Queensland Introduces Bill To Amend Provocation Provisions To Limit “Gay Panic” Defence
Monday 5 December 2016 @ 12.25 p.m. | Crime
Queensland has introduced a bill to amend its provisions relating to the defence of provocation, in an attempt to limit the so-called ‘gay panic defence’. The Criminal Law Amendment Bill 2016 was introduced by Queensland Attorney-General Yvette D’Ath on 30 November 2016 and has been referred to the Legal Affairs and Community Safety Committee for consideration. The Bill also amends a number of other Acts within the Attorney-General’s portfolio.
Introducing the Bill into the Legislative Assembly, Ms D’Ath acknowledged the importance of the amendments to the lesbian, gay, bisexual, trans and intersex community, saying the Bill
“fulfils our government’s pre-election commitment to make such amendment. The government acknowledges the importance attached to this reform recognising as it does the modern and progressive society Queensland is in 2016.”
Provocation and the “Gay Panic Defence”
As the law currently stands, the ‘gay panic defence’ is not a standalone defence. Section 304 of the Criminal Code, “Killing on provocation” provides that:
(1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool, the person is guilty of manslaughter only.
The ‘gay panic defence’ or ‘homosexual advance defence’ is a subset of this defence, where people accused of murder argue they were provoked due to a homosexual advance. The defence has been used a number of times in Australia, as outlined by this SBS article, including successfully in the High Court in Green v The Queen (1997) 191 CLR 334.
While the defence itself is not outlined in the Criminal Code provisions, other States have introduced legislation that specifically restricts non-violent sexual advances from being used to constitute a provocation defence. According to SBS, the only two states where the defence can still be used are Queensland and South Australia.
The Bill’s Provisions
The Bill would insert new subsections into section 304 of the Criminal Code:
(3A) Further, subsection (1) does not apply, other than in circumstances of an exceptional character, if the sudden provocation is based on an unwanted sexual advance to the person.
(6A) For proof of circumstances of an exceptional character mentioned in subsection (4), regard may be had to any history of violence, or of sexual conduct, between the person and the person who is unlawfully killed that is relevant in all the circumstances.
(9) In this section—
unwanted sexual advance, to a person, means a sexual advance that—
(a) is unwanted by the person; and
(b) if the sexual advance involves touching the person—involves only minor touching.
These changes apply to the use of provocations based on both unwanted heterosexual and homosexual advances, with an exception for ‘circumstances of an exceptional character’.
Ms D’Ath also highlighted the importance of the new subsection (6A), saying it was particularly important because the defence of provocation is also used by victims of family violence who may unlawfully kill their partners after receiving an unwanted sexual advance, where this is in the context of a long history of abuse.
The Committee is due to report on the bill in February 2017. Ms D’Ath told the Brisbane Times that she hoped the Bill would be debated in Parliament again “very early in the new year”.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
Sources:
Criminal Law Amendment Bill 2016 (Qld), Explanatory Notes and Explanatory Speech - available from TimeBase's LawOne service
Criminal Code Act 1899 (Qld) - available from TimeBase's LawOne service
A sordid history of the gay panic defence in Australia (Ben Winsor, SBS, 12 August 2016)
