We need to be careful so all are equal under the law
The Queensland Government absolutely abhors any attack on a person based on their sexual preference and, to be absolutely clear, does not believe that anyone should be able to plead a non-violent homosexual advance as a partial defence for murder.
On this, we agree with Father Paul Kelly, who wrote the piece on The Punch on Wednesday, “An archaic defence that belongs in the dark ages”. However, it is important that we take expert advice. The legal reality is that the Criminal Code has to be drafted carefully.
It must be drafted on what will work to the letter of the law or else other people will seek to exploit it in unforseen circumstances where society would not support it.
The case referred to by Father Kelly rightly outraged many people in the community because the crime was a violent act not welcome in Queensland let alone in a tight-knit community like Maryborough.
That’s why the offenders were prosecuted.
Richard Meerdink, 41, was sentenced to 10 years in jail and classed as a serious violent offender. He will have to serve at least 80 per cent of his sentence under Queensland’s serious violent offender laws. His co-accused, 38-year-old Jason Pearce, was sentenced to nine years in jail.
While the partial defence of provocation was tested during this particular case, the Government has since tightened the law on the basis of advice from the expert Queensland Law Reform Commission.
The partial defence of “killing on provocation” under section 304 of the Criminal Code applies equally to homosexual and heterosexual people.
The passing in April, 2011 of the Criminal Code and Other Legislation Amendment Bill 2010 closed loopholes.
The new laws mean that:
1. No longer can mere words alone, including gay or straight advances, be sufficient for the defence of provocation to be raised, except in the most extreme and exceptional circumstances.
2. The onus of proof on the partial defence was also reversed so that any accused trying to claim provocation will have to prove it rather than the prosecution proving it does not apply. Whether the defence applies is at the discretion of judges who can assess these matters on a case-by-case basis. Even a person who successfully argues the defence is only able to have their murder conviction reduced to manslaughter. On sentencing, they may still be subject to life imprisonment.
All members of the community expect to be protected equally by the law.
The test is what the “ordinary person” considers to be provocation. While the new laws have not been tested, the Queensland Government recognises there are community concerns.
That’s why an expert committee, including representatives from the LGBTI community, to examine the partial defence of provocation in the context of homosexual advance was announced on 9 November last year, well before Father Kelly’s petition had started.
Also before Father Kelly decided to start his online petition, I had received representations and met a number of representatives of the LGBTI community. As a result, I have referred the matter to the expert panel for its advice.
The panel consists of representatives from peak organisations in the homosexual community including PFLAG and LGBTI as well as legal experts including the committee’s chair, retired Supreme Court Appeal Judge John Jerrard.
No state, including Queensland, has a specific provision to exclude non-violent sexual advance as a partial defence to murder.
Like Queensland, they rely on a general provision and leave the matter to the courts. The ACT and Northern Territory do have a specific provision and it has been raised as a matter of concern.
That’s why I have referred the matter to the expert committee. If the committee recommends changes, I will not hesitate to make them.
The legal amendments of April 2011 were not drafted on a whim. They were drafted on the basis of the report from the expert Queensland Law Reform Commission completed in 2008.
The reality is that actions speak louder than words.
Even though the law reform commission recommended no need for further changes, I have set up this expert committee to look at the issue. That committee has already met to examine whether we need to change the law.
In short, you don’t meddle with the Criminal Code lightly. It is important to take expert advice and that is what the Queensland Government has done at all stages.
On the other hand, the LNP goes into parliament and votes en bloc to oppose other equality issues for the gay community such as civil partnerships on 30 November, 2011 and same sex surrogacy on 1 June, 2010.
Paul Lucas is the Queensland Attorney-General.
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