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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…[continue]
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