1. CLASSIFICATION OF CRIMES AND PROOF:
Structure of Criminal Law in Australia:
There is no one set of criminal laws in Australia. Criminal laws at both State and Commonwealth levels operate in parallel with each other.
Commonwealth criminal law:
The Commonwealth can only make laws in relation to those powers it is given under the Constitution, therefore, any criminal law made by the Commonwealth has to be justified under a power in the Constitution. •
The Federal Government does not have a specific power in the Constitution to make criminal laws in Australia. •
Due to the nature and source of the power of the Commonwealth – criminal law has been spread over a number of pieces of legislation. o
Example; the Commonwealth provisions in relation to the import and export of drugs are actually found in the Customs Act 1901 (Cth). Based on the ‘trade and commerce’ power in the Constitution. •
There is potential under the external affairs power for great federal intervention into criminal law. o
Toonen v Australia – Toonen successfully argued that Australia was in breach of its international obligations under the International Convenant on Civil and Political Rights (ICCPR) due to Tasmanian legislation criminalising a range of sexual activity in private between adult men and anal sex. The Commonwealth government passed the Human Rights (Sexual Conduct) Act 1994 (Cth) overriding the Tasmanian legislation. This case demonstrates the expansive potential for the Commonwealth to legislate on criminal issues through the external affairs power. •
Criminal Code Act 1995 (Cth) – Codified general principles of criminal responsibility to be applied when interpreting criminal statutes. The hope is that this act will be enacted in all jurisdictions across Australia. Currently seems unlikely that the States will implement the Code. •
The Criminal Code reports and the Criminal Code Act 1995 are not law unless and until enacted by the individual States, the Code will at times be referred to when enunciating general criminal law principles. This is due to the reason that the Commonwealth has no specific power under the Constitution to enact criminal law for the States – the states have to enact this legislation.
State criminal law:
The States are primarily responsible for criminal law. Where there is inconsistency between Commonwealth and State criminal laws, the Commonwealth law prevails and the State law is invalid to the extent of the inconsistency – Section 109 of the Constitution of Australia. •
Each State enacts its own criminal legislation, resulting in different criminal laws of different types in the different states. The major distinction between State criminal laws is based on common law and codified law. •
Common law states – NSW, South Australia (SA) and Victoria (Vic) are recognised as common law jurisdiction, which rely extensively on the common law for criminal law, despite the existence of State criminal legislation. The common law is based on cases decided and administered in courts and was received upon establishment of the colonies in Australia – Mabo v Queensland (No 2) (1992) 175 CLR 1. Thus, the prevailing law in these states is that originally introduced from England, and later modified by the statues of the State legislatures. While these states are not pure common law states, they are referred to as such because: o
They still use the common law as the source of some of their criminal law o
Many of the criminal laws legislated reflect the common law o
Many defences are still established by the common law
Fundamental elements of criminal responsibility are drawn from the common law. Crimes Act 1900 (NSW); Criminal Law Consolidation Act 1935 (SA); Crimes Act 1958 (Vic) •
Code states – Code states have enacted criminal codes, which operate to replace the common law. In these states, for an offence or defence to be established it must be in the code. These codes can also alter basic...
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