Age of Consent Laws in Australia by State, Defences, and Penalties

The age of consent in Australia is 16 in most states and territories. Tasmania sets it at 17, and South Australia makes sexual intercourse with anyone under 17 an offence while allowing a narrow defence in some situations involving 16-year-olds. Because each state and territory writes its own criminal code, the offences, defences, and penalties look different depending on where the conduct takes place, and the close-in-age and position-of-authority rules vary more than most people expect.

Age of Consent by State and Territory

Six jurisdictions set the threshold at 16: New South Wales, Victoria, Queensland, Western Australia, the Northern Territory, and the Australian Capital Territory. The rule applies regardless of gender or sexual orientation.¹²³⁴

Tasmania

Tasmania is the only Australian jurisdiction where the age of consent is 17. Section 124 of the Criminal Code Act 1924 (Tas) makes it an offence to have sexual intercourse with anyone under 17.⁵ A close-in-age defence exists, but the base threshold is a full year higher than the rest of the country.

South Australia

South Australia is often grouped with the “16” jurisdictions, but the law is more nuanced. Under section 49(3) of the Criminal Law Consolidation Act 1935 (SA), sexual intercourse with a person under 17 is an offence carrying up to 15 years imprisonment. Section 49(4) provides a defence where the younger person was at least 16 and the accused was either under 17 or reasonably believed the younger person was 17 or older.⁶ So a 19-year-old having sex with a 16-year-old in South Australia can be charged unless a reasonable belief the younger person was 17 or older is established.

Close-in-Age Defences Vary by State

Every jurisdiction provides some form of defence for teenagers close in age to each other, but “close in age” doesn’t mean the same thing across state lines.

In Victoria, if the younger person is between 12 and 15, it is not an offence when the other person is no more than two years older. A 17-year-old and a 15-year-old fall within the window; an 18-year-old and a 15-year-old don’t.⁷
The ACT applies the same two-year rule, provided the younger person was at least 10 and consented.⁴
The Northern Territory also has a defence where the age gap is less than two years.
Western Australia allows a three-year gap. An accused who is not more than three years older than a child aged 13 to 15, and not in a position of authority, has a defence.³
Tasmania allows a three-year gap for young people aged 12 to 15 and a five-year gap for those aged 15 to 17. A 19-year-old and a 15-year-old can fall within the defence in Tasmania, which would not be the case in Victoria or the ACT.
South Australia has no broad close-in-age defence below age 16. The defence for 16-year-olds only applies if the accused was under 17 or held a reasonable belief the younger person was 17 or older.⁶

A couple within the defence in one state may face criminal exposure in another. If you’re relying on a close-in-age rule, check the law of the specific state or territory where the conduct occurred.

When a Reasonable Belief About Age Is a Defence

Several jurisdictions allow a separate defence where the accused genuinely and reasonably believed the other person was over the age of consent. Availability and limits differ.

In Tasmania, a reasonable belief that the younger person was 17 or older is a full defence. The ACT provides the same defence for a belief that the younger person was 16 or older.⁴ Victoria and Queensland allow it only if the younger person was at least 12. Western Australia restricts the defence to accused persons no more than three years older. South Australia limits it to situations where the younger person was at least 16. In the Northern Territory, the child must have been at least 14. In New South Wales, the defence isn’t in the statute for the most serious offences but applies at common law for offences involving children aged 14 to 15.

Except in New South Wales, the accused carries the burden of proving the belief. Where the defence is available, “reasonable” means more than accepting the other person’s word. Courts look at the surrounding circumstances, including any steps taken to verify what the younger person said.

When the Age Rises to 18: Teachers, Coaches, and Carers

When the older person holds a position of power or trust over the younger person, the effective age of consent rises to 18 across Australia. The reasoning is that genuine consent is hard to give when one person controls the other’s grades, playing time, living situation, or spiritual guidance.

In New South Wales, the Crimes Act 1900 defines a “special care” relationship to include step-parents, guardians, foster parents, school teachers, sports coaches, music instructors, religious leaders, and health professionals with an established relationship with the young person.¹ Sexual activity with a 16- or 17-year-old in that context is a criminal offence.

Western Australia takes the same approach. Under section 322 of its Criminal Code, sexual penetration of a person aged 16 or 17 who is under the care, supervision, or authority of the offender carries up to 10 years imprisonment.³ Other jurisdictions have equivalent provisions. A teacher who has sex with a 17-year-old student, or a foster carer who has sex with a 16-year-old in their home, faces charges regardless of whether the younger person agreed.

Online Conduct Is Governed by Federal Law

State and territory laws cover in-person conduct. The Commonwealth Criminal Code Act 1995 covers sexual offences committed using the internet, phone networks, or postal services, and it uses 16 as the threshold nationwide regardless of the local state rule.

Under Division 474 of the Criminal Code (Cth), using a communication service to groom or solicit a child under 16 for sexual activity carries a maximum penalty of 15 years imprisonment and a mandatory minimum of 4 years. The mandatory minimum doesn’t apply if the offender was under 18 at the time.⁸ Sending indecent material to a person under 16 through a communication service or postal service is a separate offence under the same Division.

The federal and state layers operate independently. A 20-year-old in Tasmania sending sexually explicit messages to a 16-year-old wouldn’t breach the Tasmanian age of consent (which is 17, but doesn’t cover messaging) and could still face federal charges if the conduct amounts to grooming or transmitting indecent material to a person under 16. A person can be charged under either or both.

Sexting Between Teenagers

Australia has no single law dealing specifically with sexting by minors. Young people who share intimate images of themselves or peers may technically fall under child exploitation material offences in their state or territory. A Senate committee inquiry noted that no two Australian jurisdictions have the same child pornography laws, creating a patchwork where the same behaviour is treated very differently depending on location.⁹

Some jurisdictions have moved to create defences or diversionary pathways so teenagers sharing images among themselves are not prosecuted as sex offenders. Victoria, for instance, has worked toward specific defences for age-appropriate sexting under its Crimes Act. The reforms are uneven. A teenager who shares a self-produced image can, in the wrong jurisdiction, end up charged with producing or distributing child exploitation material.

Penalties

Maximum sentences vary by jurisdiction, by the age of the child, and by whether aggravating circumstances are present. They rise sharply the younger the child.

In New South Wales, section 66C of the Crimes Act 1900 sets a maximum of 16 years imprisonment for sexual intercourse with a child aged 10 to 13, or 20 years if aggravated. For a child aged 14 or 15, the maximum is 10 years, or 12 years with aggravating circumstances.¹⁰

In the ACT, sexual intercourse with a child under 10 carries up to 17 years (21 years if aggravated). For a child under 16, the maximum is 14 years, or 18 years with aggravating circumstances.⁴

In Western Australia, sexual penetration of a child under 13 carries up to 20 years imprisonment. For a child aged 13 to 15, the maximum is 14 years, dropping to 7 years if the offender was under 18 and not in a position of authority. If the offender was in a position of care or supervision, the maximum rises to 20 years regardless of the child’s age.³

In South Australia, section 49(3) of the Criminal Law Consolidation Act 1935 sets a maximum of 15 years imprisonment for sexual intercourse with a person under 17.⁶

Aggravating factors such as violence, threats, or the offender being in a position of trust push penalties toward the upper end of these ranges. Adults convicted of qualifying sexual offences against children are also generally placed on their state or territory’s sex offender register, with reporting obligations that can last years or be indefinite depending on the offence.⁹

1
New South Wales Department of Education. Age of Consent and Related Sexual Offences
2
Victoria Police. Consent and Consent Laws
3
WA Legislation. Criminal Code Act Compilation Act 1913
4
ACT Legislation. Crimes Act 1900
5
Tasmanian Legislation Online. Criminal Code Act 1924
6
Legal Services Commission of South Australia. Unlawful Sexual Intercourse
7
Victoria Legal Aid. Age of Consent
8
Judicial Commission of New South Wales. Commonwealth Child Sex Offences
9
Parliament of Australia. Chapter 1
10
NSW Legislation. Crimes Act 1900 No 40