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HAD Working Party Report

HAD Working Party Final Report

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Homosexual Advance Defence: Final Report of the Working Party

Summary of Findings

The Working Party recommends the adoption of the following measures:

Recommendations regarding law and procedure:

1. The exclusion of a non-violent homosexual advance from forming the basis of the defence of provocation, by way of legislative reform of section 23 of the NSW Crimes Act.

2. The Attorney General writing to the Judicial Commission suggesting that a direction to the effect that criminal courts are not “courts of morals” be included in the Benchbooks for consideration for use in all criminal trials in which the sexuality of the alleged victim does not conform with majority stereotypes.

3. The removal of NSW laws that discriminate against gays and lesbians, including those criminal laws which impose a discriminatory age of consent upon gay men in New South Wales.

Recommendations regarding administrative matters:

4. The commencement of a campaign of community education by the Crime Prevention Division within the Attorney General’s Department against the use of homophobic violence in response to a non-violent homosexual advance.

5. The monitoring of Homosexual Advance Defence (hereafter referred to as “HAD”) cases by Justice Agencies, including the Director of Public Prosecutions (hereafter referred to as the “DPP”) and the NSW Police Service.

6. The establishment of an ongoing Monitoring Committee, convened by the Criminal Law Review Division within the Attorney General’s Department, with regard to HAD.

7. Continuing judicial education with regard to HAD.

8. The establishment of a Gay and Lesbian issues liaison officer within the Attorney General’s Department.

9. Continued training of detectives with regard to investigatory techniques directed towards rebutting a possible HAD.

The Working Party puts forward for consideration the following options:

1. As a more rigorous alternative to recommendation 2 above, legislation mandating the giving of such a direction in appropriate criminal trials in New South Wales.

2. The abolition, by way of legislative reform, of the defence of provocation in New South Wales.