Dr Elyse Methven is a Lecturer in Law and a UTS Early Career Research Fellow. Her areas of expertise include criminal law, criminal justice, and the interdisciplinary field of law and language. Elyse was admitted as a Solicitor to the Supreme Court of NSW in 2009. She holds a Bachelor of Laws (First Class Honours), a Graduate Diploma in Legal Practice (UTS) and a Doctor of Philosophy (Law). Elyse lectures in Criminal Law and Procedure and Criminal Sentencing Law.
Elyse joined UTS Law Faculty in 2011, as an inaugural Quentin Bryce Doctoral Scholar and teaching fellow. Prior to commencing her doctoral research at UTS, Elyse was a solicitor at the NSW Crime Commission, where she practised in the criminal investigations and confiscations divisions. Elyse also lectured Criminal Justice and Public Policy at Macquarie University Law School. Elyse completed her PhD in 2017, in which she explored the representation of offensive language crimes through criminal justice discourse. Her thesis was titled: "Dirty talk: A critical discourse analysis of offensive language crimes". Her current research projects are on offensive language, administrative fines regimes and the intersection of criminal law and immigration law. In 2018, Elyse was awarded a UTS early career research grant, for a project on police discretion for public order offences and the use of penalty notices. The project is titled "Swift Justice? Police discretion and on-the-spot fines for offensive language." Elyse is also undertaking a project with Dr David Carter funded by UTS Shopfront, which maps the policing of offensive language in NSW.
- Quentin Bryce Doctoral Scholarship
- UTS Early Career Research Fellow
- Editorial board, Alternative Law Journal
- Member, Australian and New Zealand Society of Criminology
Can supervise: YES
- Offensive language crimes
- Public order offences
- Law and language
- Critical discourse analysis
- Indigenous people and the law
- Criminal and immigration law
- Criminal law and procedure
- Criminal sentencing law
Methven, E 2019, 'Cheap and Efficient Justice? Neoliberal Discourse and Criminal Infringement Notices', University of Western Australia Law Review, vol. 45, no. 2, pp. 65-98.View/Download from: UTS OPUS
Criminal infringement notices (CINs) are now a familiar component of the
criminal justice system, especially in the policing of public order and minor offences. Successive Australian state and territory governments have implemented CIN schemes with the objective of reducing administrative demands and trial backlogs, cutting down on paperwork, freeing up police time, saving costs and keeping police 'on the beat'. This article examines how CINs have been rationalised on the basis of neoliberal economic values, which have overshadowed ordinary criminal justice concerns of morality and responsibility. It focuses on the
introduction of criminal code infringement notices in Western Australia for two offences: disorderly behaviour, and steal anything up to the value of $500. The author argues that there is a need to recognise—and to resist—the encroachment of neoliberal economisation discourses into the realm of criminal law.
Methven, E 2019, 'Dancing with Death: Why the NSW Homicide Offence of Drug Supply Causing Death May Cause More Harm than Good', Criminal Law Journal, vol. 43, no. 3, pp. 215-227.View/Download from: UTS OPUS
In November 2018, the New South Wales government rushed a new homicide offence of "drug supply causing death" through Parliament. It is now a crime – punishable by up to 20 years' imprisonment – for a person to supply a prohibited drug for financial gain where another person self-administers the drug and dies. The offence was implemented in response to drug-related deaths at music festivals. While similar provisions exist in the United States, the crime of drug supply causing death is the first of its kind to be enacted in Australia. This article critically examines the new offence. I critique the haste with which the legislation was introduced and identify problems that may arise in relation to prosecutions, especially with regard to proof of causation and mens rea. I argue that this "law and order" response to drug-related harms is not only unjustified; it may also do more harm than good.
Methven, E 2019, 'The controversial case of Lawyer X: Should lawyers be prevented from acting as human sources?', Alternative Law Journal, vol. 44, no. 2, pp. 93-99.View/Download from: UTS OPUS or Publisher's site
This article addresses whether there are sufficient constraints on legal professionals acting as police informants, following the controversial 'Lawyer X' case. It examines key observations of the High Court of Australia in AB v CD; EF v CD  HCA 58 relating to lawyers' and barristers' duties to their clients and to the court. It argues that existing professional rules and common law duties are insufficient to prevent legal advocates from acting as human sources. The author also suggests implications arising from the decision for the application of public interest immunity to human sources.
In December 2013 the Australian government introduced a code of behaviour for all asylum seekers released from mandatory, indefinite detention and living in the Australian community. The Code of Behaviour for Subclass 050 Bridging (General) visa holders ('the Code'), now in operation for over five years, applies to all so-called 'illegal maritime arrivals' who apply for or seek to renew a bridging visa in order to be released from immigration detention. To be granted a bridging visa, this group of asylum seekers must sign the Code, and are thereafter bound by a 'list of expectations' regarding how to behave 'at all times' while in Australia. The Code's expectations range from obeying the law, to refraining from spreading rumours, swearing in public, bullying anyone or lying to government officials. The Code's introduction fits within a policy framework of punishment and deterrence applied to asylum seekers who arrive in Australia by boat and without authorisation. It functions to expand state surveillance and control over 'illegal maritime arrivals' and introduces a new mechanism to re-detain and punish asylum seekers living in Australia. As at December 2018, 15674 asylum seekers classed as 'unauthorised maritime arrivals', many of whom arrived between 2011 and 2014, were still living in the community on short-term bridging visas.
Methven, EP 2018, 'A Little Respect: Swearing, Police and Criminal Justice Discourse', International Journal for Crime, Justice and Social Democracy, vol. 7, no. 3, pp. 58-74.View/Download from: UTS OPUS or Publisher's site
This article interrogates a commonly articulated idea in relation to the criminalisation of offensive language: namely, that swearing at police challenges their authority and thereby deserves criminal punishment. Drawing on critical discourse analysis, the article examines representations of swearing at police officers in offensive language cases and parliamentary debates, including constructions of power, authority and order. It contributes to—but also denaturalises—conceptions about police power and authority in the context of public order policing. The article argues that criminal justice discourse plays a significant and often under-acknowledged role in naturalising the punishment of swearing at, or in the presence of, police officers.
Methven, EP 2018, 'Book review: Amy Propen and Mary Schuster, Rhetoric and Communication Perspectives on Domestic Violence and Sexual Assault: Policy and Protocol through Discourse', Discourse and Communication, vol. 12, no. 1, pp. 101-104.View/Download from: UTS OPUS or Publisher's site
Methven, EP 2016, ''Weeds of Our Own Making' Language Ideologies, Swearing and the Criminal Law', Law in Context, vol. 34, no. 2, pp. 117-130.
In adjudicating offensiveness, judicial officers create and apply a number of 'common sense' judgments about how language works. These 'language ideologies' are rarely informed by, and are often contrary to, empirical research and linguistic literature; they are instead constructed through constant repetition of popular views and questionable assumptions. Through the cases Jolly v The Queen and Heanes v Herangi, this article examines how judicial officers construct realities about swear words in the criminal law. In the first part, I briefly set out the legal doctrine in relation to offensive language crimes. Following this, I draw on critical discourse analysis to critique language ideologies in offensive language cases. I argue that offensive language crimes, as they are currently framed and interpreted, encourage judicial officers to pick and choose from whichever linguistic or 'folk-linguistic' ideas they see fit, and enable them to elude the rigorous critiques to which linguists are exposed.
Successive reforms in New South Wales ('NSW') have established far-reaching powers to curtail the liberties of those who were once convicted of various serious sexual and violent offences. Now, these powers have been significantly expanded, with the Executive Government asserting the ability to control the free movement, speech, association and work of NSW citizens and businesses via Serious Crime Prevention Orders ('SCPOs') under the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW). This Comment surveys substantive and procedural aspects of SCPOs. We situate the orders as part of a continuing expansion of administrative detention and supervision regimes of a hybrid, quasi-criminal nature. We question whether the powers go too far by increasing the State's powers to surveil and control a person's or business's activities under the justification of preventing crime. We also canvass the possibility that SCPOs will operate in a punitive (not merely preventative) manner.
Vogl, AF & Methven, E 2015, 'We will decide who comes to this country, and how they behave: A critical reading of the asylum seeker code of behaviour', Alternative Law Journal, vol. 40, no. 3, pp. 175-179.View/Download from: UTS OPUS
Methven, EP 2017, 'Offensive Language Crimes in Law, Media, and Popular Culture' in Oxford Encyclopedia of Criminology and Criminal Justice, Oxford University Press, UK, pp. 1-31.View/Download from: UTS OPUS or Publisher's site
In Australia, Canada, and the United Kingdom, public order laws criminalize the use of swearing, offensive, or abusive language in a public place. Police officers use these laws as tools to assert 'their authority' or command respect in public spaces where that authority is perceived to be challenged via the use of profanities such as 'fuck.' Alongside the legislature, the executive, and the judiciary, representations of swearing in the media influence ideas about whether swear words warrant criminal punishment. A particular 'common-sense' assumption about language (language ideology) prevalent in media representations of offensive language crimes, echoed by politicians and police representatives, is that disrespecting or challenging police authority via 'four-letter words' warrants criminal sanction.
However, popular culture can counter dominant ideologies with respect to offensive language, police, and authority. This article examines how the use of swear words in N.W.A's popular rap song 'Fuck tha Police' (1988) and in the HBO television series The Wire (Simon & Burns, 2002–2008) can inform and challenge legal assessments of community standards with regards to offensive language.
Methven, E 2018, 'Cheap and efficient justice? Neoliberal discourse and criminal infringement notices', Jurilingüística II: Interdisciplinary Approaches to the Study of Language and Law, Universidad Pablo de Olavide, Sevilla, Spain.
Methven, E 2018, 'The rise of criminal infringement notices: a cause for concern?', Australian and New Zealand Society of Criminology Conference, University of Melbourne.
Methven, EP 2017, '"A Woman's Tongue" Gender, Swearing and the Law', Law and Society Association of Australia and New Zealand, University of Otago, Dunedin, New Zealand.
Methven, EP 2012, 'DIRTY WORDS? CHALLENGING THE ASSUMPTIONS THAT UNDERPIN OFFENSIVE LANGUAGE CRIMES', The 6th Annual Australian and New Zealand Critical Criminology Conference, Annual Australian and New Zealand Critical Criminology Conference, University of Tasmania, University of Tasmania, Hobart, pp. 97-106.View/Download from: UTS OPUS
Randolf, M, Vogl, A, Methven, E & Weber, L Border Crossing Observatory 2019, Australia's Asylum Seeker Code of Behaviour: A statistical analysis, no. Border Crossing Research Brief No. 15, Melbourne.View/Download from: UTS OPUS
Methven, E 2019, 'Lawyer X and police informants: what is a lawyer's duty to their client and are there exceptions?', The Conversation.
The police-informer relationship has come under scrutiny in the case of Lawyer X – a barrister who acted as counsel for a number of prominent criminal defendants. Victoria police initially reported Lawyer X had been registered as an informant between 2005 and 2009. This week, it was revealed Lawyer X was first registered as early as 1995.
Victorian Premier Daniel Andrews announced a Royal Commission in December, 2018 to determine if any criminal convictions have been affected by the scandal. The Commission is also expected to assess whether changes need to be made to how Victoria Police manages informants in the future.
The High Court criticised Lawyer X's actions as 'fundamental and appalling breaches' of her obligations to her clients and to the court. And Victoria police were admonished for their 'reprehensible conduct in knowingly encouraging' the barrister to inform against her clients.
So, what are the obligations of a lawyer to their client, and what rules govern a police-informer relationship?
Methven, E 2018, 'Renae Lawrence shops at Aldi, and other matters that may not be in the public interest', ABC News.
Methven, E 2018, 'We need evidence-based law reform to reduce rates of Indigenous incarceration', The Conversation.
Methven, EP 2018, 'Cheap and efficient justice? Neoliberal discourse and criminal infringement notices'.
This paper was presented to the UTS Law Faculty Research Seminar Series, 2018. The paper applies ideas from critical discourse analysis ('CDA') to examine the implementation of criminal infringement notice ('CIN') schemes in various Australian states and territories. CINS have become a familiar and well-utilised criminal justice tool, especially in the policing of public order and minor criminal offences. Successive Australian state and territory governments have implemented CIN schemes with the objective of reducing administrative demands, paperwork and trial backlogs; freeing up police time; saving costs; and returning police to 'the beat'. Building on the work of O'Malley (2009) and Mautner (2005; 2014) this paper explains how CINs have been implemented and rationalised on the basis of neoliberal economic values, which have overshadowed ordinary criminal justice concerns of morality and responsibility. It argues that there is a need to recognise, and to resist, the intrusion of neoliberal discourses into the realm of criminal law. It discusses the use of CDA as a methodology to analyse legal and political discourse, and examines specific linguistic techniques such as metaphor, modality, overlexicalisation and analogy.
Methven, EP 2018, 'The Development and Use of Criminal Code Infringement Notices in Western Australia'.
Continuing Professional Development Presentation to Legal Aid Western Australia
This seminar presented initial findings from our 2017 Learning and Teaching project: Promoting problem solving amongst UTS law students: A problem solving apprenticeship in Criminal Law.
Methven, E 2017, 'A nation of convict cussers? Time for Australian law to embrace our potty mouths', The Conversation.
Methven, E 2017, 'How pop culture can (and should) change legal views on swearing', The Conversation.
Methven, EP 2017, 'A nation of convict cussers? Time for Australian law to embrace our potty mouths', The Conversation.
Australia may have a reputation for robust language. But this is at odds with its historical and continued criminalisation of swearing. Since colonisation, those in power treated swearing as a disease, rampant among the 'criminal classes'. While the colonial elites could not eradicate this infliction entirely, they could at least confine it to private spaces. Consequently, laws were enacted to criminalise the public utterance of obscene language. These laws have had a lasting impact. Police continue to fine and charge people for offensive language, particularly those who regularly occupy public space: people who are homeless, youth and many Indigenous Australians.
This thesis analyses criminal justice discourse as it relates to offensive language crimes in Australia. Across Australia, and elsewhere, it is a crime to use offensive, indecent or obscene language in or near a public place. These crimes are governed by broadly drafted provisions that allow police and judicial officers significant discretion in determining offensiveness. Although offensive language crimes can theoretically target a multitude of words and phrases, in practice, the laws are used to police and punish a small selection of swear words.
Provisions that circumscribe offensive speech have a linguistic dimension. This dimension has been under-theorised in previous scholarship on the topic. Accordingly, my thesis places language at the centre of offensive language crimes, by interrogating how such crimes are represented and legitimised as a particular discursive formation within the criminal justice system. My thesis asks two questions: Firstly, how is offensive language represented in criminal justice discourse? Secondly, how are offensive language crimes legitimised in criminal justice discourse?
I employ a distinct approach to these questions by employing critical discourse analysis ('CDA') as my primary methodological tool. CDA is not strictly a 'method', but rather, a loosely grouped body of work that views language as both shaping and shaped by society. Analysts works from the premise that we cannot neutrally represent reality. Instead, we construct (and reconstruct) reality, including social identities, subject positions, social relationships and systems of knowledge and belief, through language. I use the phrase 'criminal justice discourse' to describe socially constructed ways of signifying reality, through language, in the criminal justice system.
My thesis situates its linguistic analysis of offensive language crimes in broader social, political and historical contexts. I draw into the frame linguistic research on swearing, and literature relat...
Methven, EP 2017, 'How pop culture can (and should) change legal views on swearing', The Conversation.
The pervasiveness of profanity in popular culture underscores the absurdity of punishing people for words frequently broadcast on radio, television and in film.
Methven, EP 2017, 'Submission to the ALRC Incarceration rates of Aboriginal and Torres Strait Islander peoples'.
This submission relates to the questions:
Question 6-4: Should offensive language remain a criminal offence? If so, in what circumstances?
Question 6–5: Should offensive language provisions be removed from criminal infringement notice schemes, meaning that they must instead be dealt with by the court?
Methven, EP 2016, 'Is it OK to use the f-word in political protest?'.
The "Fuck Fred Nile" case highlights the absurdity of criminalising "fleeting expletives" while allowing speech that depicts homosexuality as abnormal, unnatural and sinful.
Methven, EP 2015, 'Foul-mouthed Minions? Some myths about children and swearing', The Conversation.
Parental concerns that Minions given as toys in McDonald's Happy Meals have been dropping the F-bomb raises an issue: how far – if at all – should we go to prevent children from exposure to "bad" language?
Methven, E 2014, 'Section 18C and unravelling the government's 'freedom agenda'', The Conversation.