The criminal law of Australia is the body of law in

Australia Australia, officially the Commonwealth of Australia, is a country comprising mainland Australia, the mainland of the Australia (continent), Australian continent, the island of Tasmania and list of islands of Australia, numerous smaller isl ...

that relates to

crime In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definiti ...

. Responsibility for criminal law in Australia is divided between the state and territory parliaments and the Commonwealth Parliament. This division is due to the Commonwealth Parliament's limited legislative powers under

Australian constitutional law Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Legal cases regarding Australian constitutional law are often handled by the High Court of Austr ...

.While Australian state governments have

plenary power A plenary power or plenary authority is a complete and absolute power to take action on a particular issue, with no limitations. It is derived from the Latin language, Latin term . United States In United States constitutional law, plenary powe ...

to enact legislation, the Commonwealth's legislative powers are exhaustively defined within the

Australian Constitution The Constitution of Australia (also known as the Commonwealth Constitution) is the fundamental law that governs the political structure of Australia. It is a written constitution, which establishes the country as a Federation of Australia, ...

. The criminal law system differs across Australian states, with distinctions readily found across jurisdictions regarding criminal offences, sentencing and criminal procedure. Additionally, there exists a distinction between Australia's "code states" and "common law states". The code states of

Western Australia Western Australia (WA) is the westernmost state of Australia. It is bounded by the Indian Ocean to the north and west, the Southern Ocean to the south, the Northern Territory to the north-east, and South Australia to the south-east. Western Aust ...

Queensland Queensland ( , commonly abbreviated as Qld) is a States and territories of Australia, state in northeastern Australia, and is the second-largest and third-most populous state in Australia. It is bordered by the Northern Territory, South Austr ...

and

Tasmania Tasmania (; palawa kani: ''Lutruwita'') is an island States and territories of Australia, state of Australia. It is located to the south of the Mainland Australia, Australian mainland, and is separated from it by the Bass Strait. The sta ...

have wholly replaced the system of judge-made criminal law inherited from England with legislative instruments that exhaustively define the criminal law within those states. Other Australian states have retained the criminal law as inherited through the common law, albeit modulated through legislation and subsequent common law development by Australia's courts.

Common law versus code jurisdictions

The Australian legal system inherits from that of the United Kingdom, due to Australia's colonisation by the

British Empire The British Empire comprised the dominions, Crown colony, colonies, protectorates, League of Nations mandate, mandates, and other Dependent territory, territories ruled or administered by the United Kingdom and its predecessor states. It bega ...

. For this reason, much of Australia's criminal law was originally received from English

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

. In some Australian states, the common law criminal system is still in force, albeit modulated by legislation and subsequent development by Australian courts. In others, the criminal law has been wholly codified. These two types of criminal law systems are generally referred to as 'code jurisdictions' or 'common law jurisdictions' respectively. The common law jurisdictions of Australia are

New South Wales New South Wales (commonly abbreviated as NSW) is a States and territories of Australia, state on the Eastern states of Australia, east coast of :Australia. It borders Queensland to the north, Victoria (state), Victoria to the south, and South ...

South Australia South Australia (commonly abbreviated as SA) is a States and territories of Australia, state in the southern central part of Australia. With a total land area of , it is the fourth-largest of Australia's states and territories by area, which in ...

and Victoria; the code jurisdictions are the

Australian Capital Territory The Australian Capital Territory (ACT), known as the Federal Capital Territory until 1938, is an internal States and territories of Australia, territory of Australia. Canberra, the capital city of Australia, is situated within the territory, an ...

, the

Northern Territory The Northern Territory (abbreviated as NT; known formally as the Northern Territory of Australia and informally as the Territory) is an states and territories of Australia, Australian internal territory in the central and central-northern regi ...

and

. In common law jurisdictions, legislation does not always exhaustively define the elements of an offence. For example, section 117 of the ''Crimes Act 1900'' (NSW) states that larceny is an indictable offence punishable for five years, but it does not define the meaning of larceny..The section reads: The offence of larceny remains defined in NSW by the common law.

Jurisdictions

Commonwealth

The Commonwealth's jurisdiction in criminal matters is more limited than Australia's states. This is due to Australia's constitutional arrangements in which the Commonwealth has been granted only a limited and exhaustive list of subjects upon which it can validly enact legislation. Some analogies may be drawn with the constitutional arrangements of the United States. Commonwealth offences are mostly found within either the ''

Crimes Act 1914 The ''Crimes Act 1914'' (Cth) is an Act of the Parliament of Australia which addresses the most serious federal offences — that is, crimes against the Commonwealth. It was the first major federal criminal law since the Federation of Austral ...

'', or within the ''Criminal Code Act 1995''. The 1995 act was enacted after a review of Commonwealth criminal law undertaken by Sir Harry Gibbs in 1987, which recommended that Commonwealth criminal law be consolidated.. That committee also drafted a model criminal code for adoption within all Australian jurisdictions; however, that code was only adopted in part by the ACT and Northern Territory legislatures. The Commonwealth has occasionally used its powers to override state criminal laws. For instance, the Human Rights (Sexual Conduct) Act 1994 overrode

sodomy law A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term ''sodomy'' are rarely spelled out in the law, but are typically understood and defined by many courts and jurisdictions to include any ...

s in

.The Human Rights (Sexual Conduct) Act was validly enacted through reliance upon the s51 external affairs power The ''Criminal Code Act 1995'' has been amended many times, including for purposes of

national security National security, or national defence (national defense in American English), is the security and Defence (military), defence of a sovereign state, including its Citizenship, citizens, economy, and institutions, which is regarded as a duty of ...

and

counter-terrorism Counterterrorism (alternatively spelled: counter-terrorism), also known as anti-terrorism, relates to the practices, military tactics, techniques, and strategies that governments, law enforcement, businesses, and intelligence agencies use to co ...

. In February 2025, federal hate crime legislation was implemented within Australia with explicit “

mandatory sentencing Mandatory sentencing requires that people convicted of certain crimes serve a predefined term of imprisonment, removing the discretion of judges to take issues such as extenuating circumstances and a person's likelihood of rehabilitation into co ...

of up to 7 years imprisonment”.

New South Wales

The primary criminal statutes of NSW is the ''

Crimes Act 1900 The ''Crimes Act'' ''1900'' (NSW). is an Act of the Parliament of New South Wales that defines an extensive list of offences and sets out punishments for the majority of criminal offences in New South Wales (NSW), Australia. The Act, alongside ...

'' (NSW).. Other statutes, such as the ''Summary Offences Act 1988'', also create criminal offences which are generally dealt with in the Local Court system. Offences spelt out in the Drug Misuse and Trafficking Act 1985 (NSW) cover all prohibited drugs. Among other important legislation is the Bail Act 2013,. Uniform Evidence Act 1995 and the

Customs Act 1901 Customs is an authority or agency in a country responsible for collecting tariffs and for controlling the flow of goods, including animals, transports, personal effects, and hazardous items, into and out of a country. Traditionally, customs ...

. Prosecution of criminal offences is subject to the Law Enforcement (Powers and Responsibilities) Act 2002,. which sets out the limits of police powers. Special circumstances regarding child offenders is provided for under the ''Young Offender Act 1997'' (NSW).

Victoria

The primary criminal statute in Victoria is the

Crimes Act 1958 The Crimes Act 1958 is an Act of the Parliament of Victoria. The Act codified most common law crimes in the jurisdiction. Most crimes in this Act are indictable offences, whereas the ''Summary Offenses Act 1966'' covers summary offenses. Ind ...

. Criminal procedure is consolidated within the Criminal Procedure Act 2009 (Vic). Other important legislation includes the Evidence Act 2008 (Vic), Summary Offences Act 1966 (Vic) and Jury Directions Act 2015 (Vic).

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.

Queensland

The ''Criminal Code Act 1899 (Qld)'', is the primary instrument for the source of criminal law in Queensland. The act is sometimes referred to as the 'Griffith Code', named for

Sir Samuel Griffith Sir Samuel Walker Griffith (21 June 1845 – 9 August 1920) was an Australian judge and politician who served as the inaugural Chief Justice of Australia, in office from 1903 to 1919. He also served a term as Chief Justice of Queensland and t ...

, who was responsible for its production. In drafting the code, Griffith borrowed heavily from

Italy Italy, officially the Italian Republic, is a country in Southern Europe, Southern and Western Europe, Western Europe. It consists of Italian Peninsula, a peninsula that extends into the Mediterranean Sea, with the Alps on its northern land b ...

Zanardelli Code The Italian Penal Code of 1889, commonly known as the Zanardelli Code (), was the penal code in effect in the Kingdom of Italy from 1890 to 1930, and it is still in effect in Vatican City. The Zanardelli code gets its name from Giuseppe Zanardell ...

, which Griffith described as 'the most complete and perfect Penal Code in existence'. Griffith also took inspiration from the New York Penal Code. The Griffith Code was later adopted by other jurisdictions, including

Nigeria Nigeria, officially the Federal Republic of Nigeria, is a country in West Africa. It is situated between the Sahel to the north and the Gulf of Guinea in the Atlantic Ocean to the south. It covers an area of . With Demographics of Nigeria, ...

and

Papua New Guinea Papua New Guinea, officially the Independent State of Papua New Guinea, is an island country in Oceania that comprises the eastern half of the island of New Guinea and offshore islands in Melanesia, a region of the southwestern Pacific Ocean n ...

. The book ''Carter's Criminal Law of Queensland'' is a collection of annotated information on case law associated with the Queensland criminal code; it is popular among legal scholars and practitioners.

Western Australia

The ''Criminal Code'' (WA) is a complete codification of Western Australia's criminal law. The code is substantially similar to Queensland's criminal code and was constructed with close reference to the Griffith code. Section 4 in appendix B of the ''Criminal Code Act Compilation Act 1913'' (WA) provides that:

"No person shall be liable to be tried or punished in Western Australia as for an offence, except under the express provisions of the Code, or some other statute law of Western Australia, or under the express provisions of some statute of the Commonwealth of Australia..."

The effect of this provision is that no person can be tried for offences that are not explicitly provided for in legislation, abolishing offences at common law. Notably, the common law offence of contempt of court has been preserved by s 7 of the Act in the same Appendix B, allowing courts of criminal jurisdiction to summarily try someone for this single common law offence. The ''Criminal Code Compilation Act 1913'' (WA) itself is the compiling Act of the Parliament of Western Australia but does not contain any criminal offences. The criminal offences are provided for in Schedule of the Act, and citing criminal offences in the Schedule is simply to the ''Criminal Code'' (WA). There are many other Acts in WA which have contain criminal offences, including (but not limited to) the ''Misuse of Drugs Act 1981'' (WA), the ''Firearms Act 1973'' (WA), the ''Road Traffic Act 1974'' (WA), the '' Local Government Act 1995'' (WA) and the ''Bushfires Act 1954'' (WA).

Tasmania

Tasmania's serious criminal offences are set out in the ''Criminal Code Act'' ''1924'' (Tas). There are numerous other laws where provisions outlining offences may be found. E.g. the ''Firearms Act'', the ''Police Offences Act'', or ''Road Safety (Alcohol and Drugs) Act''.

Northern Territory

The primary criminal statute of the Northern Territory is the ''Criminal Code Act 1983'' (NT). The Northern Territory has also exhaustively codified its criminal laws in a manner similar to Queensland and Western Australia. The NT Criminal Code Act 1983, was drafted with cose reference to both the Queensland and WA Criminal Codes.

Australian Capital Territory

Offences and defences are mostly codified by the ''Crimes Act'' 1900, and the ''Criminal Code Act'' 2002.

Model criminal code

It has been proposed that Australian jurisdictions should make criminal laws consistent through adoption of a model criminal code. At present, New South Wales,''Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009'' (NSW
explanatory notes
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.For example, it was held in that the common law offence of

larceny Larceny is a crime involving the unlawful taking or theft of the personal property of another person or business. It was an offence under the common law of England and became an offence in jurisdictions which incorporated the common law of Eng ...

required a different

mens rea In criminal law, (; Law Latin for "guilty mind") is the mental state of a defendant who is accused of committing a crime. In common law jurisdictions, most crimes require proof both of ''mens rea'' and '' actus reus'' ("guilty act") before th ...

(or, requisite intent) in

to that adopted the Model Criminal Code

Notes

References

External links

{{Commons category
The Commonwealth Criminal Code – A Guide for PractitionersCommonwealth Criminal Code