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Introduction To Criminology

I Introduction to Equality and Discrimination Law in Australia

The Australian legal system is postulated on the assumption that all citizens are equal before the law and will receive equal and fair treatment by the law. This implies that all individuals, irrespective of their sex, race, religion, or their access, or lack of it, to wealth and power, will be treated equally when being dealt by the police, court personnel, or other legal authorities within the legal system. An individual’s human rights and freedoms are upheld through the United Nations Declarations and Conventions. Australia ensures that the need for people to be treated fairly is enshrined within its legislation so that it accentuates the notion of equality before the law. Legislation, such as the Sex Discrimination Act 1984 (Cth), Racial Discrimination Act 1975 (Cth), and Disability Discrimination Act 1992 (Cth), aim to achieve equity in Australia’s legal system. Unfortunately, a volume of groups within the Australian community, including Indigenous Australians, women, people with intellectual disabilities, and people from culturally and/or linguistically diverse backgrounds, face difficulties in accessing various elements of the legal system. Due to the lack of support in such circumstances, Australia’s legal system is somewhat flawed.

II Equality Before the Law

Equality before the law is a highly ‘fundamental value of Australia’s criminal justice system’.[1]Throughout Australia's legal system, the equality laws seek to guarantee that everyone has an equitable chance to access employment and a healthy lifestyle.[2] Judicial officers must be informed of any political bias or discrimination towards people from diverse backgrounds. This ensures people have equality before the Law. Therefore, the judiciary system in Australia must ensure judges in courts do not view another citizen preferentially or create a mistaken inference regarding other people in the community. To consider the diversity of history, meaning and lifestyle, as well as the perspectives of individuals with diversified backgrounds, Australia employs several approaches, to ensure that everybody is willing to achieve the same legal conclusions. Australia's legal framework recognizes that Indigenous Australians have a varied history, ethnicity, age, sex and impairment. There are also disabled citizens in some of the regions of the world, and young citizens have a higher degree of social inequity and inequality.[3] In such circumstances, individuals are more likely to be perpetrators. The goal of Australia’s equity law is both to take care of those communities who are more likely to face disadvantage and injustice and, at the same time, to guarantee fair exposure to the resources available.

III Criminal Justice System

To protect the communities and their properties, the criminal justice system of Australia lays down the laws and rulings for that.[4] It lays down what offences shall be termed to be criminal and punished accordingly by fines, imprisonments and/or community service. Australia comprises of 9 legal systems with one federal system and eight state and territory systems.

The diagram below shows how the Australian criminal system works:

Operation of The Criminal Justice System in Australia

IV Indigenous Australians

Indigenous people are exceptionally over-represented in the criminal justice systems of Australia.[5] Many Indigenous Australians face both cultural and linguistic barriers in dealing with the criminal justice system. As a large proportion of Indigenous Australians reside in regional, rural and remote parts of Australia, there is a lack of access to the justice system.[6] Unfortunately, inequality is present when dealing with Aboriginal and Torres Strait Islander peoples. It is a known statistic that Aboriginal and Torres Strait Islander peoples are accountable for 27% of the Australian prison population.[7] There are many variables that factor into the cause of such alarming statistics. However, one of the main reasons is the increased police presence in areas that are known to have a high population of Indigenous Australians that lack socioeconomic status. Furthermore, there have been certain circumstances in which law enforcement officers have targeted Aboriginal and Torres Strait Islander peoples due to their lack of acceptance and respect within Australian society. There is a great concern with the number of deaths of Indigenous Australians that occur in custody. The fact that the officers responsible for such heinous actions do not get convicted, adds to the oppression of the criminal justice system.

V Bias Against Women

As litigants, claimants, witnesses or testimonies; as attorneys, prosecutors or even more commonly as judges, women engage in the judicial system. In criminal courts, children and women are often treated with an abundance of suspicion. A lot of times the trial judge refuses to penalise the accused based on older evidence. When a spouse of a woman is killed in criminal proceedings through incompetence, she is often required to endure a judge's embarrassment to determine how "marriageable" she is and whether her losses will be diminished. With regards to criminal law, it has become very challenging for the courts to enforce action on the different strategies by which women tend to react to threat or self-defence.[8] Indigenous women frequently receive jail sentences and become prisoners when compared to a large number of victims of sexual assault.[9] This demonstrates that Australian women are treated unfairly in the eyes of justice. Therefore, for ensuring fair and just rights for all the people in the country irrespective of their origins, it is important to have a standard for evaluating inequality issues like in many common law countries.

VI Intellectually Disabled People

People with intellectual disabilities are disproportionately represented, as both victims and offenders, in all jurisdictions of the Australian criminal justice system. Intellectual disability refers to an individual’s level of cognitive functioning as assessed by qualified psychologists.[10] Australian measures indicate that up to 12% of the prison population have an intelligence quotient (IQ) of less than 70, with up to 30% of prisoners having an IQ that is between 70 and 80.[11] These measures demonstrate that intellectually disabled people are drastically overrepresented in the criminal justice system, more than the general population. Unfortunately, Indigenous Australians are more likely to present intellectual disabilities in comparison to non-indigenous Australians. This is due to their broader experience of institutionalised racism, the taking of land, forced removal of children, lack of education, loss of family and community members, and lack of access to proper healthcare.[12] As a result of these experiences, Indigenous Australians showcase higher rates of poor mental health and wellbeing, including intergenerational trauma, grief, and loss. Research illustrates that Indigenous Australians that suffer from intellectual disabilities are more likely to come into the attention of police and therefore be charged and imprisoned.[13]

VII Culturally and Linguistically Diverse People

People born in non-speaking English countries or whose parents who are non-speaking English people are termed as Culturally and Linguistically Diverse (CALD). People from Sudan, Afghanistan and Iraq have migrated in huge numbers in the past who fall under the category of CALD[14], meaning that one in every five Australians belongs to CALD.[15] This cultural isolation with fellow Australians leads to issues like disenfranchisement and isolation. This in extension leads to less contact with the criminal justice of the country. The minority groups therein are not much connected to the justice system because of the conduct of the management. Victoria Police do not record the culture-name of the group but only the country to which the person belongs too.[16] Reports indicate that Australian offenders who are born in Lebanon, New Zealand, Turkey are over-represented in prisons.[17] Victoria is reported to have the highest rate of prisoners born overseas constituting 25%.[18] Victoria's justice system of the youth had very less number of programmes for the CALD people.[19] It is exclaimed that there is no literature in the entire nation that could subsist the effectiveness of the culturally responsive programmes for these people. Such conduct is an implicit factor why CALD people do not rely upon or feel less connected with the criminal justice system of the country.

VIII Conclusion on Equality and Discrimination Law in Australia

Although Australia’s criminal justice system is built on equality before the law, each individual is treated differently, irrespective of their sex, race, or religion. Therefore, it is the reason that the dream of equality before law is just in the books and not into reality. The CALD people are a perfect example for this as they are not recognised and treated well. They are kept separate from the criminal justice system of the country because they have never been accepted to be part of the Australians, which is poignant.

Reference List for Equality and Discrimination Law in Australia

Armytage, P. and Ogloff, J. 2017. Youth justice review and strategy meeting need and reducing offending [Online]. Available at https://www.justice.vic.gov.au/sites/default/files/embridge_cache/emshare/original/public/2020/06/5b/da653c6d5/report_meeting_needs_and_reducing_offending_executive_summary_2017.pdf (Accessed on 10/08/2020).

Arstein-Kerslake, A & Flynn, E 2016,‘The General Comment on Article 12 of the Convention on the Rights of Persons with Disabilities: A roadmap for equality before the law’,The International Journal of Human Rights, vol. 20, no. 4, pp.471-490.

Australian Bureau of Statistics 2020, Corrective Services, Australia, March Quarter 2020,cat.no. 4512.0, ABS, Canberra, viewed 10 August 2020, <https://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4512.0Main+Features1March%20Quarter%202020?OpenDocument>.

Australian Bureau of Statistics. 2010. Perspectives on migrants, June 2010 [Online]. Available at http://www.abs.gov.au/AUSSTATS/abs@. NSF/Lookup/3416.0MainCFeatures4June% 202010?OpenDocument (Accessed on 10/08/2020).

Australian Bureau of Statistics. 2012b Reflecting a nation: Stories from the 2011 census, 2012-2013 [Online]. Available at http:// www.abs.gov.au/ausstats/abs@.nsf/Lookup/ 2071.0mainCfeatures902012-2013(Accessed on: 10/08/2020).

Australian Bureau of Statistics. 2014 Prisoners in Australia, 2014 [Online]. Available at http://www.abs.gov.au/ausstats/abs@.nsf/ Lookup/by%20Subject/4517.0»2014»Main% 20Features»Country%20of%20birth»7 (Accessed on: 10/08/2020).

Australian Bureau of Statistics. 2018b. Prisoners in Australia, 2018[Online]. Avaialbe at https:// www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0~2018~Main%20 Features~Country%20of%20birth~9#targetText=Victoria%20had%20the%20highest%20 proportion, born%20prisoners%20or%20340%20prisoners) (Accessed on: 10/08/2020).

Beston B 2010, ‘Access to justice for Indigenous people: the importance of providing adequate interpreting services’, Precedent, vol. 96, no. 64, pp. 27-29.

Colvin, E 2006, ‘Fairness and Equality in the Criminal Process’, Oxford UniversityCommonwealth Law Journal, vol. 6, no. 1, pp. 1-25.

Dowse, L, Baldry, E & Snoyman, P 2009, ‘Reducing vulnerability to harm in adults with cognitive disabilities in the Australian criminal justice system’, Australia Journal of Human Rights, vol. 15, no. 1, pp. 1-25.

Gaze, B& Smith, B2016, Equality and discrimination law in Australia: an introduction, Cambridge University Press, Cambridge, UK.

Joint Standing Committee on Migration. 2017. Migrant settlement outcomes [Online] available at http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;db=COMMITTEES;id=committ Shepherd and Masuka 13 ees%2Fcommjnt%2Ff5f46b23-8d7e-440c-bcbe-1c48b1f63c76%2F0002;orderBy=priority ,doc_date-rev;query=Dataset%3AcomJoint;rec=13;resCount=Default (Accessed on: 10/08/2020).

Jülich, S & Thorburn, N2017,‘Sexual violence and substantive equality: Can restorative justice deliver?’,Journal of Human Rights and Social Work, vol. 2, no. 1-2, pp.34-44.

Martin, W2018,‘Unequal justice for Indigenous Australians’,The Judicial Review, vol. 14, no. 1, pp. 35-67.

McCausland, R, McEntyre, E & Baldry, E 2017, ‘Indigenous people, mental health, cognitive disability and the criminal justice system’, Indigenous Justice Clearinghouse, vol. 22, viewed 10 August 2020, <https://www.indigenousjustice.gov.au/publications/indigenous-people-mental-health-cognitive-disability-and-the-criminal-justice-system/>.

Vanny, K, Levy, M & Hayes, S 2008, ‘People with an Intellectual Disability in the Australian Criminal Justice System’, Psychiatry, Psychology and Law, vol. 15, no. 2, pp. 261-271.

Victorian Legal Aid 2011,Access to and interaction with the justice system for people with an intellectual disability and their families and carers, Melbourne: Victorian Legal Aid.

[1] Colvin (2006, p. 2) states that‘a measure of equality of treatment throughout the criminal process would be widely accepted as one of the fundamental values of a criminal justice system’.

[2] Gaze, B. & Smith, B. 2016. Equality and discrimination law in Australia: An introduction, Cambridge University Press, Cambridge, UK.

[3] Arstein-Kerslake, A. & Flynn, E. 2016. The General Comment on Article 12 of the Convention on the Rights of Persons with Disabilities: A roadmap for equality before the law. The International Journal of Human Rights, 20(4), pp.471-490.

[4] Sallmann, P. and Willis, J. 1984. Criminal Justice in Australia, Oxford University Press, Melbourne.

[5] Martin, W2018,‘Unequal justice for Indigenous Australians’,The Judicial Review, vol. 14, no. 1, pp. 35-67.

[6] Beston B 2010, ‘Access to justice for Indigenous people: the importance of providing adequate interpreting services’, Precedent, vol. 96, no. 64, pp. 27-29.

[7] Australian Bureau of Statistics 2020, Corrective Services, Australia, March Quarter 2020,cat.no. 4512.0, ABS, Canberra, viewed 10 August 2020, <https://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4512.0Main+Features1March%20Quarter%202020?OpenDocument>.

[8] Jülich, S & Thorburn, N2017,‘Sexual violence and substantive equality: Can restorative justice deliver?’,Journal of Human Rights and Social Work, vol. 2, no. 1-2, pp.34-44.

[9] Ibid 4

[10] Vanny, K, Levy, M & Hayes, S 2008, ‘People with an Intellectual Disability in the Australian Criminal Justice System’, Psychiatry, Psychology and Law, vol. 15, no. 2, pp. 261-271.

[11] Dowse, L, Baldry, E & Snoyman, P 2009, ‘Reducing vulnerability to harm in adults with cognitive disabilities in the Australian criminal justice system’, Australia Journal of Human Rights, vol. 15, no. 1, pp. 1-25.

[12] McCausland, R, McEntyre, E & Baldry, E 2017, ‘Indigenous people, mental health, cognitive disability and the criminal justice system’, Indigenous Justice Clearinghouse, vol. 22, viewed 10 August 2020, <https://www.indigenousjustice.gov.au/publications/indigenous-people-mental-health-cognitive-disability-and-the-criminal-justice-system/>.

[13] Victorian Legal Aid 2011,Access to and interaction with the justice system for people with an intellectual disability and their families and carers, Melbourne: Victorian Legal Aid.

[14] Australian Bureau of Statistics. 2010. Perspectives on migrants, June 2010 [Online]. Available at http://www.abs.gov.au/AUSSTATS/abs@. NSF/Lookup/3416.0MainCFeatures4June% 202010?OpenDocument (Accessed on 10/08/2020).

[15] Australian Bureau of Statistics. 2012b Reflecting a nation: Stories from the 2011 census, 2012-2013 [Online]. Available at http:// www.abs.gov.au/ausstats/abs@.nsf/Lookup/ 2071.0mainCfeatures902012-2013(Accessed on: 10/08/2020).

[16] Joint Standing Committee on Migration. 2017. Migrant settlement outcomes [Online] available at http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;db=COMMITTEES;id=committ Shepherd and Masuka 13 ees%2Fcommjnt%2Ff5f46b23-8d7e-440c-bcbe-1c48b1f63c76%2F0002;orderBy=priority ,doc_date-rev;query=Dataset%3AcomJoint;rec=13;resCount=Default (Accessed on: 10/08/2020).

[17] Australian Bureau of Statistics. 2014 Prisoners in Australia, 2014 [Online]. Available at http://www.abs.gov.au/ausstats/abs@.nsf/ Lookup/by%20Subject/4517.0»2014»Main% 20Features»Country%20of%20birth»7 (Accessed on: 10/08/2020).

[18] Australian Bureau of Statistics. 2018b. Prisoners in Australia, 2018[Online]. Avaialbe at https:// www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0~2018~Main%20 Features~Country%20of%20birth~9#targetText=Victoria%20had%20the%20highest%20 proportion, born%20prisoners%20or%20340%20prisoners) (Accessed on: 10/08/2020).

[19] Armytage, P. and Ogloff, J. 2017. Youth justice review and strategy meeting need and reducing offending [Online]. Available at https://www.justice.vic.gov.au/sites/default/files/embridge_cache/emshare/original/public/2020/06/5b/da653c6d5/report_meeting_needs_and_reducing_offending_executive_summary_2017.pdf (Accessed on 10/08/2020).

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