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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2020-07-23 Daily Xml
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Ministerial Statement

Provocation Defence for Murder

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (14:02): I seek leave to make a ministerial statement.

Leave granted.

The Hon. V.A. CHAPMAN: The South Australian Law Reform Institute (SALRI) has released two reports examining the operation of the common law defence of provocation, which provides a partial defence to murder by reducing what would be conviction for murder down to manslaughter.

The SALRI reports recommend that the common law partial defence of provocation should be abolished. It is complex and difficult to understand, gender biased, encourages victim blaming, offensive in its application against victims who are gay, and is at odds with community expectations that, regardless of the provocation, ordinary people should not be driven to lethal violence.

However, there are circumstances where the defence has some limited usefulness—for example, in the case of a woman who, having been a victim of prolonged family violence, finally retaliates against her abuser. In such circumstances, the partial defence of provocation can mitigate the crime of murder to manslaughter.

The abolition of provocation, without further amendment to the criminal law, may mean women in this state who kill their abuser are charged with murder in circumstances where that would be inappropriate and unjust. A murder conviction carries a mandatory sentence of life imprisonment, with a mandatory minimum non-parole period of 20 years.

To address this, SALRI also recommended amendments to the defence of self-defence and provisions to ensure that courts are better able to take account of mitigating factors in sentencing for murder where these occur in circumstances of family violence. The Statutes Amendment (Provocation, Self Defence and Sentencing) Bill 2019 proposes amendments to the Criminal Law Consolidation Act, the Evidence Act and the Sentencing Act to give effect to the recommendations made by SALRI.

I reiterate my previous statements: the gay panic defence is offensive and unacceptable, and the government appreciates what the removal of this from the law means for many in the LGBTQ community. While the SALRI reports gave detailed consideration to various options and models, they did not go into the practical means or effect of changing the criminal law in this area. The drafting of this bill has been a complex process, requiring careful consideration and consultation with criminal law experts. However, I expect that further changes may be necessary.

I therefore invite, in tabling this bill, feedback from justice stakeholders and relevant interest groups to ensure that any changes to the law operate fairly, practically and without unintended consequences. I table the bill.

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