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Encyclopedia > Australian criminal law

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. The states and territories of Australia make up the Commonwealth of Australia under a federal system of government. ... Judicial High Court Lower Courts Constitution State and territory governments Executive Governors and Administrators Premiers and Chief Ministers Legislative Parliaments and Assemblies State electoral systems ACT - NSW - NT - Qld. ...

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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’. This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ...


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 eg Crimes Act 1900 (NSW). It is settled law in the common law jurisdictions that only Parliaments, not the courts, can create new offences. A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modelled after that of the United Kingdom. ...


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. The English noun Commonwealth dates originally from the fifteenth century. ... Capital Canberra Government Const. ... Capital Darwin Government Const. ... Capital Brisbane Government Constitutional monarchy Governor Quentin Bryce Premier Peter Beattie (ALP) Federal representation  - House seats 28  - Senate seats 12 Gross State Product (2004-05)  - Product ($m)  $158,506 (3rd)  - Product per capita  $40,170/person (6th) Population (End of September 2006)  - Population  4,070,400 (3rd)  - Density  2. ... Capital Hobart Government Const. ... Capital Perth Government Constitutional monarchy Governor Ken Michael Premier Alan Carpenter (ALP) Federal representation  - House seats 15  - Senate seats 12 Gross State Product (2004-05)  - Product ($m)  $100,900 (4th)  - Product per capita  $50,355/person (3rd) Population (December 2006)  - Population  2,050,900 (4th)  - Density  0. ...


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. [citation needed]


Criminal codes

Westpac

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. 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) and others are in the code enacted by the Criminal Code Act 1995 (Cth). The Crimes Act will eventually be repealed when the code expands to cover all offences. Criminal jurisdiction is a term used in the law of criminal procedure to describe the power of a court to hear a case brought by the state accusing a criminal defendant of a violation of the law of the geographic area in which the court is located. ...


New South Wales

Criminal offences under New South Wales law are based on the common law and some statutory provisions in the Crimes Act 1900 (NSW).


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, then Chief Justice of the Supreme Court of Queensland (and formerly Premier). Sir Samuel Griffith Sir Samuel Walker Griffith (June 21, 1845 - August 9, 1920), Australian politician and judge, was the principal author of the Constitution of Australia. ... The Chief Justice in many countries is the name for the presiding member of a Supreme Court in Commonwealth- or other countries with an Anglosaxon type of justice, such as the Supreme Court of the United States, the Supreme Court of Canada, the Supreme Court of New Zealand, the Supreme... The Supreme Court of Queensland, which is based at the Law Courts Complex, is the superior court for the Australian State of Queensland. ... List of Premiers of Queensland Before the 1890s there was no formal party system in Queensland. ...


The Griffith Code 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 Griffith Code was later adopted, with some changes, in other parts of the Commonwealth of Nations including Nigeria and Papua New Guinea. The Commonwealth of Nations (CN), usually known as The Commonwealth, is a voluntary association of 53 independent sovereign states all of which are former colonies of the United Kingdom, except for Mozambique and the United Kingdom itself. ...


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. The mens rea is the Latin term for guilty mind used in the criminal law. ... Actus reus is the action (or inaction, in the case of criminal negligence and similar crimes which are sometimes called acts of omission) which, in combination with the mens rea (guilty mind), produces criminal liability in common law based criminal law jurisdictions such as the United States, United Kingdom. ...


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. The mens rea is the Latin term for guilty mind used in the criminal law. ...


There are numerous other laws where criminal 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 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: [1]

  Results from FactBites:
 
Australian criminal law - Wikipedia, the free encyclopedia (816 words)
Australian criminal law refers to the criminal laws of the several jurisdictions in the Commonwealth of Australia.
Australian criminal law was originally received from the English common law, which continued to evolve in Australian courts.
Criminal offences under New South Wales law are based on the common law and some statutory provisions in the Crimes Act.
  More results at FactBites »

 
 

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