Concerns have been raised over the wording of the Queensland government’s amendment to eliminate the state’s so-called “gay panic” defence.
The widely condemned partial legal defence allows those accused of murder to attempt to reduce a charge down to manslaughter if they claim the violence was triggered by an unwanted homosexual advance.
Queensland Attorney-General Yvette D’Ath introduced an amendment bill in November that would amend section 304 of the Criminal Code so the accused could no longer rely on an “unwanted sexual advance” – either homosexual or heterosexual – as a defence of provocation and reduce the charge, except in “circumstances of exceptional character”.
In a submission to a committee examining the Criminal Law Amendment Bill 2016, Queensland Law Society president Christine Smyth warned that while the “gay panic” amendment’s aim of eliminating prejudice and discrimination against LGBTI people should be commended, the society is concerned with the wording.
“[We are] concerned that the present drafting of the removal of the ‘unwanted sexual advance’ defence could potentially affect circumstances other than those comprising a ‘gay panic’ defence,” she wrote.
“For example, it would be concerning if this defence were not open to a defendant where the victim had sexually assaulted or raped the defendant, or where the victim had sexually abused the defendant as a child.”
Ms Smyth said the bill attempts to address this by including an exception for “circumstances of an exceptional character”, but the term was not defined.
“The lack of definition of ‘circumstances of an exception character’ might actually lead to a court allowing in an ‘unwanted sexual advance’ defence to provocation by attempting to argue that a homosexual advance is an exceptional circumstance, which is entirely contrary to the intention of the legislation and would contravene the drafter’s intention,” she wrote.
Attorney-General Yvette D’Ath said in November the “circumstances of exceptional character” provision created “a very high threshold that has to be met.”
“I acknowledge this amendment’s importance to the LGBTI community as it is to all Queenslanders who have voiced their criticism that [an unwanted homosexual advance] could establish a partial defence,” she told parliament at the time.
“Let me be perfectly clear and remove any doubt: an unwanted homosexual advance is not of itself to be considered an ‘exceptional circumstance.'”
She said such circumstances could be a history of sexual assault or violence between the two people, and judges would assess those circumstances on a case-by-case basis.
In a separate submission, Brisbane’s LGBTI Legal Service told the inquiry that retaining the defence achieved no positive outcome and would only perpetuate discrimination against LGBTI Queenslanders.
“We agree that the proposed amendments appropriately restrain the use of this defence and, as such, are supportive of the drafting. We also consider that all necessary amendments to associated legislation have been appropriately identified and addressed in the Bill,” they said.
The Anti-Discrimination Commission Queensland said in their submission the approach to the “gay panic” amendment “is consistent with the human rights principles of equality before the law and freedom from discrimination.”
The parliamentary committee is expected to table a report on the amendment bill on February 21.
Queensland and South Australia are the only Australian jurisdictions where a so-called “gay panic” defence remains, and the introduction of the Queensland amendment bill last year followed years of community campaigning.
Brisbane priest Father Paul Kelly got involved in what would become a years-long crusade to scrap the defence after a man was murdered on the grounds of his Maryborough church in 2008.
He started a Change.org petition that attracted more than 289,000 signatures that were delivered to Ms D’Ath in November.