FEBRUARY 16 ― There are views dismissing suggestions that the Federal Constitution be amended to allow both Parliament and state legislative assemblies to enact criminal laws, saying there should only be one set of criminal laws in a country for one set of offences, and everyone should be subject to it.

I say let’s look at Australia, a more than a century-old federation.

Prior to the establishment of a new federation of six states on January 1, 1901, each of the six states were independent colonies. The union of the six states established the federal system of government that presently exists in Australia.

The former colonies became the six states of a federated Australia.

Within the federal structure, each of the various states and territories ― presently six states, three internal territories and seven external territories) continue to make laws and govern, generally within the ambit of their respective geographical bounds, whilst the Federal or Commonwealth government may make laws and govern in respect of those matters for which it has responsibility, or a specific head of power, under either Section 51 or some other express provision of the Australian Constitution.

The federal system provides for the coexistence of governments, each governing and legislating within their respective spheres of responsibility ― not unlike in Malaysia.

However, there is no express power within the Australian Constitution providing a legislative basis for criminal law ― unlike in the Malaysian Federal Constitution.

Under the Australian Constitution, the power of the Federal Parliament to make laws derives from either the exercise of:

• an implied power arising from laws made according to an express provision; or

• an implied power arising from laws made according to a head of power within Section 51; or

• from the express incidental power within Section 51(xxxix); or

• as an exercise of the executive powers within Section 61.

Accordingly, the Federal Parliament may enact legislation dealing with criminal law either by implication or as a matter incidental to the power to enact laws with respect to some other matter.

However, any such laws must always be referable to a grant of legislative power under the Australian Constitution. (Lincoln Crowley, "The Basics of Commonwealth Crime”, NSW Bar Association 2007)

The main federal legislation dealing with criminal law are the Crimes Act 1914 and the Criminal Code Act 1995. These, incidentally, are examples of laws made by the Federal Parliament in the exercise of the incidental powers and/or the executive powers mentioned above.

It is the States and Territories that retain legislative responsibility. Accordingly, each Australian state and territory has a body of criminal law.

Take drug offences as examples. There are state laws and there is federal law.

In the State of Victoria, drug offences are contained in the Drugs Poisons and Controlled Substances Act 1981. To the northeast in Queensland, the law is in the Drugs Misuse Act 1986. The federal law can be seen in the earlier mentioned Criminal Code Act 1995.

Lincoln Crowley, who was once the Federal Director of Public Prosecutions Chambers and presently a judge of the Supreme Court of Queensland, wrote in 2007 as follows:

"Understanding the criminal law that applies to the laws of the Commonwealth (Federation) can be difficult. The complexity and size of the legislation that may create a particular offence or the peculiarities of the way in which federal offences are investigated and prosecuted, often leave practitioners bewildered and wishing they were able to return to the relative comfort of the criminal law that they are familiar with.”

Take a look also at the United States of America (US), the first and the oldest in the world. Each of the 50 states has its own criminal code. The federal Congress ― the bicameral legislature comprising the House of Representatives and the Senate and whose main task is to make laws ― has also codified federal criminal law in Title 18 of the US Code with Sections 1 to 2725 dealing with crimes.

Accordingly, criminal laws in the US vary significantly among the states and the federal government.

Malaysia too can have federal and state laws governing criminal offences, subject to the Federal Constitution of course. It’s what federalism is about.

* This is the personal opinion of the writers or publication and does not necessarily represent the views of Malay Mail.