Criminal law of Australia
This article needs attention from an expert in Australian law.(March 2009)
The criminal law of Australia is mostly administered by the individual states and territories of Australia. However, a small subset of criminal activities fall within the jurisdiction of the federal government.
- 1 Common law and code jurisdictions
- 2 Law reform and the Model Criminal Code
- 3 Jurisdictions
- 4 External sources
- 5 References
- 6 External links
Common law and code jurisdictions
Australian criminal law was originally received from the English common law, which continued to evolve in Australian courts. Although all states now also have some criminal law legislation, in some states the criminal law has been wholly codified, whereas in other states the bulk of the criminal law remains based on the common law, but may be partially expressed in legislation. These two types of criminal law systems are generally referred to as 'code jurisdictions' or 'common law jurisdictions' respectively.
New South Wales, South Australia and Victoria are common law jurisdictions. These states have legislation which lists the most common offences and fix their penalties, but do not always exhaustively define the elements of the offence. For example, in New South Wales, section 117 of the Crimes Act 1900 (NSW) states:
117. Punishment for larceny
Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years.
This section states that larceny (i.e. stealing) is an indictable offence and that the punishment is imprisonment for five years. But neither this section nor the remainder of the Act defines larceny. The offence of larceny remains defined by the common law. 
It is settled law in the common law jurisdictions that only Parliaments, 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 replaces 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.
In addition to explicitly titled criminal code legislation, most jurisdictions also have other legislation that also creates some criminal offences, e.g., Summary Offences Act 1966 (Vic) .
Law reform and the Model Criminal Code
Some states plan to reform the criminal law to achieve greater consistency between states through a Model Criminal Code. However, as criminal law is not a power permitted under the Australian Constitution 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 rejected the code entirely.
The Commonwealth has its own criminal jurisdiction for offences against federal laws. However, its jurisdiction in criminal matters is more limited than that of the states. The situation is similar to American criminal law (see also Federal crime in the United States).
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 laws contained in the criminal code of Tasmania, the first time a Commonwealth law was expressly used to counteract state legislation. In 2001 jurisdiction over offences relating to corporations was transferred from the states to the Commonwealth.
New South Wales
The Crimes Act 1900 (NSW) is the New South Wales statute that establishes most criminal offences for New South Wales. This legislation along with federal acts Crimes Act 1914  and the Criminal Code Act 1995, form the majority of criminal law for New South Wales.
Other statutes, such as the Summary Offences Act 1988, also create criminal offences which are generally dealt with in the Local Court system. These include offensive conduct, offensive language, obscene exposure, knife possession. and loitering by convicted child sexual offenders. The offences spelt out in the Drug Misuse and Trafficking Act 1985 (NSW) cover all prohibited drugs. Other frequently used legislation includes the Bail Act 2013 (now amended by the Bail Amendment Act 2015 ), Evidence Act 1995  and the Customs Act 1901. The Bail Amendment Act 2015 was enacted in response to the Hatzistergos and Sentencing Council reports, as well as the Martin Place Siege. Controversially, the Act now contains provisions which limit the power to release an offender when the offences are related to terrorism.
Prosecution of criminal offences is subject to the Law Enforcement (Powers and Responsibilities) Act 2002 which sets out the limits of police powers. Commonly contested parts of the act include Part 4 and Part 5 which are in relation to police search powers, and Part 8 in relation to powers of arrest. Failure by the Police to comply with the Law Enforcement (Powers and Responsibilities) Act 2002 may lead to evidence being excluded in court, as contained in section 138 of the Evidence Act 1995 (NSW).
Defences may be covered by legislation, including insanity, substantial impairment/diminished responsibility, infanticide, extreme provocation, self-defence, and intoxication. The partial defence of extreme provocation was limited by a 2014 amendment restricting the deceased's provocative act to one that constitutes a serious indictable offence; adding an objective test; and excluding non-violent sexual advances and conduct incited by the accused. Defences based in common law include automatism and an honest and reasonable mistake of fact.
With regards to children, New South Wales has a range of separate legislations. While criminal offences are still sourced from the Crimes Act 1900 (NSW), the Young Offender Act 1997 (NSW) establishes a scheme which provides alternatives to the court system for young offenders of certain offences. Children also have a separate court called the Children's Court which solely deals with young offender's matters.
Most crimes in Victorian jurisdiction are codified in the Crimes Act 1958 (Vic) and the state's main criminal procedure laws are consolidated in the Criminal Procedure Act 2009 (Vic). Other relevant criminal legislation include the Evidence Act 2008 (Vic), the Summary Offences Act 1966 (Vic) and Jury Directions Act 2015 (Vic). There are also a number of common law provisions for criminal conduct within Victoria.
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, 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 and Papua New Guinea.
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. .
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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'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) 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 provisions outlining 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 has an almost exhaustive codification of criminal law in a Criminal Code substantially based on the Queensland Code. The statute referred is the Criminal Code Compilation Act 1913 (WA).
The Northern Territory has also an almost exhaustive codification of criminal Law in a similar Criminal Code to that of Queensland and Western Australia. The criminal law of the Northern Territory is the Criminal Code Act 1983. In fact, the drafting of the NT Criminal Code Act 1983, reflected aspects of both the Queensland and WA Criminal Codes.
Australian Capital Territory
- Commonwealth: Criminal Code (attached as a Schedule to the (CTH) Criminal Code Act 1995)
- 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)).
- "CRIMES ACT 1900".
- See Ilich v R (1987) 162 CLR 110 Austlii
- Crimes Act 1900 (NSW) s 117 Austlii
- "Ilich v R  HCA 1; (1987) 162 CLR 110".
- See "He Kaw Teh"  HCA 43; (1985) 157 CLR 523 
- "Model Crime Code proposal 2009" (PDF).
- "CRIMES AMENDMENT (FRAUD, IDENTITY AND FORGERY OFFENCES) BILL 2009 Explanatory Notes".
- For example, it was held in Peters (1998) 192 CLR 493 that the common law offence of larceny required a different mens rea (or, requisite intent) in New South Wales to that adopted the Model Criminal Code
- Crimes Act 1914 (Cth) AustLII
- Criminal Code Act 1995 (Cth) s 1.1, Criminal Code Act 1995 (Cth). Retrieved 20 January 2015.
- History of Criminal Law, Parliament of Australia Library. Retrieved 24 March 2013.
- Human Rights (Sexual Conduct) Act 1994 (Cth).
- see the Crimes Act 1900 (NSW) Austlii
- "CRIMES ACT 1914".
- "Criminal Code Act 1995" (Cth)
- Summary Offences Act 1988 (NSW) Austlii
- Criminal Procedure Act 1986 (NSW) ss 6-7 Austlii
- "SUMMARY OFFENCES ACT 1988 - SECT 4 Offensive conduct".
- "SUMMARY OFFENCES ACT 1988 - SECT 4A Offensive language".
- "SUMMARY OFFENCES ACT 1988 - SECT 5 Obscene exposure".
- "SUMMARY OFFENCES ACT 1988 - SECT 11C Custody of knife in public place or school".
- "SUMMARY OFFENCES ACT 1988 - SECT 11G Loitering by convicted child sexual offenders near premises frequented by children".
- Drug Misuse and Trafficking Act 1985 (NSW) AustLII
- "Bail Act 2013".
- "Evidence Act 1995".
- "Customs Act 1901".
- "BAIL ACT 2013". www.austlii.edu.au. Retrieved 2016-07-31.
- "Law Enforcement (Powers and Responsibilities) Act 2002" http://www.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/
- "Law Enforcement (Powers and Responsibilities) Act 2002" Part 4 http://www.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/
- "Law Enforcement (Powers and Responsibilities) Act 2002" Part 5 http://www.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/
- "Law Enforcement (Powers and Responsibilities) Act 2002" Part 8 http://www.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Austlii
- Brown, David, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (The Federation Press, 2015)
- Evidence Act 1995 (NSW) s 138 Austlii
- "MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990". www.austlii.edu.au. Retrieved 2016-07-31.
- Crimes Act 1900 s 23A
- Crimes Act s 22A
- Crimes Act 1900 s 23, see also Stingel v R  HCA 61.
- Crimes Act 1900 Pt 11
- CRIMES AMENDMENT (PROVOCATION) BILL 2014 Austlii see also R v Qaumi & Ors (No 65)  Caselaw/
- R v Falconer (1990) 171 CLR 30. Jade
- Proudman v Dayman  HCA 28; 67 CLR 536. Jade
- "Crimes Act 1900" (NSW)
- Young Offender Act 1997 (NSW) Legislation NSW
- Children's Court Act 1987 (NSW) Legislation NSW
- Crimes Act 1958 (Vic)
- Criminal Procedure Act 2009 (Vic)
- Evidence Act 2008 (Vic)
- Summary Offences Act 1966 (Vic)
- Jury Directions Act 2015 (Vic)
- "Criminal Code 1899".
- "Medical Use of Cannabis in Australia: "Medical Necessity" Defences under current Australian law and avenues for reform".
- "Criminal Code 1899 - SECT 23 23 Intention—motive".
- "CRIMINAL CODE ACT COMPILATION ACT 1913 - NOTES".
- "CRIMINAL CODE 2002".
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