Australian Criminal Justice System, the Belief in Justice, an Independent Judiciary and the Rule of Law - Essay Example

Running Head: AUSTRALIAN CRIMINAL JUSTICE SYSTEM Introduction In order to recognize a particular justice system as fair and effective there are various universal criteria that have to be taken into consideration. First, we try to get the definition of the two terms. Justice system can only be considered ‘effective’ when ‘things are seen to be done’. This is means prevention of crime, offenders of the law being arrested; punished and ensuring such acts do not recur. On the other hand ‘fairness’ refers to equal treatment. It also relates to the feeling that one has been ‘treated well’ (Maxwell, Mcalpine, Grant & Joyce, 2000). For any criminal justice system to be accepted by everyone, it must not discriminate against the people of a certain race, ethnic background or social class. The legal system can only be fair if the necessary procedures that guarantee a fair trial are in place. Similarly there must be a system of law for the purpose of fairness in the society or simply the Law of Equity. The society will continue to trust the legal system if justice is not only done but perceived to be done. The entire society more so the witnesses and victims should be made aware of steps that are made to ensure that those who are involved in criminal activities are arrested and prosecuted. Furthermore the public should be able to witness, by the means of the criminal justice system, the law bringing about accountability. The legal system comprises some basic elements of justice which include unbiased judges, jury trials that are just and the provision of security to the witnesses whenever it is called for. The Australian Justice system is based on the belief in justice, an independent judiciary and the rule of law (Australian Government Department of Foreign Affairs and Trade, 2008). The people, in disregard of race and whether or not they are citizens, are given similar treatment before the law. The law also safeguards and ensures that the people are given fair treatment by officials and governments. Australian Legal System There are some principles which are fundamental to the Australian legal system. These include the separation of powers, judicial precedent and procedural fairness. The Australian jurisprudence is based on the United Kingdom common law system. This law shows a great variation from the other civil law systems operating in Japan, South America and Europe that originated from Roman law (Australian Government Department of Foreign Affairs and Trade, 2008). The major feature of the common law is that cases that have been settled previously act as precedent to the pending cases. In 1901 a federal system of government was established under the Australian constitution. The power was thereafter distributed between the States and the federal government. There was a definite definition of exclusive power which was vested to the federal government hence enabled to legislate on matters to do with taxation, commerce and trade, external affairs, immigration, defense and citizenship. There is also a provision for concurrent powers whereby the two government tiers were able to make laws. Federal laws prevail in the entire Australia. In particular instances where there seem to be a disagreement between the state and the federal law, the latter will apply. Nevertheless States are allowed to legislate on specific matters that have not been assigned the federal government. This is to say that Australia has a total of nine legal systems; the federal system and eight territorial and state criminal laws. These latter laws play a vital and immediate effect on the daily activities of the Australian people. There are three government branches that are incorporated in the state and federal system. This includes the judicial, legislative and the executive. The legislative is responsible for making the laws; administration of the laws is the responsibility of the executive government whereas interpretation and application of the law is the role of the judiciary. The indigenous people of Australia have been historically noted to have been discriminated by the Australian legal system. This is because the legal system had not taken into consideration their customs and cultural background. The legal system was imported and forced upon the indigenous people (Australia’s Unfair Legal System, 2008). For instance it has been identified by the Australian Law Commission that the Torres Strait Islander and the Aboriginal women are the worst served by the system (Jager, 2001). There have been suggestions from policy groups to the legal offices to allow for at least an Aboriginal person as a staff member in the courts that deal mainly with the Aborigines. These measures among others are essential to ensure that justice is easily accessed by the entire society members. Access to Justice A good legal system must have as one of its major ideals an equal access to justice. This means impediments to the achievement of this goal have to be constantly monitored and corrected. Such impediments include cost involved to access the system and to obtain legal representation. In addition there is the ignorance on matters to do with legal rights and in some cases the legal processes and systems are intimidating to the people (Colvin, 1991). The Australian legal system works towards ensuring courts are accessed by society members. The facilities provided are also secure and safe thus allowing for observation and attendance by both the public and the media. Another requirement is that the people should be able to afford the legal services which are in most cases expensive for the common citizens. There have been a great number of people who are unable to hire a private legal counsel. It is basically for the good of these people that the state has provided legal aid programs and public defenders who offer representation and advice. The government bears the responsibility to pay the public defenders (Findlay, Odgers, & Meng Heong, 2005). These defenders show up in court for those clients who have been awarded legal aid. In addition to providing this service to their clients the public defenders also work hand in hand with the government in law reforms. These defenders are also seen to be working in various committees and programs in the justice system. However there have been various reports alleging an insufficient legal aid in Australia. The people are said to find it hard to access the much publicized legal aid. Courts have a responsibility to ensure people in the rural areas access the legal system. In Australia inaccessibility to justice has been a problem and continues to be elusive to many. This problem however seem to be universal. In most countries legal services are concentrated in the urban areas meaning rural areas are not much taken care of. Members of varied cultural groups and background need to be allowed access to the legal system. This includes all the communities with strong backgrounds on religion, and many more that are not of an English background. The language of the legal profession is complicated and need to be simplified such that all people are able to benefit from it. Similarly there are those with disabilities and difficulties who need to be awarded with the physical access to the legal services. All these are some of the flaws of the common law inherited from the British. However, reforms in the legal system have helped ensure some of the complaints are attended to. Apart from the formal litigation known to be discriminatory to indigenous people of Australia there is an alternative way to get justice without formally going through the litigation process. This includes the Alternative Dispute Resolution system and the Small Claims Tribunal (SCT). These bodies have been responsible for offering to the people an inexpensive way of settling disputes. The bodies exist in all the states and are responsible for settling monetary matters not exceeding a certain amount. For instance the current amount in Queensland is $ 7500. The cases are prepared by the people themselves thus there are no lawyers in the SCT. This tribunal is responsible for settling disputes on matters of tenancy such as failure of a landlord to repair a house. In such and many similar cases tenants sue the landlord in the SCT. The Alternative Dispute Resolution system (ADR) just like the SCT acts as an option to formal litigation. The ADR process involves a third party who is impartial to two disputing parties and tries to compromise the two. The third party is nominated as a mediator to the disputing parties. The third party must be impartial and the dispute is settled in a non-legal setting. ADR has been vital in not only resolving disputes but lessening the pressure characteristic of the court system (Cannon, 1996). The Courts The application and interpretation of the Australian law is the responsibility of the High court of Australia. It further makes decisions on challenges to do with the validity or constitutionality of laws. Similarly the appeals from the state and federal courts are heard in the High Court. This court is headed by a Chief Justice who operates together with other half a dozen judges. This is the highest appeal court in the land and tackles all matters decided both in the state or federal jurisdictions. Besides the High Court there is the Federal Magistrates Court of Australia, Family Court of Australia, and the Federal Court of Australia. The state courts according to the constitution have been vested upon with federal jurisdiction. Legal Representation and Aid In order to ensure there is justice for all, the Australian government has recognized the need for legal representation. This aid is provided to the people who are not able to meet the costs that come with court appearance. The administration of funding to provide legal aid to indigenous Australians is the responsibility of the department of the federal Attorney- General (Biles, 2009). Each of the states has an independent legal aid commission whose budget is close to $400 million. Both the state and federal governments are responsible for the funding. This is supplemented with other revenues arising from fees and contributions. In general about 158 000 people were represented throughout Australia in tribunal and courts by the legal aid commissions in 2005-06 and at least 270 000 people given advice (Australian Government Department of Foreign Affairs and Trade, 2008). Furthermore there are a total of nine organizations funded by the federal government. These organizations are specifically responsible for the provision of legal aid services to Indigenous Australians. The annual budget for the program is about $ 50 million. In addition across remote and rural Australia the federal government ensures the indigenous people are provided with the necessary Legal Services (McKillop, 2003). This is by funding a network of more than 25 Family Violence Prevention. The services are channeled to the victims (indigenous Australians) of sexual abuse and or family violence. Annually the funding for the three programs totals to about $ 18.8 million. Human Rights and Equal opportunity Commission In 1986 there was the establishment of the Human Rights and Equal Opportunity Commission. The commission, through the Attorney-General was meant to report to the federal government. The major goals of the commission were to address and protect human rights in Australia. It was also to ensure that there is understanding of human rights in the country. Some of the functions included inquiring on issues related to human rights, resolution of conflicts and complaints pertaining discrimination and or the infringement of human rights. Law Enforcement In Australia the maintenance of peace and order in the community is the responsibility of the police. They are charged with the duty to present those believed to have broken the law before the court. The police may give evidence in courts but the decision on a person’s guilt or otherwise rests with the courts. Australia has both the national police forces and the state police. The former is responsible for investigating crimes against federal laws such as illegal immigration, environmental crimes, drug trafficking, and crimes related to national security (Brett, 1963). On the other hand the state police forces are responsible for offences against state laws. Changing the Law The Australian law can be changed either through state or federal legislatures responsible for the enactment of the legislation. For instance there are developments in the society which need to be reflected in the legislation. This was able to feature most prominently as in technological advancement such as the internet. The Australian Law Reform Commission (ALRC) and other lobby groups have been responsible for changing legislation. Some of these changes are directly tied to political decisions. There are instances whereby the law changes with the decision made in the courts by the judges. Such changes remain unpredictable since the decisions of the judges are informed by the nature of the case presented in court. Similarly the judges are required to abide by judicial precedents thus making changes in the legislation farfetched (Brookbanks, 2003). The Australian Law Reform Commission is a federal statutory body meant to operate independently and permanently. Established in 1975, the body examines the law and proposes on how well it can be reformed. The ALRC, an establishment of the federal government is expected to be non-partisan and make recommendations and reports that exhibit intellectual independence (Clough, Jonathan & Mulhern 1999). It is therefore the responsibility of the ALRC to ensure that the law is modernized and simplified, there is an improved accessibility to justice, make suggestions on better ways to dispense justice and administer the law; harmonize Territorial, state and federal laws; closely monitor and compare Australian legal systems with other overseas systems and ensure that they meet the required international standards. The ALRC has made a number of recommendations to the government of which a good number have been implemented. Reports point to the fact that almost 80% of the recommendations made by the commission have been implemented either partially or substantially (Chesterman, 1999). The commission therefore stands out as an influential and effective body when it comes to Australian legal law reform. Another influential force in the changing of the law in Australia is lobby groups. In order to safeguard both public and private interests; a number of corporations would endeavor to get the services of professional lobbyists. Sometimes the interests are political in nature hence through the sheer force of the lobby groups the government will be forced to look into the interest being presented. This is one of the effective ways in which the law can be changed in order to reflect the wishes of the public. There have been various benefits of the changes in the legal system. One of the merits includes the establishment of the ‘Alternative Dispute Resolution’ (ADR). This process has ensured that people who live together ably settle their disputes and still continue to live together in harmony. This method of settling disputes has ensured that the people somehow settle their disputes while still being in line with custom and traditions. There are instances whereby the law ought to be synonymous with the dictates of international law (Boas, 2004). Similarly, there are international treaties and or conventions in which a country has to agree with others. Despite the fact that these laws may not necessarily be in agreement with a country’s internal laws; its influence on the laws is significant. Finally the rigidities of the common law led to the establishment of the law of Equity. The common law is known to have a number of flaws especially on situations whereby its strict application would result to unfairness on the subjects involved (Kennedy, 2004). Conclusion The history of the Australian criminal justice system shows biasness in the manner in which justice is awarded to the people. This is especially so with the non –English Australians who were sidelined by the law. The justice system was not only complicated and confusing to the indigenous Australians but also inaccessible and quite expensive. In brief the common law brought to the land by the British failed to recognize the religions and customs of the indigenous people. It is therefore apparent that for many years the minority groups, the poor and those in the rural areas were denied justice and access to the legal system. However, there has been changes and continues to be more to ensure that the wrongs of the past have been remedied. These law reforms range from the formations of commissions which allow for resolution of conflict between two parties in a non-legal setting to opening up to international treaties and conventions. The importance of the Alternative Dispute Resolution, for instance is that it bears a close resemblance with the traditional or customary way of settling disputes whereby the parties involved continued to stay together even after the ruling. Furthermore the establishment of the law of equity further lessened the flaws of the common law. In brief the criminal justice system in Australia is fair and effective to serve the interest of the people. There are faults though the future of the Australian criminal justice system is bright. References Maxwell, C., Mcalpine, C., Grant, C & Joyce, L. (2000). Fairness and effectiveness in the Criminal Justice System: development of the British Crime Survey. British Market Research Bureau Limited. Boas, G. (2004). An Overview of Implementation by Australia of the Statute of the International Criminal Court. 2JICJ 179-190 Clough, P., Jonathan, D & Mulhern C. (1999). Criminal Law, Sydney: Butterworths. xxiv, p. 343. McKillop, B. (2003). The position of the Accused Persons under the common law system in Australia (more particularly New South Wales) and the Civil law System in France. The University of New South Wales Law Journal, 26 (2), 515-39 Findlay, M., Odgers, S & Meng Heong, S. (2005). Australian criminal justice, 3rd ed., South Melbourne, Vic Australia; Oxford University Press, New York xxiv, p. 412 Jager, A. D. (2001). Forensic Psychiatry Services in Australia. International Journal of Law and Psychiatry, 24, 387-398 Kennedy, W. B (2004). Fate Management: The Real Target of Modern Criminal Law, Doctor of Judicial Studies, University of Sydney, xx, p. 289. Brett, P. (1963). An Inquiry into Criminal Guilt, Sydney: The Law Book Co. Of Australia, xvii, p. 228 Brookbanks, W (2003). Insanity in the Criminal Law: Reform In Australia and New Zealand. The Judicial Review, 81. Chesterman, M. (1999). Criminal trial juries in Australia: From penal colonies to a federal democracy. Law and Contemporary Problems, 62 (2), 69-102 Cannon, A. (1996). An Evaluation of some ways of limiting and reducing the costs to parties of conducting litigation in the magistrates’ courts (civil division) in south Australia Colvin, E. (1991). Unity and Diversity in Australia Criminal Law: A comment on the Draft Commonwealth Code 15 Criminal Law Journal, 82-94 Biles, D. (2009) World Fact book of Criminal Justice System – Australia. Australian Institute of Criminology. Retrieved on August 12, 2009 from http://www.ojp.usdoj.gov/bjs/pub/ascii/wfbcjaus.txt Australia’s Unfair Legal System (2008). Essay Deport. Retrieved on August 12, 2009 from http://www.essaydepot.com/apa/1779/index.php Australian Government Department of Foreign Affairs and Trade (2008). About Australia – Legal System. Retrieved on August 12, 2009 from http://www.dfat.gov.au/facts/legal_system.html Read More