All instances of criminal law-making (or promising) deserve scrutiny –
especially if they raise concerns that politicians might be politicising the law
for electoral advantage. However, it would be a mistake to assume this is
the only way criminal laws are made.
We are part of a examining how, when and why criminal laws are made.
What drivers and processes sit behind the moment when an
attorney-general stands up in parliament and introduces a new bill? And
how do we assess what makes a good process?
So far, we’ve found there is a stark difference between the careful
evidence-based, deliberative and consultative processes associated with the
criminal law’s use against some harms – like domestic violence – and the
“urgent” non-consultative law-making with others – like terrorists and
outlaw motorcycle gangs.
Recently in NSW, we saw an interesting variation on the familiar law and
order auction. In the second last parliamentary sitting week for 2018, the
Berejiklian government launched something of a pre-emptive strike ahead
of the state election in March 2019. In the space of three days, the NSW
parliament enacted . Here we highlight some examples illustrating the
diversity of ways criminal laws get made.
introduces a number of reforms aimed at keeping the community safe,
including from the risk of terrorism and other high-risk offenders,
bushfires, child abuse and the supply of drugs causing death.
Here, a diverse range of harms are “knitted” together through a narrative of
community fear, anxiety and need for protection. Despite these common
themes, the changes to the criminal law made by this bill have different
For example, the introduction of higher penalties for lighting bushfires was
influenced by what’s been happening in other states, and a determination
to “keep up”. As the attorney-general put it: this will “ensure that the New
South Wales penalty is now the equal toughest in the country”.
The same bill also increased penalties for the crime of concealing a child
abuse offence – a crime introduced in June this year following
recommendations of thethat this amendment, just six months later, was
because the government had:
listened to the voices of the more than 13,000 people who signed a petition
calling for tougher maximum penalties for the concealment of child abuse
He thanked Dolly’s parents who had “worked tirelessly, campaigning and
raising awareness about the potentially devastating effects of bullying and
When many countries are grappling with it is timely to reflect on how the
community figures in these examples: victims whose loss is the catalyst for
change; a collective of persons in need of protection; and law-makers. The
NSW attorney-general some recent criminal law changes as “citizen law
that if individual citizens lobby hard enough and speak to politicians they
can effect change”. He hoped that “in some small way this will restore some
people’s confidence in our democracy and the ability of citizens to effect