The Commonwealth of Australia does a lot of things in unique ways, and most Australians are fine with this. When it comes to the courts, tough, Australia’s odd blend of common law and code law is not always unique in a good way. The profusion of different criminal law traditions makes practicing law in Australia very complicated.
Common Law Vs. Statutory Law
Australia’s legal system is very much a work in progress. While the first law brought to the Commonwealth derived from English common law, today there is a serious push in all levels of the government to shift the country’s legal process towards statutory law.
While the subtle differences between the two forms of law are maddeningly complicated, the general gist of the separation is easy enough to grasp. In a common law jurisdiction, the authority used to decide cases is the precedent, i.e. how similar cases were decided in the past. Statutory law looks instead to formally codified laws are written by legislators.
Many legislators and legal professionals would like to see Australia move towards a unified system of statutory law. Unfortunately, this is not a power that the Constitution gives to the National Government. Each state is on its own when it comes to defining and reforming its laws.
An Overview Of Legal Traditions
The states and major territories of Australia lean, on the whole, more towards statutory law than common law. The federal jurisdiction which covers certain high-level crimes is, like the Commonwealth itself, in transition. The Criminal Code Act of 1995 is slowly being expanded to serve as a comprehensive statute. Until this process is complete, though, common law traditions are used to fill in the gaps.
In Queensland, Tasmania, Western Australia, and the Northern Territory, criminal law are codified well enough in the local statutes that criminal law is considered to be statutory. In contrast to this situation, New South Wales, Victoria, and Australia are all still common law jurisdictions. While these three states all have criminal codes of their own, precedent is still used as the highest authority in many cases.
If You’re Facing Criminal Charges
What does this confusing mishmash of legal traditions mean for you if you’re unfortunate enough to be charged with a crime? The key point you need to take away from this article is that local experience is critically important in Australian criminal law. A lawyer who has not practiced extensively in the jurisdiction where you’re charged will be at a serious disadvantage. (In Queensland and New South Wales there’s even still a distinction between barristers and solicitors.)
Make sure you research a potential lawyer carefully when you’re looking for help with a criminal offence. You want to secure a thoroughly knowledgeable professional who understands the local legal tradition inside and out. Look for firms and individual lawyers with many years of in-state experience.
While the state of criminal law across Australia as a whole is a very confusing patchwork, this isn’t likely to affect your directly unless and until you need to defend yourself in court. If that sad day should come, just remember to make sure you get counsel from a lawyer who’s had plenty of experience in your jurisdiction.