Australian criminal law

The criminal law of Australia is generally administered by individual jurisdictions in the Commonwealth of Australia. These jurisdictions include the six states, the Commonwealth government, and the self-governing territories. It is in large part a matter for the states, with only a small subset of criminal activities reserved for Commonwealth government to prosecute.

Australian criminal law was originally received from the English common law, which continued to evolve in Australian courts. Although all states 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 are generally referred to as 'code jurisdictions' or 'common law jurisdictions' respectively.[1]

New South Wales, South Australia and Victoria are common law jurisdictions. These states have Crimes Acts which list the most common offences and fix their penalties, but do not always exhaustively define the elements of the offence. For example, New South Wales is a common law jurisdiction. The jurisdiction, however, has a range of statutes which create or define criminal offences. An example of this is section 117 of the Crimes Act 1900 (NSW). Section 117 of the Crimes Act 1900 (NSW) states that:

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. This section, nor the remainder of the Act, does not define larceny. This offence 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 are interpreted to replace 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.

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