Abolishing Australia’s Judicially Enacted Sui generis Doctrine of Extended Joint Enterprise

In this paper it is argued that the decision in Miller v The Queen [2016] HCA 30 is not supported by the common law precedents in Australia nor the historical English precedents. It is argued that the change of normative position theory invoked by the majority judges is just stated as a rule rather than as a positive justification, which is an assertion that has never been developed into a plausible theory. Moreover, the policy considerations cannot work as convincing justifications for extended joint enterprise liability. It is submitted that assisting/encouraging is normatively different from and less harmful and dangerous than perpetration; and that making an assister/encourager fully liable for the target crime goes against principles of fair labelling and proportionate punishment. It is further submitted that the unfairness and injustice in complicity liability is doubled in the context of extended joint enterprise showing the urgency of abolition of it in Australia