Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 15 October 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (16:32): I rise to speak on this bill and indicate that I am the lead speaker for the opposition. This bill follows longstanding calls to establish what has been known as the gay panic defence. This is a defence where an accused could use what could be best described as the problematic common law defence of provocation to reduce a conviction from murder to manslaughter. It was used in circumstances where a defendant claimed that a homosexual advance provoked them to kill the other person.

Despite this outdated defence, provocation had quite some utility in other areas of the law of homicide, particularly in cases of family violence. This may occur when a person has been subject to prolonged violence and retaliates against their abuser but it does not rise to be able to establish the action as self-defence. In these instances provocation may operate to reduce a conviction of murder to manslaughter, avoiding a mandatory life sentence and the minimum 20-year non-parole period for murder.

Following the 2015 High Court decision of R v Lindsay, the then Labor government asked the South Australian Law Reform Institute, often referred to as SALRI, to inquire into the rights of and discrimination against LGBTIQ+ people. This resulted in SALRI reports, such as those on equal recognition of relationships, and exemptions to unlawful discrimination on the grounds of gender identity, sexual orientation, intersex status and under the Equal Opportunity Act. Following this, SALRI commenced two pieces of work on provocation in 2017 and 2018 which have largely informed and led to the bill that is before this chamber.

The Liberal government promised to act on this but nothing eventuated until this council voted earlier this year in April, and I commend my colleague the Hon. Tammy Franks for the motion that she brought to this chamber. After the Hon. Tammy Franks brought this motion to the chamber, the government finally acted to do what they had long promised to do.

Consequently, this bill seeks to abolish the common law defences of provocation, duress, necessity and marital coercion by amending the Criminal Law Consolidation Act and the Bail Act. This follows SALRI's recommendations. The bill also aims to protect defendants who are victims of family violence who may currently seek relief under the common law defence of provocation, which this bill abolishes through amendments to the Evidence Act and the Sentencing Act.

This bill amends section 10A of the Bail Act to include murder in the offences that carry a presumption against bail. It also amends on numerous occasions the Criminal Law Consolidation Act. First, it changes the heading of part 3 division 2 from 'Defences of life and property' just to 'Defences'. It inserts new section 14B to abolish the common law defences, as I have said, of provocation, necessity, duress and marital coercion. As a transition measure, these defences will be available for offences that are alleged to have been committed before the commencement of this bill.

The bill amends section 15B relating to the reasonable proportionality element of self-defence. To establish self-defence, pursuant to the current law, a defendant must, firstly, genuinely believe their conduct was necessary and reasonable for a defensive purpose—that is a subjective test—and, secondly, be able to prove their conduct was reasonably proportionate to the threat they generally believed to exist—an objective test. It should be noted that the defendant's conduct in their self-defence may exceed the force used against them if it is reasonable to do so.

The bill's amendment to section 15B requires that, where a defendant asserts their offending occurred in a situation of family violence, the court must have regard to the circumstances of family violence when determining reasonable proportionality. In abolishing the common law defences of necessity and duress, this bill replaces them by inserting new section 15D, regarding duress, and new section 15E, regarding sudden or extraordinary emergency.

Section 15D, for duress, applies where a defendant reasonably believed that a threat would be carried out unless they responded and that their response was the only reasonable way the threat could be avoided. Section 15E, for sudden or extraordinary emergency, applies where a defendant responded to circumstances of sudden or extraordinary emergency. They must reasonably believe the emergency existed and, again, that their conduct was the only reasonable way to deal with the emergency. These two aforementioned sections cannot apply to a 'prescribed offence' which includes murder, attempted murder, conspiring or aiding and abetting to murder.

The bill also repeals section 328A of the Criminal Law Consolidation Act which outlines the common law defence of marital coercion. The bill also inserts multiple provisions into the Evidence Act and the Sentencing Act regarding evidence of family violence. The bill amends part 3 of the Evidence Act by inserting a new division 4 relating to evidence in proceedings where there are circumstances of family violence.

The bill's section 34U defines abuse consistent with the Intervention Orders (Prevention of Abuse) Act 2009. That definition includes that a single act can amount to abuse, as can many acts that form a pattern of behaviour, even though some acts may appear trivial in isolation. Section 34U also defines 'family violence' and 'members of a person's family' in a broad way to account for different cultural and family structures.

New section 34V sets out the meaning of an offence being committed in the circumstances of family violence. It establishes that sentencing for an offence in these circumstances must take family violence into account. New section 34W states that evidence of family violence can be very broad. Evidence can include relationship history, social, cultural and economic effects of family violence. Evidence of family violence can include the general nature and dynamics of family violence, and the evidence of psychological effects of family violence on the person or family member in the case.

New section 34X provides that expert evidence relating to the nature and effect of family violence is admissible, such as social framework evidence given by an expert. New section 34Y relates to trial directions that judges must give if any evidence of family violence is admitted in a trial to establish the circumstances of family violence.

The bill also amends section 69A of the Criminal Law Consolidation Act regarding suppression orders. The bill states that a court can make suppression orders in relation to a defendant or their evidence if the offence occurred in family violence circumstances or if the evidence can tend to be humiliating or degrading. This protection is already available for victims of family violence who are not defendants. However, this amendment will protect defendants who were victims of family violence prior to being charged with the offence. The opposition supports this bill.

The Hon. I.K. HUNTER (16:40): I rise to make a very brief contribution on the Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Bill. As the Leader of the Opposition has outlined, Labor supports the abolition of the partial defence of provocation and the implementation of a new framework to provide defences to charges of murder, particularly in circumstances of domestic and family violence.

However, I would like to remark on a significant consequence of this bill, which might not be immediately obvious on reading the terms and the language used. The words 'gay panic' do not appear on any of the bill's 10 pages, yet the likely passage of this bill will have the effect of, at long last, abolishing the archaic, harmful and discriminatory defence for murder known as the gay panic defence.

That so-called gay panic defence is, for a few more weeks at least, a partial defence to murder. It provides an opportunity for defendants to have their charges downgraded to those of manslaughter on the basis that they were provoked into their offending by an unwanted same-sex advance. It is in every way deeply discriminatory. The defence is built on the idea that a same-sex advance is so reprehensible and so distressing that it could be expected to lead to murder.

Other states and territories across our country have seen this discrimination and done something about it. Tasmania abolished the defence in 2003. The ACT followed suit in 2004, then Victoria in 2005, the Northern Territory in 2006 and Western Australia in 2008. New South Wales joined them in abolishing the defence in 2014 and, most recently, Queensland did so in 2017. Only one state now is left—us, South Australia—and we should be ashamed of this position that we find ourselves in.

In 2014, the Legislative Review Committee of this parliament inquired into the partial defence of provocation and found that it was satisfied that the law in this regard has already been addressed and therefore legislative reform should not be supported. I took a different view at the time. I note, for the record, that the Hon. John Darley provided a minority report disagreeing with that conclusion.

The committee affirmed that view in a second inquiry report in 2017, despite the intervening High Court decision in the case of Lindsay v The Queen. That case affirmed that the common law defence of provocation remained the law in South Australia and it affirmed that the gay panic aspect of provocation remained the law in our state as well.

This conclusion was also reached by the South Australian Law Reform Institute in their April 2018 report on provocation, the report that now forms the basis of this bill. They note that the High Court's decision is widely perceived to have confirmed that the gay panic aspect of provocation remains part of the present law. Discussing the Legislative Review Committee's second report, the SALRI report goes on to say:

SALRI has proceeded on the premise that, as have most parties in its consultation, Lindsay provides that a homosexual advance…can still amount to provocation under the present South Australian law. SALRI respectfully differs from the suggestion of the Legislative Review Committee that the gay panic defence effectively no longer exists.

Even after such definitive statements, action to abolish the gay panic provocation defence has been incredibly slow. Former Labor Premier Jay Weatherill committed in 2016 that he would move to end the defence once SALRI had delivered its final report.

One might be forgiven for hoping the report would be delivered swiftly, but alas, it was not. It arrived in 2018, shortly after the defeat of the Weatherill government in March of that year. The succeeding Marshall Liberal government stated its intention to introduce a bill to abolish provocation by the end of 2019, and again that is somewhat of a delay because we are now here probably a year later than we could have been.

But I am pleased that we finally have such a bill and I have been, as you can probably tell, impatiently waiting for this day for almost a decade. The passage of this bill will be another step towards equality for LGBTIQ South Australians, and that is a good thing, even if the step is well overdue. I do not see that the continued existence of the gay panic defence in South Australian law—which might have been a quaint academic question for learned jurists to debate—was worth sustaining given the harm it could have done in the intervening years.

It is a question of how our society and how this parliament values the lives of LGBTIQ people. That action was rejected and then delayed for so long it is hard to see it as anything other than a sign, intentional or not, to the LGBTIQ community of our state that their lives were seen as being less important than others, not requiring fast, quick attention and action.

This parliament has moved with enormous speed to address other loopholes and outdated practices in other areas of criminal law because we rightly recognise the consequences they can have on victims, their families, their loved ones and their lives. Yet, it has taken so many years to take this step, even as the other states, one after the other, falling like dominoes, took action more than a decade ago. As I remarked earlier, the words 'gay panic' might not appear on the pages of this bill, but the LGBTIQ community will nonetheless understand what it means when we pass this legislation.

Finally, parliament is taking action against the idea that murdering a gay person should give rise to more legal defences than murdering a straight person. I should have liked to have been in a position to have congratulated another Attorney-General for this overdue reform; alas, I cannot. Instead, I will congratulate the Hon. Vickie Chapman, Attorney-General of South Australia, for her support of and delivery of this most important reform. It would be remiss of me, of course, to conclude my remarks without acknowledging the complexity of the legislation that is required to replace this common law defence, the consequences of this bill in situations of family violence, for they are, indeed, significant.

As SALRI's report articulates in great detail, the current law of provocation is not fit for purpose. Among other issues, it suffers from intrinsic gender bias to the extent that it has been described as misogynist. In the same way that LGBTIQ people have faced inequities under the current law, so too have women. It is right that this has to be addressed. I echo the comments of my leader, the Leader of the Opposition, that Labor will support the bill and the new framework it introduces. With those brief remarks, I support the abolition of the defence of provocation, gay panic and all.

The Hon. T.A. FRANKS (16:47): I rise as the Greens' gender and sexuality spokesperson to support the Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Bill 2020. Indeed, I associate myself with the remarks of the Hon. Ian Hunter in noting that South Australia is in a race to the position of last to finally reform what is known colloquially as the gay panic defence.

But here we are—I think I have been talking in this place for some 10 years about abolishing the gay panic defence and when I first did so I noted that I thought I could resolve the matter with a simple letter to the Attorney-General and the shadow attorney-general. Little did I know the ways of parliament and the law and the deep, deep discrimination that the provocation defence held in our community.

Indeed, the provocation defence originated in the 1600s and 1700s and it was in circumstances where the death penalty for murder was not only available but was usually imposed. Of course, that death penalty has now been abolished in all jurisdictions in Australia and provocation emerged as a partial defence to murder in those cases, operating to reduce that murder conviction to one of manslaughter in scenarios where the defendant killed while suffering some sort of temporary loss of self-control, the rationale back then being that a man was justified in killing in four situations: to free a person who was unlawfully deprived of their liberty; in response to a grossly indecent assault; in defence of another; or when killing a man who had committed adultery with one's wife—'one' being a man, of course.

A product of the heteronormative and patriarchal society, this defence operated to ameliorate the criminal responsibility of men—specifically men—where their sense of male dignity or honour was compromised. Provocation was often invoked in cases, for example, where a jealous husband would kill his wife in response to infidelity, actual or suspected, or, indeed, her choice to leave him.

Provocation is not a proud part of our history. It is something deeply rooted in the idea of a man's honour being more important than another person's life. Indeed, that is why other jurisdictions in Australia have all beaten us to ending the reliance in particular on the gay panic defence—or the homosexual advancement defence—in terms of a man murdering another man, but indeed the suite of provocation defences which are deeply rooted in that very patriarchal and most discriminatory idea that somehow one person who murders has their honour valued more by the courts that the victim's life. Indeed, it is the ultimate in victim blaming, of the dead person who no longer has a voice in that court.

As the Hon. Ian Hunter noted, other jurisdictions have already amended their various structures to abolish the provocation defence. Tasmania was the first to do so in 2003, and it has been abolished in Victoria, in 2005; in WA, in 2008; and in New South Wales, which was reviewing their suite of provocation defences and the gay panic defence when I first wrote to the shadow attorney-general, the now Minister for Health and Wellbeing, and the then Attorney-General, requesting that we follow New South Wales' lead back in 2014.

Until that point South Australia held the dubious honour, if you like, of standing with Queensland as the only jurisdictions not to have acted, as the Northern Territory and the ACT also had amended their defences to exclude non-violent sexual advances, but in 2017 Queensland beat us to it. And here we are in South Australia in 2020, debating a bill that will finally, once and for all, remove the gay panic defence and indeed address the very discriminatory nature, that honour based system, of these provocation defences.

I do congratulate the Attorney-General for her leadership. I do not underestimate that this has been quite a difficult task, but how on earth it took two bills of a private member, two legislative review committees, two SALRI reviews and 10 years to finally crack this nut is beyond me. I do not think it was quite that difficult. We saw not only the perpetuation of the discrimination and the messages—that a man's life is worth less if he is gay—sent out by the leadership of this parliament by our inaction in this matter to the public of South Australia, and we saw it used as a defence in our courts, much, I think, to our shame and our dishonour.

I absolutely concur with the Hon. Ian Hunter that it has taken far too long to get to this point, but I do also concur with his congratulations of our current Attorney-General for being the one who brings this home. I congratulate her for the enormous effort she has put to ensuring this bill gets before this chamber today. I welcome the fact that major political parties on both sides—the government and the opposition—will welcome this and support this piece of legislation. I think it is a historic day. I do find it shameful that it took us so long, but I welcome the good news when it happens, and I hope that we will have a much prouder history of legislative reform in the future.

To that end, I note that I have taken up an amendment and had that filed. It is on behalf of the South Australian Rainbow Advocacy Alliance, which has collated at least 5,000 signatures to date to ensure that we do not stop here with law reform when it comes to what it has called prejudice-motivated conduct. It has called for that to be added as a sentencing factor in South Australia, as it is in New South Wales, Victoria and the Northern Territory. While I do not anticipate the support of the government or the opposition for that particular amendment at this point, I certainly hope it will not take 10 years to get to a point where we are also passing legislation that will affect that.

I am pleased that we are finally getting this job done, but I am sad that it has taken so long to do so. For those who have struggled within their own parties, I congratulate you on your perseverance, because I have had the freedom all the way along in my political party to speak out against the gay panic defence without the various shenanigans that go on behind the scenes in this place that have meant it has taken 10 years to get to this day.

Debate adjourned on motion of Hon. N.J. Centofanti.