Consent & Legal Sexual Activity for the State of
10th May 2010 Letter to all Queensland Members of Parliament (posted individually to their electorate office). I draw their attention to the 3rd February 2010 statement by retired High Court judge Hon. Michael Kirby in which he clearly states that Queensland’s discriminatory age of consent law should be reformed. The letter follows up an email sent to each Member of Parliament on 21 April 2010 to account for the possibility of any of the emails having been blocked by spam filters.
Hon. Michael Kirby calls for equal age of consent reform action
Queensland is now more than 6 years behind the rest of Australia in allowing an equal age of consent for all youth. Other states and territories have recognised that same sex attracted youth especially need the support and protection of legal equality because they face more than three times greater risk of suicide and self-harm than their heterosexual peers and siblings.
In February 2010 eminent retired High Court judge the Hon. Michael D. Kirby AC CMG issued the attached considered statement, in which he concludes: "It is time that this last relic of criminal legal discrimination was removed in Queensland. It is a hangover from earlier, ignorant and prejudiced days. It exposes homosexual youth in Queensland to grave differential criminal penalties; potential harassment; and impedes effective strategies to respond in Queensland to the risks of HIV and AIDS in young people."
An equal age of consent at 16 was recommended to the Goss Government in the 1990 PCJC Report on Reforms In Laws Relating To Homosexuality, with declared support from Committee Chairman Peter Beattie. The Committee based its majority recommendation on contributed expert evidence.
Shelley Argent, Brisbane mother of a gay son and national spokesperson for peer support group Parents & Friends of Lesbians And Gays, says the current archaic law makes young gay men afraid to disclose their relationship for fear of persecution. "Whether we like it or not, our kids are having sex before they’re 18," Mrs Argent said. "We need them to be safe and not feel intimidated going to counselling and sexual health services."
If you want to have anal sex with your partner, and either of you are 16 or 17, above the age of consent for all other forms of sex, then you’re risking criminal prosecution and up to 14 years imprisonment. At 16, you can learn to drive, leave school, marry with court approval but you can’t make love to your man if you’re gay.
Technically this law also applies to straight youth, but in practice it targets Queensland’s young gay men. The law defines them, by their presumed sexual activity, as being likely criminals.
Early this year Brisbane youth Peter Ridgley wrote to his MP Grace Grace to appeal for change. “A few years ago when I was 18, I was considered a criminal because I was having anal sex with my 17-year-old partner,” Mr Ridgley wrote. “My straight male friends at that time were not considered criminals.”
In 2005, Queensland’s Anti-Discrimination Commissioner Susan Booth advised the Premier and Attorney-General that the law was discriminatory and in breach of the International Covenant on Civil and Political Rights. “Other states and territories have ... repealed similar discriminatory and homophobic laws,” she wrote.
The official party platform of Queensland Labor is for equity in laws related to age of consent, and yet spokespeople for the Premier and Attorney-General have consistently said the Government has no plans for reform. They have refused to explain why they are delaying any action.
An equal age of consent does not promote or encourage any sexual activity, nor does it enable same sex attraction, it merely affirms the basic right of all Queensland youth to equal protection and support under the law.
Please express your support for urgent action on equal age of consent reform to the Attorney-General.
Phone: 07 3350 1562 or 0409 501 561 Post: 82 Main Avenue, Wavell Heights 4012
Page 2 of the letter was an image of the original 3rd February 2010 Word file of the statement by Hon. Michael Kirby. Below is full text of that statement:
The Hon. Michael D. Kirby AC CMG
3 February 2010.
UNEQUAL LAWS AFFECTING HOMOSEXUAL CITIZENS IN
In July 2009, an important decision was delivered by the High Court of Delhi, India, declaring that provisions of the Indian Penal Code as they affected homosexual
citizens in India were unconstitutional. The basis of the decision was the principle of the Indian Constitution which was held to require equal treatment of all citizens,
The Queensland Criminal Code, like the Indian Code, was drafted in the 19th century. Originally, it too contained laws of the kind struck down in India. Most of
these laws have already been reformed and repealed in Australia by parliamentary action.
However, Section 208 of the Queensland Code remains. It imposes a penalty of up to 14 years imprisonment for anal intercourse (“sodomy”), even where occurring by
consent and in private. Elsewhere in Australia, the discriminatory age of consent for homosexual and heterosexual offences of this kind has now been repealed, and a
common age of consent of 16 years accepted. But this is not the case in Queensland. There, a different minimum age of 18 years for gays remains in force.
We have no Bill of Rights or constitutional principles to invoke to remove this vestige of outmoded discrimination. In Australia, we must look to elected parliaments to do
so. There is no apparent reason why the Parliament of Queensland should adopt a different standard from that accepted by legislators elsewhere in Australia. No
special needs of Queenslanders apply.
It is time that this last relic of criminal legal discrimination was removed in Queensland. It is a hangover from earlier, ignorant and prejudiced days. It exposes
homosexual youth in Queensland to grave differential criminal penalties; potential harassment; and impedes effective strategies to respond in Queensland to the risks
of HIV and AIDS in young people. All of the reasons given for the noteworthy decision of the Indian judges apply here. What India and the rest of Australia have
already done, Queenslanders should now do by parliamentary action. It is a basic matter of equality of citizenship.
- Michael Kirby
Level 7, 195 Macquarie Street, Sydney NSW 2000 Australia
Telephone: +61 2 9231 5800 Facsimile: +61 2 9231 5811