Criminal law of Australia

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

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. The Crimes Act 1900 (NSW) is a central criminal law statute.[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)

Cyber Laws

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

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]

Criminal codes

Federal

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 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

Criminal offences under New South Wales law are based on the common law and the statutory provisions in the Crimes Act 1900 (NSW).[11] 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 [12] and the Criminal Code Act 1995,[13] 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,[14] but the definition of larceny is a matter of common law.[15] Examples of specific divisions of the Crimes Act are Division 3, which covers attempts to murder,[16] which has its punishment prescribed in Division 1,[17] as well as Division 5 which relates to attempting or aiding suicide [18][19]

Punishment for crimes deemed as 'common assault' is set out in Division 9 of the Crimes Act 1900 (NSW).[20] Aggravated assault including assault with further specific intent [21] and assault causing particular injuries (actual bodily harm,[22] wounding,[23] and grievous bodily harm [24] are covered by Division 8. Other statutes, such as the Summary Offences Act 1988,[25] also create criminal offences which are generally dealt with in the Local Court system.[26] These include offensive conduct,[27] offensive language,[28] obscene exposure,[29] knife possession.[30] and loitering by convicted child sexual offenders.[31] The offences spelt out in the Drug Misuse and Trafficking Act 1985 (NSW)[32] cover all prohibited drugs. Other frequently used legislation includes the Bail Act 2013[33] (now amended by the Bail Amendment Act 2015 [34]), Evidence Act 1995 [35] and the Customs Act 1901.[36] 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.[37]

Prosecution of criminal offences is subject to the Law Enforcement (Powers and Responsibilities) Act 2002[38] which sets out the limits of police powers. Commonly contested parts of the act include Part 4[39] and Part 5[40] which are in relation to police search powers, and Part 8[41] in relation to powers of arrest. Failure by the Police to comply with the Law Enforcement (Powers and Responsibilities) Act 2002[42] may lead to evidence being excluded in court,[43] as contained in section 138 of the Evidence Act 1995 (NSW).[44]

Defences may be covered through legislation, including insanity,[45] substantial impairment/diminished responsibility,[46] infanticide,[47] provocation,[46] self-defence,[48] and intoxication.[48]

Victoria

Most crimes in Victorian jurisdiction are codified in the Crimes Act 1958 (Vic)[49] and the state's main criminal procedure laws are consolidated in the Criminal Procedure Act 2009 (Vic).[50] Other relevant criminal legislation include the Evidence Act 2008 (Vic)[51] and Jury Directions Act 2015 (Vic).[52] There are also a number of common law provisions for criminal conduct within Victoria.

Queensland

The Criminal Code Act 1899 (Qld) [53] 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).[54]

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.[55] 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

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) 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

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).[56]

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. The criminal law of the Northern Territory is the Criminal Code Act 1983.[57] In fact, the drafting of the NT Criminal Code Act 1983, reflected aspects of both the QLD and WA Criminal Codes.

External sources

References

  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
  4. ↑ Criminal Code Act 1995 (Cth) sch, s 474.17.
  5. ↑ "Model Crime Code proposal 2009" (PDF).
  6. ↑ http://www.austlii.edu.au/au/legis/nsw/bill_en/caiafob2009483/caiafob2009483.html
  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. 1 2 History of Criminal Law, Parliament of Australia Library. Retrieved 24 March 2013.
  11. ↑ see the Crimes Act 1900 (NSW) Austlii
  12. ↑ "Crimes Act 1914" (Cth)
  13. ↑ "Criminal Code Act 1995" (Cth)
  14. ↑ Crimes Act 1900 (NSW) s 117 Austlii
  15. ↑ Ilich v R [1987] HCA 1 see also R v Weare [1841] NSWSupC 74 AustLII
  16. ↑ Crimes Act 1900 (NSW) s 27 Austlii
  17. ↑ Crimes Act 1900 (NSW) s19A Austlii
  18. ↑ Crimes Act 1900 (NSW) s 31A Austlii
  19. ↑ Crimes Act 1900 (NSW) s 31B Austlii
  20. ↑ "Crimes Act 1900" (NSW) s 26 Austlii
  21. ↑ "Crimes Act 1900" (NSW) s 22 Austlii
  22. ↑ "Crimes Act 1900" (NSW) s 24 Austlii
  23. ↑ "Crimes Act 1900" (NSW) s 21 Austlii
  24. ↑ "Crimes Act 1900" (NSW) s 25 Austlii
  25. ↑ Summary Offences Act 1988 (NSW) Austlii
  26. ↑ Criminal Procedure Act 1986 (NSW) ss 6-7 Austlii
  27. ↑ http://www.austlii.edu.au/au/legis/nsw/consol_act/soa1988189/s4.html
  28. ↑ http://www.austlii.edu.au/au/legis/nsw/consol_act/soa1988189/s4a.html
  29. ↑ http://www.austlii.edu.au/au/legis/nsw/consol_act/soa1988189/s5.html
  30. ↑ http://www.austlii.edu.au/au/legis/nsw/consol_act/soa1988189/s11c.html
  31. ↑ http://www.austlii.edu.au/au/legis/nsw/consol_act/soa1988189/s11g.html
  32. ↑ Drug Misuse and Trafficking Act 1985 (NSW) AustLII
  33. ↑ "Bail Act 2013".
  34. ↑ http://www.austlii.edu.au/au/legis/nsw/num_act/baa2015n44148.pdf
  35. ↑ "Evidence Act 1995".
  36. ↑ "Customs Act 1901".
  37. ↑ "BAIL ACT 2013". www.austlii.edu.au. Retrieved 2016-07-31.
  38. ↑ "Law Enforcement (Powers and Responsibilities) Act 2002" http://www.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/
  39. ↑ "Law Enforcement (Powers and Responsibilities) Act 2002" Part 4 http://www.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/
  40. ↑ "Law Enforcement (Powers and Responsibilities) Act 2002" Part 5 http://www.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/
  41. ↑ "Law Enforcement (Powers and Responsibilities) Act 2002" Part 8 http://www.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/
  42. ↑ Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Austlii
  43. ↑ 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)
  44. ↑ Evidence Act 1995 (NSW) s 138 Austlii
  45. ↑ "MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990". www.austlii.edu.au. Retrieved 2016-07-31.
  46. 1 2 Crimes Act 1900 s 23A
  47. ↑ Crimes Act s 22A
  48. 1 2 Crimes Act 1900 Pt 11
  49. ↑ Crimes Act 1958 (Vic)
  50. ↑ Criminal Procedure Act 2009 (Vic)
  51. ↑ Evidence Act 2008 (Vic)
  52. ↑ Jury Directions Act 2015 (Vic)
  53. ↑ Criminal Code 1899 (Qld)
  54. ↑ "Medical Use of Cannabis in Australia: "Medical Necessity" Defences under current Australian law and avenues for reform".
  55. ↑ Criminal Code 1899 (Qld) s 23(2)
  56. ↑ Criminal Code Compilation Act 1913 (WA)
  57. ↑ http://notes.nt.gov.au/dcm/legislat/legislat.nsf/64117dddb0f0b89f482561cf0017e56f/f1e28f64e96cd19a69257fb5000c475e/$FILE/ATTYQRPQ.pdf/Repc038.pdf
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