Title

Normativity and the ordinary person formula: Comparing provocation and duress in Australia

Document Type

Journal Article

Publication Title

University of Western Australia Law Review

Publisher

University of Western Australia

School

School of Business and Law / School of Arts and Humanities

RAS ID

29807

Comments

Nisbet, T., & Larsen, A.-C. (2019). Normativity and the ordinary person formula: Comparing provocation and duress in Australia. University of Western Australia Law Review, 45(2), 249-273. http://www.able.uwa.edu.au/centres/uwalr/issues/2019-volume-45,-issue-2

Abstract

This article revisitsthe formulation of the ‘ordinary person’test, the long-established normativetest in criminal law in Australia. The ‘ordinary person’test,where itapplies, setsan ‘objective’ anduniform standard or legal norm: would (or might)anordinary person have done the illegal act when confronted with similarcircumstances as the accused?Althoughmuch debate has ensued as to whothe ‘ordinary person’ is in Australia, in this article, we explore from a normativeperspective, the possibility of reworking the test toachieve uniformity across twodefences. We argue that although the justification for the defences of provocation and duress differ, constructing a minimum objective standard for the ordinary person test would promote law’s principle valuessuch asfairness, impartiality, and predictability.The purpose of this article is thus to add a further voice lamenting the divergence in approaches to the ordinary person formula and arguing that normativityisgiven priority over other necessary considerations such as equality, human relations, or community protection.

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