Understanding processes of criminalisation: Insights from an Australian study of criminal law-making

Abstract

Criminalisation theory scholars have examined important questions regarding what behaviours should be criminalised and why. More recently, greater attention has been paid to linking normative accounts with empirical and historicised analyses of criminalisation practices. Building on recent work on modalities of criminalisation as a methodological tool for contextual criminalisation research, this article introduces a second analytical approach for better understanding how criminal laws are made: processes of criminalisation. We discuss the findings of a pilot study of 143 criminal law statutes enacted in three Australian jurisdictions (New South Wales, Queensland, Victoria) from 2012–2017. We conclude that a processes approach supports a nuanced appreciation of the conditions under which criminal law statutes are produced, and facilitates scrutiny of whether legislative enactments are evidence-based and a product of meaningful consultation and genuine democratic participation in law-making.

Reforming the Landscape for Women who Kill their Abusers in Scotland

“…Legal change is also more likely to be accepted where there exists a robust evidence base for the need of such expertise, i.e ., that misunderstandings regarding coercive control are commonplace and this is not a matter within the existing knowledge of the fact-finder. Research has found that feminist legal reform requires more evidence than other types of law reform, suggesting such an evidence base might be essential before reform could be considered (McNamara et al 2021). Although an evidence base exists for the jury misconceptions related to sexual offences (Leverick 2020), research has not examined juror misconceptions related to domestic abuse in the UK.…”

'Jalal's Law': Driving Reform in the Wrong Direction

“…Based on their analysis of 143 criminalisation statutes passed in New South Wales, Victoria and Queensland between 2012, McNamara et al (2019 developed a typology for describing the paths to criminalisation that contains six categories: judge-made, single-stage executive driven, internal government agency initiative, mandated statutory review, governmentappointed inquiry/review and independent review by standing commission/committee. As is often the case, no typology is perfect and the present case study reveals a variant of these categories: changes driven not by the executive but by an independent member of Parliament but requiring executive cooperation and involving independent reviews.…”

“…Part 1 of this article examines the process whereby an ostensibly draconian Bill was transformed into one far less damaging to fundamental criminal law principles. Building on the pioneering work of McNamara et al (2019) investigating and theorising on the processes of criminalisation, it provides a case study of how populism may be tempered by proper parliamentary procedures, cooperation between parties and a desire to balance political and legal imperatives. Part 2 examines the place of constructive offences in the criminal law and the role that the consequences of an offence plays in the structure of the substantive criminal law and in sentencing, particularly in the context of driving offences.…”

‘Jalal’s Law’: Driving the Law in the Wrong Direction

“…Despite his warning, scrutinising the processes of law-making is important and can reveal 'the social, cultural and political forces driving change (including the role of the media and interest groups)' (McNamara et al 2019: 3). Based on their analysis of 143 criminalisation statutes passed in New South Wales, Victoria and Queensland between 2012, McNamara et al (2019 developed a typology for describing the paths to criminalisation that contains six categories: judge-made, single-stage executive driven, internal government agency initiative, mandated statutory review, governmentappointed inquiry/review and independent review by standing commission/committee. As is often the case, no typology is perfect and the present case study reveals a variant of these categories: changes driven not by the executive but by an independent member of Parliament but requiring executive cooperation and involving independent reviews.…”