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Recent Changes in Criminal Law

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Recent Changes in Criminal Law

Criminal law legislation is regularly under review to make sure that the criminal justice system is as effective as possible. The criminal code act is relied on heavily by the court and the legal profession to provide guidance for criminal offending. The legislation sets out elements which must be established for a guilty verdict.

Criminal law reforms change the way in which persons convicted are found guilty, what factors are required to result in a guilty verdicts and whether offences remain combined or become split into separate categories. Criminal justice reforms are usually highly discussed and publicized before decisions are made and the public are made aware of any changes they will face.

Criminal Justice System

The criminal system exists to not only ensure appropriate punishment for criminal offending but to deter community behavior’s and further offending. It exists to ensure that all criminal defendants are considered innocent until proven guilty through due process within the Australian Courts system.

Criminal responsibility can be difficult to prove depending on the circumstances and therefore criminal cases must follow a particular process. Evidence needs to be assessed by the court to determine if the elements of the charge are established. The outcome and penalties can be severe so there needs to be a check and balance system to ensure the decision and sentence imposed are justified.

It is regular for there to be significant reforms within criminal law to ensure the process is as fair and up to date as possible. Any proposed criminal code amendment will be presented to parliament as a bill and then passed before it can form a part of criminal legislation.

The Criminal Code Amendment Act 2022 for example, sought to simplify the statutory test required to determine whether an individual under the age of 14 could have the mental capacity to commit a crime. More frequently in today’s society, we are seeing criminal offences committed by minors and yet there is a debate as to whether they have the mental capacity to understands their own actions. It is not as simple to have a minimum age of criminal responsibility as every case needs to be assessed individually.

It is well understood that children develop at different speeds due to different socio-economic backgrounds, and cultural and family backgrounds. It is not possible to place every child in the same basket so legislation must allow for there to be individuality within the statutory test.

How Are Changes To Legislation Made?

When area of law such as criminal law are subject to review, the review is completed through a parliamentary process. A bill is presented to parliament for their consideration and approval before legislative changes can be made. This process can be onerous and further information may be required before they are ready to pass the bill and reform the section of legislation.

Parliament will require a majority vote before they can successfully pass new legislation. It is essential for legal practice that members of the profession remain up to date on any and all changes made to legislation before they next come before the court.

If a bill is not successful through parliament, this does not mean that a review or reform cannot be made at a later date At times the government will even seek an independent review of sections of law at either the request of the public or judicial officers within the court.

Mental Health

Mental health has been a large topic of discussion recently as it is a factor which is interpretive before the court. Any time mental health factors into a criminal law matter, evidence is required to determine whether there is either a diagnosed condition and whether that condition meets the criteria for exception.

New mental health legislation has introduced a criteria to be met in Australia to assess those in custody or accused of a criminal offence. Further information/evidence needs to be provided such as a psychologist or psychiatrist report on the defendant. Mental health is not a get out of jail free card and the threshold is high to determine whether a person should have their criminal determination or sentencing impacted by their mental health.

In rare cases of criminal insanity, a clinical determination must be made which concludes that the individual had no knowledge of the impact or result their actions would have. It would need to be determined absolutely that the individual is not fit to be held criminally responsible. There may be other circumstances whereby a guilty verdict can be determined yet a sentence such as a term of imprisonment may be inappropriate given a mental health diagnosis. In every individual circumstance, expert evidence by a clinical psychologist or psychiatrist is required.

International Reforms

International law deals with situations such as war crimes and crimes against humanity on an international scale. The law in this respect is subject to constant reform due to its nature. The crimes committed under International law are abhorrent but the law is an intersection between all members of the Hague convention and it covers a range of different international interest. There is no singular rule for how matters are dealt with.

War crimes are some of the most serious offences committed and they carry sentences such as life imprisonment or death. Victims of these types of crimes are wide spread and the courts have to determine how to bring world wide justice within a set of strict parameters. It can take years to bring persons into custody for these types of crimes and the trial can take weeks if not months due to the nature of the offending. Involvement from several different countries is often required and penalties must be considered and reforms


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