Building Bridges in Australian Criminal Law: Codification and the Common Law

Abstract

This article seeks to promote effective discourse across the divide that exists in Australian criminal law between code and common law jurisdictions. It proposes two ways in which the pervasive, reified dichotomy - 'code'/'common law' - can be rethought. First, certain barely articulated but well-known assumptions that help to maintain the dichotomy are re-examined. It is argued that the fixed ideas that the common law is flexible and a 'richer' or more nuanced law, while codes are rigid and 'mechanistic', are in critical respects wrong and entrench the divide. Second, the settled orthodoxy that codes should be interpreted by applying 'special rules' of interpretation is challenged. It is argued that these special rules can be seen, when examined, to be less than useful, and inconsistent with constitutional principles. Exactly the same principles of interpretation apply to all criminal statutes. Re-thinking in these ways brings all nine Australian jurisdictions into the same legal landscape.