Is the Criminal Justice System in Australia Fair and Effective - Research Paper Example

Is the Criminal Justice System in Australia Fair and Effective? I. Introduction The criminal justice system refers to government practices, policies and institutions which have as their goal, social control as well as the deterrence and mitigation of crime. (Gaines and Miller 2008,11) Social control is never static and unchanging so that criminal justice approaches require flexibility rather than a fixed, methodical approach. To this end, the Australian criminal justice system is in a perpetual state of change as it tries to develop strategies for social control. Invariably, criminal justice encapsulates methods for the detection, investigation and prosecuting of crimes as well as rehabilitating offenders.(Spencer 2007, 19) In this regard the primary actors in the criminal justice system are law enforcement, correction and probation officers, prosecutors, defence attorneys, judges and a number of other public and voluntarily groups and individuals. (Gibson and Cavadino 2008, 13) Australia’s criminal justice system is multifaceted in that there is no single system. In each State there are two criminal justice systems, the federal system which regulates offences against the Commonwealth and respective State systems which regulate offences against individual state laws. (Australian Bureau of Statistics 1997, 263) Each of the states and Territories are conferred with the power to implement legislation with respect to all matters not specifically provided for by the Commonwealth. (Australian Bureau of Statistics 1997, 263) Ultimately, it is the common laws of the Territories and States that regulate Australians’ daily lives. In practice, the Australian criminal justice, aside from its flexibility, permits a degree of discretionary powers which facilitate the adjustment of policies reflecting changing times and shifting public interests. It is against this background that the effectiveness and fairness of the Australian criminal justice system is examined. This paper argues that although far from perfect, the criminal justice system is as fair and as effective as one can expect. After all, it is a system managed by human beings and as such relies almost entirely on human discretion, recognizing that public interests, demands and confidence changes from one period to another. In this regard, consistency and certainty, the yardstick by which fairness and effectiveness are measured in a criminal justice system will be compromised from time to time.(Creyke and McMillan 2000, 5) Moreover, the complex demands on the Australian criminal justice makes it difficult to achieve consistency and certainty, particularly when the aims of the criminal justice must take into account the competing interest of victims, offenders, the State and the Commonwealth as a whole. (Daly, 2005) II. The Criminal Justice System in Australia The Honourable Wayne Martin, Chief Justice of Western Australia stated that: “The primary obligation of the criminal justice system is to protect the community from the consequences of crime.” (Martin 2007, 2) In order to achieve this goal, the criminal justice system in Australia is crafted so that each of the six Australian States and two Territories manage independent systems of police, courts, prisons, juvenile systems and correction and treatment facilities. (Australian Institute of Criminology, 2009) It is within this complex structure of the administration of justice that the Australian criminal justice systems operates under the rule of law. a. The Rule of Law Australia’s criminal justice system functions within the rule of law. This alone places upon the various actors within the criminal justice system, a burden to uphold the rule of law and at the same time take into consideration the competing interest of victims of crime and offenders. The rule of law commands that unless and until a suspect’s guilt is adjudicated on, the criminal justice system is limited by the rule of law in how they can treat the offender. For the purposes of this discussion, law enforcement provides the first contact that persons suspected of criminal conduct have with the criminal justice system. Within the criminal justice system, the rule of law dictates how law enforcement and all subsequent actors within the system may respond in terms of investigating crimes and the punishment, rehabilitation and correction of offenders. b. Law Enforcement The Law Enforcement (Powers and Responsibilities) Act 2002 of New South Wales is representative of the powers conferred upon police within the various Australian States and Territories. This Act makes provision for the powers and limitations placed upon police when investigating and deterring criminal conduct and as such sets the parameters for which the law enforcement faction of the criminal justice system must adhere to the rule of law. However, many parts of the 2002 Act confer upon the police what may be referred to as wide discretionary powers which may conceivably give rise to apprehensions that the criminal justice system, at least as far as the police powers are concerned, is unfair. For instance, Section 10 Act provides police with the power to enter premises for the purpose of effecting an arrest “under an Act” or a “named in a warrant.” (Law Enforcement (Powers and Responsibilities) Act 2002, Section 10(1)) However Section 10(2) goes on to provide that: “...the police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable ground that the person to be arrested or detained is in the dwelling.” (Law Enforcement (Powers and Responsibilities) Act 2002 Section 10(2)) There are various aspects of police powers permitting police to act on reasonable grounds of suspicion scattered throughout the 2002 Act. For instance police may arrest a person if there are reasonable grounds to suspect that an offence had been committed or is about to be committed. Law Enforcement (Powers and Responsibilities) Act 2002, Part 8) Likewise police officers may conduct warrantless searches under specific reasonable grounds of suspicions. (Law Enforcement (Powers and Responsibilities) Act 2002, Section 21) However, what amounts to reasonable grounds is not defined by the Act. In this regard some assistance is gleaned from Smart AJ’s ruling in R v Rondo [2001] NSWCCA 540 in which it was held that: “A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs...A reason to suspect a fact exists is more than a reason to consider or look into the possibility of its existence.” (R v Rondo [2001] NSWCCA 540) This definition does not provide sufficient clarity to undermine the possibility of a police officer abusing the powers of arrest or entry. Ultimately, it is the police officer’s opinion in the context of the surrounding circumstances and how he or she perceives them that will determine if there are reasonable grounds to suspect that entry or arrest is necessary. However, since the broader vision of the criminal justice system is the protection of the community from the consequences of crime, certain discretionary powers are necessary. To this end the rule of law is undoubtedly constrained by these considerations. In a typical case, a person who is about to commit a serious crime will attempt to evade detection and police officers quite often have to rely on instinct and experience.(Joh 2009, 103) They will not always get it right, but it can be argued that it is best to err on the side of caution for the greater interest of community safety. As for police officers who abuse their respective powers, the criminal justice system, recognizing that state actors are as vulnerable as ordinary citizens to the disregarding the rule of law, safeguards are in place to deter this kind of conduct. The New South Police Code of Practice For Crime (Custody, Rights, Investigation, Management and Evidence) 2008 provides a good example of these safeguards. It dictates how the rule of law applies to various State and Territory police investigative powers and the detention and treatment by police, of suspects under Australia’s criminal justice system. Police are reminded of the powers of discretion with respect to arrest, an initiating process in the criminal justice system. An arresting officer may in his discretion determine that an alternative to an arrest may better serves the ends of the criminal justice system. In this regard, an officer may, rather than execute an arrest, issue a caution or warning, an infringement notice, penalty notice, court attendance notice or a youth justice conference. (Police Code of Practice For Crime (Custody, Rights, Investigation, Management and Evidence) 2008, 10) If these powers are exercised fairly and objectively, these discretionary powers are fair and adequate for the safety of the community. However, as with any exercise of discretionary powers, police can make errors of judgment. Be that as it may, particularly with young offenders, a mere caution may be sufficient to deter future criminal conduct. Likewise, excusing the offender with a mere caution may only lead to future criminal conduct. On the other side of the argument, there are those who argue that placing an individual in the criminal justice system can turn them into hardened criminals. (William and Lynch 1997) If both arguments are to be taken seriously, it is best to leave this discretion up to police officers. After all, they are more familiar with suspects and criminals and have contact with them via investigations and community policing. Ultimately, police officers will be in a better position to make that call, and while they may not always make the right choice, the chances are they will get it right more often than not. In this regard, this aspect of policing under the criminal justice system is the fairest and best that can be expected. c. Punishment Changing policies on sentencing and penology demonstrates the flexibility of the Australian criminal justice system in responding to public interests and changes in criminal trends. Beginning in the 1980s there was a increased interest in the “just desert arguments” in Australia. (Weiss and South 1998, 383) However, the sentencing structure in Australian courts are modelled after that of the British system. To this end, sentencing within the criminal justice system is vulnerable to a possibility of maximum sentencing which is left to wide discretionary powers of the judiciary with vague and often “unfettered by legislative direction” as well as “few minimum or mandatory penalties.” (Weiss and South 1998, 383) Once again, the criminal justice system relies almost entirely on the discretionary powers of its key actors. The sentencing and penology options for the courts are monetary sanctions, unsupervised release, supervised release or custodial sentences. (Weiss and South 1998, 383) In Discussion Papers and Reports in 1987, the Australian Law Reform Commission explained that the sentencing strategies within the criminal justice system would place its: “...primary emphasis on just deserts for the offender and reparation for the victim. Deterrence, rehabilitation and incapacitation should still be relevant but given a lesser priority.” (Weiss and South 1998, 383) The New South Wales Sentencing Act 1980 reflects this hard-nosed approach to punishment within the Australian criminal justice system. The act systematically abolished the remission of custodial sentences by dividing the time between three quarters in custody and the remainder on parole. (Weiss and South 1998, 384) Victorian reforms reflects much of the movement in more recent times. After reviewing prison overcrowding and the high rates of recidivism emanating from lengthy imprisonment, a “more structured system with legislative guidance on sentencing,” together with graded structures for penalties was introduced. (Weiss and South 1998, 384) Australian criminologist John Braithwaite, who was the architect of many theories on reintegrative shaming and restorative justice influenced the government’s attention away from just desert sentencing policies. Braithwaite (2002) describes restorative justice as: “an approach to justice that has both a process element and a values conception. Restorative Justice is a process where all stakeholders involved in an injustice have an opportunity to discuss its effects on people and to decide what is to be done to attempt to heal those hurts.” (246) Restorative justice in Australia is a process by which the offender is forced to meet with his or her victims. Criminologists for the most part agree that restorative justice provides an effective tool for the prevention of recidivism and rehabilitating offenders because, theoretically at least, it has the capacity to engage morals, develop social relations and morality, provide both moral and psychological healing and invokes a degree of “reintegrative shaming.” (Barton, 1999, 111) It is these elements of restorative justice that are most suited to the idea of retribution and rehabilitation. When one looks at recidivism rates and the fact that it suggests that long custodial sentences do not rehabilitate offences, to adhere to the just desert doctrine would have been entirely unfair and inadequate. The community is not protected if prisoners are reintroduced into the community and re-offend. In 2005, the Attorney-General’s Department of Australia reported that a large number of adult offenders re-offend and are returned to prison following an initial release. (Australian Government, 2005) The move toward restorative justice was an adequate and fair response to the rate of recidivism. The Attorney-General acknowledged that far from rehabilitating offenders, prison in its over-crowded conditions, subjected prisoners to a wide range of conditions and circumstances that generated a propensity for creating criminal conduct in some prisoners, although not all. In other words, restorative justice would not be suitable for all prisoners. The fact is these conditions and factors will more likely than not “increase the likelihood of offending and reoffending in some individuals.” (Australian Government, 2005) Overcrowding is a natural consequence of extended and frequent custodial sentencing. As seen in New South Wales, the prison population increased by fifty percent with the abrogation of the remission of custodial sentences. (Weiss and South 1998, 384). It would have been entirely remiss of the criminal justice system to continue to pass lengthy sentences with the knowledge that it creates an environment conducive to recidivism. III. Conclusion The criminal justice system in Australia is imperfect. Each of the actors have a role to play and each are guided by the rule of law. As a result the interests of all key parties, including the state, the victim, the offender and the community are at stake. The main objective of the criminal justice system is to protect the community from the consequences of crime. In order to do this, the rule of law commands that some measure of discretion is allotted to each of the actors within the criminal justice system. As is often the case, discretionary powers will invariably be misguided. However, more often than not it is more desirable than the strict application of a set of rules that apply across the board to everyone. The same issues that compromise judgment and discretion distinguishes one person from another. References Australian Bureau of Statistics. (1997) Year Book, Australia, Issue 69. Australian Government Publishing Service. Australian Government-Attorney-General’s Department. http://www.ag.gov.au/agd/WWW/ncphome.nsf/Page/Publications_Intervention_for_prisoners_returning_to_the_community_b1-Introduction Retrieved 25 August 2009. Australian Institute of Criminology. (2009) “Criminal Justice System.” http://www.aic.gov.au/criminal_justice_system.aspx Retrieved 25 August 2009. Barton, C. (1999) “Empowerment and Retribution in Criminal Justice.” Journal of Professional Ethics, Vol 7(3&4) 111-135 Braithwaite, John (2002). “Restorative Justice and Therapeutic Jurisprudence.” Criminal Law Bulletin, Vol. 38(2) 244-262. Commonwealth of Australia Constitution Act 1900 Creyke, R. and McMillan, J. (2000) Administrative Justice: The Core and the Fringe. Australian Institute of Administrative Law Inc. Daly, K. (21 April, 2005) “Seeking Justice in the 21st Century: The Contested Politics of Race and Gender.” School of Criminology and Criminal Justice, Professorial Lecture. http://www.griffith.edu.au/ins/collections/proflects/daly05.pdf Retrieved 25 August 2009. Gaines, L. and Miller, R. (2008) Criminal Justice in Action. Cengage Learning. Gibson, B. and Cavadino. (2008) The Criminal Justice System: An Introduction. Waterside Press. Joh, E. (2009) “Breaking the Law to Enforce It: Undercover Police Participation in Crime.” Stanford Law Review, Vol. XX, 102-145. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Martin, W. (2007) “Protecting the Future Youth and the Justice System.” Rotary District 9450, 2007 Conference, Radisson Observation City. http://www.supremecourt.wa.gov.au/publications/pdf/ProtectingTheFuture_310307.pdf Retrieved 25 August 2009 Police Code of Practice For Crime (Custody, Rights, Investigation, Management and Evidence) 2008 (NSW) R v Rondo [2001] NSWCCA 540. Spencer, J. (2007) “The Criminal Justice System and the Politics of Scrutiny.” Social Policy and Administration, Vol. 27, 18-32. Weiss, R. and South, N. (1998) Comparing Prison Systems: Toward a Comparative and International Penology. Overseas Publishers Association. William, J. and Lynch, J. (1997) Crime Policy Report: Did Getting Tough Pay?” Washington, D.C. Urban Institute. http//www.urbran.org/crime/crime.htm Retrieved 25 August, 2009. Read More