Provocation Defence for Murder

The Hon. T.A. FRANKS (16:36): I move:

That this council—

1. Notes that—

(a) South Australia once led the nation on the decriminalisation of homosexuality after Dr George Duncan was murdered in the River Torrens because he was gay;

(b) South Australia now lags the nation in this area as it is the only place in Australia that still enables the so-called ‘gay panic’ provocation defence for murder;

(c) the Marshall government made public commitments to introduce legislation to abolish this provocation defence by the end of 2019;

2. Calls on the Marshall Liberal government to introduce legislation to abolish this provocation defence with urgency; and

3. Condemns the continued existence of the so-called ‘gay panic’ provocation defence for murder.

The hateful gay panic defence for murder in South Australia must finally go. It is now nearly 50 years since Dr George Duncan was thrown in Adelaide's River Torrens simply because he was gay, and he drowned; he was unable to swim. His killers were never brought to justice. We know who they were. We know that not only was he unceremoniously thrown in the river once, but indeed a second time he was thrown back in the river by police, again, because the TV cameras came too late to film the original dredging of this human being from the River Torrens and wanted the vision for the nightly news.

That disgusting act led some, I believe, very fortunate law reform, where we proudly led the nation and decriminalised homosexuality in this state, the first to do so in Australia. That law reform became law and gained that traction because a man was killed. In South Australia, we now lag behind the rest of the country in keeping the so-called gay panic defence as one of the provocation suites that sees a murder charge diminished to manslaughter. The defence is based on a non-violent homosexual advance being seen as somehow legitimising murder and treating it as lesser than murder. This defence not only exists in South Australia, it is being used in South Australia.

In my diary, under these COVID times, my staff had marked my 10 years in this place recently. We have not had a celebration of that, because we will wait for the pandemic to pass before we can all gather together. One of the first bills I brought to this place was a bill to abolish the gay panic defence. I did so many times, and twice my bills were the subject of review and recommendations by the Legislative Review Committee of this place.

Not once but twice the South Australian Law Reform Institute has looked at this issue—not once but twice. We have already had four inquiries into abolishing the gay panic defence and the overwhelming recommendation each time of those reviews in the end—certainly the first one that had some major barriers put in front of it—was not only to abolish from our state the homosexual advancement test, that so-called gay panic defence for murder, but to get on and do it.

Before the last election the Weatherill government met and matched the Marshall opposition in a promise to abolish the gay panic defence. Last year, in April, the Attorney-General, upon receipt of the second SALRI report, promised to abolish the gay panic defence by the end of 2019. This week, with the commemoration of the murder of Dr George Duncan, his memorial at the River Torrens was vandalised. I believe it was the first time, in the many years since members of this parliament banded together to erect a monument to our proud place in the road to equality, in our proud place of having decriminalised homosexuality and in the sadness and disgrace that it was the death of a man at the River Torrens that took us to act.

I do not call that vandalism homophobic, I call it hateful vandalism, and it is given succour and comfort by the lack of action of this parliament to abolish the gay panic defence. How many more years must we wait? Will it take another murder of a man such as Andrew Negre, who was murdered by Michael Lindsay, who then used the gay panic defence to seek to have his bashing and stabbing of a man—and then putting him in a wheelie bin and dumping it in a gully—somehow diminished as more understandable and as of needing a lesser penalty because he claimed that the victim had made an unwanted sexual advance to him.

It is now almost a decade since I introduced that bill and here we are still twiddling our thumbs and giving comfort and succour to hurtful and hateful antihomosexual acts in this place, while we put this into the 'too hard' basket. All sides of politics have now committed to removing this awful, outdated and disgraceful offence—defence for what should be seen as a pure offence. We keep being promised change and we are yet to see it. It pains me that I have had to move this motion today but I do so because we need to keep the pressure on. We have learnt in this place that without that pressure there will be no action when it all seems too hard, when those who historically we have treated as lesser are not listened to, are not given respect and are not treated as equal.

With that, I hope that the council will see fit to support this motion and I hope that the government will bring forward legislation not by the end of this year but by the end of this particular sitting, by the winter. With those words, I commend the motion to the council.

Debate adjourned on motion of Hon. R.P. Wortley.