Provocation Defence

Mr TEAGUE (Heysen) (14:31): My question is to the Attorney-General. Will the Attorney update the house on the SA Law Reform Institute's report on provocation?

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (14:31): Thank you very much to the member for Heysen for his question on this very important body of work that has been undertaken by the South Australian Law Reform Institute. We thank him for raising the matter in the parliament today. Stage 2 of the report, titled 'The provoking operation of provocation', has now been published. I wish to place on the record my appreciation to members of SALRI—the Hon. David Bleby QC, Professor John Williams and Dr David Plater—in addition to a number of students at the University of Adelaide who have participated in the extensive background work for this report.

It follows the stage 1 report, which was received late last year. I read the report with great interest, particularly in the way it dealt with the victims of family and domestic violence and the way the partial defence of provocation interacted with those people, often women. In light of stage 1 of the report, this parliament saw the introduction of a bill by the Hon. Mark Parnell MLC of another place, dealing with self-defence and options available to victims of family violence should provocation be repealed.

That legislation was never passed; however, it did work as a catalyst to place the issue before consideration and, before any reforms were undertaken, opened up discussion with stakeholders and members of parliament to consider the matter. I also recognise two successive referrals of work undertaken by the Legislative Review Committee as a result of matters raised in the case of The Queen v Lindsay subsequent to its High Court determination again to review this important area. The report deals with the somewhat overly complicated partial defence of provocation and its interaction with sentencing arrangements in the courts.

By way of background to the house, the current law in South Australia allows the partial defence of provocation to reduce murder to manslaughter if a victim is alleged to have provoked the defendant into losing control and killing. In situations in which the victim has allegedly made homosexual advances toward the defendant and thus provoked the defendant, such a defence is referred to as the gay panic defence. When they are reading this comprehensive report, members may wish to look at the considerations of the Legislative Review Committee and where it differs from the findings of this report.

Clearly we are talking about non-threatening or nonviolent sexual advances. Obviously that doesn't apply to an unwanted sexual advance to a woman; if it applied to every man who made an unwanted sexual advance towards a woman there would be a lot of dead men around, that's for sure. Nevertheless, provocation may also arise in other cases—for example cases of family violence—

Members interjecting:

The SPEAKER Order!

The Hon. V.A. CHAPMAN: —where those who have experienced violence and other abuse put an end to it by killing the perpetrator.

Today, I can confirm to the house that this is a very welcome report, especially given this topic's extensive history in South Australia. SALRI has done a great job in a very complex area of the law. The report makes a number of recommendations, many of which are supported and many of which need further consideration and consultation. However, from this report it is clear that there is still the potential for a gay panic defence to be claimed in South Australian courts as a defence to murder. This legal position is simply no longer acceptable in today's society.

The report further details that the reforms to the operation of the law of provocation in respect of the 'gay panic' defence cannot be done in isolation, which we now know. I commend the report to members for their consideration and discussion in this debate.

Time expired.