Criminal Law Consolidation (Provocation) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 13 May 2015.)

The Hon. G.A. KANDELAARS (20:56): The bill before us was introduced into this council on 13 May 2015. It proposes to amend the Criminal Law Consolidation Act 1935 by way of inserting new section 11A to limit the partial defence of provocation (the provocation defence). To be clear, the provocation defence, if established, allows for a court to reduce a charge of murder to the offence of manslaughter. It is referred to as the 'partial defence' because it only lessens the charge and potential consequences.

By way of comparison, self-defence can provide a complete defence to a charge of murder, entitling the accused to a full acquittal without further penalty. The bill seeks to address the possibility that a nonviolent homosexual advance could be pursued to establish a provocation defence, or what has often been termed the 'gay panic defence'. The proposed new section put by the Hon. Tammy Franks seeks to limit the provocation defence. The proposed section 11A—Limitation on defence of provocation states:

For the purposes of proceedings in which the defence of provocation may be raised, conduct of a sexual nature by a person does not constitute provocation merely because the person was the same sex as the defendant.

Because of the amendment structure, that is, by using the term 'merely because', this amendment effectively has no effect at law. This is because, invariably, in court, defence lawyers use a matrix of different points to argue the defence of provocation. The limitation of 'merely because' invariably does not come into play.

On the same day the Hon. Tammy Franks moved this bill, I moved a motion that requested the Legislative Review Committee to review its report into the partial defence of provocation in light of the High Court decision in Lindsay v The Queen. The Legislative Review Committee is still in the process of undertaking this review. The events of the Lindsay case concerned the killing of a Caucasian man by an Aboriginal man, and I do not propose to detail the case as it is shortly due to be tried in the Supreme Court after a mistrial. I understand the retrial is due in March 2016.

In its review of the provocation defence, the Legislative Review Committee has received a request from the Aboriginal Legal Rights Movement to defer action on this issue until the judicial process has been completed. In my view, this is not an unreasonable request, particularly as it would be improper, in my view, that the parliament potentially could influence the outcome of a jury trial.

I remind the chamber that the Legislative Review Committee has previously indicated that it strongly agrees with the honourable member's desire to ensure homophobic violence is not tolerated. The committee condemns all forms of unlawful violence and considers it to be an obligation of the law to effectively deter such behaviour.

The task faced by the committee has been to determine whether the bill or other options to reform the defence of provocation will assist the law to achieve that end without incurring unintended consequences. One particular unintended consequence could be in the area of domestic violence. To bring this bill to a vote would therefore be an unnecessary attempt to pre-empt the Legislative Review Committee's deliberation.

I acknowledge that the Legislative Review Committee has received varying views on the need for change from various groups, with the likes of the Law Society of South Australia and the Bar Association of South Australia expressing the view that the common law adequately deals with the situation and, equally, other organisations, such as the South Australian Law Reform Institute, the Human Rights Commission, the EO commissioner and the Commissioner for Victims' Rights, arguing a need for change. To pre-empt to Lindsay retrial would, in my view, be improper. For these reasons, the government opposes this bill.

The Hon. A.L. McLACHLAN (21:01): The Liberal Party holds similar views to those expressed by the Hon. Gerry Kandelaars on behalf of the government. We commend the Hon. Tammy Franks for bringing this matter to the attention of the chamber and to the Legislative Review Committee. The Liberal Party holds the view that the work of the Legislative Review Committee and its inquiry into the partial defence of provocation should be allowed to be completed.

As I said, the opposition holds similar views to those of the government in relation to this bill and will not be supporting it in its current form. This should not be interpreted as the Liberal Party holding the view that in any way it supports individuals escaping criminal sanction where they hold antiquated attitudes. The Liberal Party agrees with the sentiments of the Hon. Tammy Franks that have caused her to table this bill. Nevertheless, the law of provocation is complex and we await the finalisation of the work of the committee, which at this point is holding and considering its position whilst a significant trial will be undertaken early in the new year.

The Hon. K.L. VINCENT (21:03): I wish to thank the Hon. Ms Franks for her tenacious commitment to ensuring that the provocation defence, known as the 'gay panic', is forever struck out of our statutes. In this most auspicious year, when we mark the 40^th anniversary of the decriminalisation of homosexuality in the state of South Australia, its remnant laws and attitudes such as this will drag us down and hold us back from achieving further and full equality. South Australia was once proudly at the helm of social law reform, yet there remains work to do. Human rights are often hard-fought and hard-won battles, if not always hard-fought and hard-won battles.

The gay panic defence has, I understand, been removed in most other states. I understand the Legislative Review Committee has been looking at the issues around it here. I understand that there are some complexities around the legal uses of provocation defences in different situations. Let me say categorically that a person making a nonviolent approach to another person of the same gender does not equate to giving that person the right to hurt or end the life of that person in any way, shape or form.

I have spoken about this before in this place, supporting previous iterations of the bill presented by the Hon. Ms Franks and I do not want to rehash all of that. I will try to make the point again if I can recall what it was, but I think what I said last time went something like this: as a vegetarian I do not eat meat and I do not particularly agree with people who do eat meat. However, if I am at a dinner party and somebody offers me a meat lovers pizza, can I then harm that person claiming 'pepperoni panic'? I think not. As long as the approach is nonviolent, I have no right to violently assert my beliefs toward that person just because I do not appreciate the approach.

So, the law around gay panic specifically as it stands is at best homophobic and at worst negligent of human rights and the right to freedom from harm. It is homophobic in that it applies only to a gay man who makes a nonviolent romantic or sexual advance toward another man who then murders the gay man. The nature of someone being able to rely on the law to condone an act of violence, particularly an act resulting in the death of another, is abhorrent to me and to Dignity for Disability, as it should be to all members in this chamber, to all members of South Australian society and all human beings.

On that note, I do not want to go too far away from the issue at hand but, since we are talking about people being able to rely on the law, or at least the attitudes of society, to face a lesser charge for a violent act, then I feel it would be negligent of me not to mention that people with disabilities are also far too frequently killed—of course, one would be too many—with a lesser conviction or at the very least a lesser reaction from society. For example, in a situation where the person who committed the murder was the family carer or family supporter of that person with a disability, that family carer was under significant strain and should be shown compassion on those grounds.

Dignity for Disability in the past moved a motion after the case of the Eitzen family in the Adelaide Hills, where a mother ended the life of her son due to the strain of being his family carer, because of the lack of disability support that he received. We came out calling for mental health checks for family carers and supporters of people with disabilities, but let me say that we also came out, and continue to come out, saying that the solution is to adequately support people with disabilities to live as independently and in as dignified and autonomous a manner as possible, so that family carers do not go through that strain which leads to them making that unconscionable decision.

Members may also recall another case from interstate, I think a couple of years ago now—I forget the specifics of it. Basically, a man in a rural town interstate shot his wife, who had an acquired brain injury, and their three children. Much of the media coverage of that case talked about what an upstanding member of the community this man had been, tirelessly caring for his wife post her brain injury, which she, I understand, acquired in a car accident.

Well, let me just say, Mr President, that that man had the option to leave that marriage, he had the option to leave that relationship if the strain was too great and, even if you accept that he was forced to kill his wife because of the brain injury—which I do not think any of us here should or would—he certainly was in no way forced to kill their children, who of course bore no responsibility for his wife's injury and the strain that the resulting lack of support that had caused him.

In a similar vein to this motion I am also very concerned about society's attitudes to the violence, harm and murder that people with disabilities can face, and I will continue to strike a balance where people with disabilities are supported to live autonomous, dignified, supported lives, ordinary lives of their choosing, so that the strain and perceived burden that they place on society as a result of that support does not lead to this abhorrent situation occurring, and certainly does not lead to a lesser reaction in the community than we would accept for the violent treatment of any other being. With those few words, I certainly support the Hon. Ms Franks' motion.

The Hon. T.A. FRANKS (21:10): I would like to thank those members—

The Hon. G.E. Gago: I thought we weren't going to adjourn this and not take it to a second vote.

The Hon. T.A. FRANKS: That's what I'm doing, but I am making a summary response before I seek leave to conclude my comments at a later date. So, moving right along. I thank those members who have made a contribution to this bill in this incarnation of the debate: the Hon. Gerry Kandelaars, who of course chairs the Legislative Review Committee that is looking at this issue, the Hon. Andrew McLachlan and the Hon. Kelly Vincent.

I take on board the government's concerns about the words 'merely because', which currently exist in this one page private member's bill, which seeks to remove the ability and the existence in this state for the partial defence of provocation, known colloquially as gay panic or the homosexual advancement test. I note that it is usual practice, where there are concerns about a particular form of wording, that amendments be moved to address that. I encourage the government, if it has suggestions, to table those in future sitting weeks so that that may at least show the government's commitment to progressing this matter.

I have some hesitation in accepting that the government has taken this seriously, because I would point out that I first wrote to Attorney-General Rau in August 2012 about this issue. At that time I also wrote to the Premier, I wrote to the Leader of the Opposition and I wrote to the then shadow attorney-general. I thank the opposition for their response and engagement on the issue. I am still yet to receive any response to my correspondence of August 2012 from the government.

I then, in my frustration with the lack of cooperation and willingness to engage on this issue from the government, presented a private member's bill in May 2013—not the bill we have before us tonight but a bill that was then, some months later, referred to the Legislative Review Committee and was subject to a report back that recommended, with the exception of the Hon. John Darley's recommendation, that in fact the bill not be supported. This of course was hurriedly revised when, as the Hon. Gerry Kandelaars indicates, he moved to reopen that review with regards to the Lindsay case. It also was the same sitting week that I reintroduced this bill before us tonight.

When I first wrote to the Attorney-General in August 2012 we were one of a few jurisdictions that had not acted in this area of removing the gay panic defence. I note that currently in South Australia we are now the only state or territory that has not acted in some way to remove the gay panic defence. This month Queensland has announced that it will have made movements to eradicate it there, having had the Palaszczuk government come to power and restoring the previous intentions of the Bligh government, which of course lapsed under the Campbell government in that state.

New South Wales has also moved in the time that we have been sitting on our hands in this state. This will probably be the only time I say this, but I commend the work in New South Wales of Christian Democrats upper house MP, Fred Nile, who not only chaired the inquiry into the provocation defence there, but moved the private member's bill that saw it removed in New South Wales in 2014. I think if something can be agreed on by a Greens South Australian MP and Fred Nile, perhaps the Labor South Australian government should have taken it more seriously and acted more swiftly.

As I say, it has left us out of step with every other state and territory in this country. It has left us out of step with most developed jurisdictions across the planet. It is disappointing that, had the Attorney-General perhaps responded to my original correspondence in 2012, we would not have been in the situation of seeing the Lindsay case unfold from a murder that occurred in 2011, which, of course, proceeded to the courts much later than that. We are now left in a situation where we are being asked not to legislate because of the impact on a particular case.

I would note that originally the Attorney-General's position was that this would have no impact on any laws and court cases in this state. You cannot have it both ways. Clearly, the original judgement of the Attorney-General here was wrong. It was a political error and it was an error in law. It is the political will, I hope, of the Weatherill government to come good and to support—

The Hon. G.E. Gago interjecting:

The Hon. T.A. FRANKS: Yes, as minister Gago indicates, it is shocking. I do not think she is, in fact, referring to the shocking dereliction of duty of her colleague. I think she is referring to the fact that I have the gall to actually raise this matter in parliament and yet—

The Hon. G.E. Gago interjecting:

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): The Hon. Tammy Franks has the call. The minister is out of order.

The Hon. G.E. Gago interjecting:

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): The minister is out of order. The minister had the opportunity to come in and contribute to the debate.

The Hon. T.A. FRANKS: If the minister does not want me to take this to a vote, as she believes I should not, then she should possibly remain silent or I will take it to a vote and show the Labor government's colours for what they are.

The Hon. G.E. Gago interjecting:

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): Order!

The Hon. G.E. Gago: Okay, let's take it to a vote.

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): Minister, you are out of order.

The Hon. T.A. FRANKS: Alright, let's take it to a vote. Thank you, minister Gago, I now actually indicate I will be progressing this to a vote. I understand the concerns of some members of this chamber that it is not the right time to move. I would note that any private member's bill that actually gets through this council takes at least another six months, sometimes two years, to get through the other place, so I think we are in no danger of coming up against a court case in March next year.

What I would also point out to the Labor members here is that they have failed to act since 2012 when this issue was first brought to their attention and that they are going into this vote contrary to their own ALP state conference of just a few months ago which finally moved unanimously to eradicate the gay panic defence.

The Hon. G.E. Gago: What a load of garbage! It's garbage and you know it's garbage.

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): The minister is out of order.

The Hon. T.A. FRANKS: The Hon. Gail Gago shows her true colours here saying that this is garbage. She is the one who was encouraging a vote on this issue. It will show up the Labor members of this council for their hypocrisy on this issue. They have had the ability to fix this problem. This is a problem of their own causing.

Rather than seeking to conclude my comments and continuing to try and work with a recalcitrant government, I indicate that I commend this bill to the house and look forward to the committee stage when the government can bring forward its amendments, should it have wording changes that it seeks to indicate. I note that the government could stop at second reading and indicate their support for this bill to continue to be debated, but it is on their heads if they choose to oppose it tonight.

The council divided on the second reading:

Ayes 4

Noes 11

Majority 7