Uniform Criminal Laws for all Australian Jurisdictions

Discuss whether or not there should be uniform criminal laws for all Australian Jurisdictions (i.e. State, Territory and Commonwealth jurisdictions)

Should there be uniform criminal laws for all Australian Jurisdictions as we see much confusion between jurisdictions in Australia’s history of criminal proceedings? The situation which exists now is that there are different criminal laws for each State and Territory. There are nine different systems of criminal law in six states, two territories and the federal jurisdiction; each with its own criminal laws to follow in Australia, and keep in mind Australia is large country consist of a relatively small population of 18 million only. Added to that each state in this country have different set of traffic codes, road rules, different property laws, tax laws, family laws and etc. These different laws lead to inequalities, complications, and unnecessary duplication of time, people, money and other resources. The question in many cross border crime between states that has always been the debate is: whose jurisdiction is it or in which state will the accused be trial?

Police statistics indicate that, on a per capital basis, violent crimes tend to be more prevalent in the Northern Territory while Western Australia had the highest crime rates for property-related offences. The statistics show that most habitual offenders in most cross border crimes between states would pick the less tough sentencing state to commit the crime. For example: the age to consent for any sexual act in different states varies and the penalty for sexual penetration of a young child varies significantly in different states too. A punishment for crime of sexual penetration of a young child (under the age of 10) in Victoria carries a maximum penalty of 25 years imprisonment but in ACT, the same crime only carries a prison term of 17 years. In this case, the intelligent serial rapist will know where to commit the act. The person will definitely choose the lesser punishment between the 2 states in case of being caught.

The Australian Institute of Criminology has collected data on homicides in Australia since 1989. The latest figures indicate that there were 288 incidents and 305 victims of homicide in Australia during 2003-04 {http://www.aic.gov.au/publications/cfi/cfi108.html} , an average of about one a day. A number of homicide incidents in Australia have involved multiple (two or more people are murdered) killings. This multiple killing crimes could be a result of Criminals knows that, every state in Australia has their independence laws. If they are found committing a crime in a different state to where they previously committed a crime in; they will probably not be sent back for prosecution or the state they are currently in won’t be able to prosecute them as the offence did not take place in that state.

Firearm has become a common weapon for arm robbery while robbing financial institute, corporate and shops which contain large amount of cash. Bear in mind that a propelled bullet can travel a long distance to reach a target. It can cross borders too. If bullet can travel across border, shouldn’t there be a uniform criminal law for all state? In another scenario in Ward v The Queen (1980) 142 CLR 308 where the accused was standing on the Victorian bank of the Murray River, shot and killed the victim who as on the opposite bank in New South Wales. In such case, which state will trial the accused and persecute the convicted criminal? With the territorial theory, each states has obligation to not interfere with the affairs of other states but to control crimes taking place within its own borders (McSherry and Naylor, 2004). But, as long as crime involve firearms is concern there is no border.

The ‘Roads Policing Strategy’ to accompany the National Policing Plan clearly stated that road policing is “an important and visible element in the police’s commitment to protect the public” It includes: excessive and inappropriate speeding; drink and drug driving; failure to wear seat belts; and careless, dangerous or threatening driving. However, this plan can never be effective as long as there are still different laws in every state and territories. We see how New South Wales issued traffic infringements for exceeding the speed limit but in Australian Capital Territory’s, Drivers with ‘P’ plates who exceed the speed limit brought to court and the case was thrown out in the ACT magistrate courts. It is confusing for the citizens and residences of Australia to have different laws applied to them in different states while staying in the same country. Knowing the differences of laws in different states, intelligent habitual criminal will choose the state with the least penalty terms to commit their wrong doing. This causes problem for the prosecution at a later stage as the defendant could claim the absence of mens rea where they did not know the laws of New South Wales, as they are residence of the Australian Capital Territory.

In this twentieth century where computer is readily accessible by young and old, cyber crime become a norm for Australia: Internet-initiated Sex Crimes against Minors juveniles became victims of sex crimes committed by people they met through the Internet. Victims in these crimes are usually 13- through 15-year-old teenage girls who met adult offenders in Internet chat rooms. Most victims met and had sex with the offender on more than one occasion. Some of these offenders even use violent to achieve their sexual desires. Another serious cyber crime is fraud, while new technologies allow easier and cheaper access to a much larger pool of prospective victims. In this modern age we see scams of Identity-related Fraud, Internet Fraud, Credit Card Fraud, and Advance Fee Fraud. All these white collar crimes are borderless; all the more we see the need for a uniform criminal law to bring immediate justice without incurring further expenses of legal proceeding pending the jurisdiction of offence committed to decide on the venue of prosecuting the offender. Corporations and businesses are able to move and conceal its activities in different states easily without jeopardize the economy of the country and loosing out foreign investor when large fraud relating to banking institute is concern. But why is the delay and why the hesitation on the implementation of a uniform criminal law?

Some arguments that could be that:
· State government might consider the implementation of a uniform criminal law as a threat to loss their power in governing their own state laws.
· Some states are reluctant to consider new laws as they think the current laws are sufficient.
· It is also probably impossible for the commonwealth government to know exactly what happens in the states and territories to implement laws properly for them.
· The uniform criminal law is still up to interpretation of each state and territory’s law enforcement units.
· In the implementation of a uniform criminal law, the commonwealth government should be making decisions with the states and territories government.

But those arguments shouldn’t stop Australia from implementing a uniform criminal law. One country, one system is much easier and convenient for the citizens and residences of Australia. After the implementation of a uniform criminal law, the governments and law enforcer officers can better educate the people from childhood to adulthood to one single system without confusing them when they travel from state to state while struggling for their living. With this single system the people have no ways to claim that their ignorance of the law.

The political debates and arguments between jurisdictions would come to a halt in criminal law matters and proceed to better serve the communities. Crime justice system will also benefit from it as all large organized cross border activities would be able to run smoothly without any hurdles. The instances where convicted criminal (i.e. child molester or rapist) will know that wherever they commit the offence, the penalty are the same, thus deter them from committing the act. Criminals cross state borders after serving their sentences could be monitored and would assist in providing a better crime justice system.
A Model Criminal Code draft release in July 1992 was the first step to conformity of the criminal laws that is much needed in the country. States and territories have the option of adopting the code or use it as a guideline to form their criminal laws although they do not have to take it into consideration. The model code called for adoption by the states and territories. It is not the intention is not to remove the state and territories’ powers in regards to law making that is given to them by the constitution but to unite this country to the one uniform law to curb crime that would harm the nation, confuse the citizen. Sadly, this model has not been adopted across the country since it was released.

With different laws and penalties in different states and territories that causes the unnecessary waste of time for law enforcement officer. When the police were to detain an offender the police has to laid charges before a criminal court, determines the guilt or innocence of the defendant, hearing of the charges, imposed sentences include imprisonment, community service orders of various kinds, fines or bonds, home detention or work outreach camps that are administered by correctional agencies. But with the implementation of one system, the police will be able to charge the offender in court immediately and with a short spent of time the offender will be sentence or imprison. Thus, shorten the time of prosecuting and save resources.

In a recent article on January 9,2007 spelled by The Sydney Morning Herald: ‘The federal Attorney-General, Phillip Ruddock, said yesterday that there was a need for harmonization but the states seemed reluctant to adopt new rules with any degree of urgency’ (Herald, 9 January 2007). The thought of how harmonization would only occur if something really bad had already happen (i.e. terrorism) is almost absurd. Intermittent focus on the aspect of different laws should cease. Every law in Australia should have some sort of uniformity. The idea of having one commonwealth government over the states and territories is to bring forth the one nation and one identity, this includes believes and practices of the country. Either the call for adoption of the model criminal code to conformity of the criminal laws or the implementing of one uniform criminal law, this has to be done for the benefit of the country and the people.

In conclusion, we see the rapid change of the world that we live in. The modern technology that is advancing daily, crimes involving high thecnology are common nowaday. Cross broder is done within second with modern transportation and electronic equipement. Thecnological developments have changed our lives, and criminal activities. Shocking senerios like the shooting across the state and the credit card fraud by hacking the internet is no way to be seen in the old days. We have to move swiftly to keep up to date with the current crime situations. I believe the implementation of uniform criminal laws for all Australian Jurisdictions is inevidable. Cross border and borderless crime is increasing so as the number of cases of hearing piling up because of the different set of laws and penalty imposed by different state. How long can the court hold on to these cases? How much resouces and time we must waste? What are the authority waiting for? I believe it would be a major advantage for Australia to have a uniform law policy in this present era.

Reference list
MCSHERRY, B. & NAYLOR, B. (2004) Australian Criminal Laws: Critical Perspectives, Melbourne, Oxford University Press.