Unifying the law

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.