Queensland abolishes 'gay panic' defence to murder

(L to R) Queensland Attorney-General Yvette D'Ath, Premier Annastacia Palaszczuk and Speaker of the Parliament Peter Wellington in Brisbane – FILE 23/2/2017. Source: AAP

Rights and LGBTI group in Queensland welcome the abolition of the 'archaic' and 'unacceptable' so-called 'gay panic' defence for murder.

Queensland's parliament has abolished the so-called 'gay panic' defence that has allowed the killing of homosexual men to be treated as manslaughter not murder.

The reform has been praised by the Australian Human Rights Commissioner and LGBTI groups, who have campaigned for years for the legal change.

The partial defence to murder had allowed defendants to plead for a reduction to manslaughter by claiming an unwanted homosexual advance provoked violence.

Queensland Attorney-General Yvette D'Ath said the defence was not specifically in the criminal code but had built up over time in common law through judges rulings.

"Equality before the law is a fundamental principle of human rights and the amendment ... will ensure that this provision operates equally for all members of our community," Mrs D'Ath said.

Tabling the legislation in parliament on Tuesday night, Ms D’Ath said the current situation was “unacceptable”.

“It has been established by common law that in some circumstances an unwanted homosexual advance could form the basis for applying the partial defence,” she said.

“This does not reflect modern societal views about criminal responsibility and about the expectation to exercise self-control.

“An unwanted sexual advance, even one that involves minor touching, cannot be enough, other than in circumstances of an exceptional character, to reduce criminal responsibility for killing a person with murderous intent.”

This anomaly meant mandatory life sentences for murder did not apply.

“I commend the Queensland parliament for pursing this reform and I note it was with bi-partisan support, and that is really important in any human rights reform,” said Australian Human Rights Commissioner Edward Santow.

Tasmanian, ACT, Victorian and Northern Territory parliaments removed the defence over a decade ago, followed by Western Australia in 2008 and New South Wales in 2014.

Ms D’Ath told SBS the legal reform sends an important message “saying we should not discriminate against the LGBTI community”.

The defence remains available to killers in South Australia.

“We’re really pleased to see the South Australian government wants to pursue reform in this area,” said commissioner Santow.

LGBTI rights campaigners have welcomed the move, but say they do not know why it took so long.

“We now know they cannot get away with murdering our sons, just because they’re a little homophobic or insecure, and as a parent, that to me is a great comfort,” said Shelly Argent, the national spokesperson for PFLAG (formerly Parents, Families and Friends of Lesbians and Gays) who has campaigned for the rights of her son and all gay men.

Her son James Argent said he now feels treated equally in the eyes of the law when it comes to murder.

“If we look at history, it is the straight man that has been assaulting us over the years and it’s time to put a line in the sand and say we can all live together in harmony,” he said.

The push to repeal the defence was spearheaded by Maryborough priest Father Paul Kelly after the fatal 2008 bashing of Wayne Ruks in his church yard, after which the killers raised the defence at trial.

"After five years of relentlessly campaigning for this homophobic, archaic and outdated law to be axed from the legal books in Queensland, I can tonight, breathe a sigh of relief and accomplishment," he told supporters in a message after the legislation passed. 

Father Kelly said he was relieved Queensland had finally ditched the "archaic" legal provision but was surprised it took so long.

"So many people said this was a no-brainer and that it was clearly an archaic law, so I did feel the resistance to it was an ideological one," he told AAP.

A petition initiated by Father Kelly signed by almost 300,000 people and a celebrity social media campaign, pushed to Queensland government to fulfil an election promise.

There is still more on the to do list for the Queensland government, more than 25-years after consensual gay sex was decriminalised.

“In the first half of this year I will be bringing forward legislation to expunge historical homosexual convictions,” said Ms D’Ath.

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