Overview of Homosexual Advance Defence Laws across Australia: South Australia Still to Enact Change

Earlier this year in March (2017), the Queensland Parliament passed the Criminal Law Amendment Act 2017 (No. 6 of 2017) (the Act), which abolished the homosexual advance defence in Queensland. This legislative change leaves only South Australia as the last Australian jurisdiction to still have the controversial defence available.

Historical background and recent cases

The homosexual advance defence (HAD), or gay panic defence is essentially a species of the defence of provocation. If successfully argued, it can reduce the charge of murder to manslaughter and attract a lesser penalty. After the case of Green v The Queen (1997) 191 CLR 334 in Australia, the gay panic defence was consolidated into judge-made law in Australia. A review of cases shows that shows that the defence has been used in the past moderately successfully: between 1993 and 1995, at least 13 defendants succeeded in using it in NSW. Most recently, the High Court of South Australia allowed an appeal from a decision of the Supreme Court relating to the provocation defence in Lindsay v The Queen [2015] HCA 16which is related to the Andrew Negre murder case.

Laws across jurisdictions

Queensland

The new Queensland Act introduces new subsections into section 304 of the Criminal Code (QLD), which stipulates that the defence of provocation is unavailable if it is based on an unwanted sexual advance to the person. This sexual advance is characterised loosely as involving minor touching, but includes an exception for circumstances of an exceptional character. 

NSW, ACT and NT

NSW, the ACT and NT have introduced similar legislation, which aim to explicitly exclude non-violent sexual advances as provocative conduct. In NSW, this has been achieved through the Crimes Amendment (Provocation) Act 2014, which amended the Crimes Act 1900 (NSW). Furthermore in NSW, the conduct of the deceased has to have amounted to a serious indictable offence, as per the Crimes Act 1900 (NSW) section 23(2)(b). The ACT and NT laws, encapsulated in their respective crimes laws, turn on the question of whether the indecent touching, in addition to the non-violent homosexual advance, gives rise to provocation.

Victoria

The Crimes (Homicide) Act 2005 (VIC) section 3B removes provocation as a partial defence to murder, and makes other amendments to the Crimes Act 1958 (VIC).

Tasmania

In Tasmania, the Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (TAS) amends the Criminal Code Act 1924 (TAS) in order to remove the homosexual advance defence to homicide.

Western Australia

Section 12 of the Criminal Law Amendment (Homicide) Act 2008 amended the Criminal Code (WA) in order to completely remove the defence. Relevant factors such as fear of sexual assault are now only considered during sentencing. This is a similar situation to Victoria and Tasmania.

South Australia

The defence is still, however, available in South Australia, especially following the High Court case of Lindsey v R [2015] HCA 16. Both the Premier and the Attorney-General have promised action, however any decision on the matter appears to have stalled. The South Australian Parliament appears to be waiting on a report from South Australian Law Reform Institute. Furthermore, the Parliament has also noted that until the Lindsey case is resolved it would be inappropriate to put out any recommendations. Apart from a 2015 attempt by the Greens to pass the Criminal Law Consolidation (Provocation) Amendment Bill 2015, there have been no other movements towards enacting similar legislation to all other Australian jurisdictions.

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Criminal Law Amendment Act 2017 (QLD), as published on TimeBase LawOne.

Crimes Amendment (Provocation) Act 2014 (NSW), as published on TimeBase LawOne.

Crimes (Homicide) Act 2005 (VIC) , as published on TimeBase LawOne.

Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (TAS), as published on TimeBase LawOne.

Criminal Law Amendment (Homicide) Act 2008 (WA), as published on TimeBase LawOne.

Ruby Jones, 'South Australia becomes last state to allow gay panic defence for murder,' ABC News, 22 March 2017.

James Hancock, 'Pair jailed for murder of Adelaide man Andrew Negre,' ABC News, 15 November 2013.

Ben Winsor, 'A sordid history of the gay panic defence in Australia,' SBS News, 2 May 2017.

Kerstin Braun and Anthony Gray, 'Green And Lindsay: Two Steps Forward – Five Steps Back Homosexual Advance Defence – Quo Vadis?' [2016] 41:1 University of Western Australia 91.