New South Wales: insights into influencing the shape of criminal law making
Although informed by previous work with an explicit human rights orientation,1 this chapter approaches the question of rights scrutiny from a different perspective than most of the contributors to this collection. As Australian criminal law scholars, we, and others,2 have been drawn to the question of how best to interrupt what is often described as over-criminalisation. This pejorative phrase is typically used to pass normative judgement on how a government has used its power to enact criminal laws and to punish transgressions. It usually carries one or more of the following assertions: the creation of too many criminal offences; offence definitions that stray from the legitimate limits of criminal responsibility (eg, by not requiring proof of subjective fault or by criminalising risk rather than /1arm); procedural and evidentiary arrangements that erode the presumption of innocence by reversing the burden of proof; penalties that are mandatory or otherwise too harsh; or powers vested in police or other state agencies that are too broad and/or intrusive. As this list reveals, the parameters of criminalisation may be expanded by numerous different 'modalities', including but well beyond the creation of new offences.