The NSW Gay and Lesbian Rights Lobby (GLRL) welcomes the inquiry by the NSW Parliament to review the provocation defence in NSW and hopes it will address the ongoing problem of the homosexual advance defence.

Currently, s23(2)(b) of the Crimes Act 1900 in NSW reduces a charge of murder to manslaughter where provocation is established.

In 1994, Don Gillies was viciously murdered by his friend Malcolm Green after he made a flirtatious gesture towards him. During the trial Green argued that Gillies unwanted non-violent sexual advance provoked him to murder. Agreeing with some of the arguments advanced by Green, the majority of the High Court in 1997 upheld the use of what became known as the “homosexual advance defence” to reduce a charge of murder to manslaughter.

Justin Koonin, GLRL Co-Convenor, said, “The homosexual advance defence legitimates homophobia in the community by suggesting that same-sex advances are by implication provocative to ordinary people.”

In broader, non-legal terms, the defence also operates to effectively legitimate homophobic violence and discrimination. While the defence has not been successfully used recently in NSW, it still remains an option without changes to High Court precedent or NSW criminal legislation.

Lainie Arnold, GLRL Co-Convenor, emphasised, “This inquiry provides an important opportunity to address an existing archaic law that effectively stigmatises gay and lesbian people.”

Arnold added, “We hope the NSW Government will act swiftly to abolish the homosexual advance defence.”

Provocation has been abolished as a defence in Victoria and Tasmania. The Northern Territory and the Australian Capital Territory have also excluded non-violent sexual advances from their provocation defences.

While the inquiry is set to review provocation defences broadly in NSW, the GLRL is calling on the NSW Government to ensure amendments are passed to eliminate the homosexual advance defence from the Crimes Act.