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Legislative Assembly for the ACT: 2002 Week 10 Hansard (28 August) . . Page.. 2985 ..

MS DUNDAS (continuing):

vilification legislation in various jurisdictions and would like to be informed as much as possible on how we can overcome these difficulties.

I would also like to inform the Assembly of the homosexual-advance defence of provocation, commonly known as the gay panic defence. This issue came before the High Court in 1997 in an appeal against a conviction for a murder where the defendant smashed in the victim's skull and stabbed and beat him to death with a pair of chicken shears. When the defendant was asked why he had committed this horrendous crime, he replied, "Because he tried to root me." The High Court, in a majority decision, declared a mistrial and allowed the argument that the brutal beating of a man to death, in response to a light touch, could possibly be seen as an understandable reaction from an ordinary Australian.

As the Australian Institute of Criminology noted in a recent investigation of homosexual murders, not only are victims more likely to be killed by strangers and the crimes to involve high levels of brutality, be committed publicly and involve multiple offenders, but an assailant is far more likely to allege a sexual advance by the deceased as their defence.

I believe that murder is not a reasonable response by an ordinary person to an unwanted sexual advance. Indeed, if women reacted in this way, the streets would be littered with corpses. Given that the defence of provocation in the ACT Crimes Act directly descends from the New South Wales Crimes Act, the homosexual advance defence is almost certainly available in the ACT. I hope that the Assembly feels that this defence is as unacceptable as I do and would welcome any moves to remove it.

Paragraph (5) of my motion regards the needs of transgender people in the ACT. Unfortunately, in discussions about queer rights and the queer community, the needs of transgender and intersex people are often omitted. I note that the experiences of transgender people are very different to those of gays and lesbians, and so are the forms of discrimination they suffer. Members of the transgender community in Canberra have informed me that the legislative protection here is less than exists in other jurisdictions. I think it is valid that the relevant areas of legislation be examined closely.

Equally, commonly overlooked when discussing these issues are the needs of intersex people. It is a biological fact that not all people are either male or female at birth but fall somewhere in between. Medically assigning these people to one gender or the other has historically seen some extremely poor outcomes, with individuals feeling the medical intervention was misplaced and resulted in far more damage than the original problem, especially if their gender assignment turned out to be incorrect. These, I understand, are difficult issues and not easily dealt with. It may be that a purely legislative response is not the best answer.

I would also encourage the government to examine its own policies and procedures to ensure that they comply with the spirit of equality for lesbian, gay, bisexual, transgender and intersex people. Legislation is not the only barrier to equality. Knowledge and community acceptance are also vital. Governments need to ensure that legislative structures are backed up with adequately resourced programs so that we can ensure that everyone in our community gets the same opportunities.

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