Criminal Law Amendment Bill

Posted On: 6 Apr 2017

I rise to speak on the Criminal Law Amendment Bill, introduced into the parliament and referred to the Legal Affairs and Community Safety Committee, of which I am a member, on 30 November last year by the Attorney-General. The committee was given until 21 February this year to consider the proposed amendments and report back to parliament. Nine submissions were received in response to the inquiry, and a public hearing was held on 25 January 2017. Before I go any further, I would like to thank everybody who took the time to make a submission regarding this bill and those who presented at the hearing as witnesses. I would also like to place on record my appreciation of the secretariat staff and fellow committee members.

The objective of this bill is to ‘ensure that a person who commits murder cannot rely on an unwanted sexual advance as a basis for the partial defence of provocation which, if successfully raised, reduces murder to manslaughter’. In addition, this bill proposes a number of miscellaneous amendments under the criminal law banner. Key amendments include increasing the penalty for the offence of misconduct with regard to corpses from two years imprisonment to five years imprisonment under section 236(b) of the Criminal Code. Further amendments to the Criminal Code include creating an exception to section 89 for public officers who acquire or hold a private interest made on account of their employment, having first disclosed to, and obtained the authorisation of, the chief executive of the relevant department.

Amendments have also been made to the Criminal Proceeds Confiscation Act to ensure that all contraventions of restraining and forfeiture orders made under the CPCA are prohibited and appropriately sanctioned. A number of amendments have also been made to the Evidence Act including to permit a court to order that the useable soundtrack of a video recording may be played at a proceeding in certain circumstances and also to exclude the public from a courtroom while the prerecorded evidence of an affected child witness or special witness is being played.

Without a doubt, the amendment which raised the most robust debate during the hearing and from submitters is to section 304 of the Criminal Code, ‘Killing on provocation’. This is not the first time this particular section of the Criminal Code has been put forward for discussion. Following recommendations from the Queensland Law Reform Commission, section 304 was amended to address its perceived bias and flaws. However, the amendments, which included reversing the onus of proof to a defendant, did not allay concerns that the partial defence of provocation could be relied upon by those who have killed in response to an unwanted homosexual advance.

To give some background to this bill we go back to 2011, when an expert committee chaired by Justice John Jerrard was formed in November of that year. This committee was tasked with looking into non-violent sexual advances as grounds for establishing provocation and made further recommendations including an amendment to exclude an unwanted sexual advance from the ambit of the partial defence other than in circumstances of an exceptional character. The 2011 committee was given access to 110 manslaughter cases. During the departmental briefing on 25 January I asked—

How many murders or manslaughters since the study referred to by the 2011 expert committee have claimed provocation as a defence?

The response was—

The Department is unable to provide detailed data on the application of the partial defence of provocation in Queensland since the study referred to by the 2011 Expert Committee. To obtain the data that was referenced by the Expert Committee, an extensive manual audit of trials for the offences of murder and manslaughter was undertaken. A similar manual audit has not occurred since that time and to undertake a similar review would take considerable time and resources, and is not possible to achieve in the time available in the context of this Bill.

I am certainly not blaming the department, but I was very disappointed at the lack of collection of data since the expert committee wound up. There was no data since 2011 available to the committee to show how many murders or manslaughters have claimed provocation as a defence for the past six years. Unfortunately, this is a recurring theme. So much legislation being put forward by this government is not supported by recent data or statistics. Nor does there seem much of an appetite or a desire to gather it.

Given the Palaszczuk government has undertaken more than 150 reviews since its election in 2015, I would have thought it would be collecting important data, too. Perhaps it is just too lazy to ask the departments for it. After all, it has had two years in government, so previous speakers should reflect inwardly perhaps before pointing fingers. The response I received from the Minister for Main Roads in reply to a question on notice about closures of the Tugun bypass tunnel which cost motorists and their families time and money validates this very concept. The minister replied that it would ‘be neither practicable or reasonable to divert resources within TMR to identify and list all of the information requested’. I only asked for dates and reasons for closures, as taxpayers have a right to know, but the minister thought otherwise—as, it seems, does this government.

Granted, there are some difficulties procuring jury deliberations—as there should be—but it does seem odd that more recent statistics are not available as we debate this bill, which is primarily about preventing the use of provocation as a defence in murder cases as a result of unwanted sexual advances. However, it is the view of the LNP that some of the amendments contained in this bill are a step in the right direction towards ensuring all Queenslanders, regardless of age, race, gender or sexuality, are viewed as equal within our society. Mr Phil Browne of the Brisbane LGBTIQ Action Group reiterated these views in the public hearing, stating—

As a community, we must speak up and say that we value all citizens equally and that discrimination is not acceptable.

I could not agree more and want to remind all honourable members that there are hundreds of thousands of people with a disability who deserve our respect, and just as many elderly and infirm who deserve our respect. There is the overweight, the underweight and everything in between. Let us not single out any group of people as being more deserving of respect than another. Whilst this bill does focus on unwanted sexual advances and the outlawing of what is commonly called murder using the gay panic defence, any unwanted sexual advance should be taken seriously. At the public hearing Mr Browne explained—

A Queensland churchyard in Maryborough was the site of a man’s violent death in 2008. According to Catholic priest Father Paul Kelly, during the trial the circumstances surrounding the bashing in his churchyard referred to issues described as ‘gay panic’. This prompted Father Kelly to begin a petition titled ‘Stop allowing “gay panic” as an excuse for murder in Australia’. Over 290,000 people have supported Father Kelly’s petition.

The Queensland Law Society and the Bar Association of Queensland raised concerns regarding the use of vague definitions within this bill such as ‘minor touching’ and ‘exceptional character’. The QLS submission highlighted—

... the present drafting of the removal of the ‘unwanted sexual advance’ defence could potentially affect circumstances other than those comprising a ‘gay panic’ defence. For example, it would be concerning if this defence were not open to a defendant where the victim had sexually assaulted or raped the defendant, or where the victim had sexually abused the defendant as a child. In circumstances such as those, there is support for an argument of ‘unwanted sexual advance’ being used to support a provocation defence for murder.

Although subsection (3A) addresses some of the QLS’s concerns, it still notes its reservation if this amendment is made as it may have unintended consequences in some circumstances. During the departmental briefing staff were asked to comment on the Queensland Law Society views about the lack of specific definition around ‘exceptional character’. Their response was—

... the department has considered and is continuing to consider—

I say again—

... the department has considered and is continuing to consider the submission of the Queensland Law Society in that regard. In terms of the concepts that have been defined, it is a deliberate drafting decision and policy decision to not specifically define the concept of circumstances of an exceptional character.

Other key concepts, however, have been defined. The concept of an unwanted sexual advance is defined. The concept of sexual advance will retain its ordinary meaning, but ‘unwanted sexual advance’ has been defined by the legislation. The concept of a minor touching has not been defined; however, legislative examples have been provided to assist in giving some context to what that term may mean.

This comment really puzzled me. Does it mean that the department was directed to leave the definition of ‘exceptional character’ open? How can the department be continuing to consider the QLS submission when it seems that the Attorney has made it clear that its request is falling on deaf ears?

Non-government committee members believe that it would be beneficial for the Attorney-General to further consult with the QLS and the Bar Association in relation to the terminology of ‘circumstances of exceptional character’ with a view to perhaps providing examples of the view. I understand the shadow Attorney-General will be moving amendments at the appropriate time. The Queensland Law Society provided the following example of a situation that might constitute an exceptional circumstance. It is as follows—

Such an example might include where the person has historically subjected the accused to child sexual abuse and then the unwanted sexual advance caused the accused to suffer flashbacks and lose their control.

Comments were made that, as a result of a lack of definitions, we will be relying solely on a judge’s determination of what constitutes exceptional character. A Courier-Mail report claimed in December 2016 that, of ‘3,302 people sentenced for rape, attempted rape, armed robbery, unarmed robbery and serious assault since 2012-13, only one person was handed the maximum sentence’. It is not therefore surprising to read that public confidence in sentencing is not high.

There was public outcry over the insufficient sentence handed down to Ariik Mayot on 6 March in the Brisbane Supreme Court, prompting the opposition shadow Attorney, the honourable member for Mansfield, to write to the Attorney-General asking her to appeal it. The charge for one-punch killing carries a maximum sentence of life behind bars, but Mayot’s sentence was described as manifestly inadequate, not meeting or reflecting community expectations and standards. Whilst this case did not involve sexual advances, it was nonetheless another example of publicly perceived soft sentencing that did not fit the severity of the crime and did not send a message to others that this type of senseless behaviour is not welcome in our community. Mr Bill Potts, the immediate past president of the Queensland Law Society, when asked about the definition of ‘exceptional circumstance’ said—

Why I have a problem with exceptional circumstances is this: when you look at it, there is no mention of homosexuality and there is no mention of gender. This is a provision that is aimed at that very significant ill, but it is drafted in such a way that it catches many things.

He used the examples of perpetrators who themselves had been victims and therefore may be incited to react in situations many of us would not. Mrs Wendy Francis, the Queensland State Director of the Australian Christian Lobby, expressed concerns of her organisation, saying—

The proposed changes will potentially compromise the defence of provocation for women with the requirement that the provocation be a serious indictable offence. This will make any defence of women who respond violently to sexual advances much more difficult to achieve and very restrictive.

What this bill will achieve is to preclude actions which would constitute sexual assault from provocation.

We are surrounded on almost a daily basis with media reports of violence towards women in particular, be it of a sexual nature or assault, with a horrific number resulting in death. We are also reminded frequently of the escalating and terrifying use—or should I use ‘abuse’—of potent drugs like crystal methamphetamine, ice. As a society we should be condemning these actions and joining together in a show of solidarity at every opportunity that these behaviours will not be tolerated. We cannot drop our resolve for a moment and we need not only every government agency working closely together; we need the general public to maintain the rage, so to speak, with a zero tolerance towards assaults and violence of this nature. Mr Thomas Clark, the Director of Law Reform at LGBTI Legal Service, said—

Our recommendation is that the bill be revisited after a period of four or five years with special consideration made to any cases arising in that time to determine if it is operating as intended.

The committee report on this bill stated—

The committee agrees that the proposals in Clause 10 of the Bill should be reviewed in five years to establish whether they have operated as intended.

I should hope that, in this instance when it comes to showing responsible governance by reviewing the effectiveness of a new piece of legislation as opposed to conducting 150 reviews to simply buy time rather than taking meaningful action, this review-loving Labor government does follow through and review these amendments in five years as a means of strengthening our justice system and to fully consider the concerns raised in the hearings and submissions.

Welcome from Jann

As the State Member for Currumbin since 2004 we have achieved much together to make the place we call home an even better and safer community.

It truly is an honour to serve the caring and connected residents of Currumbin.

Your thoughts and concerns matter to me and I look forward to continuing to be a strong voice on your behalf.

My electorate office staff and I are here to help you with state government issues.

Kind regards

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