The Australian Constitution and Commonwealth

The Australian Constitution and the Criminal Justice System

The Australian Constitution lays out laws and rules intended to guide and control the activities of different groups in the nation. The Australian Constitution, which was drafted by the Commonwealth and ratified by the British in a series of referendums conducted between 1898 and 1900, became the supreme law under which the Australian government is governed. (Commonwealth of Australia n.d.). It has a number of mechanisms in place to ensure that all citizens receive justice. The criminal justice system is one such structure. Australia’s federal system of government allows the territories and states to assume primary responsibilities and power on most social issues influencing the lives of the citizens. Thus, the administration of the criminal justice rests in the hands of the six states and two territories. This essay will take a critical look at the Australian criminal justice system from the perspective of the indigenous youth who are disadvantaged regarding access to justice. It will argue that the indigenous people have suffered injustice because of the systemic bias in the criminal justice system in Australia.

The Importance of the Criminal Justice System in Ensuring Justice for Indigenous Youth

Access to justice is a constitution right enshrined in the constitution under section 80 of which created a right to just and fair trial by a jury for indictable felonies. The section highlighted that all individuals accused of committing crime face a fair trial by jury. Also, sections 52(31) and 117 ensure that people got granted the right to just and equitable compensation as well as prohibited discrimination of any kind resulting out of any basis (Australian Politics 2016). Nevertheless, despite the existence of the above-stated sections and provisions on the protection of individual rights and freedoms in the constitution, some groups in the country still experience challenges accessing justice in criminal cases. According to the Australian Bureau of Statistics (2016), the population of indigenous people in the country is estimated to be 2.5 percent of the total populace. The youth population in Australia aged between 10-25 years constituted over sixty percent of the country’s populace in the year 2015. The indigenous juveniles who fall between the ages of ten and seventeen years and the young adults who range between 18 and 24 years old constitute the highest proportion of offenders in the Australian criminal justice system. Also, fifty-five percent of aboriginal men are incarcerated while forty-seven percent of women are imprisoned according to a prison census conducted in the period 2000-2010 (Australian Bureau of Statistics 2016). This is indeed an alarming rate that all stakeholders need to give consideration and priority and focus on finding out why the rates of Aboriginal youth imprisonment have been increasing. Research carried out on the criminal justice system in Australia indicate that it has held a systemic bias against the indigenous youth, and this explains the high number of youth under incarceration in the prisons (Kelly, & Tubex 2015, p.2). Thus the criminal justice system has been discovered to be quite insensitive to the plight of the indigenous youth in the country and has hindered access to justice in several occasions (Prenzler, & Sarre 2015, pp.45-56).

The Components of the Criminal Justice System

According to Daly and Sarre (2016), the criminal justice system is far from being a system in the actual meaning of the term, but a convenient arrangement of some state-operated institutions responsible for dealing with offending and offenders. The systems are tasked with the role of delivering justice to all the people using the three arms: the adjudicative, the investigative and the correctional arm (p.2). There is some degree of interconnectedness between the three arms, and they work together to ensure the delivery of justice to all people. The role of responding to increased crimes in the country rests in the hands of the investigative arm which include the police and investigative authorities and prosecution authorities like the Australian Criminal Intelligence Commission (ACIC). It is, therefore, the duty of these agencies to investigate, collect evidence and prosecute criminals suspected of getting themselves engaged involved in offensive acts (Larsen 2014, pp.23-30). Once the investigations get completed, the adjudicative arm comes in where criminal courts sit to listen to evidence presented before the court and make a judgment based on the evidence. This is the criminal justice system comes in. The correctional arm, on the other hand, includes community correction centers, prison, parole and probation services (Daly & Sarre 2016, pp. 3-5). In this process, the criminal justice system is quite critical in ensuring access to justice for the indigenous youth. However, the situation has been different in Australia since the system has failed the Aboriginal youth by passing judgments based on insufficient evident because of systemic biases. Statistics from the reports by the Australian Parliament indicate that the increase in the number of Indigenous juveniles and young adults in the criminal justice system has become a major concern for the Council of Australian Governments (COAG’s). As a result, it has over time laid down strategies to close down the gap in this indigenous disadvantage (Australian Parliament 2016). Nevertheless, these efforts have over time gotten derailed by the incompetence and discriminative nature of the criminal justice system which hastens pronouncement of judgments in cases involving the indigenous youth.

Unique Experiences of Indigenous Youth with the Criminal Justice System

The criminal justice system in Australia was meant to serve the role of correcting, punishing and inculcating morals in the offenders (Larsen 2014, pp.18-21). However, the experience that indigenous youth have with the system are unique and unfavourable to them. For instance, some critics implicate the criminal justice system for its systemic or discriminatory bias while others blame the aboriginal people for committing serious offenses including those involving violence and high rates of recidivism (Kelly & Tubex 2015, p.2). There are several cases in the Australian justice system where the aboriginal youth have faced unique experiences. For instance, the theories explaining the reasons behind the increased incarceration of aboriginals point to the colonial tendencies of the Western democracies to govern through crime rather than corrective mechanisms. In Australia, the authorities subscribe to punitive tendencies which consider the aboriginals as potential criminals. This implies that whenever they find themselves on the wrong side of the law, the indigenous people do not stand any chance for a fair trial by the jury as the constitution recommends. According to Baldry & Cunneen (2011), neo-colonialism can be said to be the primary explanation for the rapid increase in the imprisonment of Aboriginal youth in most states. Therefore, to comprehend the growth of incarceration of aboriginals one must take into account the historical role of the criminal justice system which classified aboriginals as potential offenders (Badry & Cunneen 2011). According to research carried out on the Australian employment practices indicated that the employers in the country shied away from employing indigenous youth. This is because of the false belief that they either did not attend school, lack proper parenting and the skills for the jobs or were potential criminals that should not be trusted (Anthony 2013, p.40).

Also, the indigenous youth faced various barriers in their efforts to access justice in Australia. For example, the overcrowding of prisons by the aboriginal youth was as a result of a judiciary that did not support equal justice. White (2014) describes the situation in prisons as hyper-incarceration of the indigenous youth and blames this on the injustice of the system that only saw these people as criminals. This is he refers to as the effects of colonialism in the criminal justice system (White 2014, pp. 23-24) Secondly; the indigenous youth faced a challenge of fighting off the ’criminal’ tag that colonialism had labelled in their heads. Most of those locked up in cells were innocent but could not defend themselves because of the flawed and biased criminal justice system (Cunneen et al. 2013).

Ensuring Access to Justice for Indigenous Youth

However, there exist various ways in which the access to the justice system can get achieved by the indigenous youth. According to Australian Parliament (2016), there is an urgent need of closing the indigenous disadvantage gap, and this necessitates that administrations address decades of ineffective investment in facilities and infrastructure in ways that are precisely intended to directly assist the indigenous Australians (Australian Parliament 2016, n.p). Secondly, there is need to do away with the systemic biases that are prevalent in Australian courts that indigenous youth are criminals in nature. Doing this will ensure that they get access to a fair and just hearing under section 80 of the constitution dictates. Thirdly, Weatherburn (2014) argues that the reluctance and unwillingness of some states to implement all the Royal Commission’s recommendations to reduce the rates of indigenous incarceration is a way of denying aboriginal youth access to justice. Some of these recommendations required an overhaul of the police practice, criminal law as well as the sentencing policy. The criminal justice systems were mandated to be fair in their collection and presentation of evidence before sentencing. This was to take place in all cases involving indigenous of non-indigenous populations (Weatherburn 2014, pp. 70-76). If the recommendations get implemented, then access to justice systems by the indigenous people will be guaranteed.

Conclusion

The Australian criminal justice system has always derailed the access of justice for the indigenous youth. This is because it has failed in its role as a justice system that ought to deliver just and fair rulings in criminal cases involving aboriginal youth. From the perspective of an indigenous youth, one can quickly notice that the Australian court, which is the adjudicative arm of the criminal justice system regards Aboriginal people as criminals and treats them with a lot of unfairness. The overrepresentation of the indigenous youth in Australian prisons is as a result of a flawed and biased court system that sends them to prison even without sufficient evidence that they committed the crimes they are accused of committing. Despite this, the indigenous people can still gain access to justice in the Australian courts if the administration implements the Royal Commission’s recommendations on how to restorative justice could help the aboriginal people.

References

Anthony, T. 2013. Indigenous People, Crime and Punishment, New York: Routledge.

Australian Bureau of Statistics. August 18, 2016. Population by Age and Sex, Regions of Australia, 2015 [Online] Retrieved from http://www.abs.gov.au/ausstats/[email protected]/0/151AA7593B394934CA2573210018DA4A?Opendocument Accessed on May 31, 2017

Australian Parliament 2016. Chapter 2 Indigenous Youth and the Criminal Justice System: An Overview. [Online] Retrieved from http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=/atsia/sentencing/report/chapter2.htm Accessed on May 31, 2017

Australian Politics 2016. Constitution Text: Chapter by Chapter. [Online] Retrieved from http://australianpolitics.com/constitution/text Accessed on May 31, 2017

Baldry, E., & Cunneen, C. 2011. ’Contemporary Penality in the Shadow of Colonial Patriarchy’ (Paper presented at the 5th Annual Australian and New Zealand Critical Criminology Conference, Rydges Hotel, Cairns, 6-7 July 2011).

Commonwealth of Australia n.d. The Australian Constitution. [Online] Retrieved from http://www.peo.gov.au/learning/closer-look/the-australian-constitution.html Accessed on May 31, 2017

Cunneen C, Baldry E, Brown D, Brown M, Schwartz M, Steel A 2013. Penal Culture and Hyperincarceration: The Revival of the Prison. Farnham: Ashgate.

Kelly, M & Tubex, Hi 2015. Stemming the Tide of Aboriginal Incarceration. The University of Notre Dame Australia Law Review, Vol. 17, no.2, pp.1-17

Larsen, J. J. 2014. Restorative Justice in the Australian Criminal Justice System. Australia: Australian Institute of Criminology.

Prenzler, T. & Sarre, R. 2015. The Criminal Justice System, in Hayes, H. & Prenzler, T. (eds), An Introduction to Crime and Criminology, 4th ed, Pearson Prentice Hall, Frenchs Forest.

Weatherburn, D. J. 2014. Arresting Incarceration: Pathways Out of Indigenous Imprisonment. Canberra, ACT: Aboriginal Studies Press.

White, R. 2014. Indigenous Young People and Hyperincarceration in Australia. Youth Justice, Vol.15, no. 3, 1-35.