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Motion: Gay Panic 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


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.

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