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Assessment 3: Collaborative Peer Assessment.
See the Course Profile for Due Date.
Description:
Collaborating in assessment design is one way to facilitate student engagement in their own
learning. For this task, students will collaborate in assessment design and prepare for the
final exam by developing and peer-reviewing multiple-choice exam questions (questions will
be developed individually but will be assessed in small groups by a peer). Students will
submit one multiple-choice question, drawing on content covered in Weeks 1-8. Students
will also obtain a peer-review of their question from a fellow student. Students are
responsible for obtaining their own peer-review (i.e. their own peer-feedback) however this
process will be guided by the Teaching Team in Tutorials and online. Further instructions will
be provided on the Learning@Griffith site in Week 1. The peer-review must be submitted
along with the multiple-choice question before the due date/time.
Detailed Instructions:
For this task, students will develop and peer-review multiple choice exam questions.
Questions developed by students will be utilised to inform the end of Trimester exam. The
aims of this exercise are to 1) allow students to participate in the development of their
assessment; 2) to facilitate exam preparation; 3) to collaborate with and provide feedback
to peers. Students will hand in one multiple choice question, drawing on content covered in
Weeks 1-8.
Students will design their questions in a multiple-choice format. Students will also provide
the correct answer or “key” to their question as well as 3 distractors (incorrect answers).
Further instructions on how to design multiple-choice questions will be provided in tutorials.
Students will obtain a peer-review for each of their questions from a fellow-student prior to
submitting the assessment task. Students will be awarded marks in two ways: 1) the student
will receive marks for completing the task (marked out of/10); and 2) the student will
receive marks from their peer-reviewer (marked out of/10). Peer-reviewers will utilise the
Peer-Review Template and Scoring Matrix provided on the Learning@Griffith site to assess
the quality of the questions/answers.
Students will need to develop their questions and answers AND obtain their peer-review
before the due date of the assessment. The 1012CCJ Teaching Team will aid students to do
this. Students will be required to upload their question, answers and peer-review via a link
provide on the Learning@Griffith Website.
1
Welcome to 1012CCJ:
Police, Courts and Corrections
Lecturer/Convenor: Dr Elise Sargeant
Email: [email protected]
Pronouns: she/her
Preferred name: Elise or Dr Sargeant
WEEK 8:
Pre-trial processes
Week 8 Overview
Lecture Overview
• Pre-trial discretion or “sieving the system”
• Police decision-making:
• Diversion and caution
• Arrest or summons
• Charging and prosecution
• Bail
• Committal
• Pre-trial discovery and disclosure
Investigation
Arrest
Pre-charge detention
Charge
Bail
Trial
Sentencing
Punishment
Discretion and sieving the
system
Recall: discretion is “the
ability to choose
between multiple
courses of action that are
lawfully available”
(Hardy, 2020, p. 302).
Discretion
• Despite efforts to formalise, regulate and make accountable instances of discretion it
remains a part of both formal and informal structures of:
• Policing
• Sentencing
• Punishment
• Factors that can affect the outcome of a discretionary decision:
• Elements of the offence
• Demeanour of the offender
• Visibility of discretion’s exercise and regulation
• Public expectations
• Accountability
• Other factors
• Discretion is limited by legislation, requirements, guidelines
Where does discretion occur?
Stage
Examples
Police pre-trial decision-making
Apprehension, caution, arrest, diversion, charge, bail, evidence
gathering
Prosecution pre-trial decision-making
Nolli prosequi (decision not to prosecute), alternative charges, plea
bargaining (negotiation), witness selection
Defence pre-trial decision-making
Plea bargaining (negotiation), plea, witness selection
Magisterial pre-trial decision-making
Issue of warrants, committal for trial, ‘case to answer’ determinations
Judicial discretion at trial
Acceptance of plea, admission of evidence, jury instruction and
direction, sentencing
Sentencing discretion
Selection of penalties
Decisions on appeal
Granting leave, new evidence, conviction and sentence
Discretion during punishment
Classification, variation, conditions, parole, executive release
(Adapted from Findlay et al., 2014, p. 106)
Sieving the system
• Sieving of suspects/accused to ensure prosecution of only the most convincing
cases
• Factors that effect sieving/diversion:
• Type of crime
• Protecting vulnerable groups
• Public fear
• Political pressure
• The expense and delay of court
• Lack of seriousness
• Likelihood of a fine outcome
• Police are the ‘gatekeepers’ of the system
• Majority of minor crimes never proceeded by police
• On the other hand they control the crimes that are proceeded
Source: https://www.abc.net.au/news/2020-01-28/how-police-are-failing-survivors-of-sexual-assault/11871364
Source: https://www.abc.net.au/news/2020-01-28/how-police-are-failing-survivors-of-sexual-assault/11871364
Watch the video entitled: “Rough Justice:
Lauren’s story”.
Warning: This video contains a description of
rape by a victim-survivor.
Why did Lauren give up on pursuing a criminal
case against her rapist?
Diversion and caution
Formal diversion and caution
• Diversion “is the process where criminal justice officials make decisions to
remove suspects and offenders out of the criminal justice process or to
redirect them to other social control agencies” (Findlay et al., 2014, p. 109)
• Diversion helps to avoid further straining an “overtaxed” criminal justice
system
• Take no formal action
• Caution
• Restorative justice conferencing (Week 12)
• Drug diversion
• Intoxication – take to a safe place
• Infringement notices
(Queensland Police Service,2022)
Example:
Cautioning youth
offenders
• Source:
https://www.legalaid.qld.gov.
au
Example: Police
drug diversion
• Source:
https://www.police.qld.gov.au/drugs-andalcohol
Arrest, charge and the
decision to prosecute
Arrest or issue a summons
Suspect identified + ‘reasonable suspicion’ = initiate trial proceedings
Investigation
Arrest
ARREST
SUMMONS
Pre-charge detention
Charge
Bail
• “Arrest to place a person under police custody for the purposes of
pursuing criminal charges”
• “Summons a formal order issued by police that requires a person to
attend court at a later date”
• “Notice to appear order issued by police that requires a person to
attend court at a later date” (Hardy, 2020, p. 192)
Trial
Sentencing
Punishment
Charges
• If sufficient evidence to charge, decide which offences:
• Most serious based on evidence
• Taking care – they don’t want the case to fail
• Prosecution must meet public interest criteria:
• Seriousness
• Mitigating or aggravating circumstances
• Age, physical or mental health
• Background, understanding of English
• Staleness of offence
• Degree of culpability
• Alternatives to prosecution etc.
• Charge negotiations
• Efficient convictions benefits victim/community
Image credit: Queensland Police Service
Watch the video entitled: “How do police
determine if they have enough evidence to
prosecute?”
According to A/Superintendent Armitt, what is
the decision to prosecute based on?
Bail and remand
What is bail?
• “Bail the conditional release of a person after they are charged
and before the criminal trial” (Hardy, 2020, p. 196)
• In Queensland bail is granted under the Bail Act 1980 (Qld)
• Conditions under which bail is granted
• Who can grant bail
• Minor offences – police
• Serious offences – Magistrates Court
• “Remand when somebody is held in prison after they are
charged and before the criminal trial” (Hardy, 2020, p. 196)
Watch the video entitled: “A presumption to
bail?”
According to former Federal Prosecutor Thalia
Edmonds, is there a presumption to bail?
Watch the video entitled: “What is bail?”
According to Professor Christine Bond: What is
bail? When does bail “happen”? What does it
mean to be held on remand?
Watch the video entitled: “Increasing numbers
on remand”
According to Professor Christine Bond: Why are
there rises in populations on remand? Why is
there an overrepresentation of First Nations
peoples on remand?
Committal to trial
Committal and pre-trial disclosure
• Committal hearings only take place for indictable offences.
• Magistrate decides if sufficient evidence to commit to a higher court.
• Could jury convict on the evidence (prima facie case)?
• Gives defendant a chance to hear the prosecution case.
• see all the evidence
• assess the credibility of the witnesses;
• determine any weaknesses
• does not need to plead own case at committal
• “Pre-trial disclosure the requirement that the prosecution disclose all
relevant evidence to the defence before trial” (Hardy, 2020, p. 199)
Watch the video entitled: “What happens in the
pre-trial process?”
According to former Federal Prosecutor Thalia
Edmonds what is the pre-trial process from the
prosecutor’s perspective?
The End
References
• Bail Act 1980 (Qld)
• Findlay, M., Odgers, S., & Yeo, S. (2014). Australian Criminal Justice (5th Edition). Oxford University
Press Australia & New Zealand.
• Hardy, K. (2020). Law in Australian Society. Taylor & Francis.
• Legal Aid Queensland (2022). Young people and the justice system. Retrieved August 8th, 2022:
https://www.legalaid.qld.gov.au/Find-legal-information/Criminal-justice/Young-people-and-thejustice-system
• Queensland Police Service (2022). Operational Procedures Manual. Retrieved August 11, 2022 from:
https://www.police.qld.gov.au/qps-corporate-documents/operational-policies/operationalprocedures-manual
• Queensland Police Service. (2021). Police drug diversion program. Retrieved August 11, 2022 from:
https://www.police.qld.gov.au/drugs-and-alcohol/police-drug-diversion-program
• Ting, I., Scott, N., & Palmer, A. (2020, February 3). Rough Justice: How police are failing survivors of
sexual assault. ABC News. https://www.abc.net.au/news/2020-01-28/how-police-are-failing-survivorsof-sexual-assault/11871364
Welcome to 1012CCJ:
Police, Courts and Corrections
Lecturer/Convenor: Dr Elise Sargeant
Email: [email protected]
Pronouns: she/her
Preferred name: Elise or Dr Sargeant
WEEK 7:
Courts
Week 7 Overview
Lecture Overview
• Functions of courts in Australia
• We will focus on the role of courts relating to criminal not
civil matters in this lecture.
• Due process
• Queensland court hierarchy
• Therapeutic jurisprudence
• Problem-solving and specialist courts
Weekly Reading
White, R., Peronne, S., & Howes, L.
(2019). Crime, Criminality and Criminal
Justice (3rd Edition). Oxford University
Press Australia & New Zealand.
READ Chapter 18
Court functions and due
process
Factual
“finding of facts as established by the evidence in relation
to allegations of criminal conduct” (O’Connell & Fletcher,
2020, p. 283)
Functions
of courts
Legal
“application of the criminal law to the evidence to
determine what is relevant and admissible in order to
arrive at a verdict and deliver a sentence where there is a
finding of guilt” (O’Connell & Fletcher, 2020, p. 283)
Operative
“all of the working of a judicial system except the
intellectual functions of the finding of facts by the judge
(or jury) and the ascertainment and application of
principles of law” (McGarvie, 2001, p. 26)
Due Process
• Underpins the court system in Australia
• “a system of due process of law has developed as a formal means to
guarantee the impartiality and neutrality of the tribunal” (White et al.,
2020, p. 413)
• Based on the principle of natural justice “no person be judged
unheard: there must be a hearing and it must be fair” (White et al.,
2020, p. 414)
• Elements of due process in Australia:
• Notice must be given, publicity, standards of proof, evidence and rules guiding
evidence, impartiality, trial by jury, avenues for appeal, legal representation,
habeas corpus.
Due Process
Element of due process
Description
Notice must be given
The accused must have sufficient knowledge in advance of the case
to be answered, be informed why they are going to court and
provided with enough time to prepare.
Publicity
Judicial proceedings are usually conducted in an open-court to
ensure accountability.
Standards of proof
In criminal cases, the prosecution must prove its case beyond a
reasonable doubt and the burden of proof is entirely on the
prosecution.
Evidence and rules guiding
evidence
There are rules about what is allowable or not as legal evidence.
Impartiality
Judges need to be impartial, that is, they can’t have a stake in the
outcome. This also applies to jury members.
Trial by jury
Right to a jury trial. “the role of the jury is to decide the facts of the
case in light of the way in which the judge has presented the law”
Avenues for appeal
“The existence of an appeal mechanism is designed to give the
accused a further chance to either clear themselves of the charges ,
or to argue for a more lenient sentence due to mitigating
circumstances”
Legal representation
“people are entitled to legal representation, they do not necessarily
have a right to legal representation”
Habeas corpus
The accused must be brought before the court. Designed to
investigate a person’s detention.
(White et al., 2020, pp. 413-16)
Watch the video entitled: “Habeas Corpus”.
This video explains Habeas Corpus in more
detail. Why is Habeas Corpus important?
QLD court hierarchy
Hierarchy of
the courts
Supreme Court
District Court
Magistrate’s Court
Hierarchy of
the courts
Supreme Court
“In Queensland, there are 2 types of criminal offences:
1. Simple offences (or summary offences). These
include disorderly behaviour, traffic offences and
minor criminal offences.
2. Crimes and misdemeanours (or indictable
offences). These include murder, rape, robbery,
assault, and break and enter.”
(Queensland Government, 2018)
District Court
Magistrate’s Court
Generally in Australia indictable offences are:
• More serious
• Punishable by more than three years in prison
• Tried by jury in the higher courts
Magistrates Court
District Court
Supreme Court
Presided over by:
Magistrate
or
Justice of the Peace
Judge
Judge
Tried?
Summarily
Jury (judge-alone in
certain circumstances)
Jury (judge-alone in certain
circumstances)
Deals with:
• Summary offences
(less serious, simple
offences)
• Commits more
serious offences
(indictable offences)
to higher courts.
• More serious crimes
• Most serious criminal
such as including armed
cases, including murder,
robbery, rape and
manslaughter and serious
dangerous driving
drug offences (Trial
• Hears appeals from the
Division)
Magistrate’s Court
• The Court hears appeals
from the District and
Supreme Court (Appellate
Division)
Other courts
Coroner’s Court
• Under Coroner’s Act 2003, investigates deaths in
Queensland: identity, how they died, place, date, medical
cause of death
• Inquests for certain deaths e.g. deaths in custody
• Focus on what happened, not attributing blame
High Court
• Created by Australia’s constitution
• Hears appeals from the Appeals Courts
Children’s Court of Queensland
• Specialised courts with exclusive jurisdiction
• Separate Magistrates and District Children’s Courts
• Matters heard in line with the Children’s Court Act 1992 and
the Youth Justice Act 1992
Federal and Family Courts
• Federal Court
• deals with criminal matters relating to Commonwealth Acts
• Family Court
• Specialised court
• “doesn’t operate as a criminal court but hears matters
involving allegations of physical and sexual child abuse, and
domestic and family violence”
Therapeutic jurisprudence
Specialist courts with a problem-oriented
approach
• Specialist courts:
• Limited or exclusive jurisdiction by an expert judicial officer
• Problem-oriented courts:
• Seek “to use the authority of the courts to address the underlying
problems of individual litigants, the structural problems of the
justice system, and the social problems of communities” (Berman
& Feinblatt, 2003, pp. 73-8)
• Examples:
• Drug courts and family violence courts are examples of specialist courts
with a problem-oriented approach
• Generally informed by therapeutic jurisprudence
Therapeutic jurisprudence
• “A philosophy that recognises the impact that laws, legal
practices and procedures, and legal personnel (e.g.
magistrates, judges and lawyers) can have on the
psychological and emotional wellbeing of court
participants” (White et al., 2020, p. 425)
• Dealing with underlying problems
• Harm minimisation
• Tend to be diversionary
• Not from the system – but to alternative processes within the system
Drug and Alcohol Court
Goal: to reduce future offending through
treatment by sentencing to a Treatment Order.
Success: “The offender successfully completes
the Treatment Order, breaking the cycle of drugrelated offending. They are engaged in treatment,
education and employment; they rebuild family
and community connections and maintain stable
accommodation.”
(Queensland Courts, 2022)
Domestic violence court
Watch the video entitled: “Domestic violence
courts”.
According to Professor Christine Bond, why have
we seen a rise in problem-solving courts?
How do domestic violence courts work?
Watch the video entitled: “Southport Domestic
Violence Specialist Court”.
What are the benefits of the domestic violence
specialist court? Why is having a specialist court
important in this context?
First Nations Sentencing
Courts
Watch the video entitled: “What are First
Nations Sentencing Courts?”.
In this video Professor Elena Marchetti
introduced First Nations Sentencing Courts.
Why are the First Nations Sentencing Courts in
Queensland called the Murri Courts? Who
started First Nations Sentencing Courts in
Australia? How does the defendant have to
plead in order to participate?
Watch the video entitled: “Doing Justice
Differently: The Murri Court”.
What is the process of the Murri Court?
What does the Murri Court aim to achieve?
Court Link
Watch the video entitled: “Doing Justice
Differently: Court Link”.
What are the similarities and differences
between the Murri Court and Court Link?
The End
References
• Berman, G. & Feinblatt, J. (2003). Problem-solving courts: A brief primer. In B. J. Winick & D. B.
Wexler, (Eds.). Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts (pp. 73-8).
Carolina Academic Press.
• McGarvie, R. E. (2001). Challenges and directions in Australian court administration. In M.
O’Connell (Ed). Challenges and Directions in Justice Administration (pp. 27-42). Institute of Justice
Studies.
• O’Connell, M., & Fletcher, S. (2020). Chapter 16: The criminal courts. In H. Hayes & T. Prenzler,
(Eds.). An introduction to crime and criminology (5thEdition, pp. 282-303). Pearson Education.
• Queensland Courts. (2022). Courts. Retrieved August 8, 2022 from
https://www.courts.qld.gov.au/courts
• White, R., Santina, P., & Loene, H. (2019). Crime, Criminality and Criminal Justice (3rd Edition).
Oxford University Press Australia & New Zealand.
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Welcome to 1012CCJ:
Police, Courts and Corrections
Lecturer/Convenor: Dr Elise Sargeant
Email: [email protected]
Pronouns: she/her
Preferred name: Elise or Dr Sargeant
WEEK 3:
Inequality
Week 3 Overview
Lecture Overview
• The power of the state
• Are we all equal under the law?
• Overrepresentation
• Inequality and the criminal justice system
• Inequality and criminal justice responses
• Race, colonialism and the criminal justice system
• The Royal Commission into Aboriginal Deaths in Custody
“Social inequality fundamentally determines who does what when it comes to
crime, and who ends up where when it comes to social reactions to crime” (White
et al. 2020, p. 107)
Weekly Reading
White, R., Santina, P., & Loene, H. (2019).
Crime and Social Inequality. In Crime,
Criminality and Criminal Justice (3rd Edition).
Oxford University Press Australia & New
Zealand.
Read Chapter 5 & pp. 350-362
(Differential Policing) & pp. 450-456
(Access to Justice)
Power of the state
State power
• Purpose of the criminal justice system = control crime
• To achieve this: the state has enormous power
• Coercion through the use of or threat of violence
• Violence by “the state” is viewed as legitimate – however this should
be checked and questioned
• Power of the state is an advantage over the accused
Conservative:
• Consensus of values in society
• Individuals have a social contract with the state
• The state is neutral
• Protects human rights and is free from coercion
• Upholds morals and values
Views on
state power
Liberal or pluralist:
• The state is not neutral, reflects diverse and competing powers
• Main function is to resolve conflicts arising from competing views and
interests
• Deal with social problems as they arise
• Ensure the smooth regulation of competition and conflict
Radical:
• State as an agency of social power, serves interests of powerful
• The state is not neutral
• Functions to preserve, maintain and extend the powers of the
dominant groups
• The state operates to enhance the privileged position of certain classes
and groups
Are we all equal under the
law?
Discrimination and protected attributes
“Discrimination is when you are treated worse than somebody else because of
something about you, like your race, age, or sex. The law says people can’t
discriminate against you because of your:
Sex, relationship status, pregnancy, parental status, breastfeeding, age, race,
impairment (includes disability), religious belief or activity, political belief or
activity, trade union activity, lawful sexual activity, gender identity, sexuality, family
responsibilities, association with, or relationship to, someone who has any of these
characteristics.
The law says you must not be discriminated against when you are: …Dealing with
government services like police, Child Safety, public housing, public transport, and
health care.”
– Queensland Human Rights Commission
Is justice
blind?
• Recall: Rule of law a principle
that says laws should be publicly
accessible and clearly written,
and that everyone should be
treated equally under the law.
• But are they?
• Who is over-represented in the
Australian criminal justice system?
• Why is this the case?
Overrepresentation
Table S3: Prison entrants, dischargees, and people in custody, by sex,
Indigenous status and age group, 2018
Entrants
AIHW Statistics
on Prisoners
• 85% are men
• 38% are Aboriginal or Torres
Strait Islander
• 2/3 prison entrants used illicit
drugs in the previous year
• Most women in prison are
mothers with dependent
children
• 1/3 prison entrants had an
education level ≤ Year 9
• >1/2 of people being released
from prison expect to be
homeless
Source: Australian Institute of Health and Welfare,
2019
Dischargees
People in custody
Number
Per cent
Number
Per cent
Number
Per cent
Men
685
85
298
89
25,682
92
Women
117
15
37
11
2,258
8
Indigenous
308
38
127
38
7,800
28
non-Indigenous
481
60
200
60
20,128
72
18–24
133
17
40
12
4,062
15
25–34
315
39
125
37
10,285
37
35–44
229
29
112
33
7,761
28
45–54
91
11
40
12
3,772
13
55+
34
4
18
5
2,054
7
Total
803
100
335
100
27,946
100
Sex
Indigenous
status
Age group
(years)
Why are some groups
overrepresented in the criminal
justice system?
Inequality, crime and
criminal justice
Thinking about inequality
Types of social inequalities:
• inequalities associated with
• class relations and economic processes;
• gender relations and social constructions of sexuality;
• ethnic and cultural relations, and racist ideologies and practices;
• community relations and state political structures;
• age
These inequalities cut across each other and intersect –
“intersectionality”.
Thinking about inequality
• Crime and the administration of criminal justice are not distributed equally.
• Unemployment, disadvantage (persistent and intergenerational), poor-housing,
family dysfunction, child abuse and neglect, powerlessness, social exclusion,
deprivation, etc.
• Associated with: offending, antisocial behaviour, fear of crime, victimisation and
criminal justice outcomes.
• “Contrasts of poverty and wealth are at the core of both criminality (which
refers to the characteristics of criminals who undertake specific types of
crimes) and criminal justice (which refers to the network of institutions and
programs intended to prevent or respond to crime). Social inequality
fundamentally determines who does what when it comes to crime, and
who ends up where when it comes to social reactions to crime” (White et
al., 2019, p. 107)
UNDERCLASS CRIMINALITY
•
•
Crimes of
chronic
disadvantage
Source: White et al., 2019, p. 117
Linked to relative powerlessness and social exclusion from mainstream institutions
Tends to be interpersonal in nature and relatively limited in scope, but also includes professional crime
TYPES OF CRIMES
EXAMPLES
Economic
Drug-dealing; protection rackets; robbery; prostitution; black market
Socio-cultural
Vandalism; assault; rape; murder; collective fighting
MOTIVATIONS
EXAMPLES
Subsistence
Gaining illegal income to meet basic income needs; reliance upon the informal
economy, welfare and charity; exclusion from the formal labour market
Socialisation
Intergenerational reproduction of unemployment, poverty and illegal means of
subsistence; sense of territoriality; wealth generation as part of professional or
organised crime
Resistance
Protection and celebration of ethnic and racial identity
CRIMINALISATION
EXAMPLES
Limited means to
effect crime
Reliance on limited resources to carry out the crime, but may be organised into criminal
collectives
State intervention
Periodic target for state surveillance, detection, investigation and intervention; some
limited capacity to protect interests through use of bribes and threats
Sentencing
Harms codified in criminal law; certain crimes subject to harsher sentencing regimes via
mandatory sentencing; street credibility may be linked to the experience of
imprisonment
Inequality and criminal
justice responses
Example 1:
Differential
Policing
• Over-policing: “The practice whereby
certain groups, such as young people,
ethnic minorities (e.g. people of Arab
and Muslim background), Indigenous
people, and those with previous
offending histories, are subject to
disproportionate policing; that is, they
are regularly targeted by the police for
proactive surveillance and
intervention.”
• Under-policing: “The practice whereby
certain offences (e.g. racist or
homophobic violence) are subject to
less surveillance and intervention than
otherwise ought to be the case.”
Example 1:
Differential
Policing
• Deaths in custody: “Deaths of people
who are in prison custody, or police
custody or detention, that are caused
or contributed to by traumatic injuries
sustained, or by lack of proper care,
while in custody or detention.”
• “Many Aboriginal and Torres Strait Islander
people report discrimination, racism and
lack of cultural capability in the criminal
justice system. ..For example, there is
evidence of racialised policing practices
such that Aboriginal and Torres Strait
Islander people are more likely to be
arrested, less likely to be cautioned and
more likely to be referred to court than
non-Indigenous people” (Australian
Government Productivity Commission,
2021, p. 31)
Example 2:
Access to justice
• “Access to justice the ability of people to get legal
advice and representation, and to use the court system”
(Hardy, 2020, p. 102)
• “The idea of ‘access to justice’ is … the capacity to
understand the law, to get legal advice, to get legal
assistance and representation, and to use public legal
institutions such as the courts. It requires an ability to,
for example, understand, communicate, travel and pay,
and also requires the means to overcome the inability to
do any of those things” (Rice, 2011, p. 18)
Example 2:
Access to justice
• Barriers:
• Cost of legal services
• Legal aid – means and merit tests
• Factors effecting communication/understanding of the legal
system
•
•
•
•
Psychological factors
Language other than English
Cultural barriers (e.g. home country has a different system)
Lack of knowledge of the complexities of the legal system
• Geographic isolation
• Having dependent children
Example 2:
Access to justice
• Many groups struggle to access justice including: “older
people, children, people who are homeless, the LGBTIQ
community, migrants and refugees, prisoners and
detainees, people with a disability, Aboriginal and Torres
Strait Islander people, people who experience domestic
and family violence, and people from rural, regional and
remote areas. ” (Hardy, 2020, p. 102)
Theoretical perspectives
• Crime (and its control) in the context of capitalism
(Marxist influence)
• Economic inequality is associated with crime due
to survival or frustration
• Law enforcement protecting the interests of the
wealthy/dominant
• Acts are defined as criminal by the powerful
• Crimes of the powerless threaten the social order that
keeps the elite in power and so they are punished
more severely
• Power and social inequality
• Who makes the formal rules (laws)?
• Who gets sent to prison?
Race, colonialism and the
criminal justice system
Watch the video: “Bias in the criminal justice
system” available on your course site.
According to Professor Kristina Murphy, how
does bias manifest in the criminal justice
system?
The Legacy of Colonialism
• Colonialism: “The process by which Indigenous people have been dispossessed of their lands and
culture by the invading culture. Colonialism has had a severe impact on Indigenous cultures and
ways of life, as have its continuing effects of discriminatory policies and practices on Indigenous
life chances within mainstream social institutions.” (White et al., 2019, p. 109)
Watch the video: “Colonialism and the criminal
justice system” available on your course site.
What does Keenan Mundine say about his
experience with the Australian criminal justice
system? How does colonialism connect to the
experience of First Nations people today? What
are the “solutions” to overrepresentation
offered by Dr Harry Hobbs?
Overrepresentation, mass imprisonment, or hyper-incarceration?
“For us, however, the term ‘mass imprisonment’ can imply an undifferentiated increase in imprisonment and the term is
often used in this generalised manner. In contrast, the concept of hyperincarceration captures more clearly the idea that
increased imprisonment has been targeted at particular racialised groups (in the Australian context, Indigenous people)
and others marginalised into a liminal existence between prison and community, including people with mental health
disorders and drug and alcohol addictions.” (Cunneen et al. 2016, p. 4)
Overrepresentation of First Nations peoples
in custody and prison
• Legacy of colonialism
• Risk factors for offending and imprisonment are more prevalent in Aboriginal and
Torres Strait Islander communities
• “The higher prevalence of risk factors among Aboriginal and Torres Strait Islander people
stems in part from experiences of dispossession, forced removal, intergenerational trauma
and racism” (Australian Government Productivity Commission, 2021, p. 31)
• Mandatory sentence for certain offences
• Strict bail and parole conditions
• Discrimination and racialised practices (unconscious bias)
• More likely to receive a prison sentence
Watch the video: “Why are First Nations peoples
overrepresented in custody?” available on your
course site.
According to Professor Elena Marchetti, why are
First Nations peoples overrepresented in
custody?
The Royal Commission into
Aboriginal Deaths in
Custody
What was the
Royal C

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