As recent changes to consent legislation seek to protect the rights of victims of sexual assault, there is a continued need for community awareness of consent and consent legislation in NSW. The NSW age of consent refers to the age at which a young person can legally consent to a sexual act with another individual. These laws aim to protect young people, as one of the most vulnerable groups within our legal system, whilst simultaneously enabling healthy sexual awareness and development.

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What is the Age of Sexual Consent in NSW? 1

Persons under special care

Even if an individual is over the age of consent, it is a criminal offence to have sexual intercourse with a young person between the age of 16 and 18 under special care, in accordance with section 73 of the Crimes Act 1900 (NSW). 

NSW legislation outlines that the victim is under the special care of the offender if they: 

  • Are the step-parent, guardian or foster parent of the victim 
  • Are a school teacher, and the victim is a pupil of the offender 
  • Have established a personal relationship with the victim in connection with the provisions of religious, sporting, musical or other instruction to the victim 
  • Are a health professional, and the victim is a patient of the health professional.

Individuals who have had sexual intercourse with minors under their special care that are over the age of consent are liable to 8 years imprisonment if the victim is under 17 years old and liable to 4 years imprisonment if the victim is aged 17-18. 

Sending sexual photos over the phone or online 

In Australia, the legislation prohibits “asking for, accessing, possessing, creating or sharing sexualised images of children and young people under the age of 18.” These laws apply to children and young persons who create or share sexually explicit images, even if all parties consent. 

If an individual shares a photo or video of a person doing a sexual act or showing their genital region without their consent, they can be found charged with a criminal offence.

‘Free and Voluntary agreement’

NSW legislation asserts that consent must be obtained through a ‘free and voluntary agreement’. This means that for someone to give consent under the law, it can only be obtained in a matter free of coercion, threats, or means other than voluntarily.

What is the Age of Sexual Consent in NSW? 2

Sexual Intercourse with a Young Person

Section 66 of the Crimes Act 1900 states it is a criminal offence to have sexual intercourse with a young person under the age of 16 and can be found guilty of sexual assault. The maximum penalty to which the offender is liable depends on the age of the victim. 

  • If the child is aged 14-16, the maximum penalty is 10 years imprisonment 
  • If the child is aged 10-14, the maximum penalty is 16 years imprisonment 
  • If the child is under 10, the maximum penalty is life imprisonment 

Sexual Touching 

Under section 66, if an individual is found guilty of sexually touching a child aged 10-16 or procured another person to do so is liable to a maximum penalty of 10 years imprisonment. 

If the child is under the age of 10, the offender is liable for up to 16 years of imprisonment.

Sexual Act 

Outlined under section 66, a person who intentionally carries out a sexual act towards or with a child aged 10-16 is liable to a maximum term of 2 years. 

If that child is under 10, the accused is liable to 7 years imprisonment.

Similar Age Defence

If an individual has been accused of having sexual intercourse with an individual under the age of 16, the defence may use the ‘similar age defence’ where the alleged victim was aged 14 years or older and the age difference between the two parties was less than 2 years. 

It should be stressed, however, that young persons under the age of 14 are unable to provide consent.

Written By
James Janke
James Janke

James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia