Queensland’s antiquated laws are endangering gay men — and the United Nations should do something about it.

Two recent murder trials receiving widespread publicity in Maryborough, Queensland, in 2010 and 2011 resulted in convictions for manslaughter rather than murder. In both instances, defendants alleged the victim had made an unwanted homosexual advance, which can be asserted as part of the wider provocation defence. If successful, this defence results in a conviction for the lesser crime of manslaughter, rather than murder.

Allowing a homosexual advance to be asserted as part of the defence of provocation has been strongly criticised for excusing male violence in situations where an ordinary person should be expected to exercise self-control. Provocation has already been abolished in Victoria, Western Australia and Tasmania, in part out of concerns that it excuses and normalises excessive male violence. The Northern Territory and the ACT have expressly removed a non-violent sexual advance as a basis for raising the provocation defence.

Recently, New South Wales has introduced legislation to amend the provocation defence, restricting the circumstances in which the defence can be raised. An accused will now need to bring sufficient evidence of the conduct of the deceased for it to constitute extreme provocation before the defence can be considered. According to the new laws, such extreme provocation cannot be established on the basis of a non-violent sexual advance made toward the accused. These proposed changes, based upon a unanimous recommendation of an earlier NSW Legislative Council Inquiry, are anticipated to be enacted with the full support of all political parties in the NSW Parliament.

Unfortunately, in Queensland, efforts to eliminate the defence of provocation or scrap the unwanted homosexual advance defence from its ambit have, thus far, been unsuccessful. The two brutal murders in Maryborough provoked outrage locally, nationally and internationally; over 4000 Queenslanders signed a government petition to scrap the homosexual advance defence, and a similar petition on change.org received over 200,000 signatures globally. These efforts prompted the former Labor government in Queensland to convene an “expert committee” to consider whether the defence of provocation should be amended, with former attorney-general Paul Lucas recommending the law be changed so that a non-violent sexual advance could not be used to assert the defence of provocation. During the 2012 state election campaign, Premier Campbell Newman agreed to consider the findings of the expert committee, but following the election, new Queensland Attorney-General Jarrod Bleijie refused to take the committee’s recommendations on board.

International human rights law has been used by activists as a last resort to pressure governments when domestic legislation fails to protect individual rights, and it may now be time to appeal to the Newman government’s sense of respect for and protection of the lives of all Australians, who should be equal before the law. This is the approach Sir Samuel Griffith adopted when he drafted the Queensland Criminal Code, and it should be given modern expression in the face of repeated instances where its purpose has been frustrated by defences the deceased can never answer.

“Reporting the Newman government to the UNHRC could be the best way to draw attention to the inequality …”

The antiquated homosexual advance defence can be brought to the attention of the UN as a violation of Australia’s international obligations. Australia is a signatory to both the International Covenant on Civil and Political Rights and the First Optional Protocol to this treaty. This allows the UN Human Rights Committee to consider communications from Australians alleging they have been an injured party due to violations of any of the rights set forth in the ICCPR, such as a surviving parent of a deceased victim. Article 2(1) of the ICCPR  mandates that state parties ensure non-discrimination on the basis of sex or other status, while article 26 of the ICCPR requires practical rather than facial equality before the law. Additionally, article 6 of the treaty provides an affirmative obligation on states to protect the right to life: “Every human being has the inherent right to life. This right shall be protected by law.”

In the famous Toonen case, the UNHRC ruled unanimously that article 2(1) should be taken to include sexual orientation and determined Australia was in violation of the ICCPR for failing to decriminalise homosexuality in Tasmania. This led to the eventual repeal of the sodomy laws in Tasmania. Establishing a partial defence in the criminal law that offers differential protection to the right to life on the basis of sexual orientation is a violation of articles 2(1), 6, and 26 of the ICCPR. Although the provocation defence in Queensland appears to be neutral in terms of sexual orientation, the defence operates in a discriminatory fashion. A non-violent sexual advance can be asserted by anyone irrespective of sexual orientation, and yet a non-violent heterosexual advance has never been raised in any case in Queensland in the context of provocation.

The homosexual advance defence legitimises violence against gay men in Queensland, sending a message to the wider community that violence perpetrated against homosexuals is somehow less deserving of protection than violence committed against other members of the community. Former High Court Justice Michael Kirby has noted in the famous High Court case of Green v The Queen (1997) that the “non-violent homosexual advance” defence in murder cases provides a judicial understanding of the ordinary man as a “violent homophobe” in which “non-violent homosexual advances” are revolting and worthy of deadly force as a just punishment.

The desirability of uniformity in criminal law and defences throughout the nation and the need for continued progress in reducing homophobia, which is reinforced by the state of the law in Queensland, support the need to scrap the homosexual advance defence. Reporting the Newman government to the UNHRC could be the best way to draw attention to the inequality caused by the archaic homosexual advance defence, pressuring the Queensland government for reform.

*Dr. Alan Berman — an adjunct research fellow of the Socio-Legal Research Centre at Griffith Law School and a senior law lecturer at Newcastle Law School –teaches and researches in the areas of crime and Australian society, international human rights law and sexuality and the law. Sher Campbell  — a lecturer at Newcastle Law School — teaches and researches in the areas of social justice and equality.