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Is Criminal Law State Or Federal?

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Criminal law is a complex area of law. It is a culmination of criminal principles and the criminal justice system, designed to deter and punish criminal offending. Typically, criminal law is subject to individual state law unless it is at a federal level. The differences will be discussed below.

As a general rule, if you have been accused of committing a criminal offence, you should seek legal advice at the first possible opportunity. This will ensure that you are well-informed about the process and possible sentencing if the situation warrants. You will require criminal lawyers with different levels of expertise depending on what level of offending you have committed.

State Laws

Each different state and territory is subject to its own criminal code act. Whilst some states have discussed creating a national code, that has not yet occurred. Criminal law in each state does not differ greatly as the basic principles of criminal law are seeded in common law which is a universal set of principles.

The main differences between the states are usually the sentencing they choose to impose and a varying degree of factors that need to be proven to satisfy the charge. The core principles remain the same however each state has incorporated a slightly different set of parameters.

As with all law, the core principles of criminal law are derived from common law principles and are somewhat influenced by previous case law. Previous case law may differ in circumstances but it is the legal principles and factors that are the key component. The Criminal Code Act mandates that certain factors be present before a determination of guilt and it is important to understand which similar circumstances may have caused that determination.


A civil claim falls under civil law and is usually a dispute between either two individuals or an individual and an organization, i.e. contract, employment, neighbour disputes. Civil law cases usually do not involve lawyers as each party represents themselves for the dispute.

Civil law is based on core principles of common law and the aim is to right the wrong as quickly as possible with little cost. For example, a fencing dispute between neighbours may simply require a check of council permits to resolve the dispute.

Civil laws are not based on criminal laws, the criminal code act or the crimes act. Case law on the matter may assist your understanding of whether you have a civil case worth pursuing. Civil cases in general rely on facts and evidence for determination i.e. if it is a contract dispute, the court will need to apply an interpretation of the contract for resolution.

What Do I Need To Do If I Have Breached State Criminal Law?

Your first step should always be seeking legal advice and in this instance, you will need to seek advice from a criminal defence lawyer. The criminal justice process is complex and it is important that you do not attempt to interpret legislation, such as the crimes act, without appropriate advice. Inaccurate interpretation can lead to significant consequences.

Once you have been charged with a criminal offence you will be directed to attend court for a determination of the matter. You will need to enter a plea of either guilty or not guilty to the charge. If you plead guilty, your matter will proceed straight to sentencing on the next occasion. If you plead not guilty, your matter will be set down for hearing so guilt can be determined.

There are two different courts your matter can be heard in. The Magistrate’s court, or local court, handles summary offences/criminal charges and is determined by a singular Magistrate. The supreme courts, however, deal with indictable offences and matters are usually determined by way of judge and jury. Court proceedings heard in the higher court are more serious in nature.

An individual’s guilt is determined by applying the test of “beyond a reasonable doubt”. The prosecution must prove beyond a reasonable doubt that the individual is guilty and that in the same circumstances, a reasonable person would not have made the same choice or committed the same action. The Australian supreme court system requires a unanimous jury vote for a guilty conviction so the bar is high. The burden of proof falls to the prosecution to prove that the defendant is guilty.

This is one of the core reasons why the Jury consists of 12 “lay people” with no legal training or background. What is reasonable to a legally trained individual may differ to that of what is reasonable to a non-legally trained individual. To ensure the criminal justice system is fair, there can be no risk of influence on the process. The evidence must be heard and assessed based on merit and there should be no preconceived ideas.

What Legislation Needs To Be Considered?

Criminal law at a state level is subject to numerous different legislative acts which all intersect at different junctions. Both the Criminal Code Act and the Crimes Act are integral to the prosecution of criminal offences.

The Criminal Code Act is the act by which criminal offences are laid out including what factors need to be present and proven in order to result in a guilty conviction. The criminal code applicable is subject to the individual state or territory that the offending occurred in. It will differentiate the factors required for a summary and indictable offence of the same nature, i.e. possession of drugs, kg,s or theft amounts.

You should never attempt to interpret legislation on your own and should rely on the expert advice of your criminal lawyers to ensure correct interpretation. Incorrect interpretation could be the difference between a guilty or non-guilty verdict.

What is the Sentencing Process?

Sentencing is subject to the sentencing act and is reliant on many factors before a determination can be made. Some offences will stipulate in either the crimes, act, criminal code, etc, that there are minimum or maximum sentences that are non-negotiable. This takes some pressure from the Judge or Magistrate.

Other offences are discretionary when it comes to sentencing and the following may influence it;

  1. The severity of the offending;

  2. Whether the accused person has any prior offending or criminal record?

  3. Case law regarding similar offences;

  4. The nature of the offending.

Australian courts allow a level of discretion so that personal circumstances can be taken into account during sentencing. It is not a one size fits all approach as each different criminal case will have different circumstances and factors behind it.

It is important however that only relevant and plausible arguments are made when seeking sentencing mitigation. The court will not consider arguments that hold no merit and in fact, it can influence a harsher penalty if they deem you are not taking the situation seriously.

Federal Laws

Federal law relates to criminal activity that is committed at a commonwealth level and is not subject to any individual state legislation. The federal government has implemented commonwealth legislation to deal with commonwealth crimes and federal offences through an appropriate court process. Commonwealth offences may occur in different commonwealth countries which have a reciprocal relationship with Australia.

Commonwealth criminal offences are classed as the most serious type of offending. The offending must fall within Australian Jurisdictions in order for the commonwealth parliament to have any control over the situation.

Can You Be Charged With Offences Which Are Federal And State At The Same Time?

The short answer is, yes. You can absolutely be charged with more than one different class of offence at the same time. Often time, commonwealth offences are discovered as a result of a charge for summary or indictable offences. This is particularly the case for drug offences.

An individual could for example be charged with indictable drug criminal offences such as lower-level distribution and upon a deeper investigation, be then charged with a series of commonwealth criminal offences. This is because the distribution of drugs must have a supply chain.

The corresponding commonwealth criminal offences may then be drug supply and trafficking. With this particular example, however, drug organizations like to keep their supply and distribution personnel separate to avoid total organizational collapse upon arrest.

Drug offences are only one example, however. Sexual assault and sexual offences at an indictable level have been known to uncover commonwealth law offences if the incident is not isolated. Serial offending becomes a federal matter particularly, if any of that offending has taken place overseas. Sexual conduct is a serious matter which is challenging to prove used to the intimate nature of the act. There is normally a distinct lack of evidence and it becomes word against word.

What Law Enforcement Agencies are used for Federal Crimes?

The Australian Federal Police investigate offending alleged to fall within commonwealth criminal law. The federal police are utilized to investigate crime at a federal level by the federal government.

Investigations for commonwealth offences or commonwealth crimes can take considerable time as they are usually


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