CRIMINAL LAW CONSOLIDATION (PROVOCATION) AMENDMENT BILL

Introduction and First Reading

The Hon. T.A. FRANKS (16:24): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935. Read a first time.

Second Reading

The Hon. T.A. FRANKS (16:25): I move:

That this bill be now read a second time.

This bill comes as no surprise to some members of the government and the opposition, as I wrote to the Attorney-General, the shadow attorney-general, the Premier and also the Leader of the Opposition about this issue in August 2012. For the benefit of other honourable members, of course, I will go into great detail here in my second reading speech.

This bill seeks to remove the homosexual advance test, an archaic law with dangerous consequences that has no place in the South Australia of 2013. Often termed the 'gay panic defence', in South Australia this homosexual advance defence can be employed as a partial defence to murder, under common law replacing a murder sentence with a manslaughter charge. It is a law that fails to reflect community attitudes that both homophobia and murder cannot and should not be tolerated and that homophobic violence should never be rewarded.

The gay panic defence was first applied in the case of Green v The Queen 1996. In this case, the man Green stabbed his friend to death with a pair of scissors after an unwanted, non-violent sexual approach. Although Green was initially sentenced to murder this was later appealed, based on the claim that his friend Gillies had provoked the violence. The defendant claimed that the deceased had climbed into bed with him and touched him around the buttocks and penis. The defendant killed the deceased by hitting him 35 times, banging his face against the wall and stabbing him 10 times with the scissors.

The High Court found that the law of provocation should have been considered and ordered a retrial. At the retrial Green was found guilty of manslaughter and sentenced to 8½ years in gaol. During the case, Justice Smart described the deceased's actions as 'revolting' and akin to 'provocation of a very grave kind' that would cause 'some ordinary men [to] feel great revulsion' to the extent that an 'ordinary man' would have reacted in this way.

This begs the question: would a non-violent, heterosexual advance made by a woman towards a man or by a man towards a woman be described as similarly revolting, enough to warrant a murder? Absolutely not. Justice Michael Kirby of the High Court, dissenting, disputed the view, stating that an 'ordinary person...is not so homophobic as to respond to a non-violent sexual advance by a homosexual person [by forming] an intent to kill...' Homophobic violence cannot and should not be tolerated, yet the laws in South Australia—and, unfortunately, in New South Wales and Queensland—lag behind and continue to facilitate and give succour to this kind of violence.

Unfortunately, the landmark case of Green v The Queen was not an isolated incident, and the murder of Queensland man Wayne Ruks in 2008 sparked a huge community outcry and a campaign to see the law changed in that state. Wayne Ruks was violently beaten and left to die by two men who claimed he made an unwanted sexual advance. Both men relied on the gay panic defence and had their murder charge reduced to manslaughter.

What this law suggests is that a non-violent, homosexual advance somehow differs so drastically from a heterosexual advance that a homosexual advance can be considered so abhorrent that it provides a defence to murder, while the heterosexual advance can lead to no such defence. This law dangerously suggests that if a man beats another man to a pulp and leaves him for dead he is no murderer; rather, that an ordinary person test would find that he acted as an ordinary man would in the circumstances. Certainly there are situations where a defence of provocation should be applied. We have probably all heard of battered woman syndrome in this place, where a female defendant has killed her partner after sustaining ongoing abuse and violence, yet the kind of non-violent advance covered in the gay panic defence cannot and must not be compared with these sorts of horrific violent acts.

I believe that the community and parliaments throughout the country agree. Both in Australia and internationally, the community is quite rightly outraged that is outdated, homophobic provocation defence continues to exist in some jurisdictions—not all jurisdictions, I am happy to say. In fact, Tasmania became the first Australian jurisdiction to abolish the provocation defence in 2003, with Victoria and Western Australia following suit in 2005 and 2008 respectively, while the Northern Territory and ACT have amended the offence to exclude non-violent sexual advances such as the gay panic defence from their provocation defences.

While the action that was progressing under former premier Anna Bligh in Queensland seems to have stalled in that state under the new Premier, in New South Wales, the only other jurisdiction along with Queensland and South Australia where the defence remains, I am happy to say the issue has been the subject of an extensive inquiry. This inquiry, in the past few days, has found that this archaic defence has to go.

In fact, in a rare display of cross-party unity that saw openly gay and what were termed by the Star Observer as 'left-wing parliamentarians'—I am not necessarily sure whether I will get into their politics—working with such longtime gay rights opponents, such as the Reverend Fred Nile, the Select Committee on the Partial Defence of Provocation recommended that state parliament amend the Crimes Act in New South Wales to:

...ensure that the partial defence is not available to defendants who respond to a non-violent sexual advance by the victim.

The New South Wales Attorney-General handed down a similar recommendation in 1998, but the committee expressed optimism that, in fact, this time the proposed reports, which do have such widespread support in that parliament, would soon become law in that state. It is hoped that the extensive work that they have undertaken will in fact be a guide to our Attorney in this state, and I would certainly hope that all members of parliament pay some mind to that inquiry.

Even National MLC and committee deputy chair Trevor Khan reserved special praise for the long and sustained work of the New South Wales gay and lesbian lobby, which campaigned for this law for over 15 years, so I congratulate them on that. I certainly hope that South Australia does not need such an extensive campaign and processes to similarly follow suit. It is high time that we did something about this law in South Australia.

We know it is within the power and even the duty of a parliament to reflect society's attitudes on issues such as racism, sexism and homophobia. I believe that we cannot be tolerant of those things and that we should never allow those things to be upheld as a defence to violence or murder. It is a sad state of affairs when the community has to petition parliament to keep up with community standards in that way, but that is indeed what we are seeing.

I note that the campaigning site change.org has done extensive work on this issue, targeting the Queensland and New South Wales parliaments. In fact, in Queensland as of this afternoon, there had been 217,953 signatures to the petition to see the law changed in that jurisdiction. The signatures do come from people across Australia, and I draw your attention to just a few of their comments. Damien Quick from Adelaide writes:

This is an absolutely disgusting legal defence that completely contradicts the 'Rules of Law' and is very open to being abused by homophobic members of our society. This essentially legalises 'gay bashing' and has absolutely no place in society with reference to any person, ever. This kind of backward-thinking, discriminatory legislation must be removed from our legal system. So much for the ideal of 'all humans are equal'.

Avril Young of Melbourne writes:

This law is incomprehensible. Murder is murder and should be punished accordingly. A person's sexual orientation should have no bearing on a case, be they victim or perpetrator.

Andrea Leong of Randwick writes:

That the 'gay panic' defence exists is a particularly disgusting example of discrimination. If a woman expresses interest in a straight man (or vice versa), and the interest is unwanted, is it okay to kill her for her misplaced affections?

It seems many Australians are singing from the same song sheet on this one, saying it is simply absurd, offensive and homophobic that our legal system should suggest that it is somehow reasonable for a man to beat a gay man to death because of an unwanted sexual advance.

As noted by the Queensland Law Reform Commission recently, it is difficult to understand why the law should justify the killing of someone in response to a non-violent homosexual act. While some might argue that this is just one of those legal defences that sits in common law and is hardly ever applied in practice, the recent case of Wayne Ruks suggests that if this defence is available it can and will at some stage be drawn upon as a defence to murder. We must avoid a similar situation here in our state.

By taking action to change this outdated and, quite frankly, offensive common law precedent, we will be going a long way to doing the job we have here to represent all South Australians. It is time to amend the Criminal Law Consolidation Act so that this archaic common law principle does not apply—just as parliaments have done in the Northern Territory, the ACT and, indeed, in other states.

In voting on this bill, it is worth considering what kind of message the existing gay panic defence sends to a young South Australian who may be coming to terms with their sexuality. What kind of message does this send to that part of the community about their worth as citizens? What kind of message does it send to all the other members of our community?

Through this defence, the law is legitimising homophobic violence and sending a clear signal that this kind of behaviour is somehow excusable. This parliament, I believe, will not tolerate homophobic violence. I believe that a non-violent homosexual advance made by one man towards another should never provide a defence for murder.

People in Australia and overseas are surely shaking their heads and wondering how it can be that in 2013 in South Australia this defence continues to exist. It is a sad state of affairs when the community, as I say, has to be petitioning parliament to have this law changed. I would have hoped that such a law, even under common law, would have been removed long ago.

It is timely then to reflect, while this gay panic defence has no place in our state in the year 2013, how far we have come. It is not lost on me that next week will mark the 41^st anniversary of the murder of Dr George Duncan, a murder that took place, of course, only a few hundred metres from where I stand now in this very parliament. It was 41 years ago that Dr George Duncan was callously and brutally murdered for the simple act of having been born; in fact, he was then 41 years old himself.

He had committed what was then seen as the unforgivable crime of being born a homosexual and so he and his companion, on that night 41 years ago, were ambushed and thrown into the River Torrens. His companion escaped, but the Adelaide University professor was not so lucky. He had suffered tuberculosis and had only one lung. The river proved too much for him and he drowned.

His murderers, who were later revealed to be vice squad police officers who made a habit of harassing and attacking homosexuals on the notorious River Torrens beat, escaped prosecution. They have never been brought to justice for Dr Duncan's murder. We know their names. We expect that there was evidence of a cover-up, and we are pretty sure we know that they got away with it. For those born after 1975, and certainly many of those born before, it is really difficult now in 2013 to comprehend that homosexuality used to be illegal—not just frowned on or discriminated against or laughed about but punishable with up to 10 years in gaol.

An act between two consenting adults was considered such a threat to our society that we were prepared to gaol innocent people simply because—to borrow one of the bigoted phrases of the time—they happened to like Arthur more than Martha. In South Australia, the murder of Dr George Duncan changed this attitude. Of course, I believe it acted as a crucible for a tide of opinion that was already changing.

Beginning with the decriminalisation and ending with full legalisation in 1975, South Australia proudly became the first state to legally recognise homosexuality—and, of course, all that took was the brutal and callous murder of an innocent man and three years of political infighting in this place. Sarcasm is intended, for the avid readers of Hansard at this juncture. However, I believe that it was a huge victory and we deserve to feel proud, but I fear that since then as a state legislature we have turned our back on that proud, progressive social change. We have thought, perhaps, that we achieved the one thing and that we could rest on our laurels. We still do not have equality.

After those heady days of social reform under Don Dunstan, what has South Australia, or indeed Australia, really done, other than cast a hand over the superficial veneer of equality and declare our job to be over? Despite our state's reputation as a leading, progressive legislature and a reformer in these areas of sexuality, we are in fact no better, if not worse, in the year 2013. We have achieved change, but we are still a long way from progress. After being the first state to legalise homosexuality, South Australia won the race to the bottom on human rights and became the last state to grant full legal rights to same sex couples in 2006. We remain the wooden spooners on so many areas of gay law reform now in this country, being the last state to recognise the rights of lesbian coparents, with the passage of my bill, co-sponsored by the member for Unley, David Pisoni, and in fact recognise coparents on the birth certificates of their own children.

Years after other jurisdictions have acted, it is shameful that we are currently the only state in Australia that does not allow lesbians and single mothers to have access to IVF, unless they are medically infertile. That measure of course has passed this place and currently awaits a vote in the other place. I acknowledge the hard work of minister Ian Hunter and those Social Development Committee members who undertook the inquiry into same-sex parenting in our state. I am deeply hopeful that, even as soon as this week, we may see that situation changed and have progress for those women.

Dr George Duncan was murdered because of the normalisation of society's intolerance, bigotry and hatred. The gay panic defence is a vestige of that time. When this normalisation of bigotry often went unchallenged and unquestioned, he was thrown into a river and left to drown, and after his body was retrieved he suffered the further indignity of being thrown back in so a TV news camera could record the rescue. Those who murdered him were never brought to justice, such was the lack of dignity and the lack of value accorded his life and, indeed, his death. Forty-one years after that fateful night we will next week commemorate the murder of that man, and I certainly invite any members who wish to come along to attend next Friday down on the River Torrens.

There is no doubt, however, that four decades on our attitudes as a society have changed, and attitudes in this place have changed. Then why is it that, four decades on and so many years after the act of homosexuality is no longer deemed illegal, the gay panic defence remains an option for a man who murders another man this state? This bill that I introduce today is a sign that we as a parliament do not support homophobia but support not only change but progress. This bill will ensure that a young gay male student studying law will no longer learn in his first year at university that his life is somehow lesser than his straight brother or friends. He will learn instead that we in the year 2013 consign this defence to the dustbin of history. On that, I thank Robert Simms, who was once that young law student who discovered this and who did a lot of the work today, and certainly has done a lot of research for my office on this issue.

I am hopeful that my colleagues will support this bill I have introduced for debate today, and hope that we as a parliament can work cross-party and crossbench to send a strong message to the South Australian community that we will simply not tolerate homophobic violence. With that, I commend the bill to the house.

Debate adjourned on motion of Hon. Carmel Zollo.