Rubbish

Public (crimes and misdemeanors) / Private (torts and civil injuries) Distinction
Tort Law: Private Interests/Civil Injuries (breach of contract)
An infringement or privation of the civil rights which belong to citiens consi!ere!
merel" as in!ivi!uals
Crimes: Public Interest (!rug use# public or!er offences# treason)
$lac%stone: &are a breach of violation of the public rights an! !uties# !ue to the whole
communit"' (in $rown p( )*)
Problematic: $rown (p()*) argues that there are no !istinguishing features of crime :
+upporte! b" $lac%stone (in $rown p( )*) where crimes# i(e( assault an! theft# can
inclu!e civil injuries/private wrongs as the" affect in!ivi!ual as well as communit"
,g( Treason is a crime which is also a civil injur" as it involves &conspirac" against an
in!ivi!ual' ($rown p( )*)
&An in!ivi!ual-s private interest in not being %ille! can also be e.presse! as a public
interest in the value of human life' ($rown p( )/)
Public practicalit" is more threatene! b" breach of contract rather than theft or assault
0easons that 1ustif" An Act as a Crime
2uff: &the 3public- character of crime' is implie! rather than clearl" argue! an! &the
reasons that justif" its criminaliation are the4(reasons wh" it is 3public-' (in $rown# p(
)/)
Public/private venue of behaviour !istinction
2omestic violence is !irectl" carrie! out in the privac" of the home
567,8,0# although !omestic violence is a criminal assault the i!eolog" of 3the
private- has operate! to &obscure an! normalie the major form of inter9personal
violence in societ"' ($rown# p( )/)
Case Study: Privacy
5uman 0ights (+e.ual Con!uct Act) :;;/ (Cth) 9 0esponse to <=50C !ecision in
Toonen v Australia (:;;/) which foun! that the Criminal Co!e in Tasmania which
criminalise! &a range of se.ual activit"4(were in breach of Australia-s obligations
un!er Art :) of the International in that the" constitute! an arbitrar" interference' of
an in!ivi!ual-s privac"
$ronitt argues that &what is 3private- an! what is 3se.ual-' are fle.ible &social an! legal
constructs' (in $rown# p( )>)
Compare Pregelj and Wurramurra v Manison (:;??) in ?(*(:(* @ $rown
$ernar! 5arcourt: 5arm Principle
&effectivel" collapsing un!er the weight of its own success' !ue to &claims of harm
have become so pervasive that the harm principle has become meaningless' (in
$rown# p( )))
6ther critics claim it is a &source of real harms# an! shoul! therefore be legall"
suppressible' base! on &feminist# 3moralist- an! conservative jurispru!ential positions'
(in $rown# p( )))
&evi!ence of this instabilit" is provi!e! b" the mar%e! shift on the Auestion of harm
within liberal jurispru!ence over the past two !eca!es' !ue to the &influence of
feminist campaigns on the status of women an! recurring governmental an!
familialist concerns with the welfare of chil!ren' (in $rown# p( )))
2ebate
Buestion of what causes more harm 9 illegal behaviour or enforcement of the law
<ninten!e! costs of criminalisation
Main Concepts
$elieves that criminal law has been base! on &moral principle' (2elvin in $rown# p(
?C)
,mphasises crime (the Law) cannot be eAuate! with sin (the Church) (2elvin in
$rown# p( ?D)
Eun!amental Buestion: 2oes offensiveness provi!e a sufficient reason for criminal
prohibitionF
Also relate! to harm an! moralit" principle where the public is &a!versel" affecte!'
($rown p( ?*)
Morris & Ha!ins: C"S overreach contributes to crime
Criminalising social welfare overloo%s (in $rown# p( ;?)
&This unwarrante! e.tension is e.pensive# ineffective# an! criminogenic' (in $rown# p(
;?)
&Growth of an e.tensive criminal subculture' (in $rown# p( ;;)
2ecriminalise victimless crimes (prostitution# personal !rug use# public or!er
offences)
+upports the removal of these moralistic concerns an! focus rather on the protection
of person/propert"