This is a single section from Chapter 21. Read the full chapter here.

Should the conduct be subject to the criminal law?

Compelling reasons must exist to justify applying the criminal law to any conduct. The criminal law should be reserved only for conduct that society considers is sufficiently blameworthy to attract the consequences of a criminal conviction.

 

Having identified the physical and mental elements, who should be punished, and what defences might be available, the question of whether the conduct should be regulated by a criminal offence can be considered.

The criminal law is used to punish, deter and publicly denounce conduct that society considers is blameworthy, harmful and should be prohibited. The criminal law brings the full weight of the State’s power to bear on those within its jurisdiction and will involve interfering with a number of fundamental rights. Depending on the seriousness of the misconduct, a person subject to a criminal conviction may experience a loss of liberty (imprisonment or home detention), a loss of property (confiscation, fines or reparation), or both. A person who is convicted will acquire the stigma of a criminal conviction and may suffer public denouncement of their conduct and, in some cases, impacts on future employment or overseas travel. Further, the criminal law may authorise the police or other enforcement agencies to search and arrest an individual and to search and seize their property for the purpose of investigating or preventing the commission of a crime.

It is because of these extraordinary consequences that criminal offences should be created with great care, and criminal convictions should only be imposed by an independent court where a defendant’s guilt is proved by the prosecution to the standard of “beyond reasonable doubt” following a rigorously fair procedure.

The following factors, not all of which must be present, may be relevant in determining whether conduct should be criminalised:

 

  • the conduct involves threats of emotional or physical harm, and the risk of, or actual, physical violence or sexual violence or emotional harm;
  • the conduct involves serious harm to the environment, threats to law and order, fraud, bribery or corruption, or substantial damage to property rights or the economy;
  • the conduct, if continued unchecked, would cause substantial harm to individual or public interests such that public opinion would support the use of the criminal law;
  • the conduct is morally blameworthy;
  • the harm to public or private interests that would result from the conduct is foreseeable and avoidable by the offender (for instance, it involves an element of intent, premeditation, dishonesty or recklessness in the knowledge that the harms above might eventuate).

 

General provisions, (“Every breach of this Act is an offence”), are not acceptable as they may capture too wide a range of conduct, not intended to be subject to the criminal law.

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