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Legislative Assembly for the ACT: 2004 Week 01 Hansard (Tuesday, 10 February 2004) . . Page.. 150 ..

• there will be cases where although the sexual advance was clearly non-violent, there happens to be basis for linking that evidence to some other conduct of the deceased.

There is also the broader question about why it is that there should be circumstances in which a person with a particular sensitivity about a sexual advance cannot adduce evidence of that fact as evidence that would support a claim that paragraph 13 (2) (b) of the Crimes Act 1900 has been satisfied.

What makes it different from say a racial slur? That conduct is a basis for ‘justifiable indignation’. It is arguable, as was argued by McHugh J in the High Court in Green, above, at 38, that ‘any unwanted sexual advance is a basis for ‘justifiable indignation’, especially when it is coupled with aggression. Such an unwanted advance may lay the foundation for a successful defence of provocation”. (The lack of evidence of aggression would make it more difficult to make out the defence.)

The Committee notes that the issues raised by this proposed amendment have generated considerable debate among scholars. Justice McHugh cited an article the thesis of which was that “a special rule precluding the use of the provocation defense in homosexual advance (or, more generally, sexual advance) cases is too tenuous to withstand scrutiny” (see Dressler, ‘When “heterosexual” men kill “homosexual” men: reflections on provocation law, sexual advances, and the “reasonable man” standard’ (1995) 85 J. Crim. L. & Criminology 726). This article was itself a rejoinder to one in which the contrary thesis as advanced; that is, that a non-violent homosexual advance should not in and of itself constitute sufficient provocation; see Mison, ‘Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation’ (1992) 80 Cal. L. Rev. 133.

There are some real issues raised in Professor Bayne’s comments in scrutiny report 41. The other real issue is that ours is the first jurisdiction to do this. Real concerns are now being expressed by people in the profession in relation to this and these issues are really too important for us to rush in here. When I first read this, I did not have any particular problem with it. The problems arose once I saw the scrutiny report. I am not sure whether there was consultation with the DPP in relation to this, but concerns have also been raised by members of the profession regarding this.

While I have no problems with the intent of what the Chief Minister is trying to achieve, I think the most sensible thing to do is to reject this part of the bill today. I think the government should perhaps consult the profession more widely, to work out generally what else it might want to do on the issue of provocation, including this particular matter, and ensure that the problems highlighted by Professor Bayne in the scrutiny of bills report are actually addressed. It is an important issue and I think it is very, very important that it is dealt with properly.

I think the report does raise some issues. The brief talks I have had with other members of the profession indicate some disquiet as well, so I think more work needs to be done. Although, as I said, the Chief Minister’s intent is something about which, when I read of it, I thought, “Fine. That seems eminently sensible,” the way it has been done might be a problem, for the reasons in the scrutiny report and for the other reasons I have mentioned.

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