Australian criminal law
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Australian criminal law refers to the criminal laws of the several 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.
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 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’.New South Wales, South Australia, and Victoria are common law jurisdictions.
The “code jurisdictions” are the Commonwealth, the ACT, 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. eg 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. At present, New South Wales, Western Australia and the Northern Territory have participated in the law reform, but the remaining states and territories have not yet agreed to participate.Criminal codes
Commonwealth
The Commonwealth has its own legislation in regard to criminal activity, however, its jurisdiction in criminal matters is quite limited in comparison to that of the States.
New South Wales
Criminal offences under New South Wales law are based on the common law and some statutory provisions in the Crimes Act.
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, the then Chief Justice of the Supreme Court of Queensland (and formerly Premier). It borrowed large elements of the Italian Penal Code 1889 (also known as the Zanardelli Code after its primary supporter) which Griffiths described as "in many respects the most complete and perfect Penal Code in existence" and which was translated from Italian by Griffith himself. Griffth also took inspiration from the New York Penal Code 1881.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 practical effect of this stipulation is however not great, as most offences create a mental element of some sort, including recklessness or malice or intent. It should be noted however that the common law concept of actus reus is not excluded by the Criminal Code.
South Australia
Tasmania
Western Australia
Western Australia has an almost exhaustive codification of criminal law in a Criminal Code substantially based on the Queensland one.
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)).
External links
- [The Commonwealth Criminal Code – A Guide for Practitioners] [Model Criminal Code]
- [Commonwealth Criminal Code]
- John Stratton, NSW criminal law and rules of evidence: [link]
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