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Legislative Assembly for the ACT: 2004 Week 01 Hansard (Tuesday, 10 February 2004) . . Page.. 152 ..

debate. We know what we are doing, it is in the legislation, it is in all the extraneous material and it is in this discussion we are now having. Any court that is confronted with an attempt in the ACT to utilise the homosexual advance defence has sufficient guidance, as far as I am concerned, to know what it is, through the legislative provision, through this debate, to understand what we are seeking to achieve.

I do not share your sense of disquiet. It is quite clear what the government’s view on this is. It is quite clear, if this particular provision passes, what this parliament’s view is on how this particular defence could be utilised and how it should be interpreted. I do not share your concern, Mr Stefaniak, about inadvertently developing law that will not stand scrutiny or that will lead to some unintended consequence in relation to the availability or utilisation of a provocation defence more generally. I do not have that level of disquiet.

I believe that it is more important that we deal with the issue of the way in which the homosexual advance defence is used, or has been used and, I think in the minds of almost all of us, has been abused. It has been used to justify assaults on and violence against homosexual men and that requires us to act. We should act tonight.

As you know, Mr Stefaniak, the government is working at pace. It is the only jurisdiction in Australia that is to implement the full criminal code. Part 5 of the model criminal code deals with the general issue of provocation. We will trawl through all of the law on provocation when we deal with chapter 5 of the model criminal code. Mr Stefaniak, assuage your concern in the knowledge that the law of provocation in the ACT will be fully reviewed as we deal with chapter 5 of the model criminal code, which will be done soon.

MS DUNDAS (11.26): The ACT Democrats will not be supporting Mr Stefaniak in his move to remove this section from the legislation, because his amendment would be to retain the common law finding that a non-violent sexual advance is a defence of provocation for murder.

Even though I listened to Mr Stefaniak’s reasons and his concerns about the drafting, I am quite puzzled by his moves because, most of the time he is here in the Assembly, he is trying to make it easier to prosecute people. However, it appears that he has done a bit of a backflip today and is making it harder to lock up murderers. He and the opposition have put forward the view that they believe a non-violent sexual advance is enough to incite a reasonable person to kill someone in response. I think that the homosexual advance defence is one of the worst features of common law and should rightly be abolished, and we should do that today. This is a long overdue change to the law that is about people’s basic right not to be viciously murdered.

I spoke at length about this issue when the original motion was debated in August 2002. I referred to the case of Green versus the Queen, where the High Court of Australia had ruled that the homosexual advance defence was available as a defence for provocation. The case in question at that time was particularly gruesome. However, it was not an isolated incident. The New South Wales working party on the homosexual advance defence found 16 cases where the homosexual advance defence was claimed and, of these, only three perpetrators were found guilty of murder.

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