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Crime and Justice: The Criminal Justice System
All societies develop systems of maintaining order, often through legislation and common law. Australia inherited its criminal justice system from England at the time of colonisation. From that time, Australian judges have interpreted, applied and developed these laws, and Australian parliaments have also added to them through legislation1.
While similar in character, each State and Territory has its own criminal justice system. As a consequence, laws, penalties and corrections for offenders, and arrangements for administering justice differ across State/Territory boundaries. Attempts at improving the criminal justice system in Australia have often focused on obtaining greater consistency between the State systems.
Cases progress through the criminal justice system in three stages: the investigative component (State police, federal police, National Crime Authority); the adjudicative component (courts); and the penal or correctional component (prisons and other correctional systems).
OPERATION OF THE CRIMINAL JUSTICE SYSTEM IN AUSTRALIA
(a) Lower courts include courts such as Local Courts, Petty Courts, Magistrates' Courts, Children's Courts.
(b) Appeals may be against the judgement (guilty or non-guilty) or against the sentence received. Both the defence and the prosecution may initiate appeals.
(c) Higher courts include courts such as District Courts, County Courts, Supreme Courts, Courts of Criminal Appeal.
In Australia there are nine police services, comprising the Australian Federal Police and services in each State and Territory. The National Crime Authority also undertakes criminal investigations, particularly in the area of organised crime.
In 1995, 37,500 people, 14% of whom were women, were employed as non-commissioned police officers in Australia. The number of non-commissioned police for every 10,000 persons in Australia increased from 23 in 1986 to a peak of 27 in 1990 and 1991. However since then it has dropped to 21 per 10,000 persons in 1995.
NON-COMMISSIONED POLICE OFFICERS
(a) Number of officers per 10,000 of the population.
Source: Labour Force Survey (unpublished data).
The principal duties of police are the prevention and detection of crime, the protection of life and property, and the enforcement of law to maintain peace and good order. Police officers may perform a variety of additional duties in the service of their State authority. Although police services are under the control of the respective State governments and the Northern Territory Government, their members perform certain functions for the Commonwealth Government. The Australian Capital Territory police service is currently administered by the Australian Federal Police.
In 1995 New South Wales had the largest police service overall (13,000). However this only represented 21 police for every 10,000 persons in that State. In comparison, there were 43 police for every 10,000 persons in the Northern Territory. Queensland had the smallest police service relative to the population with 19 per 10,000 persons.
The Australian Federal Police (AFP) was formed to investigate offences against federal law, both in Australia and overseas. At 30 June 1995 the AFP had 2,963 permanent staff (2,291 police officers and 672 other staff). 17% of the police officers were women.
STATE/TERRITORY POLICE STRENGTH AT 30 JUNE, 1995
National Crime Authority
The National Crime Authority (NCA) was established by the Commonwealth Government in 1984 in response to the findings of several Royal Commissions into organised criminal activity in Australia. The NCA's purpose is to counteract organised criminal activity and reduce its impact on the community, working in cooperation and partnership with other agencies.
In 1995 the NCA employed 399 staff including 112 police seconded from other police forces. Of the 118 people charged by the NCA in that year, 96 were charged with drug offences.
Australia's court system is a tiered system with the High Court of Australia having final jurisdiction. These are underpinned by State and Territory courts which have higher and lower courts for cases of varying seriousness.
The High Court of Australia is the final court of appeal from all State courts, the Federal Court and the Family Court of Australia. The High Court also hears federal offences.
The Federal Court of Australia was created in 1976 to reduce the load on the High Court. It consists of an Industrial Division and a General Division. The Federal Court has jurisdiction over the decisions of single judges of the High Court, and some decisions of the State and Territory Supreme Courts.
Australian State and Territory courts have original jurisdiction in all matters brought under State or Territory laws, and in some matters arising under federal laws. Most criminal matters, whether arising under Commonwealth, State or Territory law, are dealt with by State and Territory courts.
Each State and Territory court system operates independently. All States have Supreme Courts and some also have a Court of Criminal Appeal which is the highest court of appeal in a State. Supreme Courts hear cases of the most serious nature or appeals from lower courts. District or County Courts hear serious cases. In these higher courts a judge presides over the court to determine law, while a jury determines the guilt or innocence of a defendant. Local or Magistrates' Courts or Courts of Petty Session hear the majority of cases that come before courts. They have no jury and the magistrates decide the guilt or innocence of the accused. They also refer more serious cases to the higher courts. Children's Courts or Juvenile Courts hear cases where the defendant is under 18 years of age (or under 17 years in some jurisdictions).
In 1993-94 there were 782,000 criminal cases heard in the State and Territory courts. 96% of these were heard in a Magistrates' Court. Relative to population size, the Northern Territory had the highest number of court cases (80 per 1,000 persons) of all the States and Territories. However both South Australia and Western Australia also had high rates: 78 and 66 cases respectively. The Australian Capital Territory and Victoria had the lowest rates with 24 and 26 cases per 1,000 persons respectively.
RATE OF CRIMINAL COURT CASES PER 1,000 POPULATION
(b) Also known as Local Courts or Courts of Petty Session.
(c) Total court cases may double count some matters that appear before two courts.
Source: Industry Commission, Report on Government Service Provision, 1995.
Access to legal representation is important for a fair justice system. Australia has a system of legal aid services which helps pay the legal costs involved in court appearances for those assessed as being least able to afford such costs. Legal aid policy and development is largely undertaken by the Office of Legal Aid and Family Services while the aid itself is delivered by independent Legal Aid Commissions, Aboriginal Legal Services and other community-based legal agencies. In the 1996 federal budget statement, the States and Territories were called on to pay for the costs of legal aid for all cases being tried under State and Territory law.
In 1993-94 there were 130,500 grants for legal aid, 68% of which were for criminal cases.
A jury may be called to try criminal cases depending on the type and seriousness of the crime in question. If a crime is indictable then the defendant has the right to a trial by jury in a higher court.
A jury consists of 12 people with no legal training and no previous connection to the case. In most States and Territories, a jury decision on guilt or innocence must be unanimous. However in some, a majority decision involving at least 10 members is sufficient where a unanimous decision could not be achieved within a specified period of time (at least two hours).
Judges and magistrates control and arbitrate the functions of the courts. They make the crucial decisions concerning the evidence that can be admitted and in what form, thus deciding what information the jury will get, and often how they must use it2.
The High Court of Australia has a Chief Justice and six other Justices. Only one woman has ever served as a Justice of the High Court. She was appointed in 1987 and is still serving. There are currently 40 judges of the Federal Court, of whom five are women.
Prior to 1977, judges in the High Court and the Federal Court were appointed for life. However, judges appointed since 1977 must retire at the age of 70. There are still two judges of the Federal Court with life appointments (i.e. were appointed prior to 1977 and have not yet voluntarily retired).
There are three main categories of correctional actions available to the courts when convicting offenders. The first category includes those that do not involve supervision or detention of the offender, such as fines and bonds. Options in the second category involve supervision in the community, usually for a specified period, or until some educational or community reparative target is achieved. These include probation or community service orders. The third category includes options involving detention, either in prisons or other institutions, or at home. In recent years it has become common for courts to impose sentences combining options from several different categories.
All States and the Northern Territory operate prisons and other correctional services (see Australian Social Trends 1997, Prisoners in Australia).
Separate provisions exist in each State and Territory for dealing with juvenile offenders. The Commonwealth Government does not operate any prisons or other correctional services, and persons convicted of offences under federal laws are held in State correctional agencies. There were 88 prisons operating in Australia in 1994. Of those, 84 had facilities for men and 25 had facilities for women.
In 1994, 42% of prisoners held in Australia had a minimum security classification, a further 26% had medium security, 16% held a maximum classification and 16% were unclassified.
Prison occupancy levels in each State are calculated by dividing the actual number of prisoners by the number of people the prisons were designed to hold. This measure can be used to gauge the extent of overcrowding in Australian prisons. Overcrowding occurs when the level of occupancy exceeds 100. Of the States for which data is available, Queensland and the Northern Territory had overcrowded prison systems and New South Wales and Western Australia were both close to capacity, in 1995.
Queensland had the highest ratio of deaths in custody to prisoners, although New South Wales had the highest total number of deaths in custody. Inquiries into Aboriginal deaths in custody continue to find that Indigenous people in prison die at a higher rate than non-Indigenous people4.
There were 8,700 prison officers in Australia in 1995, a drop from 10,000 in 1990. In 1995 the ratio of prisoners per officer ranged from 1.4 in Tasmania to 2.4 in New South Wales. The number of prisoners per officer does not reflect the actual number of prisoners for whom each officer is responsible. Factors such as prisoners being guarded 24 hours a day (requiring officers to work in shifts) and officers doing non-custodial work such as administration would account for the low ratios.
CUSTODIAL CORRECTIONS(a), 1994-95
(b) ACT has a remand centre only. The information provided refers only to remandees.
(c) At 30 June 1995.
(d) Number of prisoners per 100 people which the prisons were designed to hold.
(e) According to the Prison Census June 1994.
Source: Northern Territory Government, Department of Corrective Services 1994-95 Annual report; ABS, Prisoners in Australia, 1994.
1 Redfern Legal Centre 1995, The Law Handbook (NSW), 5th edition, Redfern Legal Centre Publishing, Redfern.
2 Sallmann, P. and Willis, J. 1984, Criminal Justice in Australia, Oxford University Press, Melbourne.
3 Attorney-General's Department (AGD) 1995, The Justice Statement, AGD, Canberra.
4 Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner 1996, Indigenous Deaths in Custody 1989-1996, Aboriginal and Torres Strait Islander Commission, Canberra.