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The criminal law of Australia is the body of law in
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
that relates to
crime
In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definit ...
.
Responsibility for criminal law in Australia is divided between the
state and territory parliaments and the Commonwealth Parliament. This division is due to the Commonwealth Parliament's limited legislative powers under
Australian constitutional law
Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed.
Background
Constitution ...
.
[While Australian State Governments have ]plenary power
A plenary power or plenary authority is a complete and absolute power to take action on a particular issue, with no limitations. It is derived from the Latin term ''plenus'' ("full").
United States
In United States constitutional law, plenary p ...
to enact legislation; the Commonwealth's legislative powers are exhaustively defined within the Australian Constitution
The Constitution of Australia (or Australian Constitution) is a constitutional document that is supreme law in Australia. It establishes Australia as a federation under a constitutional monarchy and outlines the structure and powers of the ...
.
The criminal law system differs across Australian States; with distinctions readily found across jurisdictions regarding criminal offences, sentencing, and criminal procedure.
Additionally, there exists a distinction between Australia's 'Code States' and 'Common Law States'. The 'Code States' of
Western Australia
Western Australia (commonly abbreviated as WA) is a state of Australia occupying the western percent of the land area of Australia excluding external territories. It is bounded by the Indian Ocean to the north and west, the Southern Ocean to th ...
,
Queensland
)
, nickname = Sunshine State
, image_map = Queensland in Australia.svg
, map_caption = Location of Queensland in Australia
, subdivision_type = Country
, subdivision_name = Australia
, established_title = Before federation
, established_ ...
, and
Tasmania
)
, nickname =
, image_map = Tasmania in Australia.svg
, map_caption = Location of Tasmania in AustraliaCoordinates:
, subdivision_type = Country
, subdi ...
have wholly replaced the system of judge-made criminal law inherited from England; with legislative instruments that exhaustively define the criminal law within those states. Other Australian States have retained the criminal law as inherited through the common law; albeit modulated through legislation and subsequent common law development by Australia's courts.
Common law versus code jurisdictions
The Australian legal system inherits from that of the United Kingdom, due to Australia's colonization by the
British Empire
The British Empire was composed of the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading posts esta ...
. For this reason, much of Australia's criminal law was originally received from English
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
.
In some Australian states, the common law criminal system is still in force; albeit modulated by legislation and subsequent development by Australian courts. In others, the criminal law has been wholly
codified. These two types of criminal law systems are generally referred to as 'code jurisdictions' or
'common law jurisdictions' respectively. The common law jurisdictions of Australia are
New South Wales
)
, nickname =
, image_map = New South Wales in Australia.svg
, map_caption = Location of New South Wales in AustraliaCoordinates:
, subdivision_type = Country
, subdivision_name = Australia
, established_title = Before federation
, es ...
,
South Australia
South Australia (commonly abbreviated as SA) is a state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of , it is the fourth-largest of Australia's states and territories ...
and
Victoria
Victoria most commonly refers to:
* Victoria (Australia), a state of the Commonwealth of Australia
* Victoria, British Columbia, provincial capital of British Columbia, Canada
* Victoria (mythology), Roman goddess of Victory
* Victoria, Seychelle ...
; the code jurisdictions are
Australian Capital Territory
The Australian Capital Territory (commonly abbreviated as ACT), known as the Federal Capital Territory (FCT) until 1938, is a landlocked federal territory of Australia containing the national capital Canberra and some surrounding townships. ...
, the
Northern Territory
The Northern Territory (commonly abbreviated as NT; formally the Northern Territory of Australia) is an states and territories of Australia, Australian territory in the central and central northern regions of Australia. The Northern Territory ...
,
Queensland
)
, nickname = Sunshine State
, image_map = Queensland in Australia.svg
, map_caption = Location of Queensland in Australia
, subdivision_type = Country
, subdivision_name = Australia
, established_title = Before federation
, established_ ...
,
Tasmania
)
, nickname =
, image_map = Tasmania in Australia.svg
, map_caption = Location of Tasmania in AustraliaCoordinates:
, subdivision_type = Country
, subdi ...
, and
Western Australia
Western Australia (commonly abbreviated as WA) is a state of Australia occupying the western percent of the land area of Australia excluding external territories. It is bounded by the Indian Ocean to the north and west, the Southern Ocean to th ...
.
In common law jurisdictions legislation does not always exhaustively define the elements of an offence. For example section 117 of the ''Crimes Act 1900'' (NSW) states that larceny is an indictable offence punishable for five years; but does not define the meaning of larceny.
[.][The section reads:
]117. Punishment for larceny
Whosoever commitindictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years.
The offence of larceny remains defined in NSW by the common law.
Jurisdictions
Commonwealth
The Commonwealth's jurisdiction in criminal matters is more limited than Australia's states. This is due to Australia's constitutional arrangements in which the Commonwealth has been granted only a limited and exhaustive list of subjects upon which it can validly enact legislation. Some analogies may be drawn with the constitutional arrangements of the United States.
Commonwealth offences are mostly found within either the ''
Crimes Act 1914
The ''Crimes Act 1914'' (Cth) is an Act of the Parliament of Australia which addresses the most serious federal offences — that is, crimes against the Commonwealth. It was the first major federal criminal law since the Federation of Australi ...
'', or within the ''
Criminal Code Act 1995
The criminal law of Australia is the body of law in Australia that relates to crime.
Responsibility for criminal law in Australia is divided between the state and territory parliaments and the Commonwealth Parliament. This division is due to t ...
''. The 1995 act was enacted after a review of Commonwealth criminal law undertaken by Sir
Harry Gibbs
Sir Harry Talbot Gibbs, (7 February 191725 June 2005) was Chief Justice of the High Court of Australia from 1981 to 1987 after serving as a member of the High Court between 1970 and 1981. He was known as one of Australia's leading federalist ...
in 1987, which recommended that Commonwealth criminal law be consolidated.
[.] That committee also drafted a model criminal code for adoption within all Australian jurisdictions; however, that code was only adopted in part by the ACT and Northern Territory legislatures.
The Commonwealth has occasionally used its powers to override state criminal laws. For instance, the overrode
sodomy laws in
Tasmania
)
, nickname =
, image_map = Tasmania in Australia.svg
, map_caption = Location of Tasmania in AustraliaCoordinates:
, subdivision_type = Country
, subdi ...
.
[The Human Rights (Sexual Conduct) Act was validly enacted through reliance upon the s51 external affairs power]
The ''Criminal Code Act 1995'' has been amended many times, including for purposes of
national security
National security, or national defence, is the security and defence of a sovereign state, including its citizens, economy, and institutions, which is regarded as a duty of government. Originally conceived as protection against military atta ...
and
counter-terrorism
Counterterrorism (also spelled counter-terrorism), also known as anti-terrorism, incorporates the practices, military tactics, techniques, and strategies that governments, law enforcement, business, and intelligence agencies use to combat or el ...
.
New South Wales
The primary criminal statutes of NSW is the ''
Crimes Act 1900
The ''Crimes Act'' 1900. is a New South Wales statute that sets out the majority of criminal offences for the state of New South Wales in Australia. It, the Commonwealth Crimes Act 1914. and the Commonwealth Criminal Code Act 1995 form the major ...
''
(NSW).
[.] Other statutes, such as the ''Summary Offences Act 1988'', also create criminal offences which are generally dealt with in the Local Court system.
Offences spelt out in the Drug Misuse and Trafficking Act 1985 (NSW) cover all prohibited drugs.
Among other important legislation is the Bail Act 2013,
[.] Uniform Evidence Act 1995 and the
Customs Act 1901
Customs is an authority or agency in a country responsible for collecting tariffs and for controlling the flow of goods, including animals, transports, personal effects, and hazardous items, into and out of a country. Traditionally, customs h ...
.
Prosecution of criminal offences is subject to the Law Enforcement (Powers and Responsibilities) Act 2002,
[.] which sets out the limits of police powers.
Special circumstances regarding child offenders is provided for under the ''Young Offender Act 1997'' (NSW).
Victoria
The primary criminal statute in Victoria is the
Crimes Act 1958
The Crimes Act 1958 is an Act of the Parliament of Victoria.
The Act codified most common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial ...
. Criminal procedure is consolidated within the Criminal Procedure Act 2009 (Vic).
Other important legislation includes the Evidence Act 2008 (Vic), Summary Offences Act 1966 (Vic) and Jury Directions Act 2015 (Vic).
South Australia
Most crimes in South Australia are codified in the ''Criminal Law Consolidation Act 1935'' (SA).
There are also a number of common law provisions for criminal conduct in South Australia.
Queensland
The ''Criminal Code Act 1899 (Qld)'', is the primary instrument for the source of criminal law in Queensland.
The act is sometimes referred to as the 'Griffith Code', named for
Sir Samuel Griffith
Sir Samuel Walker Griffith, (21 June 1845 – 9 August 1920) was an Australian judge and politician who served as the inaugural Chief Justice of Australia, in office from 1903 to 1919. He also served a term as Chief Justice of Queensland and t ...
, who was responsible for its production. In drafting the code, Griffith borrowed heavily from
Italy
Italy ( it, Italia ), officially the Italian Republic, ) or the Republic of Italy, is a country in Southern Europe. It is located in the middle of the Mediterranean Sea, and its territory largely coincides with the homonymous geographical re ...
's
Zanardelli Code
The Italian Penal Code of 1889, commonly known as the Zanardelli Code ( it, Codice Zanardelli), was the penal code in effect in the Kingdom of Italy from 1890 to 1930, and it is still in effect in Vatican City. The Zanardelli code gets its name ...
, which Griffith described as 'the most complete and perfect Penal Code in existence'. Griffith also took inspiration from the
New York Penal Code
New is an adjective referring to something recently made, discovered, or created.
New or NEW may refer to:
Music
* New, singer of K-pop group The Boyz
Albums and EPs
* ''New'' (album), by Paul McCartney, 2013
* ''New'' (EP), by Regurgitator ...
. The Griffith Code was later adopted by other jurisdictions, including
Western Australia
Western Australia (commonly abbreviated as WA) is a state of Australia occupying the western percent of the land area of Australia excluding external territories. It is bounded by the Indian Ocean to the north and west, the Southern Ocean to th ...
,
Nigeria
Nigeria ( ), , ig, Naìjíríyà, yo, Nàìjíríà, pcm, Naijá , ff, Naajeeriya, kcg, Naijeriya officially the Federal Republic of Nigeria, is a country in West Africa. It is situated between the Sahel to the north and the Gulf o ...
and
Papua New Guinea
Papua New Guinea (abbreviated PNG; , ; tpi, Papua Niugini; ho, Papua Niu Gini), officially the Independent State of Papua New Guinea ( tpi, Independen Stet bilong Papua Niugini; ho, Independen Stet bilong Papua Niu Gini), is a country i ...
.
The book ''Carter's Criminal Law of Queensland'' is a collection of annotated information on case law associated with the Queensland criminal code; it is popular among legal scholars and practitioners.
Western Australia
The ''Criminal Code'' (WA) is a complete codification of Western Australia's criminal law. The code is substantially similar to Queensland's criminal code, and was constructed with close reference to the Griffith code.
Section 4 in appendix B of the ''Criminal Code Act Compilation Act 1913'' (WA) provides that:
"No person shall be liable to be tried or punished in Western Australia as for an offence, except under the express provisions of the Code, or some other statute law of Western Australia, or under the express provisions of some statute of the Commonwealth of Australia..."
The effect of this provision is that no person can be tried for offences that are not explicitly provided for in legislation, abolishing offences at common law. Notably, the common law offence of contempt of court has been preserved by s 7 of the Act in the same Appendix B, allowing courts of criminal jurisdiction to summarily try someone for this single common law offence. The ''Criminal Code Compilation Act 1913'' (WA) itself is the compiling Act of the Parliament of Western Australia but does not contain any criminal offences. The criminal offences are provided for in Schedule of the Act, and citing criminal offences in the Schedule is simply to the ''Criminal Code'' (WA). There are many other Acts in WA which have contain criminal offences, including (but not limited to) the ''Misuse of Drugs Act 1981'' (WA), the ''Firearms Act 1973'' (WA), the ''Road Traffic Act 1974'' (WA), the ''Local Government Act 1995'' (WA), and the ''Bushfires Act 1954'' (WA).
Tasmania
Tasmania's serious criminal offences are set out in the ''Criminal Code Act'' ''1924'' (Tas).
There are numerous other laws where provisions outlining offences may be found. E.g. the ''Firearms Act'', the ''Police Offences Act'', or ''Road Safety (Alcohol and Drugs) Act''.
Northern Territory
The primary criminal statute of the Northern Territory is the ''Criminal Code Act 1983'' (NT). The Northern Territory has also exhaustively codified its criminal laws in a manner similar to Queensland and Western Australia.
The NT Criminal Code Act 1983, was drafted with cose reference to both the Queensland and WA Criminal Codes.
Australian Capital Territory
Offences and defences are mostly codified by the ''Crimes Act'' 1900, and the ''Criminal Code Act'' 2002.
Model criminal code
It has been proposed that Australian jurisdictions should make criminal laws consistent through adoption of a
model criminal code. At present, New South Wales,
[''Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009'' (NSW]
explanatory notes
Western Australia and the Northern Territory have participated in modifying some crimes to match the position in the model criminal code, but in many areas states have not changed laws to reflect this code, and in some instances rejected the code entirely.
[For example, it was held in that the common law offence of ]larceny
Larceny is a crime involving the unlawful taking or theft of the personal property of another person or business. It was an offence under the common law of England and became an offence in jurisdictions which incorporated the common law of Engla ...
required a different mens rea
In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
(or, requisite intent) in New South Wales
)
, nickname =
, image_map = New South Wales in Australia.svg
, map_caption = Location of New South Wales in AustraliaCoordinates:
, subdivision_type = Country
, subdivision_name = Australia
, established_title = Before federation
, es ...
to that adopted the Model Criminal Code
Notes
References
External links
The Commonwealth Criminal Code – A Guide for PractitionersCommonwealth Criminal Code
{{DEFAULTSORT:Criminal Law Of Australia
Australian criminal law
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...