Criminal law of Australia

The criminal law of Australia is the body of law made, recognised and applied in Australia that relates to crime. Most criminal law is made and administered by the individual states and territories of Australia. However, a body of criminal law is also made and administered by the federal government. Criminal law may be differentiated from civil law, which in Australia relates to non-criminal law including civil wrongs, contract law, much of property law and other areas that concern the rights and duties of individuals amongst themselves.[1]

In Australia, when a criminal prosecution is commenced, the burden of proof lies with the prosecutor. The general rule is that an accused person is 'innocent until proven guilty'. The standard of proof is 'beyond reasonable doubt' which is the highest standard in law.

Common law and code jurisdictions

Australian criminal law was originally received from the English common law, which continues 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)[2] states:

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.

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.[3]

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.

Legislation (including the criminal codes) is further refined by the method of judicial precedent and interpretation.[4]

In addition to explicitly titled criminal code legislation, most jurisdictions also have other legislation that also creates some criminal offences.[5]

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.[6] However, as criminal law is not an express power under section 51 of the 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,[7] 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.[8]

Jurisdictions

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).

The principal source of Commonwealth criminal law was originally the Crimes Act 1914 (Cth). In 1987, the Commonwealth Attorney-General established a committee chaired by Sir Harry Gibbs to undertake a review of Commonwealth criminal law.[9]:[51] The committee published its final report in 1991,[10] recommending the development of a 'consolidating law' to reform Commonwealth criminal law.

Following the release of the Gibbs report, the Standing Committee of Attorneys-General established a Criminal Law Officers Committee, later designated the Model Criminal Code Officers Committee (MCCOC), to advance the objective of uniformity in Australian criminal law. The Committee decided to draft a model criminal code capable of adoption by all Australian jurisdictions.[9]:[53] In July 1992, the Committee released a discussion draft of the general principles of criminal responsibility.[11]

In December 1992, the MCCOC published its final report,[12] which formed the basis for the Criminal Code Act 1995 (Cth).[11] Although an intergovernmental agreement to enact the Model Criminal Code in each Australian jurisdiction[13] did not come to fruition, substantial parts of it were enacted by the ACT and Northern Territory legislatures.[14]:839 The Criminal Code (Cth) abolished all common law offences.[15][16]

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 1994 (Cth) overrode the sodomy laws in Tasmania. This was the first time the federal government used the external affairs power to override a State criminal law.[16] In 2001 jurisdiction over offences relating to corporations was transferred from the States to the Commonwealth.[16]

New South Wales

The Crimes Act 1900 (NSW)[17] is the New South Wales statute that establishes most criminal offences for New South Wales. This legislation along with federal acts Crimes Act 1914,[18] and the Criminal Code Act 1995,[19] form the majority of criminal law for New South Wales.

Other statutes, such as the Summary Offences Act 1988,[20] also create criminal offences which are generally dealt with in the Local Court system.[21] These include offensive conduct,[22] offensive language,[23] obscene exposure,[24] knife possession.[25] and loitering by convicted child sexual offenders.[26] The offences spelt out in the Drug Misuse and Trafficking Act 1985 (NSW)[27] cover all prohibited drugs. Other frequently used legislation includes the Bail Act 2013,[28] (now amended by the Bail Amendment Act 2015.[29]), Evidence Act 1995 [30] and the Customs Act 1901.[31] 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.[28]

Prosecution of criminal offences is subject to the Law Enforcement (Powers and Responsibilities) Act 2002,[32] 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.[32] Failure by the Police to comply with the Law Enforcement (Powers and Responsibilities) Act 2002,[32] may lead to evidence being excluded in court,[33] as contained in section 138 of the Evidence Act 1995 (NSW).[34]

Defences may be covered by legislation, including insanity,[35] substantial impairment/diminished responsibility,[36] infanticide,[37] extreme provocation,[38][39] self-defence,[40] Pt 11]</ref> and intoxication.[40] 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.[41][42] Defences based in common law include automatism,[43] and an honest and reasonable mistake of fact.[44] Mental illness can also have some bearing upon the sentence imposed.[45]

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),[17] the Young Offender Act 1997 (NSW)[46] 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.[47]

Victoria

Most crimes in Victorian jurisdiction are codified in the Crimes Act 1958 (Vic)[48] and the state's main criminal procedure laws are consolidated in the Criminal Procedure Act 2009 (Vic).[49] Other relevant criminal legislation include the Evidence Act 2008 (Vic),[50] the Summary Offences Act 1966 (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).[56] 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.[57] 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 is the Criminal Code Compilation Act 1913 (WA).[58] Which is simply referred to as the Criminal Code. There are many other acts in WA which have Criminal Laws including (but not limited to) the Misuse of drugs act, the Firearms Act, the Road Traffic Act, the Local Government Act and the Bushfires Act - all WA legislation can be found at https://www.legislation.wa.gov.au

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

Australian Capital Territory

Offences and defences are mostly codified by the Crimes Act 1900,[60] and the Criminal Code Act 2002.[61] The ACT for the most part, joins the NT & WA in having exhaustively codified criminal law.

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References
  1. Card, Richard (1992). Card, Cross and Jones: Criminal Law (12th ed.). Butterworths. pp. [1.2] 1.
  2. Crimes Act 1900 (NSW) s 117.
  3. Ilich v R [1987] HCA 1, (1987) 162 CLR 110, High Court.
  4. He Kaw Teh v R [1985] HCA 43, (1985) 157 CLR 523 (11 July 1985), High Court.
  5. e.g.Summary Offences Act 1966 (Vic).
  6. Parliamentary Counsel's Committee (28 May 2009). "Model Criminal Code" (PDF) (1st ed.).
  7. Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009 (NSW) explanatory notes.
  8. For example, it was held in Peters v R [1997] 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
  9. R v LK [2010] HCA 17, (2010) 241 CLR 177.
  10. Review of Commonwealth Criminal Law. Canberra: Australian Government Publishing Service. December 1991.
  11. "Model Criminal Law Officers Committee (MCLOC)". Standing Committee of Attorneys-General. Archived from the original on 6 May 2012. Retrieved 20 February 2018.
  12. Criminal Law Officers Committee of the Standing Committee of Attorneys-General (December 1992). Model Criminal Code, Chapters 1 and 2: General Principles of Criminal Responsibility, Final Report (PDF) (Report). Canberra. Archived from the original (PDF) on 24 July 2005.
  13. Explanatory Memorandum, Criminal Code Bill 1994 (Cth).
  14. Tarrant, Stella. "Building bridges in Australian criminal law: codification and the common law" (PDF). Monash University Law Review. 39 (3): 838.
  15. Criminal Code (Cth), s 1.1.
  16. History of criminal law (Report). Parliamentary Library of Australia. Retrieved 20 February 2018.
  17. Crimes Act 1900 (NSW).
  18. Crime Act 1914 (Cth).
  19. Criminal Code Act 1995 (Cth).
  20. Summary Offences Act 1988 (NSW).
  21. Criminal Procedure Act 1986 (NSW) ss 6-7.
  22. Summary Offences Act 1988 (NSW) s 4 Offensive conduct.
  23. Summary Offences Act 1988 (NSW) s 4A Offensive language.
  24. Summary Offences Act 1988 (NSW) s 5 Obscene exposure.
  25. Summary Offences Act 1988 (NSW) s 11C Custody of knife in public place or school.
  26. Summary Offences Act 1988 (NSW) s 11G Loitering by convicted child sexual offenders near premises frequented by children.
  27. Drug Misuse and Trafficking Act 1985 (NSW).
  28. Bail Act 2013 (NSW).
  29. Bail Amendment Act 2015 (NSW).
  30. Evidence Act 1995 (NSW).
  31. Customs Act 1901 (Cth).
  32. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
  33. 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)
  34. Evidence Act 1995 (NSW) s 138 Exclusion of improperly or illegally obtained evidence.
  35. Mental Health (Forensic Provisions) Act (NSW).
  36. Crimes Act 1900 (NSW) s 23A.
  37. Crimes Act 1900 (NSW) s 22A.
  38. Crimes Act 1900 (NSW) s 23.
  39. see also Stingel v R [1990] HCA 61.
  40. Crimes Act 1900 (NSW) Part 11.
  41. Crimes Amendment (Provocation) Act 2014 (NSW).
  42. see also R v Qaumi [2016] NSWSC 1336.
  43. R v Falconer [1990] HCA 49, (1990) 171 CLR 30.
  44. Proudman v Dayman [1941] HCA 28, (1941) 67 CLR 536.
  45. Lamont, Alex. "Mental Illness and Sentencing in New South Wales". www.lamontlaw.com.au. Lamont Law. Retrieved 6 July 2019.
  46. Young Offender Act 1997 (NSW).
  47. Children's Court Act 1987 (NSW).
  48. Crimes Act 1958 (Vic)
  49. Criminal Procedure Act 2009 (Vic)
  50. Evidence Act 2008 (Vic)
  51. Summary Offences Act 1966 (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 Intention—motive.
  56. Criminal Law Consolidation Act 1935 (SA).
  57. Criminal Code Act 1924 (Tas).
  58. Criminal Code Compilation Act 1913 (WA).
  59. Criminal Code Act 1983 (NT).
  60. Crimes Act 1900 (ACT).
  61. Criminal Code Act (ACT).
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