Criminal law of Australia

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The criminal law of Australia is generally administered by individual jurisdictions in the Commonwealth of Australia. These jurisdictions include the six states, the Commonwealth government, 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[edit]

Australian criminal law was originally received from the English common law, which continued to evolve in Australian courts. Although all states 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 are generally referred to as 'code jurisdictions' or 'common law jurisdictions' respectively.[1]

New South Wales, South Australia and Victoria are common law jurisdictions. These states have Crimes Acts which list the most common offences and fix their penalties, but do not always exhaustively define the elements of the offence. For example, New South Wales is a common law jurisdiction. The jurisdiction, however, has a range of statutes which create or define criminal offences. An example of this is section 117 of the Crimes Act 1900 (NSW).[1] Section 117 of the Crimes Act 1900 (NSW) states that:

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. This section, nor the remainder of the Act, does not define larceny. This offence remains defined by the common law.[2]

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 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.[3]

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) [3]

Cyber Laws[edit]

Cyber Bullying Ria Hanewald, in her article Confronting the Pedagogical Challenge of Cyber Safety (Australian Journal for Teacher Education, vol. 33, no. 3, pp. 1–16), gives an introduction and categorises it under "cyber violence"

 Relevant Acts: Criminal Code Act 1995 (Cth)[4]

Law Reform and the Model Criminal Code[edit]

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.[5] 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,[6] 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.[7][citation needed]

Criminal codes[edit]

Federal[edit]

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).

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)[8] and others are in the code enacted by the Criminal Code Act 1995 (Cth),[9] which abolished all common law offences.[10] 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 [11] 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.[10]

New South Wales[edit]

Criminal offences under New South Wales law are based on the common law and the statutory provisions in the Crimes Act 1900 (NSW).[12] 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. This legislation along with federal acts Crimes Act 1914 [13] and the Criminal Code Act 1995,[14] form the majority of criminal law for New South Wales. The combined approach is similar to England. For example, maximum penalties for larceny (or theft) are found in the Crimes Act 1900,[15] but the definition of larceny is a matter of common law.[16] Examples of specific divisions of the Crimes Act are Division 3, which covers attempts to murder,[17] which has its punishment prescribed in Division 1,[18] as well as Division 5 which relates to attempting or aiding suicide [19][20]

Punishment for crimes deemed as 'common assault' is set out in Division 9 of the Crimes Act 1900 (NSW).[21] Aggravated assault includes assault with further specific intent,[22] assault causing particular injuries (actual bodily harm,[23] wounding,[24] and grievous bodily harm [25]), assault with offensive weapons or dangerous substances [26]("Offensive weapon or instrument" is defined in s 4 of the Crimes Act[27]) and assaults on victims of special status[28] (such as children at the time of birth,[29] a child under the age of 7,[30] wives, apprentices, servants and insane people,[31] clergy engaged in their duties,[32] persons endeavouring to preserve a vessel in distress,[33] a member of the crew of an aircraft or vessel whilst on board[34] ).

After the death of Thomas Kelly in 2012, NSW Parliament introduced the "one-punch-law" into the system. This law mandates a minimum sentence of 8 years to the maximum sentence of 25 years for assault causing death with intoxicated(alcohol/drug) conditions [35] and maximum sentence of 20 years for assault causing death without intoxicated conditions.[36] There is also no requirement to prove the assailant knew the punch would be fatal.

Other statutes, such as the Summary Offences Act 1988,[37] also create criminal offences which are generally dealt with in the Local Court system.[38] These include offensive conduct,[39] offensive language,[40] obscene exposure,[41] knife possession.[42] and loitering by convicted child sexual offenders.[43] The offences spelt out in the Drug Misuse and Trafficking Act 1985 (NSW)[44] cover all prohibited drugs. Other frequently used legislation includes the Bail Act 2013[45] (now amended by the Bail Amendment Act 2015 [46]), Evidence Act 1995 [47] and the Customs Act 1901.[48] 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.[49]

The criminal offence of sexual assault is located in Division 10 of the Crimes Act 1900 which includes the definition of "sexual intercourse" and other terms within Section 61H;consent in relation to sexual assault offences Section 61HA; the elements of the offence of sexual assault Section 61I and aggravated sexual assault Section 61J; aggravated sexual assault in company Section 61JA and assault with the intent to have intercourse Section 61K.

Prosecution of criminal offences is subject to the Law Enforcement (Powers and Responsibilities) Act 2002[50] which sets out the limits of police powers. Commonly contested parts of the act include Part 4[51] and Part 5[52] which are in relation to police search powers, and Part 8[53] in relation to powers of arrest. Failure by the Police to comply with the Law Enforcement (Powers and Responsibilities) Act 2002[54] may lead to evidence being excluded in court,[55] as contained in section 138 of the Evidence Act 1995 (NSW).[56]

Defences may be covered by legislation, including insanity,[57] substantial impairment/diminished responsibility,[58] infanticide,[59] extreme provocation,[60] self-defence,[61] and intoxication.[61] 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.[62] Defences based in common law include automatism[63] and an honest and reasonable mistake of fact.[64]

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),[65] the Young Offender Act 1997 (NSW)[66] 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.[67]

Victoria[edit]

Most crimes in Victorian jurisdiction are codified in the Crimes Act 1958 (Vic)[68] and the state's main criminal procedure laws are consolidated in the Criminal Procedure Act 2009 (Vic).[69] Other relevant criminal legislation include the Evidence Act 2008 (Vic),[70] the Summary Offences Act 1966 (Vic)[71] and Jury Directions Act 2015 (Vic).[72] There are also a number of common law provisions for criminal conduct within Victoria.

Queensland[edit]

The Criminal Code Act 1899 (Qld) [73] 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).[74]

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.[75] 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. .

South Australia[edit]

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[edit]

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[edit]

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).[76]

Northern Territory[edit]

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.[77] In fact, the drafting of the NT Criminal Code Act 1983, reflected aspects of both the QLD and WA Criminal Codes.

Australian Capital Territory[edit]

Offences and defences are mostly codified by the Crimes Act 1900 and the Criminal Code Act 2002.[78][79] The ACT for the most part, joins the NT & WA in having exhaustively codified criminal law.

External sources[edit]

  • 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)).
  • Charles Martin, "Medical Use of Cannabis in Australia: 'Medical necessity' defences under current Australian law and avenues for reform" (2014) 21(4) Journal of Law and Medicine 875.

References[edit]

  1. ^ "CRIMES ACT 1900". 
  2. ^ See Ilich v R (1987) 162 CLR 110 Austlii
  3. ^ See "He Kaw Teh" [1985] HCA 43; (1985) 157 CLR 523 [1]
  4. ^ Criminal Code Act 1995 (Cth) sch, s 474.17.
  5. ^ "Model Crime Code proposal 2009" (PDF). 
  6. ^ "CRIMES AMENDMENT (FRAUD, IDENTITY AND FORGERY OFFENCES) BILL 2009 Explanatory Notes". 
  7. ^ 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
  8. ^ Crimes Act 1914 (Cth) AustLII
  9. ^ Criminal Code Act 1995 (Cth) s 1.1, Criminal Code Act 1995 (Cth). Retrieved 20 January 2015.
  10. ^ a b History of Criminal Law, Parliament of Australia Library. Retrieved 24 March 2013.
  11. ^ Human Rights (Sexual Conduct) Act 1994 (Cth).
  12. ^ see the Crimes Act 1900 (NSW) Austlii
  13. ^ "CRIMES ACT 1914". 
  14. ^ "Criminal Code Act 1995" (Cth)
  15. ^ Crimes Act 1900 (NSW) s 117 Austlii
  16. ^ "Ilich v R [1987] HCA 1; (1987) 162 CLR 110". 
  17. ^ Crimes Act 1900 (NSW) s 27 Austlii
  18. ^ Crimes Act 1900 (NSW) s19A Austlii
  19. ^ Crimes Act 1900 (NSW) s 31A Austlii
  20. ^ Crimes Act 1900 (NSW) s 31B Austlii
  21. ^ "Crimes Act 1900" (NSW) s 26 Austlii
  22. ^ "Crimes Act 1900" (NSW) s 22 Austlii
  23. ^ "Crimes Act 1900" (NSW) s 24 Austlii
  24. ^ "Crimes Act 1900" (NSW) s 21 Austlii
  25. ^ "Crimes Act 1900" (NSW) s 25 Austlii
  26. ^ Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), p670-1
  27. ^ "Crimes Act 1900" (NSW) s 4 Austlii
  28. ^ Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), p672-6
  29. ^ "Crimes Act 1900" (NSW) s 42 Austlii
  30. ^ "Crimes Act 1900" (NSW) s 43 Austlii
  31. ^ "Crimes Act 1900" (NSW) s 44 Austlii
  32. ^ "Crimes Act 1900" (NSW) s 56 Austlii
  33. ^ "Crimes Act 1900" (NSW) s 57 Austlii
  34. ^ "Crimes Act 1900" (NSW) s 206 Austlii
  35. ^ "Crimes Act 1900" (NSW) s 25A(2) Austlii
  36. ^ "Crimes Act 1900" (NSW) s 25A(1) Austlii
  37. ^ Summary Offences Act 1988 (NSW) Austlii
  38. ^ Criminal Procedure Act 1986 (NSW) ss 6-7 Austlii
  39. ^ "SUMMARY OFFENCES ACT 1988 - SECT 4 Offensive conduct". 
  40. ^ "SUMMARY OFFENCES ACT 1988 - SECT 4A Offensive language". 
  41. ^ "SUMMARY OFFENCES ACT 1988 - SECT 5 Obscene exposure". 
  42. ^ "SUMMARY OFFENCES ACT 1988 - SECT 11C Custody of knife in public place or school". 
  43. ^ "SUMMARY OFFENCES ACT 1988 - SECT 11G Loitering by convicted child sexual offenders near premises frequented by children". 
  44. ^ Drug Misuse and Trafficking Act 1985 (NSW) AustLII
  45. ^ "Bail Act 2013". 
  46. ^ http://www.austlii.edu.au/au/legis/nsw/num_act/baa2015n44148.pdf
  47. ^ "Evidence Act 1995". 
  48. ^ "Customs Act 1901". 
  49. ^ "BAIL ACT 2013". www.austlii.edu.au. Retrieved 2016-07-31. 
  50. ^ "Law Enforcement (Powers and Responsibilities) Act 2002" http://www.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/
  51. ^ "Law Enforcement (Powers and Responsibilities) Act 2002" Part 4 http://www.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/
  52. ^ "Law Enforcement (Powers and Responsibilities) Act 2002" Part 5 http://www.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/
  53. ^ "Law Enforcement (Powers and Responsibilities) Act 2002" Part 8 http://www.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/
  54. ^ Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Austlii
  55. ^ 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)
  56. ^ Evidence Act 1995 (NSW) s 138 Austlii
  57. ^ "MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990". www.austlii.edu.au. Retrieved 2016-07-31. 
  58. ^ Crimes Act 1900 s 23A
  59. ^ Crimes Act s 22A
  60. ^ Crimes Act 1900 s 23, see also Stingel v R [1990] HCA 61.
  61. ^ a b Crimes Act 1900 Pt 11
  62. ^ CRIMES AMENDMENT (PROVOCATION) BILL 2014 Austlii see also R v Qaumi & Ors (No 65) [2016] Caselaw/
  63. ^ R v Falconer (1990) 171 CLR 30. Jade
  64. ^ Proudman v Dayman [1941] HCA 28; 67 CLR 536. Jade
  65. ^ "Crimes Act 1900" (NSW)
  66. ^ Young Offender Act 1997 (NSW) Legislation NSW
  67. ^ Children's Court Act 1987 (NSW) Legislation NSW
  68. ^ Crimes Act 1958 (Vic)
  69. ^ Criminal Procedure Act 2009 (Vic)
  70. ^ Evidence Act 2008 (Vic)
  71. ^ Summary Offences Act 1966 (Vic)
  72. ^ Jury Directions Act 2015 (Vic)
  73. ^ "Criminal Code 1899". 
  74. ^ "Medical Use of Cannabis in Australia: "Medical Necessity" Defences under current Australian law and avenues for reform". 
  75. ^ "Criminal Code 1899 - SECT 23 23 Intention—motive".  line feed character in |title= at position 29 (help)
  76. ^ "CRIMINAL CODE ACT COMPILATION ACT 1913 - NOTES". 
  77. ^ http://notes.nt.gov.au/dcm/legislat/legislat.nsf/64117dddb0f0b89f482561cf0017e56f/f1e28f64e96cd19a69257fb5000c475e/$FILE/ATTYQRPQ.pdf/Repc038.pdf
  78. ^ [2]
  79. ^ "CRIMINAL CODE 2002". 

External links[edit]