Unifying the law

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.

The need for uniformity is well illustrated by just comparing Queensland and New South Wales differences in one area of criminal defence law- the issue of provocation. At the moment, provocation is a defence to an assault charge in Queensland, but not in New South Wales where it is only available as a partial defence to a murder.

Justice Wood says in NSW there are heavier penalties for assaulting bus drivers and surf lifesavers than other people, whereas other states limit these heavier penalties to assaults on police or emergency service workers.

Consequences also differ, even for identical crimes. An Australian Law Reform Commission report last year found considerable variations in sentencing for federal offences in state courts.

A media report on the call for a uniform criminal code noted drug offenders are treated more leniently in South Australia (average sentence: 90 months' jail), than in the Northern Territory (average sentence: 196 months' jail). There are constitutional limits on what crimes the Commonwealth can legislate on, but uniform laws can be introduced in each state.

There are also significant procedural differences between the states and territories which only serve to complicate the practice of criminal law in Australia, not streamline it.

NSW Attorney-General, Bob Debus, was reported as saying the Standing Committee of Attorneys-General was already harmonising laws on emerging problems, such as terrorism. His spokesman said a standard criminal code had merit but the practicalities were prohibitive. Historic variations between the states would make it hard to integrate.

Federal Attorney-General, Philip Ruddock, has been reported as saying there is a need for harmonisation but the states seem reluctant to adopt new rules with any degree of urgency.

"They are not willing to move away from their historic way of doing things," his spokesman said.

This unwillingness to change or adapt to the criminal justice needs of the 21st century seems to be the major barrier. Bringing the laws into line across Australia would be a gargantuan task, but the consensus seems to be that the states won’t want to give in to anybody, therefore it’s an impossible task, therefore we should do nothing.

This is a defeatist attitude. Before we can do anything we must first address individual state attitudes and to address this, we first have to grapple with the fact that law and order issues are a popular vote- catcher.

We can’t continue to live with the old thinking that each state and territory is like a separate country. Australians are very mobile and routinely drive in other states. Equally, crimes are committed across state borders.

Mark Findlay, director of the Institute of Criminology at the University of Sydney, was reported as saying Justice Wood was on the mark with his call for a uniform criminal code. It was "neither efficient nor realistic" to have different state laws, especially given increasing co-operation between police forces nationwide and the expansion of Commonwealth criminal laws.

"A reason for law and order being an unfortunate feature of most state elections is that the states and territories spend far too much legislative energy fiddling inconsistently with crime and justice laws, disproportionately to their concerns for health and education," Professor Findlay said.

A counter view has come from the chairman of the Australian Law Reform Commission, David Weisbrot, who said state laws should be left alone unless there was a strong case for national consistency.

I believe a case for national consistency can be proven. The 19th century mindset which we have in place now won’t work in today’s highly technological world. We need consistency across Australia.

State pride is to be encouraged but there are times when the best interests of the nation are served by a unified approach. A single criminal law system across Australia is a good example for the states to put self-interest aside to achieve something that is good for all Australians.