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October 18, 2013

NSW Government drafts restrictions to law of provocation

Kate @ DeskThe NSW Government has released a Draft Bill and Discussion Paper recommending that a reformed version of the provocation defence be retained with significant restrictions.

The Government’s recommendations follow the April 2013 release of the Final Report of the Select Committee of the NSW Parliamentary Inquiry into the partial defence of provocation and the Select Committee’s recommendation that the defence should be retained but amended under the new guise of ‘partial defence of gross provocation’. While the Government Discussion Paper states that the Draft Bill upholds the policy intent of the Select Committee there are substantial differences in the reforms proposed in April this year by the Committee and those released in the Draft Bill by the O’Farrell Government yesterday. These include that the loss of control requirement now be retained, the defence be renamed ‘the partial defence of extreme provocation’ and that provocative conduct be limited to only in cases involving a serious indictable offence.

While the government has drafted these reforms with the best intentions at play, including to ensure the justice system protects women who kill in response to family violence, I believe the Government would be better placed to abolish this controversial defence in criminal law. The extensive restrictions proposed will largely render the law of provocation redundant so why not take it one step further and remove the controversial partial defence altogether?

Read my opinion piece discussing the drafted reforms and advocating for abolition as opposed to restriction of the provocation defence published in The Sydney Morning Herald here.

Deborah Cornwell discussed the recommended reforms with myself and Phil Cleary on ABC World Radio on 23 October 2013. Listen to the interview here.

Read my interview with the Deakin News team discussing the Draft Bill here.

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