South Australia becomes the last state to scrap 'gay panic' murder defence

Victoria is one step closer to banning gay conversion therapy. Source: Getty

South Australia was the first state in Australia to decriminalise homosexuality in 1975 but it is the last to abolish a provocation defence described by lawmakers as out of step with modern community expectations.

South Australia has abolished "gay panic" as a defence in crimes of violence with state parliament passing legislation to end the "downright offensive" provisions. 

It's the last state in Australia to do so.

The provocation defence could previously be used as a legal strategy to downgrade a charge of murder to manslaughter if the accused argued they lost control and became violent after the victim made an unwanted sexual advance. 

The provocation clause has been used four times in the last ten years but in a slew of cases between 1993 and 1995, at least 13 defendants successfully applied this defence in New South Wales alone.

The change also follows an investigation by the Human Rights Law Centre which recommended in 2018 that the defence be abolished.

"This is a law that is clearly rooted in discrimination, completely out of step with community standards and has absolutely no justification today," said Lee Carnie, a lawyer at the Human Rights Law Centre.

The law had also been invoked in 2011 in the case of Andrew Negre who was fatally stabbed in Adelaide's south.

Michael Joseph Lindsay was sentenced to a non-parole period of 23 years, claiming that Mr Negre provoked him by making a joke about him paying for sex.

"The law as it stands in regards to the gay panic defence is downright offensive," South Australian Attorney-General Vickie Chapman said.

"The amendments in the Provocation Bill brings the law into line with modern community expectations."

The updated legislation passed the parliament with the support of the Labor opposition and crossbench MPs.

“Laws that legitimise and excuse violent and lethal behaviour against any member of the LGBTIQ+ community have no place anywhere in Australia," Anna Brown, CEO of Equality Australia said.

"Attacking someone because who they are offends you should increase your punishment, not reduce it.

"Our laws should condemn prejudice, not condone it."

More than 38,000 people signed an online petition calling for the defence to be scrapped.

"This announcement comes after years of advocacy from community members and supportive politicians of all parties," said Matthew Morris, Chair of the South Australian Rainbow Advocacy Alliance that jointly organised the petition.

"The news was swiftly met with celebration from many LGBTIQ+ South Australians and we thank everyone who helped this Bill finally come to pass,” he said.

The parliament has also passed legislation to clear the records of people convicted of historic homosexual offences.

SA repealed homosexual crimes in 1975, but did not erase convictions recorded before that time.

Ms Chapman said the latest changes would enhance the rights of LGBTIQ+ community members, and make it easier for people to remove criminal charges that were now recognised as being grossly discriminatory and offensive.

"The bill allows people charged with these archaic convictions to clear their name," she said.

"It brings the law in line with modern community expectation."

The amendments can also be applied to include non-sexual offences that were frequently used against members of the gay community, such as loitering.

With additional reporting from AAP.

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