Consent

Consent is extremely important when you are having sex.

If you do not consent to sex, then it is rape or sexual assault. You can withdraw consent at any time, even after you have started having sex.

Any sexual act, including kissing, touching or intercourse, that happens without your consent is illegal. This is true regardless of whether it happens with your boyfriend/girlfriend, date, friend or a complete stranger.

It is also important to understand what consent is. Consent is not just about how old a person is, as in some circumstances the law says you cannot consent to sex:

  • if you are under the influence of alcohol or drugs and are confused or don’t understand what you’re doing;
  • if you are passed out and don’t know or understand what is happening; or
  • if you feel pressured, intimidated, threatened or forced into doing any sexual act.

Remember – your silence does not equal consent.

Click on your state or territory to see the different ages of consent around the country.

Differences between states

Northern Territory

In the Northern Territory, it is a crime to have sexual intercourse with a person who is under the age of 16.

“Sexual intercourse” means the penetration to the least degree of the vagina, genitalia, anus, or mouth by the penis and includes the continuation of sexual intercourse after such penetration. Sexual intercourse includes oral sex.

If the younger person is 14 years or above, it is a defence if it can be proved that the older person believed on reasonable grounds that the younger person was 16 years of age or older.

Any person having a sexual relationship with a person under the age of 16 that they are not married to may be found guilty of “maintaining a sexual relationship with a young person” and could be sent to prison.

If a person is convicted of these kinds of crimes, it can lead to being put on the Sex Offender Register.

ACT

In the ACT it is a crime to have sexual intercourse with a person who is under the age of 16.

The exception to this rule is:

  • that person was at least 10 and the accused was no more than 2 years older; and
  • where there was consent.

“Sexual intercourse” means the penetration to any extent of the vagina, genitalia or anus of a person by any part of the body of another person (including oral sex), or penetration by an object being carried out by another person.

It is a defence if it can be proved that the older person believed on reasonable grounds that the other person was 16 years of age or older.

It is also a crime to knowingly permit a person under the age of 16 to have unlawful sexual relations and you can be guilty of the crime. You can be sent to prison if found guilty of this crime.

Any person having a sexual relationship with a person under the age of 16 that they are not married to may be found guilty of “maintaining a sexual relationship with a young person” and could be sent to prison.

If a person is convicted of these types of crimes that person can also be put on the Sex Offender Register which can affect job prospects.

Western Australia

In Western Australia it is a crime to have sexual intercourse with a person who is under the age of 16.

If you’re 18 years old or older you can consent to have sex with anyone else over 18.

It is a crime for someone to have sexual intercourse with you without your consent or for you to have sexual intercourse with someone without their consent. The law refers to this as ‘sexual penetration’. ‘Penetration can include anything that involves a penis touching a vagina, anus or mouth. It also includes putting an object or a part of the body into contact with a vagina or anus.

It is also a crime for someone to touch you in a sexual way, like touching another person’s vagina, penis, anus or breast, without your consent, or for you to do the same to another person.

It is also a crime to knowingly permit a person under the age of 16 to have unlawful sexual relations.

Any person having a sexual relationship with a person under the age of 16 that they are not married to may be found guilty of “maintaining a sexual relationship with a young person” and could be sent to prison.

If you are convicted of these types of crimes you can be sent to prison and potentially put on the Sex Offender Register.

NSW

In NSW it is a crime to have sexual intercourse (gay or straight) with a person who is under the age of 16.

There are no exceptions to this rule, even if there was consent and the other person was only a couple of years older than you.

In NSW consent must be given freely and voluntarily. Getting consent by use of lies, or other ways that are not consent by free will, is not consent. The law says you don’t have the capacity to consent if you are unconscious, asleep, or have consumed drugs or alcohol to the extent that they make you incapable of consenting.

“Sexual intercourse” means the penetration to the least degree of the vagina, genitalia, anus, or mouth by the penis and includes the continuation of sexual intercourse after such penetration.

It is not a defence if the older person believed you were 16 years of age or older at the time. Any person having unlawful sexual intercourse more than three times with a person under the age of 16 may be found guilty of an offence (“persistent sexual abuse”) and could be sent to prison.

If you are convicted of these types of crimes you can also be put on the Sex Offender Register which can affect your job prospects.

Victoria

In Victoria it is a crime to have sexual intercourse with a person who is under the age of 16.

However, it is not an offence if the person honestly believed that you were 16 or if there was less than a two-year age difference between you. The age gap between you must be exactly 2 years or less.

The age of consent in Victoria is 16 years old.  Even if you are over 16, a person who is caring for you or supervising you (like a teacher, youth worker or foster carer) can’t have sex with you, sexually touch you or perform a sexual act in front of you, even if you agree, unless they are married to you.

If you are under 12, a person must not have sex with you or touch you sexually or perform a sexual act in front of you. You cannot agree to any of these things happening to you, or in front of you.

If you are 12 to 15 years old, a person can’t have sex with you, touch you sexually or perform a sexual act in front of you if they are more than two years older than you, even if you agree.

For more information, you can look at a Victoria Legal Aid fact sheet on the Age of Consent.

South Australia

In SA the age of consent for sexual interactions is 17 years.

Any person 17 or older can have sex (including intercourse or oral sex) with another person 17 or more, if they each consent. This can be a person of the same or opposite sex.

Tasmania

It is a crime to have sexual intercourse with a person who is under the age of 17.

The exception to this rule is where there was consent, and

  • that person was at least 15 and the accused was no more than 5 years older;
  • that person was at least 12 and the accused was no more than 3 years older.

“Sexual intercourse” means the penetration to the least degree of the vagina, genitalia, anus, or mouth by the penis and includes the continuation of sexual intercourse after such penetration.

It is a defence if it can be proved that the older person believed on reasonable grounds that the other person was 17 years of age or older.

It is also a crime to knowingly permit a person under the age of 17 to have unlawful sexual relations and you can be guilty of the crime. You can be sent to prison if found guilty of this crime.

Any person having a sexual relationship with a person under the age of 17 that they are not married to may be found guilty of “maintaining a sexual relationship with a young person” and could be sent to prison.

If you are convicted of these types of crimes you can also be put on the Sex Offender Register which can affect your job prospects.

Queensland

It is a crime to have sexual intercourse with a person who is under the age of 16.  It is also a crime to have anal sexual intercourse with a person who is under the age of 18.

Sexual intercourse means the penetration to any extent of the vagina, genitalia, anus, or mouth by the penis and includes the continuation of sexual intercourse after such penetration.

It is a defence if it can be proved that the older person believed on reasonable grounds that the other person was 16 years of age or older provided that the other person was at least 12 years of age.

It is also a crime to knowingly permit a person under the age of 16 to have unlawful sexual relations and you can be guilty of the crime. You can be sent to prison if found guilty of this crime.

Any person having a sexual relationship with a person under the age of 17 that they are not married to may be found guilty of “maintaining a sexual relationship with a young person” and could be sent to prison.

If you are convicted of these types of crimes you can also be put on the Sex Offender Register which can affect your job prospects.