Alternatives to the criminal courts: Some Considerations of Civil and Administrative Options in the Process of Legal Regulation

• Author: Rick Sarre
• Position: Associate Professor of Law, School of International Business, University of South Australia
• Pages: 25-38

ALTERNATIVES TO THE

CRIMINAL COURTS:

Some Considerations of Civil

and Administrative Options

in the Process of Legal Regulation

RICK SARRE*

Over the last twenty years there has been a great deal of academic attention paid

to the nodon of regulatory 'pluralism', that is, the trend away from the 'state as

commander' style of social, environmental and business regulation, towards one

of 'state as facilitator'. This latter style invokes a complementary mix (public

and private) of formal regulatory tools and informal regulatory strategies in

policing and penalising social and business irregularities. As part of this trend,

there has been a conscious shift away from the criminal justice system towards

the civil courts and administrative tribunals. For example, those accused of

breaches of environmental regulations or corporate

laws,

or charged with minor

drug offences, taxation evasion or social welfare fraud are now quite likely to

find themselves facing a civil penalty or an administrative regime rather than a

criminal prosecution. This paper reviews some contemporary themes in this

regard, and makes a preliminary assessment of the advantages and disadvantages

of the trends. It concludes that there are some laudable aims in society's seeking

a variety of regulatory responses to illegal or anti-social activity. However, some

of the outcomes may prove counter-productive to the task at hand. Conse-

quently, policy-makers should tread warily before compromising too greatly the

fundamental principles that inhere in the processes of the criminal law.

Associate Professor of

Law,

School of International Business, University of South Australia.