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Legislative Assembly for the ACT: 2002 Week 10 Hansard (28 August) . . Page.. 2991 ..

MR HUMPHRIES (continuing):

important extension of rights of people in same-sex relationships. Indeed, that debate was taken nationally. It is a debate which I think the present Attorney-General is still dealing with at the national level. I think we have debated this since the last election, and I think the issue is being supported across the board in this Assembly. The rights of people in those situations should not be any different to the rights of people who are legally and formally married.

I detected in the comments made by the Attorney-General that in a range of issues a simple act to remove discrimination requires a careful policy decision which needs to be taken with some thought. Presumably this process will be undertaken once the report the motion refers to is on the table.

Having put on the table very clearly the view that discrimination in general is unacceptable, we need at the same time to acknowledge that there are some areas where discrimination would be defended by some in the community and where an argument would be put that discrimination of a certain sort accords with the values of the community.

I think, for example, of the adoption of children by same-sex couples. At the present time, as I understand it, the law does not allow that to occur. In fact, I am not even sure that the law allows de facto couples to adopt children. There may be a wider issue of discrimination in the legislation at the present time.

We have to ask ourselves whether to legislate to allow any person, including presumably single people or celibate people, to adopt children would be in accordance with the values of this community. That is not necessarily because there is a desire to deprive non-heterosexual people of access to the pleasures and joys of adopted children, but because we would have some concerns presumably about the effect on those children of having a potentially unusual family relationship that would perhaps hinder or inhibit their development.

Provocation is another interesting issue which needs to be carefully thought through. The circumstances of provocation that Ms Dundas referred to in her speech seem to be quite horrendous. I do not think any of us would argue that people should be able to avoid serious criminal penalties where they commit horrendous crimes in those circumstances.

But my understanding of the law of provocation is that it is a subjective exercise. I have not been able to research the law of provocation since this motion appeared today. But my understanding is that essentially it is a subjective question about whether a person charged with an offence was sufficiently offended, provoked, outraged or put in a position of losing a sense of balance and proportion that they had a mitigating factor in existence when a particular offence was committed.

That may be an entirely subjective matter. If that is the case, it may be-I do not cite it any more strongly than that-that a defence of provocation should be available if a person is in such a frame of mind. Deplorable as we might consider it to be that people hold those views, if those views genuinely lead them into that frame of mind, it may be that provocation should remain as a defence. That is an issue which will need to be very carefully examined in the paper the Chief Minister refers to.

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