I am pleased to introduce the Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Bill 2020. This bill implements the preferred recommendations in the stage 1 and stage 2 reports of the South Australian Law Reform Institute, entitled The Provoking Operation of Provocation. The SALRI reports recommended that the common law defence of provocation should be abolished.
At common law, if successfully raised, provocation operates as a partial defence, reducing murder to manslaughter. The defence has been criticised for being complex, gender biased and encouraging victim blaming. It is at odds with community expectations that, regardless of the degree of provocation, ordinary people should not resort to lethal violence. Sometimes referred to as the 'gay panic’ defence, it has been controversial in its use by accused persons who have perpetrated violence against members of the gay community. Notwithstanding the defence was rarely successful in this context, this aspect of its operation is offensive and unacceptable.
I commend the bill to members and seek leave to have the remainder of the second reading explanation and the explanation of clauses inserted in Hansard without my them.
The defence has had some limited utility in the case of women who, having been the victims of prolonged family violence, finally retaliate against their abuser. Absent the defence, these women may be convicted of murder and face a mandatory sentence of life imprisonment, and a mandatory minimum non-parole period of 20 years.
In line with the recommendations in the SALRI reports, the Bill addresses this issue by ensuring that evidence of family violence and the circumstances surrounding it can be taken into account both at trial—particularly in the context of defences of self-defence and duress, where the dynamics of a domestic relationship may be especially relevant—and in sentencing, including in relation to murder. It seeks to strike a balance between ensuring the changes to the law operate fairly and practically and that they do so without unintended consequences.
To this end, the Bill contains amendments to the Criminal Law Consolidation Act 1935 (CLCA), the Evidence Act 1929, the Sentencing Act 2017 and the Bail Act 1985.
Clause 4 of the Bill amends the Bail Act 1985 to provide that there is a presumption against bail being granted to persons accused of murder. They will have to establish 'exceptional circumstances' in order to justify a grant of bail. This change is being made to ensure consistency with how persons accused of other serious offences are treated in relation to bail.
The common law defences of provocation, duress, necessity and marital coercion are abolished by clause 6 of the Bill, inserting new section 14B into the CLCA.
Duress and necessity are replaced by statutory provisions, the latter called 'sudden or extraordinary emergency' (clause 8). These sit with the provisions regarding self-defence and defence of property in Part 3, Division 2, now re-named 'Defences'.
Clause 7 of the Bill amends section 15B of the CLCA. Currently, that section provides that while defensive action needs to be proportionate to the threat, this requirement does not necessarily mean that the force used by the defendant cannot exceed the force used against them.
Clause 7 adds to this by providing that where the defensive action is taken in circumstances of family violence, the question of proportionality is to be determined having regard to any evidence of family violence before the court. This provision makes it clear that evidence of family violence is relevant to both the subjective and objective aspects of the defences of self-defence and duress. That is, family violence is a relevant consideration in assessing both a defendant's beliefs in the context of self-defence and duress, and in assessing the objective reasonableness of a defendant's conduct.
Further, it clarifies that the CLCA provisions are to be construed by reference to definitions of the terms 'circumstances of family violence' and 'evidence of family violence' inserted in the Evidence Act by this Bill.
The new statutory defences of duress and sudden or extraordinary emergency in clause 8 reflect the common law. They do not operate as defences in relation to murder, or related offences such as attempted murder, conspiring or soliciting to commit murder, aiding and abetting murder (and such other offences as may be prescribed by regulation in the future).
New section 15F requires a review of the provisions being inserted in the Criminal Law Consolidation Act by this Bill, 5 years after commencement. The review will consider the effect of the abolition of the common law defences, how amended section 15B has operated, the operation of the statutory defences and whether any further changes are necessary or desirable. This review can be conducted in conjunction with a review of the Evidence Act changes also contained in this Bill.
Clause 9 of the Bill abolishes Part 9, Division 13 of the CLCA and, with it, section 328A. That section contained a defence of marital coercion for (certain) offences committed by a wife in the presence of, and under the coercion of, her husband.
Clause 10 inserts a new division (Part 3, Division 4) in the Evidence Act.
Part 3 of the Evidence Act currently comprises three divisions dealing with rules of evidence in general cases, sexual cases and the admissibility of evidence showing discreditable conduct or disposition.
New Division 4 provides guidance to the courts in dealing with offences committed in circumstances of family violence.
Key concepts such as 'circumstances of family violence', 'abuse' and 'member of a person's family' are defined to assist courts trying and sentencing for such offences. There is an inclusive definition of what amounts to 'evidence of family violence'.
Expert evidence relating to the nature and effect of family violence (called 'social framework evidence') can be admitted in prescribed proceedings to provide context to the experience of victims of family violence.
Prescribed proceedings are those where a defendant asserts the offence occurred in circumstances of family violence and self-defence, duress or sudden or extraordinary emergency are raised by the defendant.
New section 34Y requires a judge to identify and explain the purposes for which evidence of family violence may or may not be used.
As mentioned previously in relation to the Criminal Law Consolidation Act changes, new section 34Z provides for a review of the operation of the provisions in relation to offences committed in circumstances of family violence after 5 years.
Clause 11 of the Bill contains a further amendment to the Evidence Act. It amends s 69A to allow for a court to make a suppression order in relation to evidence given by or relating to a defendant where that evidence relates to family violence suffered by a defendant and is of a humiliating or degrading nature. The operation of this provision will be reviewed after 5 years as part of the review already mentioned.
Clause 12 of the Bill amends section 48 of the Sentencing Act.
Section 47(5)(b) of the Sentencing Act provides that the mandatory minimum non-parole period for murder is 20 years. Section 47(5)(d) provides that the mandatory minimum non-parole period for 'serious offences against the person' is four fiths of the head sentence. ('Serious offences against the person' are major indictable offences that result in the death or total incapacity of the victim, or conspiracy to commit, or aiding and abetting the commission of such an offence.)
Currently, these mandatory minimum non-parole periods can only be departed from where 'special reasons' exist. Section 48(3) contains an exhaustive list of 'special reasons'.
The amendments to section 48 will allow a sentencing court to depart from the 20 year mandatory minimum non-parole period for murder, or four-fifths of the head sentence for serious offences against the person in 'exceptional circumstances'.
'Exceptional circumstances' may include each of the three factors which currently constitute 'special reasons', as well as an additional factor; namely, that the offence was committed in circumstances of family violence. It is no longer an exhaustive list.
Finally, transitional provisions are needed to deal with criminal liability, sentencing and evidentiary issues that arise with the commencement of this Bill.
The transitional provisions will work in conjunction with a staged commencement of the provisions in order to ensure that appropriate provision is made for legal proceedings that are already on foot before the commencement of the Bill.
In some cases, it is appropriate for the law that is applied in those proceedings to remain (and be applied) as it was prior to the proceedings commencing.
In other cases, the new laws can be applied to proceedings that are underway but have not been completed when these provisions commence.
There are separate transitional provisions for each of the amendments to the Criminal Law Consolidation Act 1935 (CLCA), the Evidence Act1929 and the Sentencing Act 2017.
Clause 1 disapplies section 15B(2) and (3) of the CLCA (inserted by clause 7) to trials that commenced before these new provisions become operative. This is to ensure that the law in relation to tests of 'reasonable proportionality', or 'reasonableness' does not change part way through a trial in cases where defences of self-defence, defence of property or duress are raised.
Clause 2 ensures that the new Evidence Act provisions (Part 3, Division 4, inserted by clause 10 of the Bill) apply to proceedings that have commenced but not been completed when the new provisions commence and to proceedings that are commenced after the provisions become operative.
The only exception to this is new section 34Y which requires a judge to identify and explain the purpose for which evidence of family violence can be used. Like clause 15B, it is not feasible for this new provision to apply to trials that are already underway. Rather, this provision will apply prospectively to trials that commence after the new provisions become operative.
Clause 3 relates to the changes made to section 48 of the Sentencing Act. It ensures that the amendments to the Sentencing Act apply in relation to any sentence imposed after the commencement of the amending Act, regardless of whether the proceedings for the offence had commenced prior to or after the commencement of the amending Act. In so doing, it clarifies that the amended sentencing scheme applies to proceedings already on foot at the date of commencement, as well as proceedings that commence after the commencement.
Taken as a whole, the Bill will impact positively on the community by removing defences that are out of step with community expectations—in particular by abolishing the defences of provocation and marital coercion—and by giving the courts greater flexibility to consider defensive actions taken in the context of family violence as mitigating circumstances in sentencing.
It ensures that issues of domestic violence can be properly ventilated in courts by creating special evidentiary provisions relating to evidence of family violence. These provisions put the impact upon victims of domestic violence front and centre of criminal trials and ensure that both the trier of fact and the sentencing court must have regard to such evidence.
The Bill will also ensure that defendants who have themselves been the victim of domestic violence may be afforded the protection of a suppression order in respect of evidence relating to that domestic violence that is humiliating or degrading in its nature, whether that evidence is given by the defendant or another witness.
Explanation of Clauses
These clauses are formal.
Part 2—Amendment of Bail Act 1985
4—Amendment of section 10A—Presumption against bail in certain cases
This clause amends section 10A of the principal Act to include murder in the list of offences where there is a presumption against bail.
Part 3—Amendment of Criminal Law Consolidation Act 1935
5—Amendment of heading to Part 3 Division 2
This clause makes a consequential amendment to the heading to Part 3 Division 2 of the principal Act.
6—Insertion of section 14B
This clause inserts new section 14B into the principal Act, abolishing the specified common law defences.
7—Amendment of section 15B—Reasonableness etc where offence committed in circumstances of family violence
This clause amends section 15B of the principal Act to require a court, in determining certain questions relating to the reasonableness etc of certain conduct where a defendant asserts that an offence occurred in circumstances of family violence, to have regard to any evidence of family violence admitted in the course of the trial for the offence.
8—Insertion of sections 15D, 15E and 15F
This clause inserts new sections 15D, 15E and 15F into the principal Act, codifying the common law defences of duress and necessity abolished by clause 6 as well as requiring a review of the operation of the provisions of the Criminal Law Consolidation Act 1935 amended or enacted by this measure.
9—Repeal of Part 9 Division 13
This clause repeals Part 9 Division 13 of the principal Act, made redundant by the provisions of this measure.
Part 4—Amendment of Evidence Act 1929
10—Insertion of Part 3 Division 4
This clause inserts a new Division 4 into Part 3 of the Evidence Act 1929 as follows:
Division 4—Evidence in proceedings where circumstances of family violence
This proposed section defines terms used in the Division.
34V—Circumstances of family violence
This proposed section sets out the meaning of an offence being committed, or other event occurring, in circumstances of family violence. This meaning applies to all Acts in the absence of a contrary intention.
34W—Evidence of family violence
This proposed section sets out what is evidence of family violence. This meaning applies to all Acts in the absence of a contrary intention.
34X—Certain expert evidence relating to nature and effect of family violence to be admissible
This proposed section allows expert evidence of the nature and effect of family violence to be admissible in certain legal proceedings.
34Y—Trial directions relating to evidence of family violence
This proposed section requires a judge to identify and explain the purpose for which evidence of family violence may, and may not, be used if admitted in the trial of an offence committed in circumstances of family violence.
34Z—Review of Division and section 69A
This proposed section requires the Minister to cause a review of the operation of this Division, and of section 69A, to be conducted.
11—Amendment of section 69A—Suppression orders
This clause amends section 69A of the principal Act to allow a court to make suppression orders in relation to certain evidence relating to family violence.
Part 5—Amendment of Sentencing Act 2017
12—Amendment of section 48—Mandatory minimum non-parole periods and proportionality
This clause amends section 48 of the principal Act to allow a sentencing court to set a lower non-parole period than that required under section 47 of that Act in prescribed or exceptional circumstances. Exceptional circumstances may include the commission of an offence in specified circumstances of family violence.
Schedule 1—Transitional provisions
This Schedule makes transitional provisions in respect of how this measure affects matters that are on foot at the time the measure comes into operation.
Mr PICTON (Kaurna) (17:09): Can I start by passing on my congratulations to you, Deputy Speaker, on your announcement of your retirement and thank you for your service. Not many people leave this house with tremendous respect from both sides, so congratulations to you. I rise to speak on this bill and indicate that I am the lead speaker for the opposition. I also indicate the Labor Party's support for this important piece of legislation.
Whilst this bill extends well beyond the issue of provocation, that element is certainly the one that gives rise to today's debate. In simple terms, provocation has operated as a partial defence at common law for much of our legal history. If the defence was made out, a defendant could have a conviction for murder reduced to the lesser crime of manslaughter. Over the centuries, provocation has been used in other places and times to deal with a range of circumstances. These included, for instance, a man killing his wife's lover if he discovered them being unfaithful. It may also have covered a response to a person's child being killed.
Sadly, it has also been used around the world, and here in South Australia from time to time, where a defendant claims that a homosexual advance provoked them to kill the other person. That defence is wrong for many reasons, including its gender bias and its victim blaming. It does not meet the standards we have as a community that should be in our law today. The defence has also had the effect of excusing the use of lethal violence when it is not necessary and when other reasonable responses were available.
There is wide agreement in the community now that the so-called gay panic defence element of provocation is offensive, discriminatory and excuses homophobic conduct. Certainly, the time for it to end is well past. Despite the outdated gay panic defence, though, the idea of provocation defence still has some utility in domestic and family violence cases. When provocation is talked about, it is often mentioned primarily in relation to gay panic, but there are a number of other areas of provocation used in the law.
I think one of the elements where it has been used particularly in South Australia is because we have a mandatory life sentence for murder and a mandatory non-parole sentence, which means that these sorts of other defences come to the fore as well. For example, some utility could be someone who is subjected to a long, prolonged violence, perhaps domestic violence, who may retaliate against their abuser but cannot establish that their actions were self-defence.
Labor did not pass legislation to abolish provocation under statute while in government. Primarily, this was due to the belief—including as was said by the Chief Justice at the time, I believe, Chief Justice Kourakis—that it no longer operated under South Australian common law. There was a view that because it was no longer the community standard it no longer existed in the common law. However, that idea was extinguished, unfortunately, when we had a High Court judgement in the Lindsay case that confirmed that the gay panic aspect had not been extinguished.
Following the High Court case, the previous Labor government asked the South Australian Law Reform Institute to inquire into the rights of and discrimination against LGBTQ people. SALRI's work on this matter gave rise to an audit report and two formal research reports totalling almost 550 pages. The executive summary of the initial audit report describes at the very beginning:
In January 2015 the Attorney-General of South Australia, the Honourable John Rau MP, invited the South Australian Law Reform Institute (SALRI) to accept a reference to inquire and report on those South Australian laws that discriminated against particular members of the community.
The reference was announced as part of the speech of the Governor, His Excellency the Honourable Hieu Van Le AO, at the opening of Parliament on Tuesday 10 February 2015. In particular, the Governor stated that:
'My Government will invite 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.
Their recommendations will then be considered in the South Australian Parliament.'
The report goes on to state:
The desktop audit has determined that there are over 140 pieces of legislation that, on their face, discriminate against individuals on the basis of sex or gender diversity.
The report further states:
SALRI provides examples of this type of legislation and suggestions for how legislation in this category can be quickly amended or removed.
While SALRI was able to isolate legislation that, on paper, had a discriminatory effect, by far the most compelling evidence came from the consultations and submissions of individuals regarding the impact of current legislation upon their lives. The lived experience of individuals places, in stark relief, the operation of law on matters that are fundamental to all South Australians. The individuals consulted asked searching questions of the law and the values it enshrines. How does the law assist me to be the person I am? How does it support me to engage, free from discrimination, in the community in which I live? How can I have the relationship with the person I love recognised and start to raise a family in South Australia? These and other questions only served to highlight the discriminatory barriers that members of the LGBTIQ communities face in their daily lives.
Through the targeted consultations, submissions and use of YourSAy—the state government online consultation website—SALRI was able to determine legislation that was of particular concern for the LGBTIQ communities.
This audit report made recommendations about matters that required further review and reporting by SALRI. Recommendation 2.8 said, and I quote:
The existing common law partial defence of provocation that permits homosexual advances to constitute circumstances of provocation, having regard to the full range of complex issues arising from this defence. SALRI will also consider any relevant recommendations of the South Australian Legislative Review Committee, as well as relevant interstate reforms including the Crimes Amendment (Provocation) Act 2014 (NSW).
This recommendation was accepted by the Labor government at the time and SALRI was asked to undertake further work. The first stage SALRI report was delivered in April 2017 and ran to 150 pages. The executive summary provided some context for the work that was undertaken and the work that remained unfinished at the time, and I quote:
South Australia has historically been at the forefront of developing and implementing laws designed to prohibit unlawful discrimination and to promote equality. The state was the first Australian jurisdiction to introduce sex discrimination legislation and the Sex Discrimination Act 1975 (SA) took full effect from August 1976. It was the first jurisdiction to legalise consensual homosexual acts in 1975 in the aftermath of the tragic death of Dr George Duncan in 1972.
This Report contains the first stage of findings of SALRI’s further consideration of the operation of the law of provocation and related issues. SALRI was clear in the Audit Report that the current law needed reform to remove its discriminatory gay panic aspect. However, this aspect of provocation is only part of a wider picture. The role, scope, and even the existence, of provocation as a partial defence to murder, is controversial and has been the subject of extensive study and criticism. The whole issue of provocation is complex (including its interaction in South Australia with the mandatory sentence for murder). The problems of provocation extend [well] beyond its impact on LGBTIQ communities and encompasses gender implications, especially in its application to victims of family violence.
The second stage of SALRI's work on provocation was delivered in April 2018 just after the election and ran to 238 pages. The executive summary of the second stage reflected the complexity of the issues that needed to be addressed, particularly seeking to avoid any unintended but well intentioned reforms. I quote again:
…the Stage 1 Report described that reform to the law of provocation was necessary beyond simply discarding the gay panic aspect and that more radical reform of the present law is necessary. In particular, a strong criticism of the present law expressed in the Stage 1 Report was that the defence of provocation is gender biased and unjust, namely that it unfairly favours male defendants (especially those who have killed a female partner) while applying unfairly to women accused of murder (especially those who have been subjected to prolonged family violence). SALRI noted that the current law in this area in South Australia needs reform to remove any aspect of the law that discriminates on the basis of sexual orientation and/or gender.
The Stage 1 Report outlines the many criticisms of the present law. It is widely asserted that ‘the operation of the [partial] defence [of provocation] is gender biased, anachronistic and archaic and promotes a culture of “victim blaming”; that the legal test is conceptually confusing, inappropriately privileges a loss of self-control and is difficult for juries to understand and apply; and that provocation can be adequately dealt with at the sentencing stage, as it is in all other criminal offences’. The New Zealand Law Commission concluded that 'both conceptually and in practice we consider the partial defence of provocation to be irretrievably flawed'. SALRI accepts these criticisms of the present law are well-founded. The criticisms of provocation are such that all Australian jurisdictions bar South Australia have now either abolished it entirely or at least narrowed the scope.
SALRI emphasises that any effort at meaningful reform must include the wider issues in this area beyond the gay panic aspect.
Those two SALRI reports, the second of which was delivered over 2½ years ago now, have led us to the bill that we are finally debating today. The Liberals of course promised to act on this, but it was not until it was actioned in the upper house to move on this that we now have this bill 2½ years after the second SALRI report.
Whilst the delay may be criticised, the content of the bill delivers on the substance of what was recommended 2½ years ago. Importantly, it takes away the ability for a person to claim that a sexual advance was an excuse to kill, while providing a range of protections and supports for victims of family violence.
Looking at the technical issues of the bill, noting that this bill has been debated already in the other place, I will not go into every aspect of the bill but will provide a summary of some of the key provisions. Most people may think that this already exists under law, but the bill amends the Bail Act so that a charge of murder has the presumption against bail. The bill abolishes the common law defences of provocation, duress, necessity and marital coercion. As a transitional measure, these defences will be available for offences that are allegedly committed before the bill's commencement.
In abolishing these defences, it introduces various statutory provisions that provide greater clarity for defendants, lawyers and courts in dealing with these issues. For example, the Criminal Law Consolidation Act will have new sections that deal with duress and sudden or extraordinary emergency, but these will not be available for a prescribed offence, including murder, attempted murder, conspiring or aiding and abetting to murder.
As noted earlier, the bill makes a number of changes to protect and support victims of family violence. For example, the bill amends provisions regarding self defence, so that where a defendant asserts their offence occurred in a situation of family violence the court must have regard to the circumstances of family violence when determining reasonable proportionality.
The new provisions exist in addition to the current provisions regarding self defence and reasonable proportionality that require a defendant to, firstly, genuinely believe their conduct was necessary and reasonable for a defensive purpose (a subjective test) and, secondly, prove their conduct was reasonably proportionate to the threat they genuinely believed to exist (an objective test). It should be noted that the defendant's conduct in self defence may exceed the force used against them if it is reasonable to do so.
After debate in the other place, the bill now includes a five-year review mechanism. It requires the minister to conduct a review with a report that must address the effects of the new sections, the abolition of the common law defences, its effects on family violence and other considerations. Without going into specific detail, the bill amends the Evidence Act to introduce a range of new definitions regarding family violence and new provisions with regard to taking and considering evidence where family violence is asserted. The definition includes that a single act can amount to abuse, as can multiple acts that form a pattern of behaviour, even though some acts may appear trivial in isolation.
The bill defines 'family violence' and 'members of the person's family' in a broad way to account for various, diverse family structures and allows a wide variety of materials to be used as evidence of family violence. As a final comment on the technical aspects of the bill, it also amends 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 is 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 time has come for these changes to occur. They have the full support of the opposition to remove this very outdated, very damaging defence from our common law. We support this bill. We encourage the government to enact it without delay so that hopefully we can make sure that nobody else in this state uses these very outdated, very offensive defences in the future.
The Hon. D.G. PISONI (Unley—Minister for Innovation and Skills) (17:24): I want to make some remarks in regard to the bill and my support for the bill. I have been an advocate for these changes for a very long time. We should note that this has been driven by the Attorney-General, the member for Bragg, who I know as Vickie Chapman. I know I should not be using her name in this place, but she does deserve to be recognised.
It should also be noted that this has happened within the first term of a new government. The previous government was here for 16 years and did not bring a bill like this to the parliament. I am very pleased that the first woman Attorney-General in South Australia has seen how important it is to remove this provocation defence that enables somebody who might be approached for a date by someone of the same sex to use that as an excuse to murder that person, as though that is some sort of provocation.
The best answer to any question that somebody asks you about something you may not want to participate in is to say no. That is the best and easiest answer. It is certainly not an appropriate response to then take that person's life because of whatever reason. The member for Kaurna is right: this has taken far too long to come to this place. I am very pleased that the Labor Party, after not acting on this for 16 years, are now supporting this change.
I think what is also important about this is that it still enables women who are victims of domestic violence to have a defence based on their treatment. Those who have experienced it personally or experienced it professionally would know that domestic violence comes across in many different forms, whether it be the financial control of someone, whether it be physical violence or whether it be the isolation of a partner by the dominant partner, predominantly the man. I am not speaking out of turn when I say that the perpetrator in relationships is almost exclusively the male.
I congratulate the Attorney-General on bringing the bill to the parliament. I am very pleased that it will have a quick passage through this place and that we will be able to not only put a new protection in place for LGBTIQ people but also take another step towards removing discrimination and the stigma that these members of our community have been forced to deal with their entire lives.
I have a dream that the only time one's sexual orientation is of interest is when somebody wants to ask you out, otherwise what does it matter? If you are asked out and it is not of interest to you, you can simply say, 'No, thank you for the offer. I am flattered but, no, it's not for me.' It is a very simple way of dealing with the situation and I congratulate the Attorney-General on bringing the bill to the parliament.
Ms LUETHEN (King) (17:29): I rise to support the Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Bill, introduced by the Attorney-General, on behalf of people living in King. This Marshall Liberal government and the Attorney-General have made a clear and unequivocal commitment that we 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 our government appreciates what the removal of this defence will mean to so many LGBT Australians.
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. By way of background to the house, the provocation defence has been used to reduce convictions of murder to manslaughter in circumstances where a heterosexual man has killed another man for making a pass at him. It was raised in a case in South Australia as recently as 2015, the last state to allow the defence.
It was reported that more than 25,000 people, including 2,500 based in Adelaide, signed a petition asking for the removal of this defence and for stronger laws to protect victims of hate crime. 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 and menacing or shameful as to provide some partial justification for murder. That is an offensive 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 2020. It is time for this defence to be 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. Our government has also carefully considered how the 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.
This year, a university student, Evangeline Polymeaneas, investigated and prepared a report for me as part of her studies, called 'Rape myths and their implications: a report on law reform in South Australia', and I see some similarities. In this report, Evangeline states:
Criminology literature suggests that social perception of a crime and the likelihood of escaping accountability are some of the significant reasons that individuals commit crime…Those who would otherwise refrain from committing a crime, when they see an opportunity to, feel as though they would not be held accountable, can justify to themselves that it is not a crime, are much more likely to commit a crime.
We are making changes to South Australian law to make it very clear to community members that there will be strong consequences for serious violence against our South Australian community members. Clearly, in this bill we are talking about non-threatening or nonviolent sexual advances.
In preparation for this bill, the South Australian Law Reform Institute 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 a 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 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, as we said, 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 or unjust. A murder conviction carries a mandatory sentence of life imprisonment, with a mandatory minimum non-parole period of 20 years.
The drafting of this bill has been a complex process requiring careful consideration and consultation with criminal law experts. It has been necessary for the Attorney to seek expert advice, including from South Australia 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, and 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.
In essence, the bill removes defences that are out of step with community expectations and gives the courts greater flexibility to consider all the mitigating circumstances in sentencing. Laws that legitimise and excuse violent and lethal behaviour against any member of the community have no place anywhere in South Australia and no place anywhere in Australia.
On behalf of people living in King, I support the introduction of this legislation and hope that the South Australian parliament will support the bill to protect all victims of hate crimes in sentencing decisions. I commend the bill to the house.
Ms COOK (Hurtle Vale) (17:36): Sir, congratulations on your announcement. You will be very much missed, but I look forward to one more year with you. As the spokesperson for Labor, the inclusion of our LGBTIQ-plus community gives me great pleasure. It is pretty appalling that someone's gender or sexuality can be used as any form of excuse in the eyes of the law and, sadly, we are the last remaining state to allow such a thing as gay panic.
This defence is appalling not only in its discriminatory nature but also in the way it perpetuates the very appalling attitude over time of people in a small section of the community against people and their choice around sexuality. The marriage equality debate that has happened over many years in Australia ultimately has resulted in an absolutely outstanding show of support for the LGB community, and this is a natural progression. I know that we had many discussions prior to the last election and came to a point of commitment around doing positive work in this space, and I am really pleased to see that this bill has come forward.
This perpetuation of homophobia, and the approach of a same-sex person to another being so abhorrent and so appalling that it would justify murder, that we have for so long considered to be acceptable is something that completely mystifies me. Many public statements have been made to the contrary. I know that former equal opportunity commissioner Nikki Vincent made public calls for the repeal of this and talked about the common law gay panic defence no longer being reflective of community attitudes in our society today—something we completely support.
I know that concern has been raised regarding the removal of this defence and the implications in regard to domestic violence cases. I am confident we are dealing with that and that this is not relevant to what we are talking about. I feel very comfortable that we will move forward to a point where we are able to discriminate between the two quite clearly.
I know we have had quite a number of inquiries into this. The gay panic defence is a product of very old attitudes that we need to squash and get rid of. I think if we refuse to take action on this, we are sending all the wrong signals to our one community, which is inclusive and accepting of people and their choices around gender and sexuality.
People from the community have contacted me in support of what is happening in this space, along with conversations we have been having around other things that mystify me, such as gay conversion therapy. For me, it is an obvious next step in our community: to grow and become a modern community where everybody has equal standing and respect.
There is no legitimate excuse for murder under any circumstances and there should be no defence such as gay panic. I am pleased that this has come to the parliament. I am pleased that we are now part of what is happening in every other state, and I support and commend this bill.
The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (17:41): I thank the members who have made a contribution to this debate and for their indication of support. There are certainly very important reasons as to why we are promoting this law reform. I feel very proud that our government and the party room have endorsed, with the support of the parliament, the conclusion of this legislation in order to produce much-needed reforms.
There is the gay panic aspect of this, which has been of concern. The member was quite right in referring to the Lindsay case. I am not sure that the Chief Justice suggested it was not ever to be available and that the common law was dead, but maybe they relied on comments he had made to suggest that it was not necessary to progress the legislation.
I certainly had conversations with the former Attorney-General about those matters, but let's be very clear on making an approach for a sexual invitation: although Minister Pisoni suggested that you can just say no, the reality is that women who have received sexual advances from men have not been able to avail themselves of this absurd scenario of being able to kill somebody as a result. If they had, frankly there would be a lot of dead men around.
This is an important part of reform to, firstly, make sure that we remove the outdated aspects of that and, secondly, that we recognise, in circumstances where somebody has been killed and there has existed a level of abuse and domestic violence that is able to be proportionally recognised, that factor should be taken into account.
There has been a lot of work done by the Commissioner for Victims' Rights, the DPP, SAPOL and a number of other stakeholders. I particularly recognise them because they were very instrumental in ensuring we did not throw out the baby with the bathwater. I also want to recognise the Hon. Mark Parnell, who raised an issue with us arising out of some academic research. A lot of people have made a significant contribution to the development of this law. I am very proud of it. I am deeply appreciative to the parliament for supporting this and I will certainly exercise every endeavour to ensure this law reform comes in as promptly as possible after the passage of the same.
Bill read a second time.