Criminal Law - Classification of Crimes and Proof NOTES
1. CLASSIFICATION OF CRIMES AND PROOF:
1.1 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.
1.1.1 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,
1.1 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.
1.1.1 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,