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Speech: Statutes Amendment (Abolition of Defence of Provocation & Related Matters) – 2nd Reading Speech

The Hon. T.A. FRANKS (16:47): I rise as the Greens' gender and sexuality spokesperson to support the Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Bill 2020. Indeed, I associate myself with the remarks of the Hon. Ian Hunter in noting that South Australia is in a race to the position of last to finally reform what is known colloquially as the gay panic defence.

But here we are—I think I have been talking in this place for some 10 years about abolishing the gay panic defence and when I first did so I noted that I thought I could resolve the matter with a simple letter to the Attorney-General and the shadow attorney-general. Little did I know the ways of parliament and the law and the deep, deep discrimination that the provocation defence held in our community.

Indeed, the provocation defence originated in the 1600s and 1700s and it was in circumstances where the death penalty for murder was not only available but was usually imposed. Of course, that death penalty has now been abolished in all jurisdictions in Australia and provocation emerged as a partial defence to murder in those cases, operating to reduce that murder conviction to one of manslaughter in scenarios where the defendant killed while suffering some sort of temporary loss of self-control, the rationale back then being that a man was justified in killing in four situations: to free a person who was unlawfully deprived of their liberty; in response to a grossly indecent assault; in defence of another; or when killing a man who had committed adultery with one's wife—'one' being a man, of course.

A product of the heteronormative and patriarchal society, this defence operated to ameliorate the criminal responsibility of men—specifically men—where their sense of male dignity or honour was compromised. Provocation was often invoked in cases, for example, where a jealous husband would kill his wife in response to infidelity, actual or suspected, or, indeed, her choice to leave him.

Provocation is not a proud part of our history. It is something deeply rooted in the idea of a man's honour being more important than another person's life. Indeed, that is why other jurisdictions in Australia have all beaten us to ending the reliance in particular on the gay panic defence—or the homosexual advancement defence—in terms of a man murdering another man, but indeed the suite of provocation defences which are deeply rooted in that very patriarchal and most discriminatory idea that somehow one person who murders has their honour valued more by the courts that the victim's life. Indeed, it is the ultimate in victim blaming, of the dead person who no longer has a voice in that court.

As the Hon. Ian Hunter noted, other jurisdictions have already amended their various structures to abolish the provocation defence. Tasmania was the first to do so in 2003, and it has been abolished in Victoria, in 2005; in WA, in 2008; and in New South Wales, which was reviewing their suite of provocation defences and the gay panic defence when I first wrote to the shadow attorney-general, the now Minister for Health and Wellbeing, and the then Attorney-General, requesting that we follow New South Wales' lead back in 2014.

Until that point South Australia held the dubious honour, if you like, of standing with Queensland as the only jurisdictions not to have acted, as the Northern Territory and the ACT also had amended their defences to exclude non-violent sexual advances, but in 2017 Queensland beat us to it. And here we are in South Australia in 2020, debating a bill that will finally, once and for all, remove the gay panic defence and indeed address the very discriminatory nature, that honour based system, of these provocation defences.

I do congratulate the Attorney-General for her leadership. I do not underestimate that this has been quite a difficult task, but how on earth it took two bills of a private member, two legislative review committees, two SALRI reviews and 10 years to finally crack this nut is beyond me. I do not think it was quite that difficult. We saw not only the perpetuation of the discrimination and the messages—that a man's life is worth less if he is gay—sent out by the leadership of this parliament by our inaction in this matter to the public of South Australia, and we saw it used as a defence in our courts, much, I think, to our shame and our dishonour.

I absolutely concur with the Hon. Ian Hunter that it has taken far too long to get to this point, but I do also concur with his congratulations of our current Attorney-General for being the one who brings this home. I congratulate her for the enormous effort she has put to ensuring this bill gets before this chamber today. I welcome the fact that major political parties on both sides—the government and the opposition—will welcome this and support this piece of legislation. I think it is a historic day. I do find it shameful that it took us so long, but I welcome the good news when it happens, and I hope that we will have a much prouder history of legislative reform in the future.

To that end, I note that I have taken up an amendment and had that filed. It is on behalf of the South Australian Rainbow Advocacy Alliance, which has collated at least 5,000 signatures to date to ensure that we do not stop here with law reform when it comes to what it has called prejudice-motivated conduct. It has called for that to be added as a sentencing factor in South Australia, as it is in New South Wales, Victoria and the Northern Territory. While I do not anticipate the support of the government or the opposition for that particular amendment at this point, I certainly hope it will not take 10 years to get to a point where we are also passing legislation that will affect that.

I am pleased that we are finally getting this job done, but I am sad that it has taken so long to do so. For those who have struggled within their own parties, I congratulate you on your perseverance, because I have had the freedom all the way along in my political party to speak out against the gay panic defence without the various shenanigans that go on behind the scenes in this place that have meant it has taken 10 years to get to this day.

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