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Legislative Assembly for the ACT: 2004 Week 01 Hansard (Tuesday, 10 February 2004) . . Page.. 151 ..

MR STANHOPE (Chief Minister, Attorney-General, Minister for Environment and Minister for Community Affairs) (11.19): Mr Speaker, I acknowledge the very significant analysis that the scrutiny of bills committee made of these particular proposals, and I acknowledge the work of Professor Bayne. Mr Stefaniak, the shadow attorney, has just given us some insight into the thinking and the consideration of Professor Bayne and the scrutiny of bills committee in relation to this particular provision and this particular proposal.

I acknowledged, when I spoke just recently, that this a very difficult, vexed and complex area of the law. There is no doubt about that. The government proposed an amendment to the law essentially to deal with a line of case law in relation to the homosexual advance defence, previously more colloquially known as the gay provocation defence. In the literature and in the case law it is referred to more commonly as the homosexual advance defence.

I think there is a range of reasons why we have to address the issues that have been raised in relation to the way in which people seek to use this particular defence in cases in which it is relied on. We are seeking to address a particular evil in relation to the amendments that we are proposing here. We are seeking to address that evil of homosexual men, gay men, being beaten up for no reason other than that they are gay or homosexual. In instances they are being killed as a result, for no reason other than that they are gay or homosexual men and they aroused a homophobia in their attacker or assaulter and eventual killer that led to them being beaten or picked out for a beating. There is anecdotal evidence for that behaviour and those results.

We know the extent to which, in circumstances where violence is being meted out to members of the gay community, this defence is then relied on in almost every instance. The defendant might say, “The person made a sexual advance and I am a heterosexual man and I was so offended, so outraged, at a sexual advance from another man that I lashed out and beat him to death. Without really quite knowing why I did it, I reacted so violently to this particular provocation.” That is an evil to which we have to respond. The government is seeking to respond to that particular evil through these amendments to the law, to the Crimes Act, to adjust that particular defence.

We have put a model on the table. The scrutiny of bills committee, with great respect to this committee, has said, “This is really complicated. This is really hard. We think the government might not quite have got the nub of it.” We did the best we could. I have enormous faith in my officers, those who instructed the Office of Parliamentary Counsel to draft it, to deal with this particular evil. We proposed a solution.

Mr Stefaniak, I know you chair the committee and certainly I am very respectful of the work that the committee does, but the committee said, “We think this might not quite work,” but did not say why not and did not offer an alternative. In the absence of an alternative, in the absence of a concrete suggestion about what might be done to overcome the sorts of concerns that you think may be inherent in the model that we propose, I am inclined to persist.

We made it quite clear what it is that we are seeking to do. It is recorded in the speeches you and I have just made and in the second reading speech and it is included within the

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