Criminal Law Consolidation (Provocation) Amendment Bill
30/10/2013
The Hon. K.L. VINCENT (16:07): I take the floor to speak in very strong support, on behalf of Dignity for Disability, of the Hon. Tammy Franks’ Criminal Law Consolidation (Provocation) Amendment Bill 2013. We have before us a bill with a very simple but very positive aim: to remove from our laws the homosexual advance test, more widely known as the gay panic defence. I understand this law is supported, in particular, by a number of professors from the University of Adelaide Law School. I also note with some sadness and disbelief that South Australia is the only remaining national jurisdiction not to have repealed or at least modified provocation as a potential defence to murder, and I am very glad that we have the opportunity to do so today.
There are a few factors which point, I believe, to the idea that this defence no longer has a place in our statute book. First, is the fact that the defence in this case strictly relates to an unwanted advance made by a supposedly same sex attracted person toward a person assumed to be heterosexual. So, for example, if I were a lesbian and I were propositioned by a man, or if I were an asexual and/or aromantic person propositioned by someone of any gender, no such partial defence would be available to me in the event that I react to this proposition by attempting to murder these people. This is surely illogical. Violence is violence and murder is murder and we, as a parliament and as a society, have a duty to stand up and call those things for what they are. The view that a person’s life is somehow worth less because they are, or they are believed to be, same sex attracted is, frankly, archaic, barbaric and irrational.
There was once a time in our human history at which it was considered pretty reasonable to kill a person on the grounds that their skin was a certain colour. There was once a time when all of us here may have been considered somewhat noble for taking the life of a woman suspected of witchcraft. This gay panic defence deserves to join those two ideals in the past. Because what we are really talking about here is a law that says that you may have committed a lesser offence if the person you murdered was different. If we as a parliament accept the existence of this ‘gay panic’ defence, why should someone not be able to murder me and appear in court pleading for a lesser charge on the grounds that they murdered me because I have a disability? This is, after all, a potential point of difference. Difference comes in many forms and, as long as it does not hurt anyone, it should simply be accepted as a normal part of the human experience.
Putting these things aside for a moment, I want to turn—or perhaps return—to a slightly broader question, one that is perhaps the underlying question of the topic at hand: when is it acceptable (or is it acceptable) to respond to an unwanted proposition of any kind from anyone with violence? I understand that many people have different views and different values and that often we find the views and values of others disagreeable in some way, but is it acceptable for violence to be the medium through which we express that disagreement?
The consumption of meat, for example, is against my personal values, but if I am at a dinner party and someone who does not know this offers me a slice of meat lovers pizza, for example, do I then punch or stab that person and later appear in court claiming ‘pepperoni panic defence’? No. Perhaps more relevantly, if more than once in my life I have received what I suppose was unwanted romantic and/or sexual attention, as I assume many of us here have at some point—
The Hon. S.G. Wade: Speak for yourself.
The Hon. K.L. VINCENT: The Hon. Mr Wade says, ‘Speak for yourself.’ I am sure his wife will be glad to know that. It has never even crossed my mind to react to this violently. Yes, I may react with disdain and, depending on the situation, with some anger, but never with violence. I do not think that this is the way most of us would ordinarily react or that this is a reaction that most of us would think appropriate.
The very raison d’être of our statute book is to present and enshrine the values by which we as lawmakers demand South Australians conduct themselves. I would dearly hope, or rather expect, that violence is not one of those preferred values. This being the case, we must stop our laws from protecting even partially, as is the case here, a very dangerous minority.
It is not through violence that we should express our disagreement or seek to change or alter the behaviour of others: it is through clarity of intention. It is through rational debate, through patience and respect for individual circumstances, and perhaps most of all, it is through leading by example. We have here in this bill a great opportunity to lead by example to make South Australian law more just and respectful of the diversity of the people it is supposed to serve. I hope that other members will join Dignity for Disability in grasping that opportunity.
As an addendum, after conversations with both the Hon. Ms Franks and the Hon. Mr Wade earlier, we will be supporting the referral of this bill to the Legislative Review Committee so that we can tackle the issue of provocation more holistically. That is certainly something that is very important. Hopefully we can get an expeditious result on that. With those words, I commend the bill to the chamber but I am also happy to support its referral to the committee.
