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Criminalisation theory scholars have examined important questions regarding what behaviours should be criminalised and why. More recently, greater attention has been paid to linking normative accounts with empirical and historicised analyses of criminalisation practices. Building on recent work on modalities of criminalisation as a methodological tool for contextual criminalisation research, this article introduces a second analytical approach for better understanding how criminal laws are made: processes of criminalisation. We discuss the findings of a pilot study of 143 criminal law statutes enacted in three Australian jurisdictions (New South Wales, Queensland, Victoria) from 2012–2017. We conclude that a processes approach supports a nuanced appreciation of the conditions under which criminal law statutes are produced, and facilitates scrutiny of whether legislative enactments are evidence-based and a product of meaningful consultation and genuine democratic participation in 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.

Australia was the first country to introduce laws mandating the wearing of helmets by bicyclists with the aim of enhancing road safety for cyclists. Examining the law and its administration in NSW, we point to some serious problems and anomalies with the law. We argue safety concerns have been relegated and the fine for the offence has lost any sense of proportionality with offending, parity with penalties imposed in other states and with penalties for other road safety offences in NSW. We also discuss concern over potential police misuse of the law and of its collateral consequences for the vulnerable.

Alcohol and Other Drug ('AOD') use is prevalent in Australia and worldwide, and is frequently a factor in many crimes. Police are often required to assess whether an individual is relevantly intoxicated. This article reviews the current laws and research surrounding intoxication detection by police, with a focus on Australia. It finds that legislation governing criminal law and police powers offers little guidance, and training in intoxication assessment appears to be underdeveloped. It concludes that assumptions of police expertise in AOD intoxication detection should be viewed with caution. Further research is required into the adequacy of initial and continuing police training, and into the practices employed by police officers on the streets, at the police station, and in the courtroom.

It is now over a decade since Western Australia enacted in 2008 a discrete homicide offence to address deaths resulting from so-called "one-punch" assaults. Four other jurisdictions subsequently introduced similar laws: the Northern Territory in 2012 and in 2014, New South Wales, Queensland and Victoria. More than a decade on, it is timely to examine the operation of these laws in practice. This article examines 53 cases finalised during 2008-2018. It highlights six features that may be regarded as unintended consequences or otherwise at odds with the original justifications for their introduction: impact on the prosecution of fatal domestic violence; impact on Indigenous offenders; net widening effects from "classic" one-punch public alcohol-fuelled violence; effect of statutory alterations to common law principles; effects on charging, pleas and alternative verdicts; and sentencing outcomes.

Criminalisation theory scholars have examined important questions regarding what behaviours should be criminalised and why. More recently, greater attention has been paid to linking normative accounts with empirical and historicised analyses of criminalisation practices. Building on recent work on modalities of criminalisation as a methodological tool for contextual criminalisation research, this article introduces a second analytical approach for better understanding how criminal laws are made: processes of criminalisation. We discuss the findings of a pilot study of 143 criminal law statutes enacted in three Australian jurisdictions (New South Wales, Queensland, Victoria) from 2012-2017. We conclude that a processes approach supports a nuanced appreciation of the conditions under which criminal law statutes are produced, and facilitates scrutiny of whether legislative enactments are evidence-based and a product of meaningful consultation and genuine democratic participation in law-making.