Criminal Law in Australia

I have been arrested and police want to question me. What are my rights?

In most situations you have the right to silence and generally only have to give your name and address — you do not have to answer further questions, and it is usually wise to get legal advice before you do. You also have the right to speak to a lawyer. What you say to police can be used as evidence. Police powers and the exact rules vary by state and territory, so confirm the position where you are; a duty lawyer or your nearest Legal Aid commission can explain how it applies to you.

Is my charge a state offence or a Commonwealth one, and why does it matter?

Most everyday offences — assault, theft, drug possession, traffic and drink-driving — are state or territory matters under that jurisdiction's own statute, such as the Crimes Act 1900 (NSW). Commonwealth offences — terrorism, importing drugs, fraud against the Commonwealth, and many online offences — fall under the Criminal Code Act 1995 (Cth). It matters because the elements of the offence, the available defences, and the maximum penalties differ between state and federal law, and between states.

What is the difference between the Local/Magistrates' Court and the higher courts?

Less serious (summary) offences are heard by a magistrate alone in the Local Court or Magistrates' Court. More serious (indictable) offences are tried before a judge and jury in the District or County Court or, for the most serious matters, the Supreme Court. Some indictable offences can be dealt with summarily. Court names and limits differ by state, so check the position in your jurisdiction.

What can I do if I cannot afford a lawyer?

Duty lawyers are often available at court to give free help on the day, and you may qualify for ongoing assistance through Legal Aid depending on your income and the seriousness of the charge. Start with Legal Aid NSW, Victoria Legal Aid or Legal Aid Queensland, or use National Legal Aid to find help in any state or territory. Community legal centres also assist with some criminal matters.

What sentences can a court actually impose?

Sentencing runs across a range: fines, good behaviour bonds or conditional release orders, community correction and community service orders, intensive correction orders, and imprisonment for the most serious matters. Courts work within sentencing statutes such as the Crimes (Sentencing Procedure) Act 1999 (NSW) and weigh factors like the seriousness of the offence, your history and any guilty plea. A conviction or sentence can usually be appealed to a higher court, and in limited cases to the High Court by special leave.

I have a court date soon. How urgent is it that I get advice?

Treat it as urgent. You must attend on the date in your court attendance notice or summons — failing to appear can lead to a warrant for your arrest. If you are in custody, bail timing can affect whether you wait in custody until the hearing. Getting advice well before the date gives a lawyer time to prepare, rather than meeting you for the first time at the courthouse. The hotline can give you information now and help you book a consultation with an admitted lawyer.