Common Law Crime

Reference received: ​27 September 1991

Discussion paper

Discussion Paper 36: Barratry, Maintenance and Champerty (PDF, 175.1 KB), May 1994

Judicial citation: Magic Menu Systems Pty Ltd v AFA Facillitation Pty Ltd (1997) 72 FCR 261 per Lockhart, Cooper, Kiefel JJ; Re Daniel Efrat Consulting Services Pty Ltd(1999) 91 FCR 154 at para 19; Smits v Roach(2002) 55 NSWLR 166; Marston v Statewide Independent Wholesalers Ltd[2003] NSWSC 816 at para 47; Idoport Pty Ltd v National Australia Bank Ltd [2004] NSWSC 695 at para 52, 91; Capital Webworks Pty Ltd v Ltd [2005] FCA 438 at para 38; Capital Webworks Pty Ltd v Ltd [2005] FCAFC 232 at para 25; Fostif Pty Ltd v Campbells Cash and Carry Pty Ltd (2005) 63 NSWLR 203 (CA) at para 91; Campbells Cashand Carry Pty Ltd v Fostif Pty Ltd (2006) 80 ALJR 1441​

Legislative action: Maintenance and Champerty Abolition Act 1993; Legal Profession Amendment Act 1996 Sch 6.2 

Note: The Maintenance and Champerty Abolition Act 1993 was renamed the Maintenance, Champerty and Barratry Abolition Act 1993 by Sch. 6.2 of the Legal Profession Amendment Act 1996 which was proclaimed on 1 April 1997.

Terms of reference

To inquire into and report on the following matters:

  1. non-statutory criminal offences (purely common law offences);

  2. the common law of conspiracy, especially procedural and evidentiary aspects;

  3. the common law of complicity;

  4. the common law of attempt; and

  5. any related matters.

In undertaking this work, the Commission is to give priority to items 1 and 2. The Commission is also to be mindful of the work being undertaken by the Standing Committee of Attorneys General supporting development of a uniform criminal code so as to avoid unnecessary duplication.

Note: See also Reference 119 Complicity in criminal cases

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