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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-10-30 Daily Xml
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CRIMINAL LAW CONSOLIDATION (PROVOCATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 1 May 2013.)

The Hon. S.G. WADE (16:01): I rise on behalf of the Liberal opposition to indicate our support for the second reading of the Criminal Law Consolidation (Provocation) Amendment Bill 2013. The Hon. Tammy Franks introduced the bill into the Legislative Council on 1 May 2013. The bill seeks to remove the homosexual advance test as a partial defence to murder. The test is an expression of the partial defence of provocation. In the case of Masciantonio v The Queen, the High Court set out the boundaries of the defence, and I quote:

Homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death while acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did. The provocation must actually cause the accused to lose self-control, and the accused must act whilst deprived of self-control before he has the opportunity to regain his composure.

The homosexual advance test was applied in the case of Green v The Queen (1996). Green hit and stabbed his friend to death after an unwanted, non-violent, sexual approach. The High Court found that the law of provocation should have been considered, and ordered a retrial in the case. At the retrial Green was found guilty of manslaughter and sentenced to 8½ years gaol. The Law Society has provided advice that the case of Green v The Queen was decided on its facts as a jury question. Green was reviewed because the jury was not asked to consider questions it ought to have been asked.

The Hon. Tammy Franks makes a strong case that a non-violent homosexual advance should not constitute a partial defence. I would commend the honourable member on three counts: first, for bringing the bill before the parliament; secondly, for broadly consulting on the issues; and, thirdly, for bringing the fruits of that consultation to not only this house but also to other members so that we can all be better informed of the range of issues that the bill raises. In those consultation responses, the Law Society made it clear that it opposed the bill on the ground that it would confuse the area of law and alter the common law defence of provocation to exclude or otherwise limit the occasions in which a sexual advance may constitute provocation.

Other consultation responses received by the Hon. Tammy Franks included responses from a group of Adelaide University academics from the Law School and the Commissioner for Victims' Rights. Both the commissioner and the academics supported the removal of the homosexual advance test but called for the abolition of the partial defence of provocation. Tasmania, Victoria and Western Australia have all done away with the defence of provocation entirely: Tasmania in 2003; Victoria in 2005; and Western Australia in 2008. Some jurisdictions have chosen not to abolish the defence but rather to limit it from applying in certain circumstances. In the Northern Territory and the Australian Capital Territory a non-violent sexual advance towards the defendant cannot, without other factors, constitute provocation.

A recently released select committee report of the Legislative Council of New South Wales recommended a similar provision for that state and, only last week, the government of New South Wales announced that it will be legislating in accordance with the recommendations of the select committee. In Queensland, I understand, they have made it such that ending or changing a relationship cannot constitute provocation.

The state Liberal team supports removing elements of the criminal law that discriminate between victims or accused persons on the basis of their gender or their sexual orientation. We indicate our support for the second reading of the bill and, specifically, our interest in addressing the issue of the so-called gay panic defence in the context of broader reconsideration of the partial defence of provocation. In that context, I have had discussions with a range of honourable members from the government, the opposition and the crossbenches. In particular, I have discussed the best way forward with the mover and we would both suggest to the council that these discussions would best be progressed through a reference to the Legislative Review Committee.

The bill itself only deals with a part of the partial defence of provocation. I advise the council that if it is minded to refer the bill to the committee, I will, as a member of that committee, move a committee's own reference motion under section 16(1)(c) of the Parliamentary Committees Act. That motion would involve the committee reviewing the partial defence of provocation in the broad sense and the bill in that context. I move:

Leave out all words after 'that' and insert 'the bill be withdrawn and referred to the Legislative Review Committee.'

The Hon. K.L. VINCENT (16:07): I take the floor to speak in very strong support, on behalf of Dignity for Disability, of the Hon. Tammy Franks' Criminal Law Consolidation (Provocation) Amendment Bill 2013. We have before us a bill with a very simple but very positive aim: to remove from our laws the homosexual advance test, more widely known as the gay panic defence. I understand this law is supported, in particular, by a number of professors from the University of Adelaide Law School. I also note with some sadness and disbelief that South Australia is the only remaining national jurisdiction not to have repealed or at least modified provocation as a potential defence to murder, and I am very glad that we have the opportunity to do so today.

There are a few factors which point, I believe, to the idea that this defence no longer has a place in our statute book. First, is the fact that the defence in this case strictly relates to an unwanted advance made by a supposedly same sex attracted person toward a person assumed to be heterosexual. So, for example, if I were a lesbian and I were propositioned by a man, or if I were an asexual and/or aromantic person propositioned by someone of any gender, no such partial defence would be available to me in the event that I react to this proposition by attempting to murder these people. This is surely illogical. Violence is violence and murder is murder and we, as a parliament and as a society, have a duty to stand up and call those things for what they are. The view that a person's life is somehow worth less because they are, or they are believed to be, same sex attracted is, frankly, archaic, barbaric and irrational.

There was once a time in our human history at which it was considered pretty reasonable to kill a person on the grounds that their skin was a certain colour. There was once a time when all of us here may have been considered somewhat noble for taking the life of a woman suspected of witchcraft. This gay panic defence deserves to join those two ideals in the past. Because what we are really talking about here is a law that says that you may have committed a lesser offence if the person you murdered was different. If we as a parliament accept the existence of this 'gay panic' defence, why should someone not be able to murder me and appear in court pleading for a lesser charge on the grounds that they murdered me because I have a disability? This is, after all, a potential point of difference. Difference comes in many forms and, as long as it does not hurt anyone, it should simply be accepted as a normal part of the human experience.

Putting these things aside for a moment, I want to turn—or perhaps return—to a slightly broader question, one that is perhaps the underlying question of the topic at hand: when is it acceptable (or is it acceptable) to respond to an unwanted proposition of any kind from anyone with violence? I understand that many people have different views and different values and that often we find the views and values of others disagreeable in some way, but is it acceptable for violence to be the medium through which we express that disagreement?

The consumption of meat, for example, is against my personal values, but if I am at a dinner party and someone who does not know this offers me a slice of meat lovers pizza, for example, do I then punch or stab that person and later appear in court claiming 'pepperoni panic defence'? No. Perhaps more relevantly, if more than once in my life I have received what I suppose was unwanted romantic and/or sexual attention, as I assume many of us here have at some point—

The Hon. S.G. Wade: Speak for yourself.

The Hon. K.L. VINCENT: The Hon. Mr Wade says, 'Speak for yourself.' I am sure his wife will be glad to know that. It has never even crossed my mind to react to this violently. Yes, I may react with disdain and, depending on the situation, with some anger, but never with violence. I do not think that this is the way most of us would ordinarily react or that this is a reaction that most of us would think appropriate.

The very raison d'être of our statute book is to present and enshrine the values by which we as lawmakers demand South Australians conduct themselves. I would dearly hope, or rather expect, that violence is not one of those preferred values. This being the case, we must stop our laws from protecting even partially, as is the case here, a very dangerous minority.

It is not through violence that we should express our disagreement or seek to change or alter the behaviour of others: it is through clarity of intention. It is through rational debate, through patience and respect for individual circumstances, and perhaps most of all, it is through leading by example. We have here in this bill a great opportunity to lead by example to make South Australian law more just and respectful of the diversity of the people it is supposed to serve. I hope that other members will join Dignity for Disability in grasping that opportunity.

As an addendum, after conversations with both the Hon. Ms Franks and the Hon. Mr Wade earlier, we will be supporting the referral of this bill to the Legislative Review Committee so that we can tackle the issue of provocation more holistically. That is certainly something that is very important. Hopefully we can get an expeditious result on that. With those words, I commend the bill to the chamber but I am also happy to support its referral to the committee.

The Hon. T.A. FRANKS (16:13): I rise briefly to thank both those who have made a contribution to the debate here today in this council—being the Hon. Kelly Vincent and the Hon. Stephen Wade—and also those who have contributed to our engagement in community consultation on this matter.

In particular I would like to note much appreciation to Kate Fitz-Gibbon, who is a lecturer in criminology at the School of Humanities and Social Sciences in Victoria; Kellie Toole more locally, who is at the Faculty of the Professions at Adelaide Law School, where she is an associate lecturer; Anne Gale, the Commissioner for Equal Opportunity; and Michael O'Connell. Among many other submissions, those people I have noted in particular not only supported the intent of my bill but were supportive of an analysis of the partial defence of provocation more broadly; in particular, on not only sexuality but gender grounds. Certainly all have raised the option that perhaps this bill, while it would be a welcome step forward, is not the only step that we need to take.

With that I would like to place on record some of the words received in response to the bill before us today. From Anne Gale, Commissioner for Equal Opportunity:

I fully support and endorse the proposed amendment to the 'gay panic' defence in the law as it currently stands.

I agree that the defence is no longer reflective of community attitudes in our society today and has no place in our justice system. It is a relic of a bygone era where homophobic attitudes were rife and accepted in our community and I agree that the law should be amended to reflect a zero tolerance approach towards discriminatory treatment of individuals based on sexuality.

Michael O'Connell, Commissioner for Victims' Rights, notes the following:

Thankfully campaigning by the women's movement and feminist scholars as well as men's activities such as the White Ribbon Campaign has significantly shifted attitudes and made inroads into behavioural changes, so violence against women and girls is widely understood as an abhorrent violation of females human rights.

Thankfully also the gay and lesbian communities have forged a social shift in public opinion, as evident, for instance, in the broad support for same-sex marriage.

The dead person—no matter his or her gender or sexuality—deserves justice. Those bereaved by the unlawfully killing of a 'loved one' deserve justice. Indeed all people, irrespective of their sexuality, gender, ethnicity, race or other personal characteristic, have a fundamental right to security of person. All in addition have a right to be free of violence.

Cases you cite and others serve as the impetus for law reform. I do not want to be seen to be dismissing your argument for change but I do not support the exclusivity of your proposed reform; rather I urge law reform in a broader context, as mentioned above.

I urge law reform mindful that, on the one hand, unlike some jurisdictions, South Australia has mandatory life imprisonment with a twenty year minimum non-parole, unless there are exceptional circumstances. On the other hand, South Australia has a discretionary life sentence for manslaughter. Thus, any amendments should be based on an awareness of the implications for the existing homicide offences and sanctions.

I am eager that South Australia joins the growing list of jurisdictions where the law on provocation has been repealed or dramatically clarified so as to inspire a bold and fresh law that is relevant to a civil, tolerant and culturally aware society.

With this in mind, I hope that other Parliamentarians seize the opportunity your Bill affords them for a sound analysis of the law in words and in practice, and a wholesome debate. If so, then there is a strong probability that the rights of all 'potential' victims of violence will be extended.

Killing people in response to provocation, such as sexual jealousy or non-violent sexual advances, is unacceptable. Holding those who perpetrate violence culpable is acceptable.

Finally, Kellie Toole, from the University of Adelaide Law School, states:

I write in support of the Criminal Law Consolidation (Provocation) Amendment Bill 2013.

This is a much overdue reform to the South Australian law and I commend you for introducing the Bill.

I support the intention of the Bill unreservedly, but request that you consider:

1. advocating for the complete abolition of the partial defence of provocation, or, alternatively,

2. rewording the proposed s 11A, and

3. broadening its scope to prohibit provocation from applying where a person has killed an intimate partner in the context of the breakdown of a relationship.

South Australia is lagging behind every other Australian jurisdiction in reviewing the partial defence. I understand that you propose the Bill for a particular and important purpose, however, having the issue before Parliament provides an invaluable opportunity to address broad issues regarding provocation.

Certainly, I agree and, knowing that we are very much in the last weeks of our sitting calendar, I do not believe, unfortunately, that full and necessary debate will be possible in this council in coming weeks.

However, I am very supportive of a referral to the Legislative Review Committee to look at this important issue—an issue where we lag behind other jurisdictions in this country, where the voices of the victims should be heard, where it is a gender and sexuality discrimination issue, where there are inequalities in the way that we treat a person in regard to availing themselves of this defence that are, indeed, absolutely imbued in either their gender or their sexuality, and where other jurisdictions have led the way and we can take advantage of the fine work they have done.

Most notably and most recently New South Wales has done an extensive examination of this issue. I am glad that they have progressed, although we all in South Australia like to claim that we are leaders in terms of social reform. This is clearly yet another area where we are not; however, we can learn from the experiences and the inquiries that have gone before us.

I hope that in coming months this issue will not be consigned to be forgotten with the coming election excitement but that its importance and its value are recognised. I believe I do trust the Legislative Review Committee members to take this issue seriously and for us to be further debating important reforms on the suite of the partial defences of provocations in this state with a view to removing those gender and sexuality inequalities. With that, obviously, I will be supporting the motion to refer.

Amendment carried.

The Hon. S.G. WADE (16:21): I move:

That this order of the day be discharged.

Motion carried; bill withdrawn.

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