The political and legal system in Australia

Before we actually go into the study or discussion of the efficacy of the Criminal Justice System in Australia and whether criminal justice system is a holistic system, or a discrete series of institutions and personnel often working at cross purposes let us briefly study the political and legal system in Australia and about what exactly is considered criminal activity. The political and legal ystem in Australia: The Government of the Commonwealth of Australia is a federal one.

This is the national government and it has six State Governments under it. The national government enforces it own laws. The two major categories of prosecution under the national government are drug importation and those related to infringement of social security laws. The six state governments are – Western Australia, Queensland, Tasmania, Victoria, New South Wales and Tasmania. The first three states – Western Australia, Queensland and Tasmania have enacted criminal codes that clearly describe the boundaries of the criminal law.

The other three are described as ‘common law’ governments as no such codification has been attempted by them. But in actual practice there isn’t much difference between the coded and the ‘common law’ government as by and large the elements of the criminal law remain the same. The local state governments of all the six states can pass bye laws on minor offences related to social nuisance like traffic parking. They generally impose a monetary fine the non-payment of which will lead to imprisonment.

The legal system in Australia has been inherited from the English courts especially that related to the common law. This has been refined to a large extent lately and from the later half of the last century the courts in Australia don’t regard the English system as equal or superior. The legal system in Australia now places a high value on the presumption of innocence. Unfortunately due the federal structure of the government nine separate legal systems exist. While they claim to be similar in structure and operation there are some significant differences.

Crime: Crime is a behavior which does not have legal sanction and usually results in some penalty of varying severity. It can be classified as an indictable or not indictable offense. Indictable offenses are those which are heard by the superior courts and may require a jury, whereas non-indictable offenses, which form the major bulk of cases, are heard in magistrates’ courts and a jury is not called into service. When it comes to the age of criminal responsibility – the upper age limit varies among the states in Australia.

In New South Wales the minimum age is 10 and upper age limit is 17 whereas in Victoria it is 8 and 16, in Queensland it is 10 and 16, in Western Australia it is 7 and 17 and in the Northern Territory it is 10 and 16 and in the Australian Capital territory it is 8 and 17. In some cases the juveniles may be tried in an adult court if the offence they have committed is as major as rape or treason. In the Australian criminal justice system possession, sale, importation, use and distribution of drugs is considered a major offence.

Marijuana (cannabis), heroin, designer drugs (ice, ecstasy), amphetamines (speed, LSD) and cocaine (including crack) are considered illegal drugs. But here again in South Australia and the Australian Capital Territory marijuana is not considered and illegal drug. In fact the possession of this drug may result only in a minor punishment like imposition of a small fine and they offender need not even appear in court. These being the facts it has often been felt that the Criminal Justice System in Australia often works at cross purposes. The reasons for this are many.

Let’s try and take them up one by one. Boundaries: This is certainly a limiting factor. The criminal justice system is very complex. It consists of the judiciary, police, legal aid, prosecutors, court administrators, corrective services, probations services, juvenile justice and many support services which are both government and non-government. With such a complex system – it is obvious that there will be no accountability factor. Each service has its own limits or boundaries and often they cannot and will not choose to work beyond this boundary.

At times one wonders where the boundary for one system ends and where does it begin for some other service. Each agency or service would like to work independently. For example the police force would want to independently exercise their prosecutorial discretion. And then we have lawyers both for the prosecution and defense claiming independence in the exercise of their duties and then we have the judiciary too claiming the same. With so many agencies working towards crime prevention there is a lack of co-ordination and this is a major contributor for ineffective crime prevention.

Concept of equality: While one would assume that all litigants should have access to a similar process of justice which would include legal costs and would be provided the same remedies, let us study and example how situations are sometimes contradictory. We will take the income tax system as an example. This equality is nowhere to been seen when it comes to legal costs of corporations and those agencies that carry on business. Let’s look beyond the more obvious boundaries and consider how the income tax system impacts on the question of equity of access and cost.

Of course, equality disappears when we find that the legal costs of corporations and those carrying on a business are tax which pay far less than private individuals. Criminal law and social problems It is unfortunately the case that the community often sees great comfort in using the criminal law to address significant social problems. Inevitably the criminal justice system cannot deliver the desired outcome although rarely is an effort made to measure the effectiveness of the use of the criminal law.

At the beginning of the century America’s effort at alcohol prohibition represented an attempt to address alcohol problems by criminalizing certain activities. It could only be described as a failure and indeed had the reverse effect of increasing serious crime. In Australia homelessness or vagrancy was a social problem the criminal law was incapable of addressing. Equally, the criminal justice system in Australia has demonstrated its inappropriateness, indeed inability, to address the drug problem.

Drug dependency is primarily a health problem yet traditionally the approach to the issue is from a law enforcement perspective. It is a matter which has currently and rightly engaged public debate. When it comes to the role of the criminal justice system in relation to a particular issue then it is easier to set the outcomes that is being sought and then to measure the success in achieving those outcomes. Not surprisingly, in such a difficult area there has been a traditional preoccupation with measuring activity not outcome.

Activity looks good but if it is misguided or misdirected then it is likely to be ineffective. One of the most serious actions the state can take in relation to its citizens is to deprive them of their liberty. The deprivation of liberty through the sentence of imprisonment as punishment for a proven offence is an issue taken seriously by the courts and the community. The placing in custody of a person who is still presumed innocent (as is the case with most people remanded in custody) should be, appropriately, of even greater concern to the courts and to the community.

Some 15% of the over 18,000 prisoners in this country are currently on remand, and have not been sentenced. These are not insignificant numbers. The fundamental reason for remanding individuals in custody is to ensure that they will attend court as required, in order to answer the charges made against them. In addition to this, the need to protect the integrity of the justice system has resulted in the development of the practice of remanding accused persons in custody where it is deemed necessary to protect witnesses, or to ensure the safety of the accused person.

Furthermore, in the interest of public safety, many jurisdictions have also authorized the remanding of a person in custody if it is necessary to ensure that further offences are not committed before the completion of a trial. The decision to remand an accused citizen in custody has consequences both for the individual and for the community. For the individual accused, the outcomes of being remanded in custody can be classified as justice outcomes and social outcomes.

For the community, outcomes of remanding citizens in custody can be described in terms of the operation of the justice system, including financial outlays. What are the justice outcomes for persons remanded in custody? Research has demonstrated that being remanded in custody is associated with an increased likelihood of a plea of guilty, an increased likelihood of an accused being convicted in response to a plea of not guilty and an increased likelihood of a sentence of imprisonment2.

Moreover, a recent South Australian study identified that many of the people who are remanded in custody (it may be as high as 50%) do not serve a further period of imprisonment after the completion of the remand occasion. John Walker, as far back as 1984, showed that in all Australian jurisdictions the majority of remandees are not sentenced to prison4. There are social outcomes for individual accused persons as well. Remand in custody increases the probabilities of social disruption.

It removes an individual from the social supports he or she normally utilizes at a time of crisis — be these the support of family, friends or others in the community. Sometimes this occurs both as a result of institutionalization and because the remand location is a significant distance from the individual’s support network, making it difficult for people to visit. Remand in custody interrupts the capacity of the individual to assume family and social responsibilities and assumes that others will provide for any dependants, whether these are children, parents or other intimates.

At the same time, remand in custody places the individual in institutional custody at a time of high vulnerability. This increases pressures upon the individual and the potential risk of self-harm of a physical or psychological nature. For the community, the financial outcomes of decisions about remanding citizens in custody involve both the high cost of incarceration for the state and the cost of enforcing court decisions and attendance, and any delays to court operations.

Moreover, a high remand rate contributes significantly to the costs of imprisonment borne by each jurisdiction. The number of people remanded in custody contributes to the overall imprisonment numbers and to pressures on the prison stock. The study recognized that the ultimate decision to remand a person in custody is made either by the authorized police officer or an officer of the court, magistrate or judge. However the study was premised on the recognition that the decision to remand or not to remand a person in custody is influenced by a broad range of factors.

Simply stated, the number of people in detention as a result of a decision to remand them in custody is a product both of the number of people for whom the remand in custody decision is made and the length of time for which they are remanded. Yet these factors are influenced by •? interactions between judicial or quasi-judicial decision-makers and individual accused persons within a particular legislative framework, •? the administrative characteristics of the criminal justice system in a specific jurisdiction, and

•? the broader characteristics Economic reforms, and the organizational changes in both public and private sectors which may be expected to accompany them, will continue to create winners and losers in society. Many of the losers, particularly those who are young and male, unskilled and uneducated, may be expected to direct their frustrations internally, engaging in one or more of a variety of self-destructive behaviors, or outwardly, in the form of interpersonal violence.

Some of the winners, seeking an even bigger slice of the pie, may be tempted to use illicit means. There are a number of other potentially criminogenic factors, already visible, which are likely to persist into the new millennium. Among these are family dissolution, as well as economic pressures and other cultural forces which encourage both parents to engage in full-time employment, where they are fortunate enough to find such employment. The benefits of future crime control institutions will not be evenly shared across Australian society.

This should come as no revelation, as some would argue that such has always been the case with regard to valued goods and services, whether law enforcement, education, or the arts. But Australia are celebrated for the “fair go”, and one of the challenges faced by law enforcement agencies and crime prevention planners in private and non-profit sectors is how to avoid an even greater concentration of violence and theft in relatively less well-off communities that exist today.

Perhaps to some extent, the growing privatization of public protection may take some of the pressure off public agencies, and enable them to focus limited resources on those citizens unable to afford private protection. The devolution of choice to the consumer of public services, by bestowing vouchers upon individuals or communities, and allowing them to purchase the services they want from the source which they prefer, might strike some as pretty drastic.

But some internationally acclaimed observers of policing (Bayley and Shearing 1996) seriously canvass the concept of security vouchers, which could be redeemed by local communities much as education vouchers can be redeemed by families in some overseas jurisdictions. “Security endowments” to particular communities can be used to purchase the kind of police or security services which the community wants, from the organization or organizations, public or private, which they prefer. One fundamental challenge is aggregating interests within a community which may be diverse, or even irreconcilable.

If half of a community thinks alcohol abuse is the problem, and the other half thinks that alcohol abuse is the solution to their problems, democracy can be difficult. But where there is a degree of consensus about the security needs of a community, and some protection guaranteed for minority groups, the potential for community-based solutions may exist. References: Byron Davis, The Inappropriateness Of The Criminal Justice System – Indigenous Australian Criminological Perspective Oorala Aboriginal Centre University of New England, NSW

Dr Peter N Grabosky, The Future Of Crime Control Director of Research Australian Institute of Criminology Rick Sarre, Factors Affecting Remand In Custody In Three Australian Jurisdictions School of International Business University of South Australia Sue King School of Social Work and Social Policy University of South Australia Laurie Glanfield, Boundaries And Challenges Within Criminal Justice NSW Attorney-General’s Department David Biles, World Factbook of Criminal Justice Systems Australia Australian Institute of Criminology