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Clover Moore responds to call for law reform about “homosexual advance defence”.


Clover has raised this matter with the former Attorney General (Mr. John Hatzistergos, MP) to follow up the 1998 Final Report of the Homosexual Advance Defence Working Party, and his January 2009 response stated:

“Since the release of the Working Party’s Report in 1998, all of the recommendations have been implemented, except for the exclusion of a non-violence homosexual advance from forming the basis of the defence of provocation, by way of legislative reform of section 23 of the Crimes Act (Recommendation 1).

“Instead, the NSW Government in 2001 codified the law of self-defence and reintroduced the defence of “excessive self-defence”. In the second reading speech to the [Crime Act Amendment (self-defence)] Bill that introduced the changes, the then Attorney General explained the rationale for the reintroduction of the law of excessive force:

“Such an approach is entirely appropriate when it is considered that in Australia we do not have degrees of murder as separate offences, and that proven unlawful homicide only leads to murder or manslaughter convictions being available.

It is acceptable in the opinion of the Government that a person who honestly believes that he [sic] is acting in self-defence but who uses more force than is reasonable in the circumstances should not be liable for murder but be liable for the lesser offence of manslaughter. Such a result is consistent with the values of a civilised society which upholds and respects the sanctity of life.

Clover strongly opposes discrimination and is assessing this with experts to determine whether it is equivalent to removal of the defence.

Clover will follow up with the Attorney General specifically about your request for:
? Abolition of “Gay panic” and “Homosexual Advance defence” Principles.
? Amending Section 23 of the NSW Crimes Act to exclude non-violent homosexual advance;
? Amending Section 421 of the NSW Crimes Act to exclude non-violent homosexual advance;
? Mandating Jury Warnings for Hate-related Crimes, and Sentencing Enhancements; and
? Enhancing existing NSW Police resources to address hate-related crime toward the GLBTIQ community.

Clover strongly has repeatedly called for community education to shift homophobic attitudes. If you live outside her electorate, I encourage you to contact your local MP to also support this action – the more voices speaking up the better.


Push to end ‘gay panic’ defence

Star Observer | 10 February 2012 | view article

There is a new push to abolish the so-called gay panic defence in New South Wales.

The Beat Project NSW has established a petition on the Change.org website, calling on the NSW Attorney General to amend the laws.

It follows the Queensland Government’s announcement it would remove the gay-panic defence following an online campaign through the same website by Maryborough Catholic priest Father Paul Kelly (pictured).

“We would like to see the abolition of gay panic and homosexual advance defences being used for provocation,” Beat Project NSW coordinator Richard said.

“Obviously the laws do have other applications. But the idea that panic resulting from a man making a sexual advance on another man is somehow a defence for killing a person is just plain wrong.”

In NSW a person who claims they were provoked so that they lost self-control can be found guilty of manslaughter instead of murder, under Section 23 of the NSW Crimes Act.

A person who kills someone when they believed their conduct was necessary to defend or free themselves from unlawful deprivation of their liberty can also argue a partial defence, under Section 421.

Both defences have been used by people who have killed gay men, alleging their victims made sexual advances towards them that made them feel threatened.

Excessive self-defence was accepted in the trial of the teenaged killer of intellectually disabled gay man Gerard Fleming, who was stabbed in the side and heart in a public toilet in Narrabeen in 2007.

Despite using a knife that needed to be unfolded, the 16-year-old claimed he stabbed Fleming to free himself after Fleming approached him with his pants down and pinned his arms in a bear hug.

The boy was given a three and a half year non-parole period — prompting questions from both Sydney MP Clover Moore and the Reverend Fred Nile.

After Queensland amends its laws, NSW will be the only state to retain such a defence, although similar defences are available in South Australia under common law.

An Attorney General’s Department working group convened to study issues around “homosexual advance defence” recommended the exclusion of a non-violent homosexual advance from forming the basis of the defence by provocation in 1998. However, no Attorney General has moved to follow that recommendation.

Change’s Australian director Nick Allardice said it was fantastic people were being inspired to start their own campaigns following the success of other petitions.

“It was incredible to see the impact of Father Paul’s Queensland campaign and we hope to see many more campaigns tackling issues of discrimination and injustice,” Allardice said.

INFO: Find the petition at www.change.org/petitions/nsw-attorney-general-abolish-the-gay-panic-defence-from-nsw-law-nswgaypanic