History of criminal law

This chronology aims to document the important milestones in Commonwealth criminal law.Constitutionally the Commonwealth Parliament has no general power to legislate in relation to crime. State and Territory governments are mandated by their Constitutions to legislate for the peace, order and good government of their jurisdictions. They have a general power to maintain public order and to protect individuals who reside within their State and their property.

The constitutional basis for the Crimes Act 1914, the Criminal Code Act 1995 and offence provisions in other Commonwealth legislation is found in the express incidental power in section 51 (xxxix) of the Constitution or in the implied incidental powers contained in the heads of power in sections 51 and 52 and in the executive power in section 61. The majority of Commonwealth criminal offences and penalties are to be found in various Commonwealth statutes dealing with widely differing subjects, eg customs and excise, taxation, insurance, social security, broadcasting and the Internet.

The Commonwealth’s powers to legislate have been greatly expanded through the external affairs power (section 51 (xxix)). The Tasmanian Dams case in the High Court confirmed that the Commonwealth is able to enact legislation to fulfil obligations incurred through its ratification of treaties covering areas otherwise outside its constitutional capacity.

Another area of Commonwealth expansion into the area of criminal law has been the few occasions where the States have considered that a national law is preferable to a set of State laws and have referred their constitutional powers to legislate to the Commonwealth. This has happened, for example, in the areas of corporations regulation (2001) and anti-terrorism legislation (2002).

Commonwealth criminal legislation, therefore, began mainly covering offences against the Commonwealth and its institutions, or against Commonwealth officers, property or revenue. It has expanded, through the reasons mentioned above, to cover other areas of national concern.

This introduction is based on Report of the Review of Commonwealth Law Enforcement Arrangements, AGPS, Canberra, 1994, p. 10-11.

Milestones

Details

Source Documents

1899

1899 Queensland passes first Criminal Code, developed by Sir Samuel Griffith, which incorporates common law and statutory offences into one piece of legislation. Similar Codes were enacted in Western Australia in 1902, in Tasmania in 1922 and in the Northern Territory in 1983. Unsuccessful attempts to introduce a Criminal Code were made in South Australia in 1901-02 and in Victoria in 1904-12. The Commonwealth and the ACT passed Criminal Code Acts in 1995 and 2002 respectively based on the work of the Model Criminal Code Officers' Committee

Criminal Code Act 1899 (Qld)Historical background to the Code (OzCase)

1901

January 1. Commonwealth Constitution comes into force. Criminal law matters were generally left to the States except for matters coming under Commonwealth jurisdiction

Commonwealth of Australia Constitution Act 1900

1901

First Commonwealth criminal offences created in the Audit Act, dealing with public service fraud, forgery and perjury. Comes into force on 1 January 1902

Audit Act 1901

1903

First treason trial after 1900 involving an Australian. Colonel Arthur Lynch, an Australian, was found guilty by a UK court of fighting with the Boers in the South African War. Other treason trials were held in 1945.

Australian Dictionary of Biography

1905

As a result of a scandal in the dairy industry the first corruption offences were introduced

Secret Commissions Act 1905

1906

January 1. First prohibition of a recreational drug made, by proclamation under the Customs Act 1901, when importing opium was prohibited except for medicinal purposes

Commonwealth of Australia Gazette, no. 64, 30 December 1905, p. 1003

1907

First drug case heard by the High Court deals with importation of opium

Irving v Nashimura [1907] HCA 50 ; (1907) 5 CLR 233

1910

Drug offences greatly expanded by addition of section 233B to the Customs Act 1901 which makes importation or possession of illegally imported substances a Commonwealth offence

Customs Act 1910 s. 11

1914

1914 September

Commonwealth Crimes Act passed containing the most serious offences against the Commonwealth (eg treason) which carried the death penalty or committed by Commonwealth officers (eg divulging official secrets). It has been gradually superseded by the Criminal Code Act 1995.

Customs Proclamation dated 7 September 1914 prohibiting the importation of non-medicinal opium

Crimes Act 1914



Commonwealth of Australia

Gazette, no. 71, 12/9/1914

 

1917

Legislation passed to establish a Commonwealth Police Force. Prime Minister Billy Hughes was disappointed at the lack of action by Queensland police when an egg was thrown at him. The Force was established by an order published in the Commonwealth Gazette No. 215 12 December 1917, pp 3341-3342. It was abolished in 1919 and its functions taken over by the Investigation Branch of the Attorney-General s Dept

War Precautions Regulations 1916, Reg 64D, inserted by Statutory Rule no 317, 1917, made 27 November 1917

1920

Sedition made a Commonwealth offence, by inserting s. 24A-24F into the Crimes Act 1914

War Precautions Act Repeal Act 1920

1924

Customs Proclamation dated 18 April 1924 prohibiting the export of non-medicinal opium

Commonwealth of Australia Gazette, no. 26, 24/4/1921

1926

Following the 1925 Geneva Convention Concerning the Suppression of the Manufacture of, Internal Trade in, and Use of Prepared Opium, the Commonwealth bans the import and export of cannabis (Customs Proclamations nos 134 & 135).

Amendments to the Crimes Act bans unlawful revolutionary associations.

Commonwealth of Australia Gazette, no. 115, 25/11/1926


Crimes Act 1926

1928

First Commonwealth firearms legislation; introduced the offence of discharging any firearm on or over Commonwealth land

Crimes Act 1928

1939

National security legislation gave the government wide powers to conduct the war, control resources and deal with enemy sympathisers. It was repealed in 1946

National Security Act 1939

1941

Australian Security Service, the forerunner of the Australian Security Intelligence Organisation, established

 

1942

Offences re broadcasting blasphemous, indecent or obscene material made.

Peace Officer Guard established. In 1960 it amalgamated with the Commonwealth Investigation Service to form the Commonwealth Police Force.

Australian Broadcasting Act 1942


Statutory Rule no. 212 of 1942

1945

First war crimes legislation provides for trial and punishment of European war criminals

War Crimes Act 1945

1946

Commonwealth Investigation Service established

First and last Commonwealth treason trial. Major Charles Cousens was committed for trial in the Sydney Magistrates Court in August 1946. The charge was dropped due to lack of evidence.

The Australian Encyclopedia, 1996, p. 2957, states that Albert Stokes was found guilty of treason for joining the Nazi British Free Corps in 1944. In fact he was found guilty in a 1945 UK court martial of aiding the enemy, under the Army Act (UK). He served one year in Fremantle prison. Source: National Archives Recordsearch.

See also the 1903 UK trial of Australian Colonel Arthur Lynch (above).

Commonwealth Gazette, No.145, 8 August 1946


Australian Dictionary of Biography
; See also Ex parte Cousens; Re Blacket and another State Reports (NSW), 1947, vol. 47, pp. 145-150

1949

March 16. Australian Security Intelligence Organization (ASIO) established, under the administrative control of the Attorney-General s Dept. It was put on a statutory basis in 1956.

Offences dealing with victims of war and genocide created.

Prime Minister s Directive


Geneva Conventions Act 1949; Genocide Convention Act 1949

1953

The last sedition trial in mainland Australia was an unsuccessful prosecution by the Menzies Government of another member of the Communist Party in Sweeny v Chandler, an action prosected in the Sydney Court of Petty Sessions, which resulted in dismissal of the charges on the 18th September 1953. See 1960 for the last federal prosecution.

 

1956

ASIO, established in 1949, made a statutory body

Australian Security Intelligence Organization Act 1956

1960

Major amendments made to Crimes Act re sentencing, treason, defacing coinage, espionage, official secrets, conspiracy, etc.

The last federal prosecution and jailing for sedition was in 1960, when Department of Native Affairs officer Brian Cooper was prosecuted under the Criminal Code (Qld) for urging "the natives" of Papua New Guinea to demand independence from Australia . He was convicted and sentenced to two months' imprisonment with hard labour. He committed suicide four years after losing his appeal.

Peace Officer Guard and Commonwealth Investigation Service were merged to form the Commonwealth Police Force.

First telecommunications interception legislation.

Crimes Act 1960



Cooper v. The Queen [1961] HCA 16; (1961) 105 CLR 177




Commonwealth Police Act 1957


Telephonic Communications (Interception) Act 1960

1963

Offences committed on aircraft legislated

Crimes (Aircraft) Act 1963

1964

Procedures for civilians serving with United Nations who commit offences implemented

Crimes (Overseas) Act 1964

1966

Extradition legislation passed. Before this the Commonwealth used United Kingdom legislation and treaties

Extradition (Commonwealth Countries) Act 1966; Extradition (Foreign Countries) Act 1966

1967

Although the Commonwealth does not operate any prisons, it passed legislation providing for minimum terms of imprisonment for Commonwealth offenders

Single Convention on Narcotic Drugs implemented in order to regulate the manufacture of certain drugs for medicinal purposes

Commonwealth Prisoners Act 1967



Narcotic Drugs Act 1967

1971

Violent demonstrations in Territories or on Commonwealth premises attract a penalty of 3 months imprisonment.

Public Order (Protection of Persons and Property) Act 1971

1972

Australian Institute of Criminology and the Australian Criminology Research Council established. The Act commenced late 1972 and the AIC began operation in 1973.

Convention for the Suppression of Unlawful Seizure of Aircraft implemented

Criminology Research Act 1971

Crimes (Hijacking of Aircraft) Act 1972; Crimes (Protection of Aircraft) Act 1973

1973

Death penalty abolished for Commonwealth offences. States and Territories had already abolished capital punishment from 1922-1985

The Committee on Computerisation of Criminal Data recommends an Australian Crime Information Centre (ACIC) be established to store, retrieve and analyse criminal justice information

October 18. House of Representatives passes the motion That homosexual acts between consenting adults in private should not be subject to the criminal law . It results in the draft Law Reform (Sexual Behaviour) Ordinance 1975 (A.C.T.)

Death Penalty Abolition Act 1973. See also Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010

Report, August 1973. Attorney-General s Dept, Canberra. Tabled but not printed. List number 416/1975


Attorney-General s press release 41/75, (28/5/1975)

1974

Whitlam government establishes the federal Law Reform Commission (later Australian Law Reform Commission). Its first 2 reports in 1975 were Complaints against police and Criminal investigation.

Report of the Committee of Inquiry into a national forensic institute (est 4 Dec 1973). Chair L.G. Clark .

Law Reform Commission Act 1973

Report. Canberra : Govt. Printer, 1974. Parliamentary paper no. 58 of 1974

1975

Report of the Working Party on Territorial Criminal Law proposes and contains a draft new Crimes Ordinance for the A.C.T. to replace the Crimes Act 1900 (NSW) as applied to the A.C.T. The Crimes Act did not start to be replaced until the Criminal Code 2002 was passed by the ACT Legislative Assembly under self government.

March 27. Department of Police and Customs established to bring law enforcement operations together. Press release p.209

September 26. The Whitlam Government passed control of ASIO from the Attorney-General's Department to the Department of the Prime Minister and Cabinet.

In December the Fraser Government transferred control of ASIO back to the Attorney-General's Department.

October 29. Australia Police Bill introduced implementing Cabinet decision no. 1433 of 15/10/1973 and subsequent report by A.T. Carmody to establish a national police force to amalgamate all federal police agencies ie A.C.T., Northern Territory, Commonwealth, police forces, customs & narcotics bureau. The Bill also contained provisions to implement Australian Law Reform Commission recommendations relating to complaints against police. The bill did not pass. A more limited merger occurred later in 1979.

Australian Government Publishing Service, Canberra. Tabled but not printed. List no 318/1975



Commonwealth Gazette No S59, 27 March 1975



Administrative Arrangements Order 26/9/1975 (Commonwealth Gazette No. S192, 29 September 1975)

Administrative Arrangements Order 22/12/1975 (Commonwealth Gazette No.S262, 22 December 1975)



Australia Police Bill 1975. A.T. Carmody, National Law Enforcement Authority, April 1974. Tabled but not printed. List no. 384/1975

1976

Convention on Psychotropic Substances implemented.

Two terrorism conventions implemented

Psychotropic Substances Act 1976

Crimes (Biological Weapons) Act 1976; Crimes (Internationally Protected Persons) Act 1976

1977

Australian Royal Commission of Inquiry into Drugs established by the Commonwealth, Victorian, Tasmanian, Western Australian & Queensland Governments and headed by Justice E.S. Williams. It recommended increased law enforcement of drug control and the establishment of a Australian Bureau of Criminal Intelligence.

Reports published as Parliamentary Paper numbers 275/1979, 2529/1980, 226/1980

1978

Last act of terrorism in Australia . A bomb explodes outside the Sydney Hilton Hotel in February 1978.

Offences created re entering other countries for the purpose of engaging in hostile activities

Crimes (Foreign Incursions and Recruitment) Act 1978

1979

Following the Hope Royal Commission on Intelligence and Security, ASIO legislation was revised

Commonwealth Police and A.C.T. Police merge to become Australian Federal Police (AFP).

The Standing Advisory Committee on Commonwealth-State Cooperation for Protection Against Violence (SAC-PAV) hold its first meeting.

Legislation passed to clarify which Australian State and Territory criminal laws apply to ships and coastal waters, replacing previous UK legislation

Australian Security Intelligence Organization Act 1979


Australian Federal Police Act 1979







Crimes at Sea Act 1979

1980

Royal Commission into the Activities of the Federated Ship Painters and Dockers Union established by the Commonwealth and Victorian Governments and headed by Mr Frank Costigan QC. It made recommendations in the areas of organised crime, bottom of the harbour tax evasion, drug trafficking, waterfront crime and criminal investigation techniques

Reports published as Parliamentary Paper numbers 72/1982, 185/1982, 223/1983, 284-289/1984

1981

Royal Commission of Inquiry into Drug Trafficking established by the Commonwealth, NSW, Victorian & Queensland Governments and headed by Justice D.G. Stewart. It makes 102 recommendations in the areas of law enforcement agencies, criminal intelligence systems, police powers, complaints against police, deportation and extradition and financial investigations

Reports published as Parliamentary Paper numbers 288/1982, 41/1983, 186/1983 [NZ Report]

1981

Australian Bureau of Criminal Intelligence established

Agreement between the Commonwealth, State and Northern Territory Governments 6/2/1981. Tabled 18/8/82

1982

Legislation passed by the Fraser government to establish a national investigative body, the National Crimes Commission. The act was never brought into force by the new Hawke government, which instead set up the National Crime Authority in 1984

National Crimes Commission Act 1982

1983

Royal Commission of Inquiry into the activities of the Nugan Hand Group [extension of the Royal Commission of Inquiry into Drug Trafficking 1981-1983] Chair: Justice D.G. Stewart. It recommends enhanced cooperation with countries re banking records and changes to companies and auditing legislation

Reports published as Parliamentary Paper numbers 275/1983, 65/1985, 368-369/1985

1983 May

Royal Commission on Australia's Security and Intelligence Agencies established. Chair Mr Justice R. M. Hope. It recommends increased ministerial control of ASIO and the establishment of an Inspector-General to oversee agencies

Reports published as Parliamentary Paper numbers 323/1983, 1/1984, 230-232/1985

1984 March

Director of Public Prosecutions established on 5 March 1984 to prosecute offences under Commonwealth law. This task had previously been done by the Deputy Crown Solicitor s Office

Director of Public Prosecutions Act 1983

1984 July

National Crime Authority (NCA) established to investigate national crime issues

National Crime Authority Act 1984

1985

Royal Commission of Inquiry into Alleged Telephone Interceptions established. Chair: Justice D.G. Stewart. Recommends additional bodies be able to intercept telephones and safeguards for the issuing of interception warrants

Report published as Parliamentary Paper number 155/1986

1987

Review of Commonwealth Criminal Law established ( Sir Harry Gibbs (chair), Ray Watson , Andrew Menzies ). Issues discussion papers, 5 interim reports & a final report (1988-1991)

 

 

 

 

 

 

 

Australian Protective Service (APS) established to provide security at Commonwealth premises.

Assets of convicted criminals now subject to confiscation.

Special Investigations Unit (later War Crimes Prosecution Support Unit) established in the Attorney-General s Dept to investigate prosecutions of alleged Nazi war criminals. It was abolished in 1994

[1st] interim report: computer crime 1988. PP* 111/1989

[2nd] interim report: detention before charge 1989. PP 112/1989

[3rd] interim report: principles of criminal responsibility and other matters 1990. PP 195/1991

4th interim report 1990. PP 319/1990

5th interim report 1991. PP 194/1991

Final report 1991. PP 371/1991
All on Senate Tabled Papers Database

 

Australian Protective Service Act 1987

Proceeds of Crime Act 1987

1988

3 inquiries into violence established:

  •     National Inquiry into Racist Violence (Human Rights and Equal Opportunity Commission (Moss / Castan inquiry));
  •       Australian Broadcasting Tribunal Inquiry into Violence in Television;
  •       National Committee on Violence into Violence in Australian Society

Extradition laws rewritten and amended

An amendment to the Constitution to extend the right to trial by jury was rejected at referendum

Report, 1991 (PP 100/1991)

TV Violence in Australia , 1990 (PP 131-134/1990)

Violence: directions for Australia, 1990

Extradition Act 1988

Constitution Alteration (Rights and Freedoms) Bill 1988

1990

June 28 SCAG decides to establish the Criminal Law Officers Committee (CLOC) consisting of members from all jurisdictions to develop a national model criminal code. Between 1992 and 2002 it issues 12 discussion papers, 11 reports and 5 model provisions

July 1st. Crimes Act 1900 (NSW) as applied to the ACT passes from Commonwealth Attorney-General to the A.C.T. Government

Model Criminal Code

 

A.C.T,. Administrative Arrangements, 4/7/1990

1992

Penalty units (equivalent to $100) introduced at the federal level. The unit was changed to $110 in 1997. Units were first introduced in Victoria in 1981

Australian Protective Service transferred from the Department of Administrative Services to the Attorney-General s Department

Crimes Legislation Amendment Act 1992

Administrative Arrangements Order, 30 June 1992, Gazette GN27, 8 July 1992, p. 1834

1993

Criminal Law Officers Committee changes its name to Model Criminal Code Officers' Committee (MCCOC)

Review of Law Enforcement Arrangements established under the chair of Bill Coad. Its 1994 report led to changed arrangements within the Attorney-General s Department dealing with law enforcement.

 

 

Report. AGPS, 1994 ISBN 0644332964

1994

Federal Justice Office replaced by the Commonwealth Law Enforcement Board (CLEB) within the Attorney-General s Department

First Commonwealth sex offences, dealing with under age sex by tourists overseas

Human Rights (Sexual Conduct) Act enacted to override Tasmania's anti sodomy law contained in its Criminal Code. The first time the federal government uses its external affairs power under s 51 of the constitution to override a state criminal law

 

Crimes (Child Sex Tourism) Amendment Act 1994

 

Human Rights (Sexual Conduct) Act 1994

1995

Criminal Code Act 1995 implements provisions of the first report of MCCOC issued in 1992 on criminal responsibility. The Code is becoming the main piece of legislation containing federal offences, superseding the Crimes Act 1914. It also abolished all common law offences (s.1.1)

Criminal Code Act 1995

1996

On 28 April a lone gunman killed 35 people at Port Arthur, Tasmania. This led to the Commonwealth passing legislation to implement a gun buyback scheme to assist the States recall certain firearms and to restrict importation of various firearms

National Firearms Program Implementation Act 1996

Customs (Prohibited Imports) Regulations 1956

1997

Commonwealth legislates to repeal decriminalisation of euthanasia in the Northern Territory. First use of Commonwealth territories power to override a territory law.

Euthanasia Laws Act 1997

2000

CrimTrac Agency established to provide national databases of criminal information eg DNA, fingerprints, child sex offenders

CrimTrac Agreement

2001

Corporations power referred from the States. This was the most significant transfer of constitutional power from the States to the Commonwealth. Legislation provides for offences committed by corporations and their directors and boards

Corporations Act 2001 and related State and Territory legislation

2002

First Commonwealth anti-terrorism legislation. The Northern Territory in its Criminal Code was the first jurisdiction to make terrorist actions an offence in 1982

Commonwealth, State and Territories Agreement on Terrorism and Transnational Crime 2002 leads to referral of anti-terrorism powers to the Commonwealth

Australia implements the Rome Statute of the International Criminal Court and accepts the jurisdiction of the Court to investigate and prosecute genocide, war crimes and crimes against humanity

Security Legislation Amendment (Terrorism) Act 2002

Text of Agreement (see p. 16)
Criminal Code Amendment (Terrorism) Act 2003

International Criminal Court Act 2002

2003

On 1 January 2003 the Australian Crime Commission replaces the National Crime Authority (NCA), Office of Strategic Crime Assessments (OSCA) and the Australian Bureau of Criminal Investigation (ABCI)

The Australian Crime Commission: Commonwealth, State and Territory Agreement of 9 August 2002 (see p.13)
Australian Crime Commission Establishment Act 2002

2006

Law Enforcement Integrity Commission established to investigate misconduct by law enforcement officials

First conviction under sex slavery and sexual servitude provisions in the Criminal Code. Ms Wei Tang was convicted of 10 charges in the Victorian County Court

Law Enforcement Integrity Commissioner Act 2006

Minister for Justice Press Release 9/6/06

2010

Commonwealth legislates to prohibit States from reintroducing the death penalty, and to implement the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984

Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010

 

*        PP = Commonwealth Parliamentary Paper number/year. All Parliamentary Papers are available on the Senate Tabled Papers database .

Further reading

  • S. Gray, Criminal Laws Northern Territory, Federation Press, Annandale, NSW, 2004. Call number R 345.9429 GRA. Includes Chapter 2: History of Northern Territory criminal law.
  • G.D. Woods, History of Criminal Law in New South Wales: the Colonial Period 1788-1900, Federation Press, Annandale, NSW, 2002. Call number 345.944 WOO.
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