Criminal law of Australia
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.[Note 1]
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, Queensland, and Tasmania 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. For this reason, much of Australia's criminal law was originally received from English common law.
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, South Australia and Victoria; the code jurisdictions are Australian Capital Territory, the Northern Territory, Queensland, Tasmania, and Western Australia.
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.[Note 2] The offence of larceny remains defined in NSW by the common law.
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, or within the Criminal Code Act 1995. The 1995 act was enacted after a review of Commonwealth criminal law undertaken by Sir Harry Gibbs 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.
New South Wales
The primary criminal statutes of NSW is the Crimes Act 1900 (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.
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).
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.
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, who was responsible for its production. In drafting the code, Griffith borrowed heavily from Italy's Zanardelli Code, which Griffith described as 'the most complete and perfect Penal Code in existence'. Griffith also took inspiration from the New York Penal Code. The Griffith Code was later adopted by other jurisdictions, including Western Australia, Nigeria and Papua New Guinea.
The book Carter's Criminal Law of Queensland is a collection of annotated information on case law associated with the Queensland Criminal Code; popular among legal scholars and practitioners.
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'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.
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
The 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, 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.
- While Australian State Governments have plenary power to enact legislation; the Commonwealth's legislative powers are exhaustively defined within the Australian Constitution.
- 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 Human Rights (Sexual Conduct) Act was validly enacted through reliance upon the s51 external affairs power
- Crimes Act 1900 (NSW) s 117.
- Ilich v R  HCA 1, (1987) 162 CLR 110, High Court.
- R v LK  HCA 17, (2010) 241 CLR 177.
- Review of Commonwealth Criminal Law. Canberra: Australian Government Publishing Service. December 1991.
- Explanatory Memorandum, Criminal Code Bill 1994 (Cth).
- Tarrant, Stella. "Building bridges in Australian criminal law: codification and the common law" (PDF). Monash University Law Review. 39 (3): 838.
- "Criminal Code Act 1995 [series]". Federal Register of Legislation (in Kinyarwanda). Australian Government. Retrieved 26 November 2021.
- Crimes Act 1900 (NSW).
- Summary Offences Act 1988 (NSW).
- Criminal Procedure Act 1986 (NSW) ss 6-7.
- Drug Misuse and Trafficking Act 1985 (NSW).
- Bail Act 2013 (NSW).
- Evidence Act 1995 (NSW).
- Customs Act 1901 (Cth).
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
- Young Offender Act 1997 (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 Law Consolidation Act 1935 (SA).
- Criminal Code 1899 (Qld).
- Criminal Code Act Compilation Act 1913 (WA) app B s 4 https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_218_homepage.html
- Criminal Code Act Compilation Act 1913 (WA) app B s 7 https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_218_homepage.html
- Criminal Code Act Compilation Act 1913 (WA) https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_218_homepage.html
- Criminal Code (WA) https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_218_homepage.html
- Criminal Code Act 1924 (Tas).
- Criminal Code Act 1983[permanent dead link] (NT).
- Crimes Act 1900 (ACT).
- Criminal Code Act (ACT).
- Parliamentary Counsel's Committee (28 May 2009). "Model Criminal Code" (PDF) (1st ed.).
- Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009 (NSW) explanatory notes.
- For example, it was held in Peters v R  HCA 7, (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
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