4160.0 - Measuring Wellbeing: Frameworks for Australian Social Statistics, 2001
Latest ISSUE Released at 11:30 AM (CANBERRA TIME) 12/10/2001
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Defining crime and justice
Definition of 'crime' in Blackstone's Australian Legal Words and Phrases.
Nearly every aspect of life has laws, rules, guidelines, codes or standards associated with it, from environmental protection to the operations of Government. Human interactions are monitored by anti-discrimination legislation, and family, civil and criminal legal systems. Employment is associated with contracts, earnings are subject to tax legislation, and business and trade are all highly regulated. People who drive need to be licensed and have their car registered, and those moving in and out of the country are subject to immigration and customs laws. There are standards of safety and manufacturing, intellectual property laws, land entitlements, birth and death registrations, and so on. Indeed, the abundance and scope of legislative material associated with living indicates the basic societal need to regulate behaviour and action at all levels.
Such regulation is aimed at ensuring human interactions are civilised and society remains intact and ordered. Laws delineate what is regarded as acceptable behaviour, from behaviour that engenders conflict or violence, that threatens the lives or resources of individuals, or that threatens the cohesion or longer term survival of society. And society makes a systematic effort to enforce laws, and detect and penalise acts that are in breach of laws or regulations. Such acts are commonly known as crimes. Thus, a crime is an act (or transgression or omission) that is in breach of the law - usually because it endangers or aggrieves individuals or society.
Crimes are punishable by the State. Thus people convicted of crimes may receive prison sentences, fines or community service orders, all of which are administered by Government organisations (with some corrective services contracted to private prisons). Crimes may be unsocial acts that are so common (e.g. traffic offences), or so complex (e.g. breaches of taxation law) that large government departments are needed to administer them. They may be activities that could go undetected or curtailed but for State intervention, e.g. drug offences. The Australian Standard Offence Classification (ASOC) discussed below provides a structure for classifying criminal offences by type.
Justice is a large and archetypal concept, often personified in myths, moral tales and other instruments that define our culture and its values. As such, there are many facets of meaning associated with this concept. Broadly, however, justice is the principle of balance and fairness brought to bear in the process of evaluating human behaviour and interaction. Thus it is closely associated with crime. In its widest application, the pursuit of justice, or equity and balance, within social organisation equates with the pursuit of social justice. Objectives associated with social justice parallel the range of human rights delineated by the United Nations, and include ensuring all individuals within a society have the same opportunity to succeed in life and are not discriminated against. Social justice issues are closely related to wellbeing issues generally, and are discussed across all the chapters in this publication.
This chapter focuses more narrowly on justice as it is dispensed through the courts. More specifically, it focuses on criminal justice, as being one of the main arenas where broader principles of justice are institutionalised. A variety of other justice systems have evolved within society to carry out the balancing and protective functions that are central to civil social interaction and maintaining social order and public safety. For example, there is a large network of government support services that administer justice systematically — legal aid, conciliation and mediation services, crimes compensation and victim support services, and rehabilitation programs. These systems not only respond to specific acts in breach of the law, but administer broader judicial processes in relation to the behaviour of individuals, groups, or society as a whole, or to human rights.
Criminal justice is society's response to crime. While it often has the effect of balancing or redressing the negative effects of crime, in its full range of operations, criminal justice also functions to prevent crime and promote personal and community safety. Thus imprisonment not only meets demand for retribution or reparation, but also effectively removes offenders from the public arena.
In Dostoyevsky’s novel Crime and Punishment, the student Raskolnikov murders the pawnbroker Ivanovna. Raskolnikov is pursued by Nikodim the chief of police, is condemned by Petrovich, the examining magistrate and is sentenced to eight years in a Siberian concentration camp. The plot of the novel provides an overview of the main stages or elements of the criminal justice system. That is, the crime itself; the investigative component; the adjudicative component; and the penal or correctional component. Each of these stages involves different players - the crime usually involves offenders and victims; the investigative component involves the State and Federal police; the adjudicative component, the courts; and the corrective component, the prisons and other correctional systems.
ETHICS, MORALS AND VALUES
The concepts of crime and justice both arise from the deeper notion of ethics, and the innate human sensibility that some behaviour is 'right' and some 'wrong'. However, many acts that breach moral codes of conduct are not articulated as crimes within our legal system. For instance, there may be many ways people can harm one another but remain within legal boundaries. Thus, formalised systems of justice only focus on a subset of moral and ethical concerns. Some non-criminal behaviours (e.g. school yard bullying, unsportsman-like behaviour, professional conduct) are addressed by other regulatory mechanisms of varying degrees of formality.
Furthermore, moral values change over time. Corporal punishment in schools was once accepted, if not encouraged, but is now illegal. Examples of behaviours that have been de-criminalised over time in some States include prostitution, abortion and attempted suicide. Values can also differ from culture to culture and individual to individual. For these reasons, what is considered a crime, or an appropriate correctional measure is not always clear-cut. While many behaviours are universally recognised as harmful (e.g. assault, murder and theft), others are not. For example, some people consider Sydney's Gay Mardigras harmful to social cohesion, while others see it as neutral or beneficial. Individuals will have a different understanding of a particular crime depending on the role they play in relation to that crime. For instance, an individual may be a victim, an offender, a witness to a crime, or be supporting someone else affected by a crime. The public, police, courts staff and prison personnel will all have particular points of view in relation to specific crimes, or to crime and justice generally. All these players will have different expectations and experiences in relation to the criminal justice system.
The quality of a society's legal system lies in its ability to reflect and uphold commonly recognised moral and ethical standards of behaviour, and to reconcile diverse views about behaviour into a cohesive system. It attempts to do this through regulatory acts of parliament, common law precedents and legal codes. These regulations and laws, and their implications and interpretations, can play a reciprocal role in forming and maintaining moral sensibilities. However, any legal system is fundamentally only a mechanism for supporting the values and ideas a society holds in relation to social behaviour.
SCOPE OF ABS CRIME AND JUSTICE STATISTICS
There is potentially an abundance of statistical data available from the administrative systems of the many organisations involved in regulating, monitoring and policing human behaviour. These range from organisations with only a minor role in monitoring legislation, through organisations such as customs, taxation, fair trade and patents offices, to institutions whose core business relates to crime, such as the various police departments. With its focus on describing the operation and performance of the criminal justice system, the ABS has tended to centre its statistical activity on these crime related organisations. Furthermore, data collection has focused on crimes that are at the serious end of a scale extending from homicide to parking infringements. These more serious crimes can be categorised into eight major groups: homicide (including murder, manslaughter, driving causing death), physical assault, sexual assault, unlawful entry with intent, robbery, other theft, motor vehicle theft, blackmail and extortion. The ABS also collects data about crimes (or perceived crimes) that may not have been reported to police (for instance in its Crime and Safety Survey). While these do not enter the formal criminal justice system, and may not necessarily have been recorded as crimes if reported, they may nevertheless have a major impact on individuals and society, and supplement data recorded by police. There are specialised areas closely associated with crime and criminal justice, such as family law and civil law, that could be considered within this chapter. Ultimately, criminal, civil and family law activity all have relevance to wellbeing. However, civil law cases, while they may greatly affect individual lives, at an aggregate level may not affect society to the extent criminal law breaches do.