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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-05-13 Daily Xml
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Bills

Criminal Law Consolidation (Provocation) Amendment Bill

Introduction and First Reading

The Hon. T.A. FRANKS (16:09): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935. Read a first time.

Second Reading

The Hon. T.A. FRANKS (16:10): I move:

That this bill be now read a second time.

This is the second time that I have introduced this bill. It is a bill that seeks to remove the partial defence of provocation and the homosexual advance test, colloquially known as the gay panic defence. As we have heard in this place, it has been applied in contemporary South Australian law. The bill seeks to assign this mediaeval murder defence to the dustbin of history, where it belongs. I would note that it is now 40 years since South Australia decriminalised homosexual acts. We used to lead in these areas of law reform and we currently lag behind every other state and territory on this particular issue and on many issues where homophobia, sexuality and gender identity apply.

I trust that later this year the government's announced review of equality in areas of sexuality, gender identity and gender will see us once again lead; however, we cannot wait in some areas for the results of that review and we must continue to work where we can to ensure equality and fairness for all South Australians.

This provocation defence applies only where a homosexual man makes a nonviolent sexual advance towards another man and that man murders them. It can be used as a partial defence to downgrade that to manslaughter. It is a defence which sits in the relics of our history, a history that is homophobic and where homophobia was acceptable to the community. However, in this day and age commonly most South Australians would not accept such a presupposition that a nonviolent homosexual advance was something that could be seen as provoking such a violent reaction.

I note that the Legislative Review Committee inquiry will be undertaking its work in coming weeks and months, but I certainly hope not too many months. I draw members' attention to Lindsay v The Queen, a High Court of Australia case allowing an appeal that has quashed the appellant's conviction for murder and ordered a retrial in that case. That means that this issue is very much a pressing one for the South Australian parliament.

I think we, as parliamentarians, should be showing leadership and ensuring that, where there are questions (whether the common law is settled or not and certainly I did not believe that common law could be settled in such a way and the High Court of Australia has certainly given a decision that indicates that the common law is in no way settled in this area), as legislators we can settle matters. I think it is our duty to put our mind to this particular issue and address the gay panic defence, and I would urge members to dump the gay panic defence and I certainly support the words of the Hon. John Darley in his minority report to the Legislative Review Committee's inquiry into my previous bill.

I note that many of the submissions also argued that perhaps we needed to look at all of the provocation defences, and I am certainly not averse to that. Again, perhaps that could be part of the deliberations of the equality review, slated for later this year, and I am certainly intending to put a submission to that review arguing that case, and I am not averse to having those debates. I do think there are better remedies in this day and age than some of these old relics of our past, which I think need to be left behind as we embrace a future of equality. With those few words, I look forward to the report of the Legislative Review Committee, but note that this bill is now tabled in our council, and certainly I hope that that would be an imperative for swift action on this issue.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

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