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Wednesday, 27 November 1985
Page: 2431

(Question No. 555)


Senator Haines asked the Minister representing the Attorney-General, upon notice, on 19 September 1985:

(1) Has the Attorney-General seen newspaper reports of a decision by a Victorian judge upholding a 17th century English legal principle that a husband cannot be held guilty of raping his wife if they are living together; if so:

(a) did the awful violence inflicted on the wife in this case occur when the husband found her packing to leave and that she had not told him earlier of her intention to leave precisely because she feared more violence.

(b) are the deficiencies thus revealed in the Victorian law the same or worse in most of the other Australian States and Territories.

(2) Will the Attorney-General undertake to work with State Attorneys-General to achieve uniform laws which would overthrow outmoded legal principles and provide real protection for wives at risk from their husbands in this way; if so, will the Attorney-General undertake to do this as a matter of urgency to avoid any repetition of the situation referred to.


Senator Gareth Evans —The Attorney-General has provided the following answer to the honourable senator's questions.

(1) I am aware of the newspaper reports of a decision by a Victorian judge upholding a 17th century common law principle that a husband cannot be held guilty of raping his wife where they are living together.

(a) The prosecution in question arose under Victorian law and I am only aware of the facts insofar as they were reported in the Age of 14 and 16 September 1985.

(b) Legislative responsibility of the Commonwealth for laws relating to sexual offences is limited, in Australia, to the Australian Capital Territory.

So far as the Australian Capital Territory is concerned I understand that under existing law the 17th century common law principle that a husband cannot be guilty of raping his wife, currently only applies to traditional sexual intercourse and not to anal or oral intercourse. Accordingly under existing Australian Capital Territory law a man is not immune from conviction for unlawful anal or oral intercourse by virtue of the marriage immunity.

In the latter part of last year my predecessor forwarded to the then Minister for Territories and Local Government a draft Crimes (Amendment) Ordinance and Evidence (Amendment) Ordinance for reference to the Australian Capital Territory House of Assembly. These Ordinances contain substantial reforms to sexual offences in the Australian Capital Territory and are part of the ongoing review of the criminal laws of the Territory.

One of the objectives of the proposed reforms is to restate sexual offences in a more contemporary and relevant manner so as to include forms of penetration other than traditional sexual intercourse.

A further objective of the proposed reforms is the recognition of the equality of status of all persons.

The Australian Capital Territory House of Assembly assented to the proposed reforms on 22 October 1985. The Proposals provide for the abolition of this ancient immunity and I expect the Draft Ordinances will be made shortly. I understand N.S.W. similarly abolished this immunity in 1981 and currently the Victorian Parliament is considering legislation that will abolish it in that State.

(2) Legislative responsibility for laws in relation to sexual offences is primarily a matter for the Governments of the States and the Northern Territory. The Australian Capital Territory reforms, once enacted will, however, prove a model for other jurisdictions.