Legal definitions of consent

Legal definitions of consent vary between Australian state and territory jurisdictions (see Table 1 for links to the legislation). Consent is an individual's free agreement to participate in an activity. Consent can only be given if it is free and voluntary, without fear, coercion, intimidation or anything else that inhibits free agreement (Australian Law Reform Commission, 2010; Powell, 2010). Consent also needs to be actively communicated in order to establish a free agreement (Fileborn, 2011; Powell, 2010); this is known as 'positive consent' (Fileborn, 2011). It is not enough to say that an individual consented just because they did not refuse or resist.

Why do age of consent laws exist?

Age of consent laws are designed to protect children and young people from sexual exploitation and abuse from adults and older young people. Such laws determine that children and young people below the age of consent are yet to reach a level of general maturity enabling their safe participation in sexual activities.

In relation to sexual abuse laws in each state and territory, the key difference between child sexual assault and adult sexual assault is that adult sexual assault is based on the absence of sexual consent, whereas in child sexual assault, a child does not have the decision-making capacity to give consent according to law. Therefore, all sexual interactions between an adult (or where a person is in a position of care supervision and authority) and a person under the age of consent are considered abusive (Barbaree & Marshall, 2006).

What is the legal age of consent in Australian jurisdictions?

The legal age for consensual sex varies between 16 and 17 years across Australian state and territory jurisdictions (see Table 2). For other sexual activities, the criminal legislation relating to different types of sexual behaviours and interactions varies across Australian jurisdictions.

Common questions

• How do I report suspected child abuse and respond to disclosures?
• Is it legal for someone in a supervisory role to have sexual interactions with a 16 or 17 year old under their special care?
• What if both parties are under the age of consent or of similar age?
• Can children and young people send each other nude images?
• What supports professionals in identifying and responding to sexual behaviours among children and young people?

How do I report suspected child abuse and respond to disclosures?

In Australia, state and territory governments are responsible for receiving reports of suspected child abuse and neglect from members of the public. Reporting child abuse and neglect is a community-wide responsibility. Anyone who suspects, on reasonable grounds, that a child or young person is at risk of being abused and/or neglected should report it to the reporting authority in their state or territory. Further information on reporting child abuse and neglect can be found in the CFCA Resource Sheet: Reporting Child Abuse and Neglect.

Certain groups of people are required by law to report any suspicion of abuse or neglect of a child or young person to government authorities. Further information and guidelines regarding mandatory reporting can be found in the CFCA Resource Sheet: Mandatory Reporting of Child Abuse and Neglect.

If a child or young person has disclosed abuse or neglect to you, it is important to stay calm and reassure them that you will help them to be safe. For information on how to respond to disclosures of abuse, see the CFCA Practitioner Resource: Responding to Children and Young People's Disclosures of Abuse.

For information, counselling support and service referral, contact details and links to helplines and telephone counselling services can be found in the CFCA Resource sheet: Helplines, Telephone and Online Counselling Services for Children, Young People and Adults.

Is it legal for someone in a supervisory role to have sexual interactions with a 16 or 17 year old under their special care?

Although the legal age of consent throughout Australia is either 16 or 17 years of age, legislation in the Australian Capital Territory, New South Wales, the Northern Territory, South Australia, Victoria and Western Australia makes it an offence for a person in a supervisory role to have sexual interactions with a person under their special care who is aged 16 or 17 years.

A person in a supervisory role providing special care may include: a teacher, foster parent, religious official or spiritual leader, a medical practitioner, an employer of the child or a custodial official. Table 3 provides links to the relevant state or territory legislation regarding sexual interactions with 16 and 17 year olds under special care.

Note: ^a No specific mention of 'special care' is made in the legislation for these states. Instead, links have been provided to relevant state legislation regarding sexual interactions with 16 and 17 year olds.

What if both parties are under the age of consent or of similar age?

A number of jurisdictions provide a legal defence when a mutually consensual sexual interaction is between two young people close in age (the Australian Capital Territory, New South Wales, South Australia, Tasmania, Victoria and Western Australia). These jurisdictions are attempting to find a balance between protecting children and young people from adult sexual exploitation while not criminalising them for having sexual relationships with their peers.

The Youth Law Australia website contains more information about how age of consent laws apply to young people engaging in sexual activities with their peers for each state and territory.

Can children and young people send each other nude images?

In Australia, Commonwealth and state and territory laws prohibit 'asking for, accessing, possessing, creating or sharing sexualised images of children and young people under 18' (eSafety Commissioner, 2020; see also Albury, Crawford, Byron & Mathews, 2013). These laws apply to children and young people sending each other nudes (sexting). Children and young people may be at risk of criminal charges if they break these laws.

There are some differences between Commonwealth laws and state and territory laws. In some jurisdictions, 'these laws only apply to images of children and young people under 16 or 17' years, whereas Commonwealth laws apply to young people up to 18 years (eSafety Commissioner, 2020). Some jurisdictions have introduced defences or exceptions to these laws to allow for consensual sexting between young people of similar ages (eSafety Commissioner, 2020).

For more information about young people and sexting, see the eSafety Commissioner website.

What supports professionals in identifying and responding to sexual behaviours among children and young people?

Age of consent laws exist not only to protect children and young people from sexual exploitation and abuse from adults and older young people; but also to give them time to be developmentally mature enough to make healthy, safe decisions about sexual interactions and relationships between children and young people. Professionals in the child, family and community welfare sector have a role in appropriately identifying, understanding and responding to children and young people's displays of sexual behaviour to support healthy sexual development and ensure children and young people are protected from harm and abuse.

Children and young people's sexual behaviours can be considered along a continuum of behaviour - from developmentally appropriate to inappropriate or potentially harmful (El-Murr, 2017; Quadara, O'Brien, Ball, Douglas, & Vu, 2020). In identifying sexual behaviours and determining an appropriate response, there are two main aspects to understand (El-Murr, 2017; Quadara et al., 2020):

• whether the behaviour is inappropriate to a child or young person's age and stage of development (sometimes known as 'problem sexual behaviours')
• whether the behaviour is harmful or abusive (sometimes known as 'sexually abusive behaviours').

In Australia, there is emerging consensus that 'harmful sexual behaviours' is an appropriate framework that incorporates both these aspects: inappropriate/problem sexual behaviours and sexually abusive behaviours (Quadara et al., 2020). Harmful sexual behaviours are defined as:

Sexual behaviours expressed by children and young people under the age of 18 years that are developmentally inappropriate, may be harmful to self or others, or may be abusive to another child, young person or adult. (derived from Hackett, 2014, cited in Quadara et al., 2020, p. 7)

Within the harmful sexual behaviours framework, developmentally appropriate sexual behaviours are those that may be expected as part of normal sexual development in children and young people according to their age group (e.g. 0-4 years, 5-9 years, 10-13 years, 14-18 years). Sexual behaviours are categorised as (El-Murr, 2017; Quadara et al., 2020):

• age-appropriate sexual behaviours
• concerning sexual behaviours 
  or
• very concerning sexual behaviours.

Harmful or abusive sexual behaviours sit along a continuum of sexual behaviours in children and young people (Hackett, 2010; Quadara et al., 2020):

• normal
• inappropriate
• problematic
• abusive
• violent.

For more information about identifying and responding to sexual behaviours exhibited by children and young people, see the following resources:

• Traffic Lights: A Guide to Identify, Understand and Respond to Sexual Behaviours, published by True Relationships & Reproductive Health.
• Good Practice in Responding to Young People with Harmful Sexual Behaviours: Key Findings and Future Directions, published by ANROWS.
• Adolescents with Sexually Abusive Behaviours and Their Families: Best Interests Case Practice Model (Specialist Practice Resource), published by the Victorian Government Department of Human Services in collaboration with the Australian Institute of Family Studies.
• Children with Problem Sexual Behaviours and Their Families: Best Interests Case Practice Model (Specialist Practice Resource), published by the Victorian Government Department of Human Services in collaboration with the Australian Institute of Family Studies.
• Service Models for Children Under 10 with Problematic Sexual Behaviours: Evidence Check, published by the Sax Institute for the NSW Ministry of Health.
• A Continuum of Responses for Harmful Sexual Behaviours, published by the Commissioner for Children and Young People Western Australia.
• Harmful Sexual Behaviour Framework: An Evidence-Informed Operational Framework for Children and Young People Displaying Harmful Sexual Behaviours, published by the National Society for the Prevention of Cruelty to Children.

Conclusion

Age of consent laws are important measures for protecting children and young people from sexual predation and exploitation. As outlined in this guide, consent means being able to freely and voluntarily agree to participate in an activity, without fear, coercion, intimidation or anything else that would prevent free agreement. Age of consent laws define the age at which an individual has the legal capacity to consent to sexual interactions.

This reference guide has outlined how consent and the age of consent is legally defined in Australia, including how this varies by state and territory legislation. It has also provided an overview of what Australian laws apply to reporting suspected child abuse, responding to disclosures, sexual interactions for those in supervisory roles, developmentally appropriate sexual behaviours and consensual sexual interactions between children and young people.

References

• Albury, K., Crawford, K., Byron, P., & Mathews, B. (2013). Young people and sexting in Australia: Ethics, representation and the law. Kensington: University of New South Wales.
• Australian Law Reform Commission. (2010). Family Violence: A National Legal Response. Final Report. Sydney: Australian Law Reform Commission. Retrieved from www.alrc.gov.au/publication/family-violence-a-national-legal-response-alrc-report-114
• Barbaree, H. E., & Marshall, W. L. (2006). An introduction to the juvenile sex offender. In H. E. Barbaree & W. L. Marshall (Eds.), The juvenile sex offender. New York: The Guild Press.
• Boxall, H., & Fuller, G. (2016). Brief review of contemporary sexual offence and child sexual abuse legislation in Australia: 2015 update. Canberra: Australian Institute of Criminology. Retrieved from www.aic.gov.au/publications/special/special-9
• El-Murr, A. (2017). Problem sexual behaviours and sexually abusive behaviours in Australian children and young people (CFCA Paper). Melbourne: Australian Institute of Family Studies.
• eSafety Commissioner. (2020). Sending nudes and sexting. Canberra: eSafety Commissioner. Retrieved from www.esafety.gov.au/parents/big-issues/sending-nudes-sexting#the-consequences-can-be-serious
• Fileborn, B. (2011). Sexual assault laws in Australia (ACSSA Resource Sheet No. 1). Melbourne: Australian Institute of Family Studies. Retrieved from aifs.gov.au/publications/archived/3827
• Hackett, S. (2010). Children and young people with harmful sexual behaviours. In C. Barter & D. Berridge (Eds.), Children behaving badly? Peer violence between children and young people (pp. 121-135). London: Blackwell Wiley.
• Powell, A. (2010). Sex, power and consent: Youth culture and the unwritten rules. Cambridge, UK: Cambridge University Press.
• Quadara, A., Nagy, V., Higgins, D., & Siegel, N. (2015). Conceptualising the prevention of child sexual abuse: Final report (Research Report No. 33). Melbourne: Australian Institute of Family Studies. Retrieved from aifs.gov.au/publications/conceptualising-prevention-child-sexual-abuse?no_cache=1456287381
• Quadara, A., O'Brien, W., Ball, O., Douglas, W., & Vu L. (2020). Good practice in delivering and evaluating interventions for young people with harmful sexual behaviours (Research Report Issue 18). Sydney: ANROWS. Retrieved from www.anrows.org.au/project/good-practice-in-delivering-and-evaluating-interventions-for-young-people-with-harmful-sexual-behaviours