There Has Been Debate Within The Australian Government

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There has been debate within the Australian Government about whether the defence of provocation should be changed or abolished. Over the years this defence has undergone changes through interpretation in cases and through legislative amendments. “Provocation; a totally flawed defence that has no place in Australia criminal law irrespective of sentencing regime”. These are the words of Andrew Hemming, a Senior Lecturer of Law within the School of Law and Justice at University of Southern Queensland. He states that provocation laws should be completely abolished throughout the whole of Australia not just in a few jurisdictions (Hemming, 2010). The current provocation laws in Queensland allow criminals to unethically downgrade their sentence…show more content…
If a man killed in such a situation, he was viewed as blameworthy but not deserving of the mandatory death sentence for murder (Toole, 2015). The “loss of self-control” is not literal. If a person suffers a harsh physical or psychological blow they can literally lose total control. If this happens, they are acting as an automaton and their actions are not voluntary and can’t entice criminal liability. The loss of control in provocation refers to a state where self-control would have been challenging, but not impossible.
Provocation has already been abolished in Tasmania, Victoria, Western Australia and New Zealand. In the Northern Territory and the Australian Capital Territory, the defence has been modified so that a non-violent sexual advance cannot, without additional factors, constitute provocation. In New South Wales, non-violent sexual advance cannot provide a basis for provocation, and any other provocation must be “extreme” (Toole, 2015). The law had been abolished in these jurisdictions due to the unjust use of the defence that caused public outrage. The law was abolished in 2005 in Victoria due to the Ramage case, Julie Ramage became a rallying point for law alteration, with about 3,500 letters calling for change sent to her family to be conveyed to the government.
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