Strawberries, Marijuana and Hot Air Balloons: The Expressive Function of Federal Criminal Law
‘Strawberries, marijuana and hot air balloons: the expressive function of federal criminal law’ (2019) 30(2) Public Law Review 94.
Posted: 9 Oct 2019
Date Written: September 1, 2019
In light of the rapid expansion of Commonwealth legislative power, criminal law is one of the final areas in which the States and Territories continue to hold the balance of power in the federal system. Yet it is also true that there has been a slow but steady federal intrusion in this area of law. Little public or academic commentary has been directed to the issue. Not so in the United States, where the “federalisation” of criminal law has been a subject of heated public debate since the proliferation of federal statutory drug offences in the 1970s. The purpose of this Comment is to consider what the experience of the U.S. – a county with a federal system much like our own – might tell us about the federalisation of Australian criminal law. Ultimately, this Comment does not doubt the continued utility of federal criminal law. The increasing flows of people, information and goods across borders will often require coordinated national responses. Yet the solution to these problems will not always be by top-down federal legislation. States and Territories can and should preserve their own agency in criminal law by preferring cooperative approaches amongst states to reach policy consensus, where practicable. There will also be instances where this model of cooperative federalism is not warranted, and where each state or territory should go its own way. In so doing, we preserve the function of our state and territory jurisdictions to serve as the laboratories of democracy that they were designed to be. It may be that Australian states and territories are not as different or divided as their American counterparts. Yet, it remains true, as Justice Gordon has recently reminded us, “that states take often quite different views on the criminality to be ascribed to certain conduct.”
Keywords: federalism, criminal law, statutory interpretation, constitutional law
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