Purpose of Criminal Law in Australia

Criminal Law

The overarching purpose of criminal law in Australia is to bring about and enforce criminal sanctions, also known as penalties, such as imprisonment or fines, with regard to individuals whose behaviour is considered not merely unacceptable enough to deserve punishment by the state, but also socially dangerous. The key specificity of Australian criminal law stems from the fact that it originated from both common law (case law) and legal statues enacted by the legislatures, including, for instance, such statutes as the Crimes Act 1900 (NSW).[1] In Australia, criminal law belongs to those domains of law that are largely controlled by the states, rather than by the federal government, notwithstanding the fact that there is a growing number of criminal law provisions enacted by the Commonwealth government as well, such as the Anti-Terrorism Act (No. 2) 2005 (Cth).[2] Here, it is extremely interesting to note that the federal system of Australia has it own criminal law enforcement agency, the Australian Federal Police.

As the foregoing discussion must suggest, most of the criminal statutes in Australia originate from English criminal law, though Queensland originally rested its system on the nineteenth-century Code of India. Criminal statutes not merely define what constitutes a crime and cover the relevant penalties and sentences for diverse criminal offences, but also regulate issues of criminal procedure and evidence. In addition to this, certain specific statutes, such as the Corporations Act 2001, or laws pertaining to transport, roads or environmental protection, tend to prescribe sanctions for specific offences committed in particular areas of social relations.[3]

The chief division of criminal law in Australia can be made between ‘indictable offences’ (felonies) and ‘summary offences’ (misdemeanours). A felony used to be treated as an offence, punishable by death, whereas a misdemeanour was not punishable by death. Presently, summary offences are considered those that require trial hearing before a magistrate (a lower court), and the vast majority of criminal issues are dealt with as summary offences by way of summons. The Summary Offences Act 1988 (NSW) exemplifies the legal regulation of summary offences in Australia.[4] On the other hand, indictable offences are titled after the written legal document (‘indictment’), which is prepared by the prosecutor. In Australia, the prosecutor acts on behalf of the Crown and all indictable cases are listed as Regina (Latin for Queen) versus Jones or as The Queen versus Jones.

As a matter of law, indictable offences are derived from English law and were heard before a ‘grand jury’ of up to 23 persons. The key purpose of the grand jury was to decide whether the accused had a case to answer. If the case was decided, it would then move forward to a trial in front of a ‘petty’ jury, compose of twelve individuals. As soon as the court finalised its proceedings with the trial and, if a ‘guilty verdict has been rendered, it is incumbent on the judge to decree a punishment for the guilty party. Here, it needs to be stressed upon the fact that it is fairly difficult to appeal verdicts in criminal law jury trials, as the presumption is that once a jury of 12 jurors of the accused has decided a verdict, it should not be easy for the accused to disagree with that verdict. However, appeals are more likely when a question of evidence or other procedural matter is at stake in the trial. The rule of thumb is that an appeal lies by right against any question of law. Appealing against a question of fact, as found by a jury, is virtually impossible and requires special permission from the appellate court.

[1] Crimes Act 1900 (NSW).

[2] the Anti-Terrorism Act (No. 2) 2005 (Cth).

[3] Corporations Act 2001.

[4] Summary Offences Act 1988 (NSW), Section 4.

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