Sunday, 15 July 2012

The Attorney General - Jarrod Bleijie. Interview on 612ABC in Brisbane, Queensland, Australia.
10 July 2012 , 11:58 AM
(I have also inserted some pertinent endnote comments in brackets at different points. These are my sincere and candid observations, Fr. Paul Kelly).

[The top law officer for the State, the Attorney-General and Minister for Justice Jarrod Bleijie was on this morning’s show to discuss a number of issues.  Steve Austin interviewed him.] This is part of that interview: 
(Interviewer, Steve Austin): In 2010 and 2011, two highly publicized murder trials took place in Maryborough in Queensland and resulted in convictions of manslaughter instead of murder. Defendants in both cases alleged a gay guy made an unwarranted homosexual advance; it’s known as the "gay panic defence". And you’ve been called on by a number of people to remove provocation from the Queensland statute as a defence in what are termed “gay panic cases” will you do that?

(A.G. Jarrod Bleijie):  Well, look, I have received all that and I note there was a petition and I made comments about it at the time. Can I just make the point, though, for your listeners, this is a criminal code element, provocation, it is not the ‘gay panic defence’.[1]
This defence is open to any Queenslander that has this issue.[2]
Now you’ve raised two issues that its been used in the past. But it’s, and I accuse the former Government of using this as a bit of a political football.[3]
Because, although the former Attorney General also said it’s not a gay panic defence, then he released all these press releases “the Gay Panic Defence”, It’s not. It’s a criminal code element in the criminal code and it’s a defence to murder in terms of provocation. [4]
I have, at this point in time, no plan to overhaul it because it was overhauled a couple of years ago, and it hasn’t been used, that particular amendment hasn’t been used when it was introduced in 2011.[5]
So, I don’t have any particular… I’m not of the mind at the moment to fundamentally change it because you don’t just go around because of petitions changing the criminal code. It’s a serious matter, you have to be careful when you do it. And I think what we need to do is wait till the 2011 amendments that were introduced to see what impact they've had. But, I have seen the, I have received the correspondence and I have talked to people about it.

(Interviewer, Steve Austin): There were two cases, though, where the defendants said someone made an unwarranted homosexual advance on them and it resulted and their subsequent assault or killing of that person resulted in a manslaughter (conviction) instead of a murder (conviction), are you entirely happy with that scenario? Personally, I mean, at a personal level Jarrod, are you happy with that?

(A.G. Jarrod Bleijie):  Of course I am not happy with any of those situations, but if it had of been an unwanted sexual advance from anyone else I wonder whether you would even be talking to me about it.
(Interviewer, Steve Austin): But you wouldn’t beat them to death for it !  (nervous, incredulous laugh),
(A.G. Jarrod Bleijie):  If it just had of been a man or a woman relying on that provision of the criminal code, I wonder if the media would be at all interested in it?
(Interviewer, Steve Austin): Well, yes you would, because someone’s been beaten to death!
(A.G. Jarrod Bleijie):   Well, yes but it’s a Criminal Code … its circumstantial ..  it depends on the circumstances, each case has to be assessed on its merit. [6]
There has been a huge international media profile behind the two cases that you talked about, but at the moment the Government has no plans to do it,  we don’t advocate, obviously for any violence against anyone in Queensland, we don't support it, but we have to be very careful, I’m just saying to you as the A.G, we have to be very careful when we meddle with the Criminal Code and the amendments of course that were introduced in 2011 said that words alone were not provocation and so I am satisfied that there were amendments and supported by the law reform commission, mind you,  that were moved in 2011, and I am not willing to gamble on those amendments until we have seen them play out and we haven’t seen them because they just haven’t because they haven’t been used yet.[7]
(Interviewer, Steve Austin): So you are using the Law Reform Commission as your guide in this case?[8]
(A.G. Jarrod Bleijie):  Yeah, well the Law Reform Commission did conduct an extensive review over many, many months on this particular issue.

The full audio of this interview, of which part is transcribed above, is found here:

[1] The attorney General is being very unhelpful here. He should know very well that the law is not merely found on the face of the words in a statute or a code of law, but the law is found by the operation of both the legislation and common law (or case law) which interprets the legislation. Common law defences are available unless excluded by the wording and interpretation of the legislation. The attorney General is causing unnecessary confusion here by implying that the defence of “homosexual advance” is not available in Queensland law because it clearly has been and clearly still IS a partial defence under this section. No one would seriously dispute it. Numerous cases have shown that. The fact that you cannot find the word “gay panic”  or “homosexual advance” does not at all mean that it is unavailable as a partial defence under this state’s Code of Criminal Law. It is very much available. I think the A.G. knows this and it is ridiculous to hide behind semantics. The former A.G. of the previous Queensland Labor government tried the same distracting line, but eventually dropped it as more and more people signed the petition and it became obvious that no one was falling for this irrelevant quibbling about words. 

[2] This is also an unhelpful blurring of the issue.  It is disingenuous to say this, as whilst it is theoretically available to all, in practical effect this law has operated very unevenly and has been to the disadvantage of homosexual men who are victims of crime, and also racial minorities and also, (in very rare cases), where it has been used to justify the killing of women by men the section has been swiftly removed due to massive public uproar that it is a terrible and unacceptable law.

[3] This is hardly the case. The previous government was initially just as resistant to dealing with the issue.

[4] The previous Attorney General could not keep brazenly asserting that there was no such thing as a homosexual advance defence, and so he eventually had to acknowledge it and announce an overhaul.

[5] This is where the contradictions come in,. Does the present A.G. acknowledge WHY this particular section was overhauled? IT was because of problems with the homosexual advance defence. However, it wasn’t sufficient then and the defence is still available in a different form.

[6] The above interaction is really absolutely appalling. The A.G. seems to be suggesting that the media is only making a big deal of it because it was an alleged gay advance and he is suggesting, breathtakingly, that the public would not be worried about this issue if a woman was beaten to death because she made an unwanted sexual advance towards a man or if a man was beaten to death by a woman because he had made an unwanted sexual advance. The interviewer is obviously astounded by this and disagrees with his implication and suggests that in any of these cases it would hardly be a reason to beat someone to death.

[7] The AG seems to be content to just wait and see if people plead this defence and have possibly more cases use this defence before doing anything. It doesn’t seem acceptable because this will mean that nothing further will be done until the section again pleads homosexual advance.  Also, this a bit contradictory because he is now implicitly accepting that this defence which he seems to be suggesting does not exist is actually something they need to wait and see whether reforms have fixed the problems with this supposedly non existant defence. It is ridiculous. It is not being open and transparent with the issue.
[8] The interviewer is being very observant here. He appears to be aware that The AG is ignoring a more recent Expert Panel inquiry and report by JA Jerrard BA,LLB, LLM, QC that concluded that more adjustments to this section of the code really is warranted to protect against problems relating to the ‘homosexual advance’ issue.

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