the Premier has up his sleeve. It seems strange that a new Government not only failed to publicise these issues during the election but now gives priority to bills on those issues.
We thought this bill would be debated next Tuesday. Last night, on the ringing of a long bell, we were suddenly faced with debating the bill. We were sitting there with blank expressions on our faces. Members did not have their speeches. It almost got to the stage that the Minister could speak in reply to the debate, effectively putting an end to it. But one or two members spoke off the cuff and kept the debate going until the House adjourned. That seemed a strange way for a government to be handling a piece of legislation. I had never seen that happen before. We now understand that the Government, even though this is a conscience issue, would like all speeches on the bill delivered tonight so that the Minister may reply, effectively gagging further debate. I do not know whether some other members are still considering this issue, need to give further thought to it, need further resource materials, or so on. Some members might like to speak to the bill next Tuesday.
As sometimes happens on a Thursday, country members who had made travel arrangements could have left the House early—perhaps even before 5 o'clock, but let us say at 5 o'clock—in the belief that they will have a chance to contribute to this debate next Tuesday. If I were to conclude my speech now and nobody else sought to speak in the debate, the Minister could speak in reply, or even close the debate without speaking because this is an issue on which members have been allowed a conscience vote. Effectively, that would gag the debate. If some members returned to the Chamber next Tuesday expecting to make a speech on this bill, they would not be able to do so because the debate had concluded. That does not seem to be a fair way of conducting the business of the House.
If I finish, and another member present in the House sought the call, the Government could adjourn this debate until next Tuesday. But, if no other member indicated a wish to speak, the Minister could speak in reply to the debate, and the House would vote on the bill. That could give the impression—I emphasise the word "impression"—that the intention is to try to restrict debate on the bill. If there is no real problem, why not adjourn the debate when I finish speaking? Then, next Tuesday the Chair could propose the question, giving other members an opportunity to speak. If no-one else wishes to speak, the Minister could close the debate. I know that some members who have not spoken in this debate have left the premises. They could return on Tuesday in the expectation that they could speak in this debate.
Some honourable members who served in the previous Parliament know that we have had this debate before. In fact, the objects of the bill are to lower the age of consent for males to 16 years, making the age of consent for males the same as that for females, so that those males may engage in consensual homosexual acts, which in fact are buggery or sodomy involving a male of any age, not necessarily another male of 16. We debated this bill previously, in 1999, when it was introduced as a private member's bill by the Hon. Jan Burnswoods. She had been trying for some time to have the bill passed. Another bill was proposed by the Hon. Arthur Chesterfield-Evans. The Burnswoods bill was also the subject of a conscience vote. It is very hard to establish the numbers in a conscience vote because although I have very strong views, I try not to canvass honourable members or put pressure on them to tell me how they intend to vote, because that is inappropriate. Honourable members should be free to follow their conscience. A conscience vote is almost like a secret ballot. The media try to establish who intends to oppose or support the legislation, but I try to respect honourable members by not harassing or pressuring them.
It appeared that the Burnswoods bill would be passed, or, if not, that it would be very close. Unfortunately at that time my wife, the Hon. Elaine Nile, was very ill and was absent on sick leave. Because we both felt so strongly about the issue, she agreed to come in from her sick bed for the vote. The Hon. Jan Burnswoods believed that she should not be allowed to vote because she was on sick leave, but the Clerk ruled that if an honourable member comes into the House he or she can vote. I did not know at that point that her vote would defeat the bill. People have complained that it was defeated by only one vote, but if this bill is passed by only one vote, will they be as critical? Obviously, given the way the House operates, we accept the result if legislation is defeated or passed by one vote. We cannot question that; it is the only way we can function. We cannot require that some legislation has to have the support of two-thirds of the House and other legislation has to have only a simple majority. The higher level of support is a requirement in some countries on serious issues such as constitutional change.
This is a very cleverly drafted bill; it is a mixture of good and bad. Honourable members find themselves on the horns of a dilemma when they agree with some provisions of a bill but not others. This legislation lowers the age of consent and increases the penalties for child abuse. I am sure that honourable members support increasing those penalties, although, as the Hon. Tony Burke said, there appear to be some gaps in those provisions. That can happen in the drafting process, but I am not blaming the Parliamentary Counsel. It has been pointed out that the legislation contains no reference to a step-parent or stepfather, whereas those references are in the Crimes Act. That point should be studied in greater detail. I am sure that, in the main, all honourable members support increasing the penalties for child abuse. Therefore, they are in a difficult position: they want to oppose half the bill and support the other half.
There are two ways to resolve that dilemma. The first option is to split the bill. That option was raised in the lower House, but the Premier was adamant in his rejection of it and the motion designed to achieve that goal was defeated. The second option is to introduce a bill containing the penalty provisions. Reverend the Hon. Dr Gordon Moyes has had such a bill drafted. It might help honourable members who do not want to support this bill but want the higher penalties for child abuse. They can vote against this bill and then support the Moyes bill. By doing that, we will get the best of both worlds: the age of consent amendments will be defeated and the higher penalties will be accepted.
If honourable members are genuine about having a uniform age of consent, they could achieve that instantly with an almost unanimous vote by increasing the age of consent for females to 18. If that injustice is the issue for some honourable members, that would be the solution. Many abuse cases are emerging, and unfortunately they are predominantly church related. We can only pray that it is not happening in other areas. It may be that it is being identified in that area first and that the same thing is occurring in other places. It seems strange that it is occurring to such an extent in church schools in all States, not just in Queensland.
Girls may be open to seduction by teachers who use their position of power. In the process, the girls might consent to sex. I have received a number of emails about girls who think they have fallen in love with their 30 or 40-year-old teachers and are cohabiting with them If interviewed by the police, the girls would say they are in love and are consenting partners. The only legal recourse lies in the age of consent laws, which would result in teachers being charged if they breach them. That is another reason to have age of consent laws, and perhaps an argument for increasing the age of consent. That would achieve uniformity.
Some honourable members quoted the ages of consent in other countries, which seem to range from as low as 12 years up to 21 years. On the chart we were given I noted that many countries, I presume Islamic ones, have "illegal" under the column "age". These countries do not have an age of consent because the activity is illegal regardless of a person's age. I hope I am wrong, but it appears that very highly organised paedophile networks are operating in our society, and perhaps in the United States of America and other Western countries. I wonder whether those networks are as active in countries with lower ages of consent, for example France and Spain. Perhaps those countries do not feel threatened by paedophilia because there is no threat. I have not researched in detail the level of crime in those countries, but we certainly do not hear about it. I know there were reports of a very active paedophile network in Belgium.
Often paedophile networks are not run by people whom we would regard as criminals, but rather by people in influential positions in society and people in leadership roles. Honourable members have referred to teenage suicide and the fact that the rate of suicide among homosexual teenagers is 300 per cent higher than among heterosexual teenagers. The Attorney General quoted from the 1994 Parliamentary inquiry into rural suicide and gave the impression, intentional or not, that the inquiry produced that figure. I can assure the House that it did not. I was involved in the inquiry. We visited many country towns and interviewed many parents whose sons had committed suicide. I do not remember hearing evidence of even one case of a person who committed suicide because of confusion about sexuality.
The converse argument is that the parents may not have known, or they did know and they did not want to tell the parliamentary inquiry. As we went from town to town I do not remember being flooded with evidence that suicide was the new epidemic among boys who thought they were homosexual. Sometimes boys are confused about their sexuality and the argument is that because of their confusion or their rejection they commit suicide. No-one would want anyone to commit suicide, regardless of that person's sexual orientation. However, to my memory no evidence came out of the inquiry to support the very serious claim that homosexual teenagers commit suicide three times more than heterosexuals teenagers.
There was a lot of debate in the other place about the retrospectivity effect of clause 48. Reverend the Hon. Dr Gordon Moyes referred to it in press releases, as did the media. As honourable members know, in another place the Government moved an amendment to remove that clause. A lot of people were concerned that the retrospectivity of clause 48 may interfere with police procedures. People were concerned that if clause 48 were passed, cases in the past few years involving boys aged between 16 and 18 would no longer be valid and no further action would be taken against the perpetrators of what was a crime. However, the deletion of the clause was a hollow victory because on page 73 of
Mr Debus, in reply, said:
I will explain. Nevertheless, the Director of Public Prosecutions [DPP] has a standing practice not to prosecute any past activities that have since become lawful. In effect, this provision will have no real practical effect.
That is the amendment to remove clause 48. He continued:
Past consensual acts will not be prosecuted in any event.
That is the opinion of the Attorney General, so it is a legal opinion, based on his knowledge of the Director of Public Prosecutions. If the Parliament passes a law that changes the age of consent, even though the retrospectivity clause has been removed, the Attorney General says that it does not matter because the Director of Public Prosecutions will no longer prosecute adults who were involved with children aged between 16 and 18 years. Some serious cases have been reported in the media, some of which involve important people, that seem to involve boys aged between 16 and 18 years. I will not go into detail about those cases, but honourable members are probably aware of them.
There seems to be confusion about what we are discussing when we talk about the age of consent. What is the consent for? If a male wants to have sex with a young boy—they can kiss and so on—at law it means acts of sodomy or buggery. The Hon. Catherine Cusack pointed out something that she thought was very important, but I am not sure that she is correct. She said she believed that all female members in this House would support the bill and that male members would oppose it. She did not explain her statement, but she seemed to imply that as we have more and more female members, more and more bills, such as this and perhaps other bills, will be passed. I tried to weigh up the impact of her statement but I am still not sure what it meant.
One of my deductions is that male members of this House, and certainly male members who are not homosexuals, have an absolute abhorrence of an adult male committing sodomy on or buggerising a boy, especially their son. Through my discussion with males, I am aware that they feel very strongly about that. I would have thought that women would feel strongly about it also. I am trying to explain why male members feel so strongly about this issue. Perhaps the females are coming at it from another direction, from the point of view of two consenting teenagers, but they have missed the point. In my research I read a House of Commons Library research paper which deals with the age of consent for male homosexual acts, because I wanted to be clear about where the age of consent laws originated. The way we are debating the bill gives the impression that the age of consent laws were passed to prevent two teenagers of the same age from having sex. Historically, that is not true. The whole purpose of age of consent laws was to protect children from adults.
For members who are interested, a House of Commons Library research paper issued on 19 June 1998 provides a history of the age of consent laws. The research paper states that in 1885 there were increasing reports of enforced prostitution and the exploitation of minors. In those days, minors were people probably up to 21 years of age. At that time society felt the need to have some laws targeting the adult, rather than the child being sexually abused by consent. It is a grey area. If a child consents to sex, is it sexual abuse? Obviously the alleged offender would say, "I am not abusing the child; the child has agreed to co-operate with me and is therefore consenting." I am sure most members would agree that no matter how cleverly these people dress up the situation, they are in fact sexually abusing the child.
The Criminal Law Amendment Act 1912 introduced an age of consent. Debates about the age of consent are still taking place in the United Kingdom. In that country the age of consent has varied from 16 to 18 over the years, and the country still has an age of consent law. I assume that because Australia is a British colony, our Crimes Act simply adopted the British age of consent law. I doubt whether there was lengthy debate in this House or the other place—perhaps it was even prior to the bicameral Parliament—about whether we should have an age of consent law. Many of our State laws, including the age of consent law, were adopted from British laws.
The Wolfenden Report of 1957 recommended the age of 21 as the age of consent for male homosexual behaviour, to protect a teenager from an adult male. There has been much debate about the matter, and I understand that the latest debate has become extremely confusing. The United Kingdom has become part of the European Union, which is now giving directions to the United Kingdom as to what laws it should and should not have, and that is creating some tension in the United Kingdom. I understand that for a country to be a member of the European Union it has to abide by the decisions of the European Court. It is extremely important for all members of the House to understand the purpose of the bill, why we have an age of consent, and so on.
The bill is a protective measure to deter adult paedophiles. No doubt there will be much discussion about the extent to which the bill deters adult paedophiles. I hope it deters adult paedophiles in positions of authority, causing them to think, "If I go too far in this situation, if I get caught, even if the child consents, I will be in big trouble and I will receive a hefty penalty." Earlier I referred to the fact that I have monitored changes to the law, such as changes to the age of consent law. I do not suggest that this will happen here in New South Wales in the near future, but members may be surprised to know that there is a strong movement in the United States of America to abolish the age of consent altogether. As with many other issues, lobby groups often campaign in stages. I have no evidence that the United States lobby groups are involved in the debate about the age of consent here in New South Wales—perhaps they are.
One of the most vocal groups in the United States is the North American Man/Boy Love Association [NAMBLA], a very powerful organisation with branches throughout the country. Large groups, holding large banners, take part in gay parades in that country. The group campaigns for legal sex between adults and children on the basis of consenting sex. It claims that there is no harm for a child if they have sex with an adult as long as it is based on consent. The group also campaigns for the total abolition of age of consent laws. After this bill is passed, perhaps in two or three years time there will be a debate in this House about why we need to have an age of consent law. It has been reported that over the past 20 years the age of consent law has not been used to prosecute a teenager. So that could be an argument for abolishing the age of consent law. However, I believe that the proponents of such an argument miss the point about the value of a deterrent—and hopefully it is a deterrent for some adult paedophiles if they know there is an age of consent law.
NAMBLA has published the group's aims and objectives on its web site, so I am not in any way misrepresenting the group. The historical background of the association is set out in a document entitled "Who We Are". The association was formed in 1978, and it has become a large and wealthy organisation. Referring to adult males of all ages justifying having sex with children, the association wrote:
Freely-chosen relationships differ from unwanted sex. Present laws, which focus only on the age of the participants, ignore the quality of their relationships. We know that differences in age do not preclude mutual, loving interaction between persons. NAMBLA is strongly opposed to the age-of-consent laws and all other restrictions which deny men and boys the full enjoyment of their bodies and control over their own lives.
Another document on the association's web site speaks of pederasty, or a paedophile activity, in glowing terms. It says:
Pederasty—that is, love between a man and a youth of 12 to 18 years of age …
Some of the reports on the royal commission's inquiry into the paedophile network were difficult to understand because code numbers were used for individuals. The intention of the royal commission was to not identify persons who had allegations against them. For some time people were not sure, for example, who was W1 and who was W17. The media were publishing reports about the inquiry without identifying individuals. However, as the inquiry continued and the evidence became clear, the commissioner released the names of individuals, principally because they were deceased. I think the protection of individuals' names is maintained today, even though there was overwhelming evidence of their activities. The royal commission heard evidence that the individuals had not been charged or brought before a court. There were two stages. First, the royal commission collected the information, and the information was then transferred to the police for the police and the Director of Public Prosecutions to prosecute. Until that happened, if the person was alive, the name and code number were not put together. One such deceased person was a former Lord Mayor of Wollongong. As I said earlier, these people may have influential positions, which also gives them considerable power over teenage boys who seek attention and so on.
Debate adjourned on motion by Reverend the Hon. Fred Nile.
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