Posted: March 16th, 2022
Australian Criminal Justice System: As Fair as Can Reasonably be Expected?
The current Australian criminal justice system is a legacy of the Anglo-American common law that, with minor exceptions, has been interpreted and administered in a similar fashion in all administrative divisions. This legacy has caused some observers to maintain that, “When all is said and done, the current Australian criminal justice system is about as fair and effective as we can reasonably expect.” Reactions to this statement, though, will likely vary depending on what types of experiences, if any, Australians have had with the system itself. To gain additional insights in this area, this paper provides a review of the relevant literature to determine the accuracy of this statement, including a discussion of the respective strengths and/or weaknesses of the Australia legal system. A summary of the research and important findings are presented in the conclusion
Review and Discussion
To be sure, a criminal justice system can be fair without being effective, just as it can be highly effective without being fair. In order for a law enforcement system to be fair, it must be administered in an equitable fashion. For instance, according to Black’s Law Dictionary, fair means “having the qualities of impartiality and honesty, free from prejudice, favoritism and self-interest; just; equitability; even-handed; equal; as between conflicting interests” (p. 595). By contrast, because scarce taxpayer resources are involved, an effective criminal justice system means that defendants are processed according to the law, respectful of their rights, but with an emphasis on administering a system that keeps staff and prisoners safe and provides ongoing oversight of community-based programs and so forth in the most efficient fashion possible.
As noted in the introduction, the answer to the question as to whether the Australian criminal justice system is fair (as opposed to effective) will depend on who is asked. In the case of Indigenous (i.e., Aboriginal or Torres Strait Islanders) people in Australia, both young and old are more likely than their non-Indigenous counterparts to become formally caught up in the criminal justice system. According to Mcallister, Dowrick and Hassan (2003), the recent statistics indicate that the Australian criminal justice system is apparently highly effective; however, it may be perceived as being anything but fair when it comes to its application to Indigenous people:
1. Aboriginal people are more than ten times more likely to appear before a magistrate’s court than are other Australian-born people.
2. Aboriginal people are more likely to face a charge of offence against good order as their most serious offence; non-Aboriginal people are more likely to be defending a driving charge as their most serious offence.
3. Indigenous people are more than eighteen times more likely to be in prison.
4. Indigenous people are more than twenty-six times more likely to be in police custody than are non-Indigenous people.
5. Aboriginal and Torres Strait Islander people constituted almost one-fifth of the Australian prison population on the prison census date (30 June 2000), but less than 2 per cent of the general population.
6. The average rate of Indigenous imprisonment is 1,727 per 100,000 adult indigenous population, which is almost fifteen times the rate for the non-Indigenous population (Mcallister et al., 2003, p. 521).
At first blush, these statistics seem to indicate that just 2 per cent of the Australian population is responsible for fully 20 per cent of crime, but the fact that 20 per cent of the Australian prison population consists of Indigenous peoples does not necessarily translate into this reality. Nevertheless, comparable disparate levels of involvement in the criminal justice system for Indigenous people also exist in New Zealand and Canada (Mccallister et al., 2003), just as African-Americans are far more likely to become formally involved in the criminal justice system in the United States than their white counterparts. From a strictly pragmatic perspective, it just makes good law enforcement sense to maximize scarce resources by targeting those who are responsible for committing most of the crimes.
Based on the foregoing statistics, it would be reasonable to suggest that these trends indicate that these minority peoples are simply running amok, causing social mayhem and crime wherever they may be found, and the criminal justice systems in these English-speaking nations are being highly effective in targeting those who are responsible for committing most of the crime — but can such an approach truly be regarded as being fair by an impartial observer? In answer to this question, Parkin (1998) argues that the Australian criminal justice system has attempted to be consistently responsive to significant shifts in public opinion with respect to its application of the law to Indigenous people and others. In this regard, Parkin emphasizes that, “Liberal democratic states like Australia manage criminal justice issues in ways which reflect an inbuilt tension between liberal and democratic values. Crime, public safety and law enforcement as understood and managed in Australia reflect these fundamental liberal democratic tensions” (1998, p. 445).
In some ways, this observation indicates that if a sufficient percentage of the population believes that something is fair, then it becomes fair. In this regard, Parkin (1998) emphasizes that public opinion about the law enforcement system tends to wax and wane in response to high-profile cases involving police or prison officials where opinion supports increased civil right protections or crime waves that result in demands for increased “get tough on crime” approaches. For instance, Parkin reports that, “Revelations about the abuse of police power or prison mismanagement produce renewed efforts to hold state’s agents to account; conversely, revelations about alleged crime waves or slack sentencing patterns produce a clamor for tougher state action” (p. 445). Irrespective of which end of the political spectrum public opinion may be at a given point in time, it seems that the brunt of the response somehow involves Indigenous people.
In order for the Australian criminal justice system to be deemed fair in its administration of the law, Eades (1999) suggests that more attention needs to be paid to the significant cross-cultural and linguistic differences that exist between mainstream Australians that these people. For example, Eades emphasizes that, “The continuing high over-representation of indigenous people in the criminal justice system is a matter of concern. Language and communication issues affect Indigenous people in the criminal justice system [but do not] negate the significance of many other issues, including racism towards Indigenous people in the community generally, and by people within the police force and the judiciary specifically” (1999, p. 16).
Based on her analysis of the criminal justice system in Australia, Eades concludes that, “The law is going to have to find ways, and the legal system is going to have to find ways to make special provisions frequently for Aboriginals and that the problem of cross-cultural communication is one which the legal system needs to have knowledge of and needs to be sensitive to” (1999, p. 16). Taken together, this combination of linguistic and cultural differences and potentially institutionalized racism in the law enforcement system itself would seem to preclude any possibility of Indigenous people receiving fair treatment, but this certainly does not mean the system itself is not effective, and perhaps even indicates that it is most effective in targeting minorities.
The research showed that law enforcement systems can be effective without being fair and vice versa. All of the foregoing begs the question, though, whether this eventuality is “the best that can reasonably be expected” in a modern democratic state that aspires to egalitarianism? For many mainstream Australians, the answer to this question would be a resounding “Yes!” because statistics support the criminal justice system’s approach as being effective, and people want their money’s worth when it comes to rounding up the bad guys and putting them away where they can no longer inflict harm on the community. For the tens of thousands of Indigenous people who have become formally caught up in the Australian criminal justice system while their mainstream counterparts remain free, though, the answer to this question would likely be far different, and accounts of misuse of police power and overly officious law enforcement authorities would likely characterize the responses. In the final analysis, whether the current Australian law enforcement system can be deemed fair and effective will inevitably depend on who is doing the asking and who is doing the answering and although justice may be blind when it comes to the general population, she appears to have been peaking when it comes to Indigenous people in Australia.
Black’s law dictionary. (1991). St. Paul, MN: West Publishing Co.
Eades, D. (1999). Language in court: The acceptance of linguistic evidence about Indigenous
Australians in the criminal justice system. Australian Aboriginal Studies, 15(1), 15-17.
Mcallister, I., Dowrick, I. & Hassan, R. (2003). The Cambridge handbook of the social sciences in Australia. New York: Cambridge University Press.
Parkin, A. (1998). Liberal democracy and the politics of criminal justice in Australia. The Australian Journal of Politics and History, 44(3), 445.
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