When is a code a code?

Hemming, Andrew (2010) When is a code a code? Deakin Law Review, 15 (1). pp. 65-97. ISSN 1321-3660


This paper will develop the proposition that criminal codes in Australia are misnamed because they fail the fundamental test for a code of comprehensively stating the criminal law in one statute. This contention applies to all codes from the Griffith Codes of Queensland, Western Australia, Tasmania and the Northern Territory to the more recently minted Criminal Code 1995 (Cth). The reason for such failure is that all the codes are too sparsely written, and, due to inadequate definitional detail or statement of the appropriate tests to be applied, judges are required to have recourse to the common law to 'fill in the blanks' left by the code. It is here argued that a code needs to be structured with the objective of keeping statutory interpretation within the four corners of the code. Bland injunctions that recourse to the common law is permissible only when the meaning is uncertain or where a prior technical meaning existed are wholly inadequate. The paper sets out a series of examples which cover both offences and defences (such as causation and provocation) and which are intended to demonstrate the appropriate level of detail required to meet the conventional definition of a true code without sacrificing clarity. These examples should be viewed as templates for use in a variety of contexts, supporting the proposition that clarity, not confusion, can result from more detailed drafting. Drafting of this kind, which is directed at incorporating the relevant tests that the legislature accepts as appropriate, reduces reliance on secondary material such as second reading speeches. Secondly, it firmly tilts the legislature-judiciary 'partnership' in favour of the legislature (as a true code should) leaving the judiciary to explain the tests to the jury rather than to select which tests are appropriate. In this way at least consistency within a code, rather than uniformity across codes, can be promoted.

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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Copyright retained by author.
Faculty/School / Institute/Centre: Historic - Faculty of Business - School of Law (1 Apr 2007 - 31 Dec 2010)
Faculty/School / Institute/Centre: Historic - Faculty of Business - School of Law (1 Apr 2007 - 31 Dec 2010)
Date Deposited: 18 Mar 2011 04:36
Last Modified: 26 Sep 2014 01:36
Uncontrolled Keywords: judicial process; crime; law; actions and defenses; Australia
Fields of Research (2008): 18 Law and Legal Studies > 1801 Law > 180110 Criminal Law and Procedure
18 Law and Legal Studies > 1801 Law > 180120 Legal Institutions (incl. Courts and Justice Systems)
22 Philosophy and Religious Studies > 2202 History and Philosophy of Specific Fields > 220204 History and Philosophy of Law and Justice
Fields of Research (2020): 48 LAW AND LEGAL STUDIES > 4899 Other law and legal studies > 489999 Other law and legal studies not elsewhere classified
48 LAW AND LEGAL STUDIES > 4805 Legal systems > 480504 Legal institutions (incl. courts and justice systems)
50 PHILOSOPHY AND RELIGIOUS STUDIES > 5002 History and philosophy of specific fields > 500202 History and philosophy of law and justice
Socio-Economic Objectives (2008): C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940407 Legislation, Civil and Criminal Codes
URI: http://eprints.usq.edu.au/id/eprint/18704

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