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Criminal law of Australia

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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.

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. Generally speaking, you have the right to remain silent if you are questioned by the police and you can not be forced to give evidence at your own trial.

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) states:

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. But neither this section nor the remainder of the Act defines larceny. The offence of larceny remains defined by the common law.

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.

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

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. 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, 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.


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 .

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. The committee published its final report in 1991, 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. In July 1992, the Committee released a discussion draft of the general principles of criminal responsibility.

In December 1992, the MCCOC published its final report, which formed the basis for the Criminal Code Act 1995 (Cth). Although an intergovernmental agreement to enact the Model Criminal Code in each Australian jurisdiction did not come to fruition, although substantial parts of it were enacted by the ACT and Northern Territory legislatures.:839 The Criminal Code (Cth) abolished all common law 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 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. In 2001 jurisdiction over offences relating to corporations was transferred from the States to the Commonwealth.

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