Theorising Criminalisation: The Value of a Modalities Approach
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University of New South Wales
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University of Wollongong Australia
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Queensland University of Technology Australia
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The University of Queensland Australia
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University of Sydney Australia
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University of New South Wales Australia
Abstract
‘Criminalisation’ has attracted considerable scholarly attention in recent years, much of it concerned with identifying the normative limits of criminal law-making. Starting from the position that effective theorisation of the legitimate uses of criminalisation as a public policy tool requires a robust empirical foundation, this article introduces a novel conceptual and methodological approach, focused on recognising a variety of modalities of criminalisation. The first part of this article introduces and explains the modalities approach we have developed. The second part seeks to demonstrate the utility of a modalities approach by presenting and discussing the findings of a pilot study of more than 100 criminal law statutes enacted in three Australian jurisdictions (New South Wales, Queensland and Victoria) between 2012 and 2016. We conclude that a modalities approach can support nuanced examination of the multiple ways in which adjustments to the parameters of criminalisation are effected. We draw attention to the complexity of the phenomenon of criminalisation, and highlight the need for further quantitative and qualitative work that includes longer-term historical analysis.
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Author Biographies
AustraliaProfessor Luke McNamara is Co-Director of the Centre for Crime, Law and Justice, Faculty of Law, University of New South Wales, Australia. His current research examines the patterns, drivers, modalities and effects of criminalisation as a public policy tool, with a focus on regulation of behaviours and activities in public places.
Julia Quilter is an Associate Professor and member of the Legal Intersections Research Centre, School of Law, University of Wollongong, Australia. Her research focuses on criminal law and criminal justice issues, including alcohol-related violence, one punch laws, public order, homelessness, fines & sexual violence.
Professor Russell Hogg has published widely in the areas of criminology and criminal justice studies, including Policing the Rural Crisis (Federation Press, 2006, co-authored with Kerry Carrington) and Critical Criminology: Issues, Debates, Challenges (Willan, 2002, co-edited with Kerry Carrington). He is also co-editor of a forthcoming collection of essays on crime in rural Australia.
AustraliaProfessor Heather Douglas is based at the TC Beirne School of Law at the Univiversity of Queensland. She researches in the areas of criminal justice and domestic violence. Heather has published widely on criminal justice issues and around legal responses to domestic violence and child protection. In 2014- 2019 she was awarded an Australian Research Council Future Fellowship to research the way in which women who have experienced domestic violence use the legal system to help them leave violence. She was the lead researcher and project co-ordinator with the Australasian Institute of Judicial Administration on the development of the National Domestic and Family Violence Bench Book, a project funded by the Commonwealth Government. Heather was appointed a Fellow of the Australian Academy of Law in 2013 and a Fellow of the Academy of Social Sciences in Australia in 2017.
Dr Arlie Loughnan is Professor of Criminal Law and Criminal Law Theory at Sydney Law School and Co-Director of the Institute of Criminology, University of Sydney.
Emeritus Professor David Brown taught Criminal Law, Advanced Criminal Law, Criminal Justice, Crime Prevention, Community Corrections and Penology courses at the University of NSW in Sydney from 1974 to 2008. He is a co-author of the major and innovative Criminal Laws (1990), (2nd edn 1996) and (3rd edn 2001) (4th edn 2006) (5th edn 2011) which has become the leading student teaching text in criminal law in universities in NSW.
Professor Brown is very widely published across the broad areas of criminal law, criminal justice, criminology and penology, both in Australia and internationally. He has co-authored or co-edited 10 books; published 33 chapters in books, and over 100 articles in journals and in conference proceedings published; given 120 conference papers or public addresses all over the world; and is a regular media commentator on criminal justice issues.