Green and Lindsay: Two Steps Forward ? Five Steps Back Homosexual Advance Defence ? Quo Vadis?

• Author: Kerstin Braun and Anthony Gray
• Position: LLM, PhD (Qld.). Lecturer, School of Law and Justice, University of Southern Queensland/BBus, LLB (Hons), GDipLegPrac, LLM (Qld. UT), PhD (UNSW). Professor, School of Law and Justice, University of Southern Queensland
• Pages: 91-118

GREEN

AND

LINDSAY

: TWO STEPS

FORWARD – FIVE STEPS BACK

HOMOSEXUAL ADVANCE DEFENCE –

QUO VADIS

?

KERSTIN BRAUN* AND ANTHONY GRAY**

In the past criminal laws in Australia and elsewhere penalised gay sexual acts. Over

the past decades, however, many jurisdictions decriminalised said acts and, at the

same time, anti-discrimination laws inter alia prohibiting discrimination based on

sexual orientation were introduced. This apparent normalisation of gay identities

in Australian society is at odds with the continued operation of the Homosexual

Advance Defence (‘HAD’) in some jurisdictions allowing the partial exoneration of

homophobic violence. HAD, where successful, allows a perpetrator to rely on

provocation where he applies lethal force to another after a (non-violent)

homosexual advance. As a consequence, a murder charge is downgraded to

manslaughter. After analysing the status quo of HAD in Australian jurisdictions,

the article concludes that a clear stand against a charge reduction in case of an

alleged male on male sexual advance is necessary to limit the prejudicial application

of this criminal defence. Where the High Court, Australia’s most senior court, fails

to do so as was most recently the case in Lindsay, Parliament must act to prevent

discrimination in the context of provocation.

CONTENTS

I

Introduction ........................................................................

92

II

The Law and Homosexuality ....................................................

93

A Normalisation of Gay Identities in Australia ...........................

93

B Homosexual Advance Defence in Australia .............................

96

III

High Court and Parliamentary Responses to HAD in Australia ........

106

A The Stance of the High Court:

Green

and

Lindsay

...................

106

B The Role of Parliament ......................................................

114

VI

Conclusion ..........................................................................

117

* LLM, PhD (Qld.). Lecturer, School of Law and Justice, University of Southern Queensland.

** BBus, LLB (Hons), GDipLegPrac, LLM (Qld. UT), PhD (UNSW). Professor, School of Law and

Justice, University of Southern Queensland.

92

The University of Western Australia Law Review

vol 41(1)

I INTRODUCTION

Most (Western) societies today have anti-discrimination laws, which seek to

prohibit discriminatory treatment on the basis of ‘attributes’. Of those

attributes typically listed, sexual orientation is one which, at least in the past,

discrimination has been most egregious. The law (legislation and case law) has

an important role in the area of discrimination and homosexuality. It can

reflect the attitudes that a society, or some sections of it, attach (and continue to

attach) to a particular person, or particular behaviours. It can reflect features of

a person that at one time did attract certain attitudes, but no longer do so. And

it can reflect an attempt by lawmakers (legislators or judges) to tackle the

negative attitudes that some hold with particular features, seeking to change

said attitudes. Lawmakers can play a crucial leadership role in tackling attitudes

that are no longer felt by that society, as a general rule. While there are difficult

philosophical questions regarding whether the law simply reflects the society it

serves, or whether the law can shape the society it serves, and if both, what

relativity is optimal, the law often lags behind the society it serves.

This article contends that, while homophobic attitudes remain in some

sections of society, gay identities in Australia have become normalised.1 On this

basis it argues that the Homosexual Advance Defence (‘HAD’), partially

exonerating defendants who kill after a homosexual advance, is outdated,

prejudicial and biased and thus has no place in modern society. Where

Australia’s most senior court fails to take a clear stand against the operation of

said defence as has become apparent in 2015 in its most recent decision on the

matter (

Lindsay)

, Parliament must act to limit bias and prejudice in the context

of provocation.

After a brief introduction, part II of the article charts some of the

important legal and social developments regarding the law and homosexuality

and considers the current state of play in Australia and the compatibility of

HAD with contemporary society values. Part III analyses the stance of the High

Court and recent Parliamentary action in this context before concluding that

while the law has come a long way in reaching a general accommodation and

1 Point also made by South Australia,

Parliamentary Debates

, Legislative Council, Hon Tammy

Franks MLC, 1 May 2013, 3804 < https://hansardpublic.parliament.sa.gov.au>. Similarly assumed in

R v Lindsay

[20141] SASCFC 56: The judgment of the Hon. Justice Peek in Lindsay (with which the

Hon. Chief Justice Kourakis agreed) appears clearly to contemplate that homosexuality is now largely

accepted as part of contemporary Australian society, and certainly it is no longer unlawful for

consenting adults to engage in homosexual sexual activity.