Introduction to Criminal Law

Contributed by Marcus Hassall, Blackburn Chambers and current to March 2022.

What is “the criminal law”?

“The criminal law” means any law which says that particular conduct is an “offence”, and imposes a punishment for engaging in that conduct. Some types of misbehaviour – e.g. parking infringements – are “against the law”, but they are not "offences". That is simply because the government does not regard them as being sufficiently serious to make them "crimes".

Most of the ACT criminal law can be found in legislation – that is, in formal "Acts" which have passed as law by the Territory or federal governments, which set out the "elements" of each offence, as well as any defences which might be available.

What is the difference between criminal offences and civil wrongs?

Whether conduct amounts to a criminal offence, or a civil wrong, really depends on what legislation and the courts say about that type of conduct. Some conduct, such as assault, can constitute both a criminal offence and a civil wrong. Other types of conduct – e.g. failing to repay a loan – can only be a civil wrong.

There are two main differences in how the law responds to criminal offences vs. civil wrongs. These relate to procedure, and consequences:

• Procedure: legal action relating to criminal offences (called “prosecution”) is normally commenced by the government, whereas legal proceedings for civil wrongs are usually commenced by individuals;
• Consequences: At the end of a criminal proceeding, if the accused person is found guilty, he or she will normally be “convicted” and punished by the Court (e.g. fined or sent to gaol). In addition, the person’s "conviction" will be placed on a “criminal record”, which may affect the person's ability to obtain or remain in employment. By comparison, the usual outcome of a civil wrong is merely that the court orders "Person A" to pay "Person B" a sum of money - no one is convicted, and normally no formal punishment is imposed (provided the court's order is complied with).

ACT and Commonwealth criminal laws

In the ACT there are two main sources of criminal law – ACT legislation and Commonwealth legislation. Because of the way the Australian Constitution is drafted, the Commonwealth government can pass legislation dealing with criminal offences in a number of specific areas. Some of these include tax fraud, social security fraud, importing or exporting drugs or other illegal substances, and criminal behaviour relating to the internet (e.g. broadcasting pornography).

The Territory government has legislative power to create criminal offences in relation to everything else. In practice this means that ACT legislation deals with most "street crime" such as offences against the person (such as murder and assault), sexual offences, arson, property offences (such as theft and robbery), and street-level drug dealing.

Some types of conduct – such as selling imported drugs - can amount to an offence against both ACT and Commonwealth laws. In such cases it will be up to government authorities to work out what the most appropriate charges are, and which government authority should be responsible for prosecuting the matter.

Key legislation

The two most important pieces of ACT criminal law legislation are the Crimes Act 1900 (ACT) and the Criminal Code 2002 (ACT). The Crimes Act 1900 (ACT) was originally inherited from New South Wales and has subsequently been adapted for the ACT. It sets out many of the common, and older, types of offences like murder, assault, arson, and sexual offences. The Criminal Code 2002 (ACT) is newer, and it contains rules which apply to all offences against Territory law. It also contains some offences of its own, such as property offences (e.g. theft and robbery).

The Commonwealth also has a Crimes Act 1914 (Cth) and a Criminal Code Act 1995 (Cth). Most Commonwealth offences are now contained in the Criminal Code Act 1995 (Cth), which – like the Territory Code – sets out rules applicable to all Commonwealth offences. The Crimes Act 1914 contains provisions relating to the investigation of federal crime, and also contains some older and very specific federal offences, such as treachery and interfering with the post.