Moves are underway to remove sections of the criminal law in QLD that will abolish the partial defence of provocation.

Addressing the Legal Affairs and Community Safety Committee today in Brisbane, ACL Queensland director and spokesperson for women, Wendy Francis warned its removal would have negative consequences, particularly for women.

Below is an abridged version of her opening statement to the inquiry.

Thank you Mr Chairman, and committee members, for the opportunity to appear before you today. As you will have read in our submission, we oppose the suggested changes to the legislation as we believe they are unnecessary and are potentially dangerous, particularly for women.

The stated reason for the introduction of the bill is to abolish a Gay Panic defence. Can I make it clear from the outset that we strongly agree that the use of any violence against gay men is inexcusable, let alone when that violence proves to be fatal. And any suggestion that such a crime should be punished less severely is reprehensible and unthinkable.

But the existing law, and section 304 which is under discussion, makes no mention of homosexual advances. This is confirmed by lawyer Kent Blore whose article is included in the 2012 QUT Law & Justice Journal. He states that the homosexual advance defence cannot be found anywhere in Qld’s legislation.  

This being the case, it is important to carefully examine any unintended negative consequences of changing the Qld law. I have spoken to a number of women’s organisations, including radical feminists, who oppose the change. Preserving the current law, which treats all equally, is seen as a much better option in terms of protecting women.

The proposed changes will potentially compromise the defence of provocation for women with the requirement that the provocation be a serious indictable offence. This will make any defence of women who respond violently to sexual advances, much more difficult to achieve, and very restrictive. Because what this bill will achieve is to preclude actions which would constitute sexual assault from ‘provocation’.

The partial defence of provocation is necessary to provide courts with the flexibility to respond appropriately to the complex matrix of factual evidence presented in each case. It enables a partial defence to murder in those cases where the accused did (even momentarily) intend to kill the victim and where circumstances rule out an appeal to the complete defence of ‘self defence’) but where the court may feel that the circumstances of the case nevertheless offer some mitigation to a finding of murder.

This flexibility is particularly important in Queensland, which is the only jurisdiction in Australia to impose mandatory life sentencing for murder. Both the Law Council and the Australian Human Rights Commission have expressed concern about mandatory sentencing in principle because, amongst other things, It is arbitrary and may not be proportionate to the crime and, It works to limit a judge’s ability to impose a penalty based on the unique circumstances of each offence and offender.

Laws relating to murder and sentencing for murder should be capable of accommodating consideration of all the circumstances of different cases. Because there is no discretion for the sentencing judge to order any shorter sentence for murder in Queensland, the availability of a partial defence is particularly important to ameliorate the effects of the inflexibility that mandatory sentencing entails.

Recasting mandatory sentencing laws was outside the terms of reference for the working party appointed to examine the laws of provocation in Queensland in 2008. They were constrained in their review by the Government’s stated intention to make no change to the mandatory life imprisonment for murder. The report produced (QLRC report No. 64) explicitly states that, had their review not been so constrained, they may have produced different recommendations.

Since mandatory sentencing already significantly restricts judicial discretion in dealing with homicide cases in Queensland, further limitations to the partial defence of provocation are problematic in a way that is not comparable to the situation of other states.

I have no doubt that the Attorney General has good motivation for introducing this legislative amendment, but I fear the consequences are not straightforward. The proposed change arbitrarily excludes all “unwanted sexual advances” of a non-violent nature from the court’s consideration of circumstances that might be understood to contribute to “provocation”. Section 304 does not relate exclusively to the cases of homosexual advances. The effect of these changes on the entire Queensland community must therefore be considered carefully. The proposed changes may result in unforeseen and disproportionately adverse consequences for many accused of murder in Queensland.

To read ACL’s written submission click here.