Vol 34, No 2 (2016): Contemporary Issues in Criminal Law

This Special Issue of Law in Context is comprised of articles developed at the 2015 Criminal Law Workshop, co-hosted by the La Trobe University and Melbourne University Law Schools. This annual workshop brings together criminal law academics from across Australia and New Zealand, and results in a day of intense, diverse, and fascinating discussion about contemporary criminal law issues. This collection of articles is accordingly wide-ranging. From the creation of new offences dealing with contemporaneous political panics (such as one-punch homicides and the spectre of out-of-control teenagers using social media to gatecrash suburban parties) and new processes such as paperless arrest warrants, to the re-purposing of old crimes (consorting, conspiracy) and processes (such as bail) in the service of new targets of social/political concern (bikies, domestic violence perpetrators), the articles in this Special Issue interrogate the boundaries of the criminal law and the extent to which it can or should legitimately be used as a tool to police the margins of society.

The last decade has seen a significant expansion in the net cast by Australian criminal laws. In the name of crime prevention and risk management, legislatures around Australia have introduced various forms of ‘extreme’ criminalisation which push the criminal law beyond its traditional boundaries. This article presents four recent case studies of ‘hyper-criminalisation’ to show that law-makers have effectively deployed tropes of demonisation and danger – ‘bikies’ are the archetypal 21st century example – to justify expansion of the parameters of criminal law and the severity of its sanctions. We consider the implications of this type of law-making, given that, frequently, the resulting laws are not limited in their operation to the bikies or other ‘demons’ who were instrumental in their rhetorical justification.

A number of jurisdictions in Australia have introduced special provisions that either displace or reverse the presumption in favour of bail where domestic and family violence offences are alleged. This article examines the different approaches taken to bail in domestic violence cases across Australia in order to consider how to strike the best balance between protecting victims of family violence and upholding the rights of the accused. This article concludes that many of the legislative changes to bail presumptions are unjustified and that the safety of victims can be sufficiently protected by a focus on the basic assessment of whether the risk that the accused will harm the victim is unacceptable, and on a careful consideration and appropriate tailoring of the conditions of the bail grant.

Case law interpreting the common purpose aspect of party liability and the law on conspiracy in New Zealand (as set out in ss 66(2) and 310 of the Crimes Act 1961 (NZ)) has created a situation of over-reach. Individuals who have a limited relationship to criminality carried out by another or in a group context are potentially caught by extended liability rules that can lead to a poor association between the moral culpability of a defendant and serious criminal liability. Indeed, it is suggested that these forms of liability risk guilt by association rather than on the basis of individual positive fault: we suggest that New Zealand’s judges, following and sometimes expanding upon interpretations from other common law jurisdictions, have lost sight of the core concept of individual fault.

The current Royal Commission into Institutional Responses to Child Sexual Abuse has demonstrated serious long-term failures to prevent and adequately respond to child sexual abuse by institutions. Rather than regarding the law as a system of responsibility, this article argues that it can be read instead as organising irresponsibility, drawing upon Scott Veitch’s ideas in Law and Irresponsibility. His key argument is that legal institutions operate as much to deflect responsibility for harms suffered as to acknowledge them. This article focuses on the ways in which the criminal justice system is complicit in organising irresponsibility for systemic failures through an analysis of the Royal Commission Case Study No 6: The responses of a primary school and the Toowoomba Catholic Education Office to the Conduct of Gerald Byrnes. Through concrete examples, this article analyses the ways in which criminal law organises irresponsibility through the individuation of responsibility and the emphasis upon subjective culpability. These practices ensure irresponsibility for actors for systemic failures.

This article explores the extent to which the criminal law defence of necessity in both its excusatory and justificatory forms can apply appropriately in situations of emergency or natural disaster. Some particular problems are examined, including the possible limitation of the defence to responses to threats to life rather than threats to property and arguments that the defence only applies to persons to whom a defendant owed some duty of protection. The article draws on research into disaster response and recovery to suggest that several formulations of the defence are not well-suited to protect disaster responders, particularly spontaneous volunteer responders, and calls for reform to reconcile more effectively the competing interests and policy imperatives arising in disaster situations.

In adjudicating offensiveness, judicial officers create and apply a number of ‘common sense’ judgments about how language works. These ‘language ideologies’ are rarely informed by, and are often contrary to, empirical research and linguistic literature; they are instead constructed through constant repetition of popular views and questionable assumptions. Through the cases Jolly v The Queen and Heanes v Herangi, this article examines how judicial officers construct realities about swear words in the criminal law. In the first part, I briefly set out the legal doctrine in relation to offensive language crimes. Following this, I draw on critical discourse analysis to critique language ideologies in offensive language cases. I argue that offensive language crimes, as they are currently framed and interpreted, encourage judicial officers to pick and choose from whichever linguistic or ‘folk-linguistic’ ideas they see fit, and enable them to elude the rigorous critiques to which linguists are exposed.