Queensland Passes Legislation Removing "Gay Panic" Defence

Wednesday 22 March 2017 @ 11.28 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

Yesterday (21 March 2017), the Queensland Parliament passed the Criminal Law Amendment Bill 2016 (the Bill), being legislation which removes the so-called gay panic defence from the Queensland Criminal Code (the Code) (see our article Queensland Introduces Bill To Amend Provocation Provisions To Limit “Gay Panic” Defence). In a Media Release, the Queensland Attorney-General, Yvette D'Ath (the AG), stated that in passing the legislation, the government was honouring an election commitment to remove the archaic piece of legislation. The main thrust of the Bill is the amendment of section 304 of the Code, removing unwanted sexual advance as a partial defence of provocation for murder.

Background and Overview

Prior to the removal of the "gay panic defence", the position under the Code section 304 was that the defence was not a standalone defence which reduced murder to manslaughter, but required, “killing on provocation”, section 304(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" also referred to as the "homosexual advance defence" is a part of the more general defence arising out of section 304, where people accused of murder argued they were provoked due to a homosexual advance (see the High Court Case Green v The Queen (1997) 191 CLR 334 for an overview of the case law).

While the defence itself is not outlined in the actual Code provisions, it is not specifically precluded as part of wider provocation defence, other States have introduced legislation that specifically restricts non-violent sexual advances from being used to constitute a provocation defence. Afeter the passing of the Bill by the Queensland Parliament and its enactment, the only state remaining where the defence can still be used is South Australia. In South Australia both the Premier and the Attorney-General have promised action on this front but the Criminal Law Consolidation (Provocation) Bill 2013 (SA) which would have addressed the matter has been held up because the Government, according to the Attorney-General, is waiting on the resolution of a long-running murder case before making any decisions.

Resulting Changes to the Queensland Code

The Bill inserts new subsections (3A), (6A) and (9) into section 304 of the Code which make changes applying to the use of provocations based on both unwanted heterosexual and homosexual advances, with an exception for ‘circumstances of an exceptional character’ as follows:

(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.

Other Change Made by the Bill

The Bill also made some other minor and technical amendments to the criminal laws of Queensland, supporting the continuing effective operation of our criminal justice system. The changes increase the maximum penalty from two to five years for interfering with a corpse, make the sentence for the offence cumulative, and ensure offenders serve 80 percent of their time, if the combined sentence is greater than 10 years. The Bill also amends the Jury Act to modernise a court’s ability to use technology in jury selection processes, including the option to communicate with prospective jurors electronically.

Reaction and Comment

In her Media Release, the AG stated that the legislation addressed an "unacceptable inequality" saying:

"Queensland's criminal code must not be seen to condone violence against the gay community, or indeed any community, . . The passing of this legislation sends an important message that discrimination is not acceptable and that we value the LBGTI community."

In the AG's view, the legislation now created a position of "equality before the law":

“Equality before the law is a fundamental principle of human rights and the amendment to section 304 [of the Code] will ensure that this provision operates equally for all members of our community,”

The Queensland opposition supported the Bill, and shadow Attorney-General, Ian Walker, is reported as having agreed with the importance of the changes.

The AG's Media Release also quotes Father Paul Kelly, who has campaigned for change since Wayne Ruks was bashed and killed in his Maryborough church ground in 2008, as welcoming the changes, saying:

“I’m absolutely thrilled that the 290,000 signatures on my change.org petition and support from Queensland Attorney-General Yvette D’Ath led to the axing of this homophobic, archaic and outdated law, . . . After five years of relentlessly campaigning for the gay panic defence for murder to be scrapped from the legal books in Queensland, I can today breathe a sigh of relief and accomplishment,”.

The mother of Wayne Ruks’, Joyce Kujala after waiting eight years for these changes is reported as saying:

“Thank you for persistence in pushing today’s outcome. It can’t bring Wayne back but it’s some small justice and it could save a lot of lives in future, . . .”.

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