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Criminal Offence Legislation in NSW

This article provides an overview of criminal offence legislation in NSW.  This governs criminal law, the definition of the offences, the key legal principles, the regulations, charges, penalties and defences.

The Crimes Act 1900 (NSW)

In New South Wales, criminal offences are based on common law and various legislation.  The primary act containing the majority of criminal offences and the applicable penalties is the Crimes Act 1900 (NSW). The Crimes Act covers a range of offences relating to:

  • Violence including assault, assault occasioning actual bodily harm, assault occasioning grievous bodily harm, assault of a Police officer, kidnapping, manslaughter and murder. For more information, see the articles, Types of Assault, and Assault Occasioning Actual Bodily Harm.
  • Sex offences including sexual assault, sexual touching, sexual act without consent, sexual servitude, child sex offences, incest and bestiality.  For more information see the articles, Sexual Act OffencesSexual Touching OffencesChild Sex Offences and Sexual Touching Offences and Acts in Australia.
  • Public order offences including rioting, affray, participation in criminal groups, public threats and displaying Nazi symbols. For more information, see the article, The Offence of Affray.
  • Stealing offences including robbery from a person, demanding money, housebreaking, larceny, stealing a motor vehicle, embezzlement and receiving stolen goods.  For more information, see the articles, What is a Break and Enter Offence and What are Larceny and Robbery Offences.
  • Fraud offences including identity offences and money laundering. For more information, see the article, Fraud:Definitions and Types.
  • Property offences including destroying or damaging property and threatening to destroy property; and
  • Other offences including escape from lawful custody, terrorism offences, interference with the administration of justice, and perjury.

The above list is not exhaustive but lists the most common offences.

The Crimes Act 1914 (Cth)

There is also a Crimes Act for Commonwealth offences which is structured differently to the Crimes Act 1900 (NSW) and covers such matters as controlled operations by law enforcement, the powers of the Australian Federal Police, witness identity protection, sentencing procedures, forensic procedures which in New South Wales tend to be included in separate legislation, as explained below.

The Crimes Act 1914 (Cth) also includes offences such as child abuse material, offences relating to the administration of justice, piracy, offences relating to postal and telecommunications services and offences on Commonwealth land.

The Drug Misuse and Trafficking Act 1985 (NSW)

The Drug Misuse and Trafficking Act 1985 (NSW) covers all drugs defined as Prohibited Drugs and listed in schedule 1 of this Act.  The Act includes the offences of self-administration, possession, and supply of prohibited drugs. The penalties for possession and supply offences vary depending on the quantity of the drug involved in the offence.  Schedule 1 sets out the classification of weights according to the quantities of:

  • Trafficable
  • Small
  • Indictable
  • Commercial; and 
  • Large commercial. 

This is explained in more detail in these related articles, Ecstasy OffencesCocaine Offences , Cannabis Charges:Everything you need to Know the Two Strike Drug Scheme and Medicinal Cannabis.

The Drug Misuse and Trafficking Act 1985 (NSW) also includes the offences of cultivation of Prohibited Plants, the manufacture or production of Prohibited Drugs and entering or being on Drug Premises.

The Weapons Prohibition Act 1998 (NSW)

The Weapons Prohibition Act 1998 (NSW) provides a list of prohibited weapons.  The list includes many types of knives, military weapons including bombs, spear guns of a certain length, crossbow or similar, slingshot, blowgun, various whips, kung fu sticks, extendable batons, Taser gun, knuckle dusters, studded gloves, body armour, handcuffs and the like.  Pursuant to this Act, it is an offence to possess a prohibited weapon without a permit or sell, purchase, advertise or manufacture a prohibited weapon unless the person has an appropriate permit.

The Firearms Act 1996 (NSW)

The Firearms Act 1996 (NSW) provides a list of Prohibited Firearms.  Section 7 of the Firearms Act 1996 (NSW) makes it an offence to possess or use a pistol or prohibited firearm unless the person is authorised to do so by a licence or permit.  The Act also provides for firearms licensing, with various categories of licence for different types of firearms use as well as for firearms dealers.  Finally, it specifies the registration and safe keeping of firearms.  For more information see the dedicated article Weapons and Firearm Offences.

Other Legislation Containing Criminal Offences

Criminal offences are also contained in other legislation whose primary purpose is not explicitly to regulate or prohibit criminal offences.

Such legislation includes:

The Surveillance Devices Act 2007 (NSW)

Sections 7 to 14 of the Surveillance Devices Act 2007 (NSW) make it a criminal offence to, among other things, use, install or maintain listening devices, optical surveillance devices, tracking devices, and record or possess recordings of private conversations.  There are some exceptions to the above prohibitions which include where all principal persons involved in the conversation have provided consent or where a principal person to the conversation consents and the recording is reasonably necessary for the protection of the lawful interests of that principal person.

The Road Transport Act 2013 (NSW)

Section 54 of the Road Transport Act 2013 (NSW) makes it a criminal offence to drive while the driver’s licence is disqualified or suspended.  Sections 110 to 112 of the Act make it a criminal offence to drive while under the influence of alcohol or drugs or with the presence of a prescribed concentration of alcohol or drugs in the driver’s breath or blood.  Section 117 of the Act makes it a criminal offence to drive in a furious, reckless or dangerous manner.  Section 118 of the Act makes it a criminal offence to drive in a menacing manner.  We have several dedicated articles on drink driving offences, including Drink Driving Crash NSW:the Consequences, Mid Range Drink Driving, High Range Drink Driving , Guideline Judgement for High Range Drink Driving and DUI:Is it the same as a Drink Driving Charge?

The Summary Offences Act 1988 (NSW)

As the title suggests the Summary Offences Act 1988 (NSW) deals with offences of a relatively minor nature that can be dealt with summarily in the Local Court.  The Act relates to offences of a public order nature such as offensive conduct, offensive language, obscene exposure and obstructing traffic. For more information, see our dedicated article Summary Public Order Offences.

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Any application or court proceedings to obtain an apprehended violence order is considered a civil order, rather than a criminal order.  However, a contravention of an apprehended violence order is a criminal offence.  Section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) makes it a criminal offence to contravene an apprehended violence order punishable by imprisonment for up to two years and 50 penalty units. For more information, see the article, Domestic Violence and ADVO.

The Corporations Act 2001 (Cth)

Schedule 3 of the Corporations Act 2001 (Cth) provides a list of offences and penalties generally applicable to directors and officers of a company.  The list of offences is extensive and includes offences such as dishonest use of the person’s position.  Sections 184(1) to (3) relate to directors’ duties and where a director or officer of the company acts dishonestly there is a maximum penalty of up to 15 years imprisonment.  Section 588G(3) relates to a director’s duty to prevent insolvent trading and where the person’s failure to prevent insolvent trading was dishonest there is a maximum penalty of up to 10 years imprisonment. For more information, see the dedicated articles, Illegal Phoenix ActivityASIC Investigations, Company Director’s Duties and Recent Director Resignation Requirements.

The Bankruptcy Act 1966 (Cth)

The Bankruptcy Act 1966 (Cth) includes many criminal offences.  Further information is available on this page Bankruptcy Lawyers and in this dedicated article, The Bankruptcy Process Explained.  Some examples of criminal offences pursuant to the Bankruptcy Act 1966 (Cth) include failure to fully disclose property by the bankrupt as outlined in section 268(5) which may result in a penalty of a maximum of one (1) year imprisonment. Additionally, it outlines the offence of disposal of property with the intent to defraud prior to bankruptcy detailed in section 266(3) which may result in a penalty of a maximum of five (5) years imprisonment. For

The Crimes (Taxation Offences) Act 1980 (Cth)

The Crimes (Taxation Offences) Act 1980 (Cth) and other legislation with the purpose of securing taxation payments include many criminal offences.  For example the Act includes the offences of making arrangements to avoid the payment of income tax (section 5), or making arrangements to secure an inability to pay income tax (section 7).  The Act designates these as criminal offences with a maximum penalty of 10 years imprisonment.

The Work Health and Safety Act 2011 (NSW)

Section 31 of the Work Health and Safety Act 2011 (NSW) makes it a criminal offence if a person is reckless as to the risk to an individual in the workplace and the offence has a maximum penalty of five (5) years imprisonment.

The Liquor Act 2007 (NSW)

The Liquor Act 2007 (NSW) primarily deals with offences relating to being intoxicated or failing to leave, when asked by an authorised person, a licenced premise such as a hotel, club or bar.  There are also offences relating to minors consuming alcohol in a licenced premise.  For more information on this area, see our dedicated article Offences in Licenced Premises.

Summary of Criminal Offence Legislation

This article provides an overview of criminal offences and the various government legislation that determines criminal offences.  It is clear from the above that the majority of criminal offences are created in legislation that is specifically criminal in nature such as the Crimes Act 1900 (NSW).  However, it is also clear that criminal offences are created in many other areas of legislation such as the Corporations Act 2001 (Cth), Bankruptcy Act 1966 (Cth) and Work Health and Safety CT 2011 (NSW). The article although comprehensive, is not exhaustive and criminal offences will also be found in other legislation not within the scope of this article such as the Gaming Machines Act 2001 (NSW), and the Casino Control Act 1992 (NSW).

Why Choose BSM Law for your Legal Matter?

We have a dedicated criminal team who work hard to keep up to date with legislative changes. If you have been charged with any criminal offence contact Brander Smith McKnight Lawyers. We also have a hard working and highly experienced Civil Litigation and Commercial team who have extensive experience with all levels of civil matters.  Our business clients include sole practitioners all the way up to multi-corporations.  We pride ourselves on treating all of our clients with the same level of meticulous attention to detail, rapid responsiveness and turn around while providing personalised and excellent results.  We will provide you with expert advice and provide a premium service without the cost premium.

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