Assimilation and Authenticity: The ‘Ordinary Aboriginal Person’ and the Provocation Defence

Abstract

In many Australian States and Territories the provocation defence has recently been the subject of law reform. In the Northern Territory, since the 1950s judgements of Kriewaldt J, Aboriginal people’s responses to provocation in that jurisdiction have been measured against the ‘ordinary Aboriginal person’ rather than the ‘ordinary person’. Through a discussion of Northern Territory case law and legislation, this article examines the development of the provocation test in the Northern Territory and the construction of the ‘ordinary Aboriginal person.’ This article argues that Kriewaldt J’s original formulation of the ‘ordinary Aboriginal person’ test was linked to his support for the assimilation policy and that current formulations of the test cause intractable problems. Ultimately the article argues that the problems with the formulation of the ‘ordinary aboriginal person’ test in the Northern Territory provide further support for the abolition of the defence.

Keywords: provocation defence, ordinary Aboriginal person, Northern Territory, Kriewaldt J