Prof. Luke McNamara1
1Faculty of Law, UNSW Sydney,, Australia
‘Criminalisation’ has attracted considerable scholarly attention in recent years, with a focus on identifying the normative limits of the criminal law. Much of this scholarship has tended to assume the prior existence of an ‘ideal’ criminal offence – one that is respectful of so-called general principles of criminal responsibility and associated due process. This paper questions the legitimacy of such a starting point for the important task of theorising criminalisation. The majority of criminal offences have never conformed to this ideal, in terms of how they are defined and how they are enforced. This is especially true of summary and penalty notice offences which are enforced in large numbers across an expanding range of behaviours and risks. This paper argues that theories of criminalisation should take greater account of the realities of how criminal laws are made and the ways in which their punitive effects are operationalised.
Luke McNamara is Professor and Co-Director of the Centre for Crime, Law and Justice, Faculty of Law, University of New South Wales.