INTRODUCTION

This chapter provides an overview of the basis, operation and effectiveness of the criminal justice system. First, it outlines the authority and theoretical underpinnings of how the criminal justice system is able to act in the ways that it does. Then, it describes the goals of the criminal justice system and each of the main components – police, courts and corrections. We outline the basic structure of the system and detail the ways that a crime is typically handed. We also discuss the indicators that are used to help assess the performance and efficiency of the criminal justice system and its main components. The chapter concludes by providing a description of five key issues in criminal justice today: 1) public confidence; 2) the media and politics; 3) system coordination and national frameworks; 4) youth justice and the minimum age of criminal responsibility; and 5) attrition.

Authority and Theoretical Underpinnings

Criminal justice system’ are used around the world as a way for societies to promote social order and to respond to crime.  In liberal democracies like Australia, the legitimacy and authority of the system rests on the social contract. The social contract is the general and/or widespread consensus by community members about the rules that need to be followed for peaceful coexistence, and to stay peaceful, community members each give up some freedoms or rights in return for safety. When these rules are broken, the government can use the criminal justice system to deal with the alleged wrongdoer.

The power and authority of the government to respond using the criminal justice system is derived the constitution and from liberal democratic processes. Sections 51 and 52 of the Australian Constitution outline Commonwealth and State responsibilities, with the Commonwealth government able to make laws with respect to “peace, order and good government of the Commonwealth with respect to” several specific matters, including defence and external affairs. While not explicitly listed in Section 52 as a State responsibility, the power to enforce criminal laws is generally considered a state responsibility based on historical and legal traditions.

In practice, governments derive their authority to enforce criminal law through legislation and the legitimacy of the criminal justice system is reinforced by government accountability mechanisms. Governments are elected to represent voters and can therefore amend, change, and have legislation enforced on their behalf, until they have to answer to the voting public in the next election. Each state and territory (by delegation from the Commonwealth) in Australia has its own criminal code and laws, which cover a wide range of offences and prescribe the powers and responsibilities of law enforcement agencies within the respective state or territory. Each state’s criminal code establishes police and other agencies to investigate and enforce criminal laws in accordance with their legislative frameworks. Therefore, there are nine ‘criminal justice systems’ in Australia – the six states, two territories and Commonwealth. It should be noted, of course, that laws and regulations are constantly updated, and often at the bestow of special interest groups – meaning that the public may have little real input into laws and how the system operates.

Criminal Justice and Sentencing

While each state and territory have their own ‘criminal justice system’, they have similar principles and overarching goals, as outlined in legislation such as Penalties and Sentences Acts. These Acts outline the goals of sentencing and factors that judges and magistrates must consider. These goals include:

Retribution or punishment of wrongdoing by imposing penalties on offenders as ‘pay-back’ that are proportionate to the seriousness of the crime committed.

Deterrence of individuals from engaging in criminal behaviour, through general deterrence by discouraging others in the community from committing similar offences, as well as specific deterrence which aims to discourage the individual offender from reoffending.

Rehabilitation by addressing the underlying causes of criminal behaviour and helping offenders reintegrate into society as law-abiding citizens. Sentencing may involve the provision of rehabilitation programs, counselling, or other interventions that aim to reduce future offending such as substance abuse interventions, education and employment programs.

Restitution and reparation for harm caused so that the offender takes responsibility for their actions, including fines, community service and other forms of restitution.

Incapacitation prevents future offending by restricting someone who has previously offended such as through imprisonment, home detention, or electronic monitoring.

Goals of the Main Components

While there is no criminal justice system as an actual unit, the term is used to refer to three independent but interrelated components that are the investigative (police), adjudicative (courts), and the correctional (corrections) arms (Hawkins, Biles & Wilson, 1970). These separate components are weakly bound together as they are mutually dependent on each other for information. Decisions in one part of the system can also affect the other parts of the system in several different – and often unexpected – ways (Ashworth, 1994; Travis, 1990; Sallman & Willis, 1984). The components of the criminal justice system have no core organisation, which often results in a lack of organised and interrelated conditions and directives (Anderson & Newman, 1993; Ellis, 1993).  The three arms of the criminal justice system are very different, have different policies and have specific and distinct goals (Bryett et al., 1993).

The three components of the system are designed to give effect to the principle of the separation of powers. The separation of powers ensures that one group does not hold a monopoly of power and become ‘judge, jury and executioner.’ For instance, the courts review evidence to ensure that police follow appropriate procedures and practices; this relationship is necessarily (at least in part) adversarial in nature. This helps prevent miscarriages of justice that may arise due to police adopting poor practices, bias and/or corruption, or unduly pressuring the prosecutor to pursue (or drop) any charges. Undue political influence on specific cases is preventing by the operational heads of departments (such as police services, departments of justice and attorney general and corrections) being appointed, rather than being elected.

The investigative arm has the broad goal of preserving public order, investigating breaches of the criminal law and bringing alleged offenders before the adjudicative arm (the courts), as well as improving road safety and assisting the judicial processes (Bryett et al., 1993; Productivity Commission, 2023).  Other frequently identified goals of the investigative arm include protecting the community, providing emergency assistance and preventing and deterring crime, such as through community policing (Prenzler & Sarre, 2020). Police spend less than one-third of their time responding to and managing crime, principally offences such as domestic and family violence (Brisbane Times, 2021). Instead, police will spend most of their time adopting a supportive social role that goes well beyond law enforcement and crime control.

The adjudicative arm has the task of determining the guilt or innocence of people charged by the investigative arm with offences and has the goal of choosing the appropriate penalty of people found guilty (Bryett et al., 1993; Productivity Commission, 2023). Key overarching goals of the adjudicative arm include being open and accessible, affordable and progressing matters to a high standard, expeditiously and in a timely manner (Productivity Commission, 2023). The adjudicative arm promotes fair and just outcomes, with safeguards built into the system to help ensure that innocent people are not found guilty for crimes they did not commit (e.g., right to silence, natural justice, legal representation, rules of evidence). Appropriate penalties are determined based on the individual circumstances of each case such as the offence severity, criminal history of the offender and aggravating/mitigating factors – and how these feed into and relate to the key goals of sentencing examined earlier – retribution, deterrence, rehabilitation, restitution and/or community safety/incapacitation.

The correctional arm includes community correction systems and prisons and is tasked with carrying out the penalties imposed by the adjudicative arm and parole boards.  This involves managing and supervising individuals who are incarcerated in custodial institutions or subject to community-based orders and providing programs and services that aim to address the different reasons that individuals may offend (Bryett et al., 1993; Productivity Commission, 2023). According to the Productivity Commission (2023, p. 91), the three goals of corrective services are: 1) to provide “a safe, secure and humane custodial environment; 2) appropriate management of community corrections orders and programs and services that address the causes of offending, maximise the changes of successful reintegration into the community; and 3) encourage offenders to adopt a law abiding ways of life.”

Structure and Operation of the Criminal Justice System

The basic process that is followed by the system when there is a criminal incident is outlined in Figure 15.1. Once a crime comes to the attention of authorities, it progresses to the investigative arm if detected and/or reported and a decision is made that an alleged crime has occurred. Once this decision is made, the incident is progressed through the formal criminal justice system.

The police are organised with general duties or patrol officers responsible for responding to calls for service and generally being first responders to crime scenes, where they may collect evidence and for more serious offences preserve the crime scene and collect evidence.

Detectives conduct investigations and collect evidence, initiating formal responses where required and initiate prosecutions.

Specialist squads provide services to assist the process. For example, the dog squad can be called to trace a fleeing suspect, or forensic services to collect and test evidence. Forensic services may be used to help investigate or prove an offence and is typically used for illicit drug offences, unlawful entry and theft offences. Homicide, abduction/harassment and sexual offence cases are most likely to make extensive use of forensics (see Allard, McCarthy & Stewart, 2020). Intelligence and covert services may collect background information on persons of interest and evidence to assist investigations and prosecutions. Likewise, the drugs and serious crimes group and fraud and cybercrime group may be called on to provide the expertise needed if required by specific investigations.

Matters are brought before the lower court (e.g., Magistrates) by police prosecutors, with more serious matters transferred to the independent Director of Public Prosecutions and a committal hearing held in the lower court to determine if there is sufficient evidence to progress to trail in the higher (e.g., District and Supreme) courts.

The criminal courts hear guilty pleas and sentence, and where matters are contested, they adjudicate cases brought before them before sentencing those found guilty. They hear cases brought before them based on legislation and common law precedent, which is the notion that current cases should be treated the same as previous cases unless there is or are distinguishing factors. Other important features of courts include that they have consistent, predictable, clear and certain rules and practices, with individuals having the right to a fair hearing and legal representation (Sallman & Willis, 1993). If found guilty, the courts apply their considerable discretion and consider the circumstances of the case, weighing the relevant sentencing goals to determine an appropriate and suitable sentence.

Matters may be diverted to specialist courts, which have developed as our understanding about the causes of crime has improved, including drug courts, mental health courts and Indigenous courts; as well as youth courts which have exited for over a century to respond to offending by those aged 10 to 17 inclusive.

Corrective services administers the sentences of the courts and has two major components, custodial and community corrections. In custodial corrections, prisoners supposed to be held securely and humanely. In community corrections, offenders are supervised on probation or parole or some other form of community supervision, such as intensive corrections orders. In community corrections, there are several conditions placed on individuals in order to try to prevent illegal behaviour, such reporting requirements, random testing for illicit drugs and specialised programs to reduce specific risks.

Performance and Effectiveness

The overarching goals of the criminal justice system are supposed to be based on broader goals of humanity and fairness (Sallman & Willis, 1984) and align with those of the Australian liberal democratic society, including balancing freedoms while maintaining social order, fairness and unbiased decision-making, openness, accountability, and efficiency. Because criminal justice systems have great reach and can significantly impact the lives of Australians, these broader goals should be a concern for all Australians and the components of criminal justice systems should always be striving for excellence.

While there are some differences between the ‘criminal justice systems’ that operate in Australia, operation and performance can be assessed using indicators derived from the Report on Government Services (Productivity Commission, 2023). Total expenditure on justice services was $22 billion in 2021-2022, with policing agencies and correctional agencies accounting for the largest proportions of expenditure (65% and 26% respectively, Productivity Commission, 2023). When overall cost is disaggregated based on the total population, an estimated $854 is spent per person, per year to operate the Australian justice system. This can be used as a measure of efficiency, which can be compared across jurisdictions (States/Territories) or over time to assess how the criminal justice system is performing. This can be compared to other government expenditures on social security and welfare ($227 billion, $9010 per person, AIHW, 2023a), health ($241 billion or $9365 per person, AIHW, 2023b), or the cost of defence ($44 billion, $1708 per person, Australia Strategic Policy Institute, 2021).

Sector wide measures of performance include the number of time people are proceeded against by police, or the number of crimes expressed as a rate (see Chapter 2 for a reminder of how to calculate a rate) given the number of people in the population and reoffending rates. In Queensland, 66.9% of offenders were proceeded against by police in the past 12 months 2021-2022, with fewer having 2 (17%), 3 (7.1%), 4 (3.1%) or 5 procedures (5.5%) (Productivity Commission, 2023). After release from prison, 42.4% of prisoners who are released from prison and 16.4% of offenders who complete community-based orders like probation and parole return to a new corrective services sanction within two years (Productivity Commission, 2023).

Measures used by the Productivity Commission (2023) to assess the performance of the police relate to: workforce representation, road safety, deaths in police custody, persons found guilty in Magistrates court, community satisfaction, perceptions of safety, perceptions of police integrity, complaints, youth diversions and outcomes of investigations, expenditure per person and crime victimisation (based on surveys examining reported experiences over the past 12 months). These surveys show that nationally there were approximately: 2,032 victims of assault, 536 victims of sexual assault and 267 victims of robbery per 100,000 people (Productivity Commission, 2023).

A range of measures are also used to assess the effectiveness of the courts, relating to both access (timeliness and delay and affordability) and quality (complaints). Measures of efficiency include: Judicial officers per finalisation, FTE^[2] staff per finalisation and Cost per finalisation. The cost per finalised case in court during 2021-2022 depended on which court processed the matter: $25,292 in the supreme courts, $16,331 in district/county courts, and $914 in the magistrates and children’s courts.

Measures used to assess the effectiveness of custodial corrections relate to the proper treatment of prisoners (e.g., offence related programs, education and training, prisoner employment, time out of cells, community work, and prison utilisation)  as well as the quality of treatment (unnatural deaths and assaults in custody). The effectiveness of community-based orders are assessed by examining the proportion of orders successfully completed. Measures of efficiency relate to the cost per individual incarcerated or under supervision per day. In 2021-2022, it cost an average of $405.18 per individual per day in custody, or $28.65 per individual per day under community-based supervision.

SELECTED ISSUES AND PROBLEMS

Public Confidence, The Media and Politics

Public confidence in the criminal justice system is essential for the proper functioning of the system and for the stability and cohesion of the broader society. Public confidence in the criminal justice system encourages compliance with the law, a more engaged community who will report crimes, assist with investigations and collaborate on crime prevention initiatives, and more effective policing as positive relationships will help with the gathering of information and ways to respond more effectively. Public confidence also prevents vigilantism or social unrest and is closely related to the legitimacy of the government, as a loss of trust in the legal system can erode overall confidence in the government’s ability to maintain law and order.

This makes crime and how the criminal justice system responds an important issue that is closely monitored by government opposition parties, with problems and instances of injustice receiving significant political scrutiny. These stories also make good news headlines because they typically involve drama and emotion, focus on safety and are of public interest, and have characteristics that are considered ‘newsworthy’ (e.g., proximate, prominent, timely and involving conflict).

A recent example of youth crime in Queensland demonstrates the complex interplay between public confidence, the media and politics – with evidence suggesting that there is a small group of highly persistent youth offenders who are accounting for increasing proportions of crimes, while there are reductions in one-off offenders.  These young people were reported as being from highly specific locations where youth crime was reported by the media as being out-of-control.

Pressure for change brought by victim right groups and facilitated by the media and political processes brough about change including a police-led taskforce, increased police patrols, increased penalties for specific offences and encouraging use of supervision and stricter sentences by the judiciary for repeat offenders, greater funding for victims and the establishment of the Independent Ministerial Advisory Council (IMAC) that will provide advice to government aimed to promote and support victims and their rights.

Whether this group will be able to reduce victimisation in the community remains to be seen, which will necessarily involve addressing the drivers or root causes of crime if changes are to have a positive and lasting impact.

System Coordination and National Frameworks

On one hand, the ‘criminal justice systems’ in Australia may be viewed as being fragmented and disjointed – both internally, when considering the connections between police, courts and corrections in one jurisdiction – and externally, when considering jurisdictional differences and fragmentation. There is considerable variation in the main components which are largely shaped by and responsive to local issues and problems.

On the other hand, there is frequently coordination between criminal justice agencies who participate in cross-government committees focused explicitly on improving coordination and/or with a more specific focus such as reducing biases and the risk factors for different kinds of offending, such domestic and family violence or youth offending. This coordination occurs at all levels across departments – from the Director and Director-General levels and senior policy levels through to the local level where senior leaders work across departments such as through the use of dual responders involving police and youth justice officers to respond to youth offending, or with the local community to address wider issues and problems.

At a national level, there are attempts at a coordinated response to address identified issues or problems, such as Indigenous over-representation in the criminal justice system, or to promote better cross-jurisdictional laws such as for counter-terrorism legislation or fraud and financial crime. For example, there is a national agreement through the Council of Australian Governments (COAG) to close the gap on 19 national socio-economic targets for Indigenous Peoples which include:

• Reducing Indigenous over-representation in the criminal justice system by at least 15% by 2031.
• Reducing the rate of Indigenous young people (10-17) in prison by at least 30% by 2031.

While changes to the ‘criminal justice system’ to reduce biases and the impacts of laws may reduce overrepresentation, it is generally recognised that the root causes or drivers of crime must be addressed. In this context, the closing the gap agreement aims to reduce several risk factors for offending including children being born heathy and strong, having high quality early education, engaged in education and employment, with safe families and reduced contact with child protection. Our progress against identified goals in these areas is tracked by the Productivity Commission to enable progress to be tracked over time, and responses altered to better achieve desired outcomes.

Youth Justice and the Minimum Age of Criminal Responsibility

In many Australian jurisdictions, the minimum age of criminal responsibility (MACR) is set at 10 years old, meaning that children below this age cannot be found guilty of an offence. The MACR varies globally, ranging from 7 years in certain U.S. jurisdictions to 16 years in Scandinavian countries (Crofts, 2022). However, there are discussions about raising the MACR to 12 or 14 years old, to align with international practices. For instance, Scotland recently increased its MACR from 8 to 12 years (Hidderley et al., 2023). The rationale behind having an older MACR is the belief that children below a certain age lack the understanding of right and wrong and, therefore, should not be held legally accountable for their actions (Hidderley et al., 2023).

Youth are viewed as being distinct from adults as they are developmentally immature, vulnerable, or unstable (Cauffman & Steinberg, 2000; Singh, 2023). Research indicates that at younger ages, children and adolescents exhibit heightened tendencies for seeking rewards and taking risks. Additionally, the pre-frontal cortex, responsible for executive function and decision-making, develops slowly during this period, affecting their ability to regulate impulsive behaviours and comprehend the long-term consequences of their actions (Bateman, 2013; Brown & Charles, 2021; Delmage, 2013; Walsh et al., 2021; Wishart, 2018).

Given this, special processes and practices have developed in what is termed the ‘youth justice system.’ Like the adult systems, each jurisdiction in Australia has a youth justice system, which often includes the main components of the larger adult system, with specialised processes and practices developed to respond more appropriately and effectively to offending by young people. This involves the extensive use of diversion (cautioning and conferencing) for first time and less serious offenders before formal youth court proceedings are used (see Little, Allard, Chrzanowski & Stewart, 2011). An agency focused on youth justice, rather than corrective services, exists to administer the sentences of the youth court and parole board that supervises youth on community-based orders like probation and parole.

Attrition

Attrition has been identified as a significant issue, as there is a large gap between the number of crimes committed and the number of offenders who are brought to justice (Prenzler & Sarre, 2020). Mukherjee et al. (1987) found that 4.3% of crimes on average resulted in a conviction and 0.1% resulted in a custodial sentence. More recent research has focused on specific crime types, for example sexual offences, with findings indicating that 15% of sexual offences reported to police result in proven charges (Figure 15.2; Bright, Roach, Barnaba, Walker & Millsteed, 2021).

CONCLUSION

In conclusion, the criminal justice system provides some level of safety and reassurance for society and brings some offenders to justice, thereby offering options to support victims and acknowledge their suffering. However, this large, expensive and unwieldy system does not truly address crime, given that much crime is not reported. Where crime is reported, attrition occurs and (relatively) few offenders end up being found guilty of their offences. Even fewer receive sentences. Whatever the sentence, the system is adversarial in nature and the concepts on which the system is based such as ‘fairness’ and ‘justice’ may have different meanings for the parties involved (victim, offender, justice system personnel and community). This invariably means that decisions will be vigorously and hotly debated. The overall effectiveness of the system when judged on the basis of the high recidivism rate or high cost of the criminal justice system per person in the population highlights the need for prevention, and addressing the root causes of crime. At the same time, the criminal justice system needs to be made as fair, effective and efficient as possible – which necessarily involves the removal of party politics from the process and address the needs of over-represented groups such as Indigenous Australians (Prenzler & Saare, 2020).

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