Australian criminal justice system
The aim of the research.
The aim of this research is to determine whether the Australian justice system is contributing to the discrimination of indigenous people.
The purpose and importance of this research
This research project is meant to evaluate why there is excessive number of indigenous people in the correctional facilities. The number of indigenous people in the correctional facilities has been reported to be very high and yet they represent a very small percentage of the Australian population. In addition, there have been increased criminal activities by the indigenous younger people.
The structure of the Australian criminal justice system is perceived to be very complex as its operations are divided into two; the federal system and the state and territorial system. The state and territorial system was given the mandate to deal with the offenders of the state or territorial laws while the federal system deals with the offenders of the Commonwealth laws. Because of the federal system there are nine different legal systems operating in Australia. In accordance with the system, different states have different laws and will usually operate independently of each other with their own procedures of dealing with criminal issues. The federal system was not constituted with its own procedures and thus its procedures are determined by the state systems. Since there is no homogeneity in laws of different states, there is no uniformity in the federal system and hence the law and policies governing the people vary in the different states (Renton, 2003).
Furthermore, this criminal justice system was inherited from the United Kingdom and is still closely related. It is composed of common laws which were inherited from the courts of the English people but since them they have been slightly modified by the Australian courts. To add to this, the decisions from the English courts are considered to be equal or even sometimes superior to those from Australian courts. According to the Australian system, the minimum age of an individual to be accused of criminal activities varies depending on the state or territories. Of all the states and territories, the minimum age is 7 years for the juvenile courts while for the adult courts is 16 years. In addition, any child who is above minimum age accused of homicide can be convicted in the adult courts (Biles, n.d.).
The system focuses mainly on controlling and preventing the occurrence of crimes. It is usually not concerned with the restoration of justice and ensuring social equality between the individuals or the communities. These has therefore made the system to be poor when handling matters relating to why the crime occurred and how to avoid it from happening again (Jonas, 2002).
According to a research done, the current justice system has been hurting the indigenous people. There have been an excessive number of indigenous people who are in custody. Furthermore, the system is reported to be discriminating the indigenous people and this is because it gives little attention to the high rate of victimisation especially abuse and violence against the indigenous people. A large number of people who were interviewed during the research, most of them were victims of either property crime or violent crimes or both. However, most of them did not see imprisonment of the offenders as the best solution for punishing them. This was because imprisonment never made the offenders accountable for their actions to the community. Since the justice system does not provide better ways of dealing with the offenders, the communities were struggling with the high rate of criminal activities, and were searching for better ways to address the causes of criminal activities (Jonas, 2002).
According to a study done by McNamara (1992), there have been a very high number of indigenous people in police custody. The researcher noted that about 29% of individuals held in custody are indigenous people, but the Australian population was only composed of about 1.1% of the indigenous people. Consequently, it was estimated that the chances of an indigenous person being imprisoned was more than 10 times than of a non-indigenous person. This therefore showed that the number of indigenous people in prisons was big and worrying. Furthermore, in this same research, McNamara (1992) discovered that between 1980 and 1988, the chances of an indigenous person dying in custody were about 23 times that of a non-indigenous person.
According to a study done by Cunneen (2001) on conflict, politics and crime in Australia, the justice system was noted to be fully controlled by the government and thus it makes all the decisions concerning the indigenous communities. Consequently, the government refused to relinquish some of its decision making powers to the indigenous communities on matters regarding economic, cultural and social development and this was thought to constitute to the high number of indigenous people in the prisons. According to Cunneen (2001) the criminal justice system was based on neocolonialism politics. The criminalisation processes are seen to reproduce inequality based on coloniser and colonised basis. Historically, during the invasion, dispossession and control of Australia, the criminal justice system was used to reinforce the power relations within Australia and this excluded the indigenous people from participating in economic, social and political activities. The indigenous were therefore seen as criminals and this led to their isolation, loss of civil rights and detention. The criminal justice system was mainly embedded on practices that maintained the colonised to a position which was inferior.
Furthermore, according to Cunneen (2001), the government claims of allowing self determination in law and policing are seen to be rhetorical since the indigenous people were not given the opportunity to determine the appropriate methods for dealing with criminal activities within the structure of the legal system. The mechanisms of social control and governance for the indigenous community were put in place but were fully controlled by the Australia justice system.
In accordance with a research done on indigenous issues in the state of Victoria by Gayfer (2006), the indigenous population was noted to be predominantly composed of younger people when compared to the non-indigenous population and most of them were in the age group of between 15 and 19 years which was prone to criminal activities. According to Gayfer (2006), this was mainly attributed to the high death rates and birth rates noted amongst the indigenous communities. Furthermore, it was discovered that the younger indigenous people were increasingly moving away from their cultural roots and going to the metropolitan areas. Gayfer (2006) discovered that the excessive number of the indigenous people in the criminal justice system can be traced from early childhood. The number of indigenous children subjected to substantial child protection orders between 1996 and 2002, was found to be far greater than that of non-indigenous children. To add to this, Gayfer (2006) noted that the chances of indigenous people of a specific age group being proceeded against by the police force in Victoria were far greater than that of non-indigenous people of all ages. There were therefore excessive numbers of indigenous people across a wide range of different offences. For instance, Gayfer (2006) reported an excess number of indigenous people less than 25 years who were arrested for burglary, robbery, justice procedures, property, and many others.
According to Gayfer (2006), the chances of an indigenous person being arrested were higher than that of being summoned or cautioned. In a group of about 2000 young people aged below 17 years, the number of indigenous people arrested was found to be more than 1500 while that of non-indigenous people was below 450. Consequently, on the same study with same age group of about 3500 young people, it was found that more than 3000 non-indigenous people were likely to be summoned while the number of indigenous people was less than 450. Furthermore, Gayfer (2006) discovered that there were more indigenous people in juvenile detention than the non-indigenous ones. In the year 2001, the ratio of indigenous to non indigenous young people in detention was found to be 15 to 1. To add to this, the chances of indigenous people being in prison were found to be about 15 times more than that of the non-indigenous ones.
A research conducted by Castle and Barnett (2000) in the magistrate courts and higher courts of South Australia, noted that from 25,468 cases about 11% were found to be indigenous people and yet the indigenous population accounted for about 1.1% of total Australian population. In the magistrate courts it was found that the extent of an indigenous person being involved in a case was about 11 times higher than the expected per capital basis. Similarly, the number of female indigenous defendants was found to account for about 17% of the non indigenous cases and about 23% of the indigenous cases in the magistrate courts. Consequently, the offences against good order and against persons were found to account for more than half of all the cases involving the indigenous people. To add to this, for the good conduct offences the indigenous people had more than 8% higher than that of the non indigenous ones while in the against person offences they had more than 10% higher than the non indigenous ones.
In the same study by Castle and Barnett (2000), they noted that for cases involving offences against good order as the major charge, the percentage of indigenous defendants convicted without penalty was more than 9% higher than that of non-indigenous ones. For cases with fine as the penalty, the indigenous defendants were found to constitute about 40% while the non-indigenous ones constituted about 34%. While for cases with imprisonment as the penalty it was found to constitute about 11% of the indigenous cases and about 5% of non-indigenous cases. Similarly, the researchers discovered that indigenous defendants were about four times more likely to be imprisoned than the non-indigenous ones. Furthermore, the chance of an indigenous defendant being in custody or on bail was found to be more than 12% higher than that of a non Indigenous one, at the time of their final court hearing. In the higher courts about 55% of the indigenous defendants were found to be in custody while the non indigenous ones constituted only about 28%. Consequently of all the indigenous cases processed in 1998, the researchers noted that about 87% of the cases involved defendants who had more than one prior conviction, while more than 50% had more than ten prior convictions.
To get enough and more accurate information, data will be collected using several types of information gathering methods; sampling, interviews, questionnaires and observation.
They will mainly be used to get information from the society and law firms. They will structured in such way to contain questions based on the number of convictions an individual has, their encounters with the law enforcement authorities, their views of the criminal justice system, among others.
This method will be used to get information from the law enforcement authorities, the court chambers, correctional facilities, law firms among others. From the law enforcement authorities the information collected will mainly include; average number of suspects arrested daily and their charges, the number of suspects who are in their custody, the cultures of the suspects, and the gender of the suspects, among others. While from the court chambers the information collected will include; average number of different types of cases solved per week, the number of cases pending to be solved, and the average rate of incoming cases. The average number of people imprisoned, fined or taken to other correctional facilities may also be collected. From the correctional facilities, the information to be collected include; the total number of male and female inmates together with their culture, the number of new inmates that come in per week and the number of inmates who are released in a week. In the law firm, the information to be collected include; the total number of clients requesting for their services in a week and their cultures, the rate of incoming new clients and how long it takes for different cases to be solved.
This method will be concentrated mainly on law enforcement personnel and lawyers. From the lawyers the information to be collected may include the number of clients they have represented in a year and their cultures and number of the different types of cases handled in a year and many others.
This method will used to collect information from the court chambers. The information to be collected may include; the average number of cases involving indigenous people taking place in a week, the time taken by a court session and the court procedures.
All data collected will be analyzed quantitatively and qualitatively to enable drawing of the relevant conclusions. All the trends and comments will be evaluated and recorded. In addition to that the results will be presented in graphs and charts to ensure there is clear understanding provided to the readers.
The sources of data and the use of the data
Police reported data
The crime reporting survey collect detailed information regarding the incidents which have come into police attention and will usually include characteristics of the offenders and the victims. They will also keep records regarding the number of law offenders arrested in a month and the number of criminal activities reported in that month. The information on characteristics of the offenders will be helpful in determining the gender and culture of most offenders. This information will therefore be helpful in determining the percentages of indigenous and non indigenous offenders in police custody. In addition, the data obtained will be helpful in the determination of the laws which are frequently broken or abused.
Criminal courts data
Every court keeps records about its daily activities, the number of cases pending, cases solved and incoming cases. The adult criminal courts and juvenile court surveys have national databases containing statistical information about all the cases processed by the adult and juvenile court systems. The criminal court surveys will therefore provide enough information about the number of cases handled and solved in a week. Taking part in court hearing will also provide information about the procedures and the laws commonly broken. The information from the court surveys will be used in determining the number of offenders punished through community service, fines and by imprisonment.
Adult corrections survey
This survey usually collects information on the number of cases and their characteristics in all the states and territories of Australia. Their reports will also contain information about the identity of the individuals and there numbers in the correctional facilities. This information will therefore be useful in determining the number and identity of individuals in the adult correctional facilities and this can be used to calculate the percentages of non indigenous and indigenous prisoners.
Juvenile corrections surveys
These surveys collect and keep information about the number and characteristics of children in the juvenile correctional facilities. They also contain information on the identity of the children. This information will be helpful in determining the number and identity of the children in all juvenile correctional facilities, which will then be used to calculate the percentages of indigenous and non indigenous children in all the states and territories.
Community service survey
These surveys collect and store information on the number and characteristics of the individuals who are on community service. This information will be useful in calculating the percentages of indigenous and non indigenous people who are on community service in all the states and territories.
Victim services surveys
These surveys collect and store information about the number and identity of people who are victims of crime. The information collected will be useful in calculating the percentages of indigenous and non indigenous people who are victims of criminal activities in all the states and territories.
Population census survey
This survey collects and stores information about the population of Australia and this information contain age, sex, race and many others. This information will be useful in determining the percentages of indigenous and non indigenous people in all states and territories of Australia.
They will contain the views of different people within the community and how they are affected by the criminal justice system. This will provide information about how the law enforcement authorities handle criminals in the societies. This can therefore be used to determine how the law is affecting the rights of the people in the communities.
Law firms surveys
This survey collects and stores information about the number of cases different firms handle. This information will be helpful in determining the percentage of people who use the law firms and their cultures. It will also be used to determine which laws are most frequently broken.
The expected outcomes of the research
The criminal justice system of Australia is expected to be discriminating indigenous people and hence leading to their excess numbers in the correctional facilities. The lack of uniformity in the criminal justice system is likely to causing the hard situations experienced by indigenous communities. The different laws in different states makes the numbers of laws a citizen is required to remember to be too much. Having many different laws increases the chances of breaking the law. In some states certain activities are allowed while in others they are forbidden. When a person moves from one state to another the rights of that person changes and this therefore increases the chances of law breaking.
Furthermore, the criminal justice system does not consider the plights of the indigenous people. Indigenous people have their cultures which guide their daily activities. Some of the aspects of the indigenous cultures are not in accordance with the justice system policies. The justice system does not interact well with the indigenous cultures. When the justice system policies were being made the views from the indigenous people were not considered. This could have led to a large number of indigenous people being imprisoned for breaking the law.
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Biles D. (n.d.). World factbook of criminal justice systems. Retrieved May 29, 2009 from http://www.ojp.usdoj.gov/bjs/pub/ascii/wfbcjaus.txt
Castle C. and A. Barnett (2000). Aboriginal people and the criminal justice system. Retrieved May 29, 2009 from http://www.ocsar.sa.gov.au/docs/information_bulletins/IB13.pdf
Cunneen C. (2001).Conflict, Politics and crime: Aboriginal communities and the police. Edition: illustrated. Allen & Unwin: Victoria, Australia. p.230-233.
Gayfer N. (2006). Indigenous issues. Retrieved May 29, 2009 from http://www.johnwalkercrimetrendsanalysis.com.au/Indigenous.htm
Jonas W. (2002). Community justice, law and governance a rights perspective. Retrieved May 29, 2009 from http://www.reconciliation.org.au/extras/file.php?id=79&file=13_bill_jonas.doc
McNamara L. (1992). Autonomy-based solutions and criminal justice reform. Retrieved May 29, 2009 from http://www.austlii.edu.au/au/journals/AboriginalLB/1992/3.html
Renton D. (2003). The federal criminal system: A new direction. Retrieved May 29, 2009 from http://www.law.anu.edu.au/UnitUploads/LAWS2248-1157-Renton%20Article.pdf