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Unifying the law

By Michael Bosscher - posted Tuesday, 6 February 2007

It’s time for Australia to establish a uniform national criminal law code to replace the current state-by-state chaotic system.

A nationwide criminal code system should also include uniform traffic laws as the current variations between the state laws do nothing to ensure safer roads.

As a criminal defence lawyer I endorse the call for a uniform national criminal code by the chairman of the NSW Law Reform Commission, James Wood, QC. Criminal law in Australia is at present unnecessarily complicated by having nine different jurisdictions, with the states, territories and Commonwealth all having different laws and penalties.


New South Wales does not have a criminal law code, but works under State Government legislation so the penalties for offences there do not reflect what would happen in Queensland, where there is a criminal law code. Multiply these differences across Australia and it’s a chaotic situation.

Uniform traffic laws are also needed, as a road safety measure. People who learn to drive in Queensland discover some of the road rules are different in New South Wales and other states and given the high level of mobility of Australians, and our fascination with driving, it’s crucial that everyone be on the same page with the rules of the road.

However persuading the states and territories to give up their individual powers and conform to uniform national laws will be the most difficult aspect of any change.

Some of our laws and particularly each state’s mindset date back to historical times when Australia was not so much a single nation but a collection of independent-minded states, whose inhabitants rarely ventured beyond their local borders.

Separate laws evolved, apparently without regard to how they reflected or conflicted with the laws of neighbouring or distant states. More than a century on, the Commonwealth has been unable so far to bring everybody into line.

James Wood, QC, the former Supreme Court judge who conducted the NSW police royal commission, acknowledges this fact in his call for having a single Australian criminal law. Mr Wood says he believes there's a huge case for there to be a unification of the criminal code but the states won't give up their power.


Justice Wood said even if a single law is not established there at least should be a “real move" to have similar provisions in each jurisdiction.

However there are some serious issues to consider. In Queensland we still rightly uphold the legal rule of double jeopardy, where you cannot be tried twice for the same crime. But in New South Wales they have modified this to allow re-trials for specific serious cases. Getting uniformity on issues like this would be a fight.

Another major difference between these two states is jury verdicts. Queensland requires a unanimous verdict but New South Wales now allows majority verdicts of 11 to 1 or even 10 to 2. Queensland would not want to go down this road.

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About the Author

Michael Bosscher is managing partner of Brisbane-based national criminal defence law firm Ryan & Bosscher Lawyers.

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