Australian criminal law
Encyclopedia
The criminal law of Australia generally administered by individual jurisdictions in the Commonwealth of Australia. These jurisdictions include the six states
, the Commonwealth
, and the self-governing territories. It is in large part a matter for the states, with only a small subset of criminal activities reserved for Commonwealth government to prosecute.
, which continued to evolve in Australian courts. Although all states also have some legislation on the criminal law, in some states criminal law has been codified whereas in other the bulk of the law is based on the common law. These may be referred to as ‘common law jurisdictions’ and ‘code jurisdictions’.[1][citation needed]
New South Wales, South Australia and Victoria are common law jurisdictions. These States have Crimes Act
s which list the most common offences and fix their penalties, but do not always exhaustively define the elements of the offence e.g. Crimes Act 1900 (NSW). It is settled law in the common law jurisdictions that only Parliament
s, not the courts, can create new offences.
The “code jurisdictions” are the Commonwealth
, the Australian Capital Territory
, the Northern Territory
, Queensland
, Tasmania
, and Western Australia
. In these jurisdictions a statutory code has been introduced to be a comprehensive statement of criminal law, and are interpreted to replace the common law except in cases of ambiguity. Codification in some cases involved a simple enactment of the common law into a statutory instrument. In other cases the changes were greater as the code was based on legislative instruments from other jurisdictions.
Legislation (including the criminal codes) is further refined by the method of judicial precedent and interpretation.
In addition to explicitly titled criminal code legislation there exists in most jurisdictions a further body of legislative or case precedent, the breach of whose conditions may result in criminal proceedings. e.g. Summary Offences Act 1966 (Vic)
that the Federal Government can legislate on, the Model Criminal Code is simply a model that individual states may choose to adapt to their own criminal laws.
At present, New South Wales, 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 reject the code entirely.
for offences against federal laws, however, its jurisdiction in criminal matters is more limited than that of the States. Because the Commonwealth is in transition from the common law model to the code model, some Commonwealth offences are located in the Crimes Act 1914
(Cth) and others are in the code enacted by the Criminal Code Act 1995 (Cth), which abolished all common law offences. The Crimes Act will eventually be repealed when the code expands to cover all offences.
In recent decades, the Commonwealth has increasingly encroached on the powers of the states in relation to criminal law. For instance, the Human Rights (Sexual Conduct) Act of 1994 overrode the sodomy law
s contained in the criminal code of Tasmania
, the first time a Commonwealth law was expressly used to counteract state legislation. In 1996 the Port Arthur massacre led to the introduction of Commonwealth legislation on gun control
, and in 2001 jurisdiction over offences relating to corporation
s was transferred from the states to the Commonwealth.
(NSW).
is the primary instrument for the source of criminal law in Queensland. The Criminal Code Act was largely the product of Sir Samuel Walker Griffith
, then Chief Justice
of the Supreme Court of Queensland
(and formerly Premier).
The Griffith Code borrowed large elements of the Italian Penal Code 1889 (also known as the Zanardelli Code after its primary supporter) which Griffith described as "in many respects the most complete and perfect Penal Code in existence" and which was translated from Italian by Griffith himself. Griffith also took inspiration from the New York Penal Code 1881. The Griffith Code was later adopted, with some changes, in other parts of the Commonwealth of Nations
including Nigeria
, Papua New Guinea
and Nauru
.
The Criminal Code of Queensland has naturally been the subject of further legislative revision and also judicial interpretation and precedent. A generally regarded reference for accurate annotated information on the body of case law associated with the Queensland Criminal Code is Carter's Criminal Law of Queensland which is often used by legal scholars and practitioners more heavily than the Code itself.
One key feature of the Criminal Code is the formal absence of the common law element of mens rea
. The Criminal Code provides expressly that a mental element of an offence will be expressly provided for in the provision creating the offence. The majority of offences under the Qld Criminal Code do not contain a mental element. Notable exceptions include Murder for example, which can be established as Manslaughter with an intent to kill or to do grievous bodily harm. For offences that do not contain an "inline" mental element, issues such as intention, mistake of fact, intoxication, negligence etc. are dealt with in specific provisions of the Code and only arise for consideration when the Court rules (as a matter of law) that such an issue has been raised. Consequently in most cases there is no need for the Prosecution to prove a corresponding fault element for every physical element.
Like the Queensland and Western Australian legislation, the mental element (or mens rea
) is located under section 13 of the Code, requiring that an act or omission be "voluntary and intentional" for a crime to have occurred. The intent of this is to rule out circumstances where a person is not in control of their own actions - for instance, automatism, insanity, and for some offences, intoxication.
There are numerous other laws where criminal offences may be found. These include the Firearms Act (offences relating to ownership or use of firearms or ammunition), the Police Offences Act (less serious criminal acts and breaches of the peace), the Road Safety (Alcohol and Drugs) Act for drink driving, amongst many others.
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
, the Commonwealth
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
, and the self-governing territories. It is in large part a matter for the states, with only a small subset of criminal activities reserved for Commonwealth government to prosecute.
Common Law and Code Jurisdictions
Australian criminal law was originally received from the English common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, which continued to evolve in Australian courts. Although all states also have some legislation on the criminal law, in some states criminal law has been codified whereas in other the bulk of the law is based on the common law. These may be referred to as ‘common law jurisdictions’ and ‘code jurisdictions’.[1][citation needed]
New South Wales, South Australia and Victoria are common law jurisdictions. These States have Crimes Act
Crimes Act
Crimes Act is a stock short title used for legislation in Australia, New Zealand and the United States, relating to the criminal law...
s which list the most common offences and fix their penalties, but do not always exhaustively define the elements of the offence e.g. Crimes Act 1900 (NSW). It is settled law in the common law jurisdictions that only Parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
s, not the courts, can create new offences.
The “code jurisdictions” are the Commonwealth
Commonwealth
Commonwealth is a traditional English term for a political community founded for the common good. Historically, it has sometimes been synonymous with "republic."More recently it has been used for fraternal associations of some sovereign nations...
, the Australian Capital Territory
Australian Capital Territory
The Australian Capital Territory, often abbreviated ACT, is the capital territory of the Commonwealth of Australia and is the smallest self-governing internal territory...
, the Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
, Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
, Tasmania
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...
, and Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
. In these jurisdictions a statutory code has been introduced to be a comprehensive statement of criminal law, and are interpreted to replace the common law except in cases of ambiguity. Codification in some cases involved a simple enactment of the common law into a statutory instrument. In other cases the changes were greater as the code was based on legislative instruments from other jurisdictions.
Legislation (including the criminal codes) is further refined by the method of judicial precedent and interpretation.
In addition to explicitly titled criminal code legislation there exists in most jurisdictions a further body of legislative or case precedent, the breach of whose conditions may result in criminal proceedings. e.g. Summary Offences Act 1966 (Vic)
Law Reform and the Model Criminal Code
There are currently plans within some states of Australia to reform the criminal law to achieve greater consistency between states, through the Model Criminal Code. However, as criminal law is not a power permitted under the Australian ConstitutionSection 51 of the Australian Constitution
Section 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...
that the Federal Government can legislate on, the Model Criminal Code is simply a model that individual states may choose to adapt to their own criminal laws.
At present, New South Wales, 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 reject the code entirely.
Federal
The Commonwealth has its own criminal jurisdictionCriminal jurisdiction
Criminal jurisdiction is a term used in constitutional law and public law to describe the power of courts to hear a case brought by a state accusing a defendant of the commission of a crime...
for offences against federal laws, however, its jurisdiction in criminal matters is more limited than that of the States. Because the Commonwealth is in transition from the common law model to the code model, some Commonwealth offences are located in the Crimes Act 1914
Crimes Act 1914
The Crimes Act 1914 is a piece of Federal legislation in Australia. Pursuant to the Australian Constitution it prevails in any conflict with State laws dealing with the subject of crime....
(Cth) and others are in the code enacted by the Criminal Code Act 1995 (Cth), which abolished all common law offences. The Crimes Act will eventually be repealed when the code expands to cover all offences.
In recent decades, the Commonwealth has increasingly encroached on the powers of the states in relation to criminal law. For instance, the Human Rights (Sexual Conduct) Act of 1994 overrode the sodomy law
Sodomy law
A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term sodomy are rarely spelled out in the law, but are typically understood by courts to include any sexual act deemed unnatural. It also has a range of similar euphemisms...
s contained in the criminal code of Tasmania
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...
, the first time a Commonwealth law was expressly used to counteract state legislation. In 1996 the Port Arthur massacre led to the introduction of Commonwealth legislation on gun control
Gun control
Gun control is any law, policy, practice, or proposal designed to restrict or limit the possession, production, importation, shipment, sale, and/or use of guns or other firearms by private citizens...
, and in 2001 jurisdiction over offences relating to corporation
Corporation
A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...
s was transferred from the states to the Commonwealth.
New South Wales
Criminal offences under New South Wales law are based on the common law and some statutory provisions in the Crimes Act 1900Crimes Act 1900
The Crimes Act 1900 is a New South Wales statute that codifies the common law crimes for the state of New South Wales in Australia. Along with the Crimes Act 1914 and the Federal Criminal Code Act 1995 , these two pieces of legislation form the majority of criminal law for New South Wales.As it is...
(NSW).
Victoria
Most crimes in Victorian jurisdiction are codified in the Crimes Act 1958 (Vic.). There are also a number of common law provisions for criminal conduct within Victoria.Queensland
The Criminal Code Act 1899 (Qld)is the primary instrument for the source of criminal law in Queensland. The Criminal Code Act was largely the product of Sir Samuel Walker Griffith
Samuel Griffith
Sir Samuel Walker Griffith GCMG QC, was an Australian politician, Premier of Queensland, Chief Justice of the High Court of Australia and a principal author of the Constitution of Australia.-Early life:...
, then Chief Justice
Chief Justice
The Chief Justice in many countries is the name for the presiding member of a Supreme Court in Commonwealth or other countries with an Anglo-Saxon justice system based on English common law, such as the Supreme Court of Canada, the Constitutional Court of South Africa, the Court of Final Appeal of...
of the Supreme Court of Queensland
Supreme Court of Queensland
The Supreme Court of Queensland, which is based at the Law Courts Complex, is the superior court for the Australian State of Queensland and sits around the middle of the Australian court hierarchy...
(and formerly Premier).
The Griffith Code borrowed large elements of the Italian Penal Code 1889 (also known as the Zanardelli Code after its primary supporter) which Griffith described as "in many respects the most complete and perfect Penal Code in existence" and which was translated from Italian by Griffith himself. Griffith also took inspiration from the New York Penal Code 1881. The Griffith Code was later adopted, with some changes, in other parts of the Commonwealth of Nations
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
including Nigeria
Nigeria
Nigeria , officially the Federal Republic of Nigeria, is a federal constitutional republic comprising 36 states and its Federal Capital Territory, Abuja. The country is located in West Africa and shares land borders with the Republic of Benin in the west, Chad and Cameroon in the east, and Niger in...
, Papua New Guinea
Papua New Guinea
Papua New Guinea , officially the Independent State of Papua New Guinea, is a country in Oceania, occupying the eastern half of the island of New Guinea and numerous offshore islands...
and Nauru
Nauru
Nauru , officially the Republic of Nauru and formerly known as Pleasant Island, is an island country in Micronesia in the South Pacific. Its nearest neighbour is Banaba Island in Kiribati, to the east. Nauru is the world's smallest republic, covering just...
.
The Criminal Code of Queensland has naturally been the subject of further legislative revision and also judicial interpretation and precedent. A generally regarded reference for accurate annotated information on the body of case law associated with the Queensland Criminal Code is Carter's Criminal Law of Queensland which is often used by legal scholars and practitioners more heavily than the Code itself.
One key feature of the Criminal Code is the formal absence of the common law element of mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
. The Criminal Code provides expressly that a mental element of an offence will be expressly provided for in the provision creating the offence. The majority of offences under the Qld Criminal Code do not contain a mental element. Notable exceptions include Murder for example, which can be established as Manslaughter with an intent to kill or to do grievous bodily harm. For offences that do not contain an "inline" mental element, issues such as intention, mistake of fact, intoxication, negligence etc. are dealt with in specific provisions of the Code and only arise for consideration when the Court rules (as a matter of law) that such an issue has been raised. Consequently in most cases there is no need for the Prosecution to prove a corresponding fault element for every physical element.
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.Tasmania
Tasmania's serious criminal offences, like those in Queensland and Western Australia, are set in a single piece of legislation, the Criminal Code Act 1924. This includes serious offences against the person (murder, manslaughter, death by dangerous driving, wounding, rape, sexual assault), against property (computer crimes, stealing, burglary, robbery and the like) and against society (bribery of public officials, treason, etc.).Like the Queensland and Western Australian legislation, the mental element (or mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
) is located under section 13 of the Code, requiring that an act or omission be "voluntary and intentional" for a crime to have occurred. The intent of this is to rule out circumstances where a person is not in control of their own actions - for instance, automatism, insanity, and for some offences, intoxication.
There are numerous other laws where criminal offences may be found. These include the Firearms Act (offences relating to ownership or use of firearms or ammunition), the Police Offences Act (less serious criminal acts and breaches of the peace), the Road Safety (Alcohol and Drugs) Act for drink driving, amongst many others.
Western Australia
Western Australia has an almost exhaustive codification of criminal law in a Criminal Code substantially based on the Queensland one.Northern Territory
The Northern Territory has also an almost exhaustive codification of criminal Law in a similar Criminal Code to that of Queensland and Western Australia. In fact, the drafting of the NT Criminal Code Act 1983, reflected aspects of both the QLD and WA Criminal Codes.External sources
- Commonwealth: Criminal Code (attached as a Schedule to the (CTH) Criminal Code Act 1995)
- ACT: Criminal Code 2002 (enacted directly)
- Northern Territory: Criminal Code (attached as a Schedule to the (NT) Criminal Code Act 1983)
- Queensland: Criminal Code (attached as a Schedule to the (QLD) Criminal Code Act 1899)
- Tasmania: Criminal Code (attached as a Schedule to the (TAS) Criminal Code Act 1924)
- Western Australia: Criminal Code (attached as a Schedule to the (WA) Criminal Code Act 1913 ((WA) Criminal Code Act Compilation Act 1913 Appendix B)).