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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-06-03 Daily Xml
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Provocation Defence for Murder

Adjourned debate on motion of Hon. T.A. Franks.

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.

(Continued from 13 May 2020.)

The Hon. I.K. HUNTER (16:35): I rise on behalf of the Labor opposition to support this motion condemning the continued existence of the so-called gay panic defence and call upon the Marshall Liberal government to deliver, however belatedly, on the promise to abolish the defence, which they made in the lead-up to the last election.

The so-called gay panic provocation defence for murder is deeply rooted in homophobia and discrimination. At its core it holds that a same-sex advance is so abhorrent or menacing or shameful as to provide some partial justification for murder. That is a repugnant notion. It is a relic of a time long gone when such discrimination was not considered unusual, but thankfully it is no longer the case in our great state.

In 2015, the former attorney-general, the Hon. John Rau, commissioned the South Australian Law Reform Institute to review legislative or regulatory discrimination against individuals and families on the grounds of sexual orientation, gender, gender identity or intersex status. The work of SALRI in fulfilling that reference underpinned much of the law reform work done by the former Labor government in 2016 under Premier Weatherill. Recognition of relationships, access to surrogacy and IVF and simplifying the process for a person's birth certificate to reflect their gender identity—these are the reforms of which this parliament can be proud. Each and every one of us in this chamber can be proud that we helped pass laws that measurably improve the lives of LGBTIQ people in South Australia.

Perhaps the largest part of SALRI's work in fulfilling the former attorney's reference is its review of provocation. In two thorough reports published in 2017 and 2018, SALRI explored the complex legal area of provocation and detailed why ending the gay panic defence is not as straightforward as it might seem. In 2016 the former premier, Jay Weatherill, committed to ending the gay panic defence option upon receiving the final SALRI report on provocation. Of course, the final SALRI report was delivered after the 2018 state election, lamentably an election that Jay Weatherill and the Labor government did not win. But the former Labor government's work has given the Marshall Liberal government all the tools it needs to finally end this discriminatory aspect of our law.

This debate is not new. For many years South Australia has been criticised for our lack of progress on this issue, particularly after Queensland passed laws to abolish the gay panic defence, making us the only remaining state or territory in the nation not to have done so. Some have argued that the South Australian parliament did not need to take this action, that the courts had done all the work for us. I must say that I was not entirely convinced by those arguments, but the parliament's Legislative Review Committee in its wisdom twice issued reports in 2014 and 2017, asserting that:

Although the Committee unanimously supports the position that a non-violent homosexual advance should not of itself give rise to any potential defence of provocation, the Committee is satisfied that the law in this regard has already been addressed…

It is worth reflecting on why that notion was wrong and how it has stalled progress on this issue for so long.

In its April 2018 report on provocation, the South Australian Law Reform Institute states that it 'respectfully differs from the suggestion of the Legislative Review Committee that the gay panic defence effectively no longer exists'. It goes on to reference two key High Court decisions, saying that:

A defendant remains entitled, in light of Lindsay (and Green), to claim that a non-violent homosexual advance amounts to provocation and for the defence to be left to the jury on that basis. SALRI adheres to its consistent view that it is objectionable and discriminatory that a homosexual advance is still capable of amounting to provocation.

The case of R v Lindsay is particularly important. It dealt with the case of a South Australian who was alleged to have murdered another man after an unwanted homosexual advance. The High Court heard an appeal from our state Supreme Court and in its judgement, in SALRI's view and that of other legal academics, it makes clear that gay panic still forms part of provocation law in South Australia.

Our state does not have a proud history in this area. We are the last state in the nation to have this discriminatory gay panic defence in our law, albeit common law not statute law, but nonetheless it is there. Despite the claims of some, this was confirmed by a High Court case originating from South Australia. Provocation law is indeed complex. It impacts on many other interested parties, particularly women and victims of domestic and family violence. The government will need to introduce legislation that properly supports these groups, while ending the archaic and discriminatory parts of the law.

But, today, this parliament has the opportunity to make clear to the government of this state that it needs to stop the delays, it needs to keep and adhere to its promise to South Australians and deliver a much overdue updating of the law of provocation in South Australia. Most importantly, this parliament has the opportunity today to call for an end to the legal discrimination against homosexuals in our state. For that I indicate my support, the Labor Party's wholehearted support, and, hopefully, the support of every member of this chamber.

The Hon. I. PNEVMATIKOS (16:41): I, too, rise in support of the Hon. Tammy Franks' motion, and in so doing I thank her for bringing it to the council. This motion comes at a fitting time, as June is Pride Month, and throughout June we celebrate and recognise the impact LGBTQI people have had in our community. June was chosen as Pride Month to commemorate the Stonewall riots. The raid at Stonewall Inn sparked protest and violence for six days. It served as a catalyst for the gay rights movement around the world.

Like the Stonewall riots, change to social policy unfortunately often does not happen without serious harm or injustice to others. The gay panic defence is no different. Too many times this atrocious defence has been used to take away appropriate justice. The gay panic defence is no different. It is time we as a parliament recognised the disproportionate prejudice this defence places on individuals, and amend it before someone else is hurt by this law.

In recent times, our legislation has not kept up with the changing cultural values and attitudes of South Australians. It has seen a slide down the ranks as one of the most progressive states to now the only jurisdiction in Australia to have the gay panic defence. It seems extraordinary that the first Australian jurisdiction to decriminalise homosexuality in 1975 is the last to reform this in the area of provocation. The gay panic provocation defence is unjust, offensive and ultimately discriminatory. It supports the notion that a same sex advance is enough to partially excuse murder.

Not only does this ideology encourage discrimination, but perpetuates the dangerous idea that homophobia justifies murder and ultimately legitimacies violence against LGBTQI people. It is time it was removed. Issues with the provocation defence reach further than the gay panic defence. The operation of provocation is heavily rooted in gender bias and promotes a culture of victim blaming. From a legislative and practice standpoint there are many mechanisms that the Attorney must consider when addressing the gay panic provocation defence.

Current South Australian law fails to adequately reflect the situation of women who experience family violence and who may be driven to kill their abusive domestic partner, or who may be at risk of being killed by their abusive partner. No matter the circumstance, it is unbelievable that the provocation defence still exists when it is so deeply rooted in gender discrimination, and actively promotes a culture of victim blaming. Through media releases and published letters the Attorney has indicated that the department is not just looking at the reform of gay panic defence provocation but at reforming the provocation defence. In an article posted by Alistair Lawrie in February 2020, the Attorney wrote:

The defence of provocation is a complex area of sentencing law, and it is important that the legislation to remove the gay panic defence is properly considered.

I agree that the area of provocation is complex and requires the Attorney to look at provocation defence as a whole. However, reform in this area could have easily been achieved by now. We are over two years into the Marshall Liberal government. That is two years since we were promised reform in this area and it has still not been achieved. The complexities do not excuse the amount of time that has gone by, especially after the extensive research conducted by SALRI into the operation of provocation in 2017 and 2018, as well as parliamentary inquiries.

The Attorney has made comments that it is her intention to progress the bill to consultation in the first quarter of this year. We are now halfway through the year and have no notion that the bill is proceeding let alone any evidence that an actual bill exists. I am proud to stand and support this motion today and hope that it shows the government that we cannot wait for this any longer.

The Hon. C. BONAROS (16:46): I rise to speak in support of the Hon. Tammy Franks' motion calling for the Marshall Liberal government to introduce legislation amending the so-called gay panic provocation defence for murder with urgency and also to echo the sentiments of other honourable members. As we know, South Australia is the only jurisdiction in Australia to allow the gay panic defence as an option under the umbrella of the broader provocation defence to murder.

I find it inconceivable that it is still an option as a partial defence to reduce a charge of murder to manslaughter. I question how in 2020 we as a state, as a community, are still at that draconian position. As we all know, in the early 1970s male homosexuality was still illegal in every Australian state and territory and homosexual activity was being policed by SAPOL's vice squad quite broadly.

As a result of the outcry and outrage over the death of Adelaide University law lecturer Dr George Duncan in 1972, we were the first Australian state to decriminalise homosexual activity way back in 1975. That was 45 years ago. As has been highlighted by Professor John Williams, also my law school lecturer, what happened to Dr Duncan and the reaction to that left a legacy that has changed us all. Again, as Professor Williams has highlighted, we do not make enough of what Duncan's death led to. There are a lot of young LGBTQI people around Australia who do not realise that what they have now all started on the banks of the River Torrens in 1972.

If you believe in silver linings, in this case Dr Duncan's death—his murder—did not go in vain. It meant that we led the nation. Sadly, today, we now trail the nation. Allowing the gay panic defence to be considered by a judge or jury does not reflect our community standards. It reflects highly outdated discriminatory views of the past that have no place in 2020. I think in many quarters of the community it is a little known fact. Most people would assume that such a draconian law was a thing of the past. In SA, of course, that is not the case. In fact, I think the last attempt to use the defence was a mere three years ago.

The gay panic defence was considered by the High Court in 1997, as has been referred to by my colleague the Hon. Ian Hunter, in Green v The Queen. More than 20 years ago, Justice Kirby made the following still relevant observation in his dissenting judgement in that case:

In my view, the 'ordinary person' in Australian society today is not so homophobic as to respond to a non-violent sexual advance by a homosexual person as to form an intent to kill or to inflict grievous bodily harm. He or she might, depending on the circumstances, be embarrassed; treat it at first as a bad joke; be hurt; insulted. He or she might react with the strong language of protest; might use as much force as is physically necessary to effect an escape; and where absolutely necessary assault the persistent perpetrator to secure escape. But the notion that the ordinary 22-year-old male (the age of the accused) in Australia today would so lose self-control as to form an intent to kill or to grievously injure the deceased because of a non-violent sexual advance by a homosexual person is unconvincing. It should not be accepted by this Court as an objective standard applicable in contemporary Australia.

Unfortunately, this was a dissenting view and the High Court further left the option of the gay panic defence on the table in South Australia in the Lindsay case. As we have been reminded, Michael Lindsay was convicted of stabbing a man to death in 2011 and dumping his body in a wheelie bin following an unwanted nonviolent sexual advance by the male victim. The High Court found that the original trial judge did not err in leaving the gay panic provocation partial defence open to the jury.

The exclusion of a nonviolent sexual advance as provocation has been a long time coming, not only because it leads to grave injustices in individual cases but also because it perpetuates the dangerous notion that homophobia justifies murder. I commend the Hon. Tammy Franks for her continuing strong voice and action on this important issue. Successive governments have committed to its exclusion, but to date there has been no delivery on their promises.

The South Australian Law Reform Institute has carefully considered this issue. In 2017, the institute recommended any legislative measure to abolish the use of the gay panic defence be deferred until stage 2 of their report. Stage 2 was delivered in April 2018 and prompted the new and now current Attorney-General to announce her support for removing the discriminatory elements of the defence of provocation as part of the broader suite of legislative amendments.

Clearly, any legislative amendments have to be careful to protect very legitimate defences applicable, such as cases involving domestic violence, but here is a chance to ensure South Australia's law on domestic violence is progressive and victims of domestic violence are given the utmost protection by the law. In April last year, the Attorney-General committed to introducing legislation abolishing the gay panic defence by the end of 2019, and we are still waiting. It is June 2020 and the question has to be asked: how much longer will we wait?

The last state to remove the option of this archaic partial defence was Queensland in 2017. Leaving the option of the gay panic defence on the table sends a terrible message to the community. It is unjust and it is abhorrent. It is as offensive as a racial panic defence. And how would we feel about a racial panic defence? 'Your Honour, the colour of his or her skin made me uncomfortable so I killed him.' It is nauseating, it is sickening and we should all be offended by it. It is no longer acceptable to panic.

I do not think it has ever been acceptable to panic about a gay advance and kill someone. We need to acknowledge that times have changed. We are not living in the 16th century. It sends a shameful message to our children that a person—a victim—is less important because of their sexual orientation. It clearly contradicts the spirit of the Universal Declaration of Human Rights, which declares in its very first article, and I quote:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

There is no place in South Australia for antiquated laws that are in clear breach of fundamental human rights in relation to gender, race or sexual orientation. It should not be an option to get a downgrade on a murder charge because you are apparently uncomfortable. With those words, SA-Best joins other honourable members, and the Hon. Tammy Franks in particular, in urging the government to introduce legislation as a matter of urgency to abolish the option of the gay panic defence. With those words, I commend the motion.

The Hon. J.M.A. LENSINK (Minister for Human Services) (16:54): I move the amendment standing in my name:

Leave out paragraph 2 and insert new paragraph 2 as follows:

2. Acknowledges the ongoing work of the Marshall Liberal government and the Attorney-General to draft and introduce legislation to abolish this provocation defence; and

I rise to acknowledge the repugnant discrimination that the so-called gay panic provocation defence represents and also to advise that this was one of the issues that was raised last year in relation to an LGBTIQA+ round table that was held.

I am proud as a Liberal member that the first member of parliament to move to decriminalise homosexuality in South Australia was indeed the Hon. Murray Hill. I think that his record needs to be acknowledged, in that he initiated some of this legislative reform. While it may have taken longer, his role in this does need to be emphasised.

This government and the Attorney-General made a clear and unequivocal commitment that we as a government would reform the law of provocation to remove the possibility of unwanted same-sex sexual advances being raised as a partial defence to murder. It is offensive and unacceptable, and the government appreciates what the removal of this defence means to so many LGBTIQA+ South Australians. To that end, I can advise that officers in the Attorney-General's Department are continuing to work on the bill to make significant changes to this area of law, largely based on recommendations contained in the SALRI report 'The provoking operation of provocation'.

SALRI had first provided a response to this referral in April 2017. A stage 2 final response was provided to this government in April 2018 and subsequently made public. As recognised by SALRI, this is an incredibly complex area of law, and I think that has been acknowledged by a number of speakers. This reform has been a priority of the government, evidenced by the Attorney's reference to the work in her 2020 Address in Reply speech. While I understand it was the Attorney's intention to have this bill introduced last year, the defence of provocation is a complex area of sentencing law and it is important that the legislation to remove the gay panic defence is properly considered.

Accordingly, it has been necessary for the Attorney to seek expert advice, including from SA Police and the Director of Public Prosecutions, regarding the abolition of the defence in murder cases, as well as to consider further reforms to sentencing and defences relating to family violence. The potential implications of the removal of the defence are significant. There are aspects of provocation laws that should remain in our sentencing regime, including, for example, where domestic abuse victims kill an abuser in self-defence.

As previously announced publicly, the bill will abolish the common law defences of provocation, necessity, duress and marital coercion and substitute statutory defences for necessity and duress. The partial defence of provocation, which has been in some circumstances used as a defence to unwanted homosexual advances, will be abolished. With this comes its own challenges, particularly around the current mandatory life imprisonment and minimum 20-year non-parole period. Extensive work is still occurring to ensure the interests of justice are maintained yet the bill does not open itself to unintended consequences.

The passage of this bill remains a priority for the government. It is the Attorney's intention to progress the bill to wider consultation in coming months. The government will continue to be considered in its response to the SALRI report to ensure those who require protection receive it and those with ulterior motives do not have the opportunity to utilise a possible defence in any way contrary to its intended purpose.

The Hon. T.A. FRANKS (16:58): At the outset, I would like to thank those members who have made a contribution today: the Hon. Ian Hunter, the Hon. Irene Pnevmatikos, the Hon. Connie Bonaros and the Hon. Michelle Lensink. I also acknowledge, as was touched on, the considerable contributions that have been made previously in this place and outside it by various members. I note that the Legislative Review Committee, chaired then by the Hon. Gerry Kandelaars, looked at this issue not once but twice. While there was some mention made of unanimity in the committee's views, I remember that at least the Hon. John Darley had a dissenting report that was contrary, possibly to the first Legislative Review Committee, but possibly to the second inquiry into this issue.

I am yet to find a member of parliament who disagrees that gay panic defence is appropriate or acceptable. Generally, members of parliament say to me that murder is murder and, indeed, the claim that somebody made a nonviolent homosexual advance is no excuse. I say 'the claim' because in some cases, certainly in interstate jurisdictions where this defence has been used, families have advocated for the abolition of the gay panic defence but they have also pointed out that the victim, their dead family member, was not gay.

That is in no way a slight on that, they are just the facts. We do not know what the victim did in these cases. The only person who was heard is the person who killed them, and this is the ultimate in victim blaming. Somebody who did not exhibit violence but is claimed to have made a homosexual advance has their murder seen as lesser because they are claimed to be a homosexual man. This defence is not available to women and it is certainly not available to a woman who murders somebody, let alone a woman who is a victim.

I thank in particular Robert Sims who brought this issue to me almost nine years ago, I think. One of the first things he raised with me when I started as a member of this parliament was how horrified he had been as a young law student to learn that his life was seen as lesser in those university law lectures. That has been one of the ongoing parts of this debate, particularly young gay men learning that their lives are somehow seen as lesser under our current laws. That is why so many years ago now I wrote to the then attorney-general Rau and the then shadow attorney-general Wade seeking their cooperation and using the New South Wales processes and inquiries that had been extensively undertaken at that time to progress this issue.

The correspondence to the shadow attorney-general was responded to, the correspondence to the Attorney-General was not, so I brought a bill to this place. At that time, I noted the complex nature of provocation, the gendered nature of a man's honour often being prioritised and how archaic and out of date that was, but of course the very delicate nature where a woman who has been subject to domestic violence over a prolonged period of time also may be able to avail herself of the suite of provocation partial defences. There are other remedies to that particular matter, and certainly under law, as has been advised to the various committees and their reports and inquiries time and time again, in that particular situation, those women are indeed able to avail themselves of other legal remedies.

But one of the other suite of provocation defences is where a woman leaves a man and so offends his honour that his murder of her is then justified—another provocation defence that we have not spent quite so much time on—and so I absolutely agree with the Hon. Irene Pnevmatikos when she notes the gendered nature of these partial defences in the case of murder that they are, in essence, largely victim blaming and certainly incredibly archaic.

It cannot fail to be noticed just how long this has taken and how many inquiries, reports and words have been uttered. As I said, I have not yet met any particular MP who has said to me out and out directly that they do not agree that this defence needs to go. However, we will not be measured by those words, we are measured by our deeds, and here we are eight years later, still waiting for the laws to change. At first, I was told it would never be used and, in fact, one of the arguments was that it does not really exist. That was certainly the view of the previous attorney-general Rau that at one point he articulated that the defence did not really exist.

Then, of course, it was used in South Australia in the appeal of a man who had murdered another man. He stabbed him multiple times, put him in a wheelie bin and dumped his body. It was drawn on by his very clever legal defence team to use this loophole in the law to say that it should have been properly considered and not dismissed out of hand as not being in keeping with contemporary society. Of course, there were cultural overlays to that, and yet again it delayed law reform in this area.

It is not acceptable to keep making these promises but not actually fix this issue because what we do is we continue the hurt and harm, particularly to gay men but also to LGBTIQ people in this state, by telling them that they are somehow lesser, that they must wait patiently for equality and that their time will come, but that time is not just yet.

We are now the last jurisdiction in Australia to act on this issue. When Queensland beats us by several years, we should be rightly ashamed of our inaction on this matter. I am happy to accept the government amendment in the spirit of a commitment that we will see action. We have been promised action by successive governments. Last year, we were told—at least we had an election commitment finally to it though—that by the end of last year we would see legislation. Recently, around the time of the memorials around the killing of Dr George Duncan, we heard that it would be by the end of this year. That came as a shock and a surprise to many in this community. It is a slap in the face and a betrayal that will not be tolerated much longer.

The time for progressing this is now. The Marshall government has as many reports as it needs to get on with the job and we look forward to there being a piece of legislation before this place during this session of parliament. Sure, it is a complex area, but many legal opinions and minds have gone into this. As we know, defence lawyers do like defences so they do like to keep them. It is time for those defence lawyers to no longer be heard in this debate and for the louder voices, the prevailing voices, to finally be those of people we have treated as lesser for far too long in this state.

I thank all the members of this council for contributing or supporting, and I hope when we do have a piece of legislation incredibly soon on this matter that there will be the same sense of goodwill to get this done. I also acknowledge the work of Murray Hill, which is often overlooked, and of course the leadership of former premier Dunstan. I have forgotten her name, but I actually met the wife of former member Murray Hill.

The Hon. J.M.A. Lensink: Eunice.

The Hon. T.A. FRANKS: Eunice. Thank you, minister. It was Eunice who actually picked up, through her work in the social services—I am not going to say the particular profession because I will probably get it wrong—another area that we should be addressing in this state. She became aware through her counselling, particularly of young people, that there was gay conversion therapy going on in this state. She took it to her husband at the time and in fact was part of making him aware of the injustices and the disgusting treatment that we place upon people, and the rejection that these young people face from their families, their churches and their communities that we cannot any longer continue to tolerate, so I thank Eunice in particular.

It was certainly a pleasure to meet her, but I also note that we still have gay conversion therapy in this state. That is yet another area to address but not until we get the gay panic defence as a partial defence for murder out of this state for good, because of course justice delayed is justice denied and homosexuality is no excuse for homicide.

Amendment carried; motion as amended carried.

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