Difficulties in the Criminal Justice System (VCE SSCE Legal Studies): Revision Notes
Difficulties in the Criminal Justice system
The criminal justice system can be challenging for many people, particularly those who do not regularly interact with it. This includes accused persons, witnesses, victims, and their families. The system can be daunting, difficult to understand, expensive, and potentially unfair for those who cannot properly participate or tell their story.
Overview of the issue
Several major inquiries have explored difficulties in Victoria's criminal justice system:
- Legislative Council's Legal and Social Issues Committee (2022) - investigated Victoria's criminal justice system
- Law Council of Australia's Justice Project (2018) - national review of access to justice for disadvantaged people
- Royal Commission into Victoria's Mental Health System (2021) - examined mental health issues in the criminal justice context
- Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023) - considered experiences of people with disability in jails and detention
- Victorian Access to Justice Review (2016) - examined broad access to justice issues
- Yoorrook Justice Commission (2022 interim report) - investigated injustices experienced by First Nations people
Key definitions:
- Parliamentary committee: a small group of members of parliament who consider and report on a single subject in one or both houses
- Royal Commission: the highest form of inquiry into matters of public concern and importance, established by government with wide investigative powers
Priority groups facing difficulties
Four main groups experience particular challenges:
- First Nations people
- Young people
- Culturally and linguistically diverse (CALD) people
- People with disability
Study tip: The VCE Legal Studies Study Design requires you to study difficulties faced by at least two different groups.
First Nations people
Background and context
First Nations people have lived in Australia for at least 65,000 years. The term 'First Nations people' describes Aboriginal and Torres Strait Islander people and recognises them as sovereign peoples. Other acceptable terms include 'First Peoples' and 'Koori' (for Aboriginal people in south-east Australia).
In the 2021 census, 66,000 people in Victoria (1% of the population) identified as Aboriginal and/or Torres Strait Islander. Examples include the Yorta Yorta, Gunditjmara, and Gunaikurnai peoples.
First Nations culture features:
- Powerful connection to land, ancestry, kinship and language
- Respect for Elders and Respected Persons - community members with significant standing who provide guidance, knowledge and cultural wisdom
- Rich cultural heritage passed through generations
Intergenerational trauma: a psychological response to highly distressing, stressful or oppressive historical events which is passed on to future generations. First Nations people experience this due to violence, racism, dispossession of lands, forced removal of children, and discriminatory government policies.
Self-determination: First Nations people having control over their lives and communities. This is now recognised as a key right in legislation protecting their identity, culture, language, kinship ties and relationship with land and waters.
Overrepresentation in the criminal justice system
Despite comprising 3.8% of Australia's population, First Nations people make up approximately 32% of the prison population. In Victoria, about 9% of prisoners are Indigenous while First Nations people comprise only 1% of Victoria's population. First Nations children account for about 15% of young people under supervision.
This overrepresentation relates to:
- Social disadvantages in health, finances and employment
- Historic discrimination and injustices
- Socioeconomic disadvantage and feelings of disempowerment
- Intergenerational trauma and discrimination leading to crime or substance abuse
The issue of deaths in custody of First Nations prisoners led to a national Royal Commission (1987-1991) and continues to be monitored through annual reports by the Australian Institute of Criminology.
Difficulties faced by First Nations people
Cultural differences
Customary law: a body of norms, practices and beliefs that a local community or group of people accept as legal requirements or rules of conduct.
The clash between customary law and the Australian criminal justice system creates significant challenges:
- In customary law, Elders are involved in sentencing and may carry out punishment
- Customary law focuses on restoring balance and maintaining relationships
- Victorian courts focus more on retribution and deterrence
- First Nations people may not understand the law or feel the system understands their culture
This cultural disconnect can result in:
- Feeling unwelcome or that the environment is hostile and alien
- Unfamiliarity with processes
- Belief that processes don't account for matters important to them (such as Elder involvement)
- Intimidation or resentment when seeking help
- Women not seeking help for family violence due to concerns about culturally untrained service providers
Language differences
Not all First Nations people speak English as their first language. Many speak either an Aboriginal language or Aboriginal English (a dialect of English recognised since the 1960s). An estimated 80% of First Nations people in Australia use Aboriginal English as their first language.
Aboriginal English is distinctive with:
- Different meanings for English words (e.g., 'Sorry Business' = ceremony associated with death; 'Country' = land or place of belonging; 'big mob' = a lot)
- Unique sounds and accents
- Different grammatical features
Some First Nations people have different communication customs:
- Direct questioning can be inappropriate - group agreement through long discussion and storytelling is preferred
- Direct eye contact is seen as disrespectful
- Extended periods of silence show respect
Problems arising:
- Need for interpreters, but insufficient qualified language interpreters available
- Without cultural training, personnel may misunderstand communication styles
- Risk of miscarriage of justice (e.g., being found guilty due to inability to communicate or inadvertently agreeing to avoid seeming impolite)
Distrust in the criminal justice system
Many First Nations people distrust the criminal justice system due to historical and ongoing negative experiences.
Evidence of the problem:
- An Aboriginal Victorian was 3.1 times more likely to be recorded as a victim of crime than a non-Aboriginal Victorian (2018)
- Much violence against First Nations women goes unreported
Reasons for underreporting:
- Mistrust that no action will be taken
- Fear of child removal or incarceration
- Risk of misidentification of victim and offender
- Personal experience of the system working 'against them' rather than for them
- Courts and legal services not seen as safe places
- Results in cycles of abuse, trauma and crime
Other difficulties
Additional challenges include:
- Lack of legal services, especially culturally safe services in remote communities
- Lack of respect for self-determination with insufficient consultation when developing policies, laws and sentencing
- Lack of culturally appropriate sentencing options (most sentencing in mainstream courts rather than specialised courts)
- Hardships in prison including insufficient supports and inadequate addressing of intergenerational trauma
Addressing difficulties for First Nations people
Dedicated funding for Aboriginal legal aid:
- Victorian Aboriginal Legal Service (VALS): government-funded organisation providing legal services to First Nations people, including criminal law advice
- Djirra: provides family violence support services to Aboriginal people
- Challenge: funding cannot keep up with demand
Specialised courts and programs:
- Koori Court: a division of the Magistrates', Children's and County Courts providing culturally safe space for sentencing Aboriginal offenders, involving Elders and Respected Persons
- Umalek Balit (formerly Koori Family Violence Victim Support Program): culturally safe family violence services at particular Magistrates' Court locations
Cultural competence training:
- Court Services Victoria ensures court personnel attend cultural awareness and trauma training
- Aboriginal Interpreting WA provides trained interpreters with cultural protocol as cornerstone of service delivery
Self-determination initiatives:
- Court Services Victoria's self-determination plan provides Koori-inclusive environment
- Includes cultural awareness programs, display of artwork and flags in Supreme Court, and increasing Aboriginal and Torres Strait Islander employment
Young people
Background and context
'Young people' generally describes those under 25 years old, including children. A 'child' in Victoria is a person under 18 years.
Young people may interact with the criminal justice system as:
- Suspected or accused offenders
- Victims of crime
- Witnesses to crime (especially family violence)
Age of criminal responsibility: Children under 10 years cannot be charged with a crime, but can still be victims and witnesses requiring interaction with the system.
In the 2021 census:
- 12% of Australia's population was aged 0-9 years ('Gen Alpha')
- 18.2% was aged 10-24 years ('Gen Z')
Youth offending patterns
Young people at particular risk include those experiencing homelessness, First Nations young people, or those who have experienced family violence.
Common offences by young offenders (aged 10-24):
- Shoplifting
- Minor theft
- Trespass
- Fare evasion on public transport
- Property damage
Sentencing Advisory Council: an independent statutory body that provides statistics on sentencing in Victoria, conducts research, seeks public opinion and advises the Victorian Government on sentencing matters.
The Council's statistics show that while children aged 10-14 don't make up a large proportion of offenders, the offender rate for 15-19 and 20-24 age brackets exceeds all other age brackets.
Difficulties faced by young people
Lack of understanding of the justice system
The criminal justice system is essentially adult-orientated, creating significant barriers:
Language and complexity:
- Complex vocabulary and formal documents used
- Complex questions during witness examination
- Young people lack sufficient communication skills, expertise, knowledge and experience to understand
Greater challenges for:
- Those who don't speak English as first language
- Those with intellectual disabilities
- First Nations young people
- Very young children
Need for support:
- Young people need representatives (lawyers or parents) to participate
- Difficulties arise if they cannot afford a lawyer or have challenging parental relationships (e.g., where parent is perpetrator of family violence)
- System must ensure free lawyers and independent support people are available
Negative effects of custody
Custody includes time in remand and time in youth facilities as part of a sentence. Even short periods in custody have serious negative effects:
- Difficult to overcome the stigma of being in custody
- Exposure to negative effects of prison and formation of criminal associations
- Reduced opportunity for positive intervention and rehabilitation
- Increased possibility of reoffending
- Can result in life cycle of offending (young offenders becoming adult offenders)
The Sentencing Advisory Council found a link between age of first sentencing and likelihood of reoffending - the younger the child at first sentence, the more likely they are to reoffend.
Key findings from Victorian Government's Youth Justice Strategic Plan (2020-2030):
- 53% of children in youth justice were victims of abuse, trauma or neglect as a child
- 42% had witnessed family violence
Case Study: Buckley v The Queen [2022] VSCA 138
A young offender committed aggravated carjacking four weeks after his 18th birthday. Despite expert evidence showing he was exceptionally immature and vulnerable in prison, mandatory minimum sentencing required a three-year prison term.
The Court of Appeal stated mandatory minimum sentences are "wrong in principle" and reveal a "profound misunderstanding of where the community's best interests lie", especially in the sentencing of young offenders.
The Court noted:
"Courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender's prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment was imposed."
Other difficulties
Additional challenges include:
- Psychological barriers: court processes are intimidating and overwhelming, causing fear or helplessness
- Lack of specialist services: few youth-specific legal services and courts
- Lack of formal education: lower literacy levels and lack of awareness of rights
Addressing difficulties for young people
Specialist legal services:
- YouthLaw: dedicated community legal centre for young people under 25 in Victoria, helping with fines, criminal charges, violence and abuse, and victims of crime issues
Youth diversion programs:
- Diversion program: a method used in the Magistrates' Court and Children's Court to 'redirect' offenders away from the court and avoid a criminal record by placing them on a plan
- Enables offenders to be placed on a program rather than formally entering a plea or being found guilty
- Aims to promote rehabilitation and reduce further offending
- Benefits include accepting responsibility and avoiding criminal record stigma
Intermediaries:
- Skilled communication specialists assist vulnerable witnesses, including children, to communicate with courts and give evidence
- Helps young witnesses participate when they otherwise couldn't due to comprehension and communication limitations
Age of criminal responsibility:
- National conversation about increasing from 10 to 12 or 14 years
- Current age criticised as too low and inconsistent with international standards (which recommend minimum of 14 years)
- Victorian Government committed to increasing to 12 years in 2024, then subsequently to 14 years
Culturally and linguistically diverse (CALD) people
Background and context
'CALD' describes people born overseas in countries other than 'main English-speaking countries'. According to the Australian Bureau of Statistics, main English-speaking countries are: Canada, Republic of Ireland, New Zealand, South Africa, United Kingdom, and United States of America.
Australia's diversity:
- 7 million people (27.6% of Australia's population) were born overseas (2021 census)
- In Victoria, 35% were born overseas
- Top five countries of birth for Victorians (excluding Australia): India, England, China, New Zealand, Vietnam
- Over 300 languages spoken in Australia
- Top five languages in Victoria (other than English): Mandarin, Vietnamese, Greek, Punjabi, Italian
Overrepresentation issues
The Inquiry into Victoria's Criminal Justice System noted:
- Adults from New Zealand, Vietnam, Samoa, Sudan, Afghanistan and Lebanon are disproportionately imprisoned in Victoria
- Approximately 25% of incarcerated young people are non-native English speakers
- More than 40% of offenders are from CALD backgrounds
CALD people are disproportionately affected by family violence and face more hurdles seeking assistance. They have been identified as a priority group for several reasons:
- Social isolation (ostracism by community or being away from home)
- Forced marriages in some cultures
- Spiritual abuse (perpetrators using faith to condone violence)
Difficulties faced by CALD people
Limited awareness and familiarity with the criminal justice system
Many CALD people have limited knowledge and awareness of:
- Their rights
- Available services
- Processes in the criminal justice system
Differences in legal systems:
- Australia uses a common law system (laws developed by courts over time)
- Australia uses an adversarial approach (parties present evidence and arguments, court decides)
- Many European countries use an inquisitorial system (judge has active role investigating the case)
- Previous exposure to different systems impacts ability to understand Australian system
Complexity and fear:
- CALD people often describe the system as complex, daunting and overwhelming
- May be too scared to seek help
- May rely on people within their own communities who may or may not be able to help with criminal issues
Language differences
Low English language skills impact ability to engage with:
- Lawyers
- Police
- Court personnel (judges and magistrates)
Interpreter issues:
The Law Council of Australia noted problems with interpreter services:
- Difficulties finding qualified interpreters
- Ensuring interpreters are not conflicted (e.g., from person's own community)
- Ensuring appropriate interpreter characteristics (e.g., female interpreter for female person)
- High demand but shortages in many languages
Risk of misidentification:
Case Study: Saira's story (SBS News, 3 March 2022)
Saira (not real name) moved from India to Australia to continue her relationship. Her husband subjected her to financial, emotional and sexual abuse. When she called Victoria Police for help, communication barriers and lack of physical evidence led police to incorrectly identify her as the primary aggressor instead of the victim.
Victoria Police assistant commissioner acknowledged: "Victoria Police is particularly concerned about the impact of misidentification on our priority communities. We know the risk of misidentification can be higher where there are communication barriers and distrust of police."
The organisation inTouch estimated misidentification occurs in one in 10 cases, and significantly more in CALD communities.
Other difficulties
Additional challenges include:
- Distrust: negative experiences with racism or discrimination create distrust of the system and authorities, particularly for recent arrivals who have been detained or subject to negative media attention
- Religious or cultural barriers: fear of being 'disowned' or stigma within their community prevents seeking help (especially for family violence victims)
- Lack of financial resources: recent arrivals may lack ability to get legal help
- Experiences of racism and discrimination: negative media portrayal has resulted in racism and systemic discrimination against some CALD communities
Addressing difficulties for CALD people
Free interpreters:
- Magistrates' Court arranges interpreters for accused people and parties in family violence matters
- Victorian Government offers interpreter-friendly victims of crime helpline
- Challenge: availability of suitably qualified interpreters remains an issue
Information in different languages:
- Victoria Legal Aid (VLA) and courts provide resources in various languages
- Supreme Court offers videos about court processes in multiple languages
Specialist community legal centres:
- Asylum Seeker Resource Centre and Refugee Legal provide legal services including for family violence
Training and resources for court personnel:
- Judicial Council on Diversity and Inclusion provides resources ensuring judges and magistrates can competently run proceedings involving CALD people
- Includes fact sheets on conducting proceedings with interpreters
- Offers cultural diversity e-learning course
People with disability
Background and context
Disability is defined in the Equal Opportunity Act 2010 (Vic) as:
- Total or partial loss of a bodily function
- Presence in the body of organisms that may cause disease
- Total or partial loss of a part of the body
- Malfunction of a part of the body (including mental or psychological disease or disorder, or learning difficulties)
- Malformation or disfigurement of a part of the body
Disability includes:
- Physical disabilities
- Serious or complex mental health conditions
- Intellectual difficulties (learning difficulties)
- Sensory disabilities
- Can be permanent or temporary, visible or invisible
- May fluctuate over time
Mental illness and disability:
Mental illnesses include schizophrenia, bipolar disorder, anxiety disorders and depression. The Royal Commission into Victoria's Mental Health System found almost half of Victorians will experience mental illness during their life.
Psychosocial disability: a mental health condition becomes a disability when it is severe and long-term, preventing a person from doing basic everyday things like banking, shopping and self-care.
Statistics:
- People with disability form about 18.4% of Victorian population (majority have physical disability)
- Estimated 3% of Victorians experience severe mental illness
- First Nations people and people in regional, rural and remote areas generally have higher rates of disability and mental health conditions
Overrepresentation and vulnerability
According to the Law Council of Australia:
- People with disability have high levels of interaction with the criminal justice system
- Are almost twice as likely to experience violence and abuse as people without disability
- Experience sexual violence, assault, and abuse including withholding of food, water, medication or personal care
- Approximately 50% of adult prisoners in Australia have a disability
- Approximately 98% of First Nations prisoners have a cognitive impairment
Difficulties faced by people with disability
Physical barriers
Lack of accessibility due to physical barriers affects access to:
- Courts
- Legal services (VLA)
- Police stations
- Community legal centres
- Support services
For people with physical disabilities:
- Cannot physically access buildings or sites if they have impaired mobility or use wheelchairs
For people with mental or neurological disorders:
- Lights or noise can be prohibitive
- Formal courtrooms can be particularly stressful and intimidating
- Many courts and buildings are old and not designed for accessibility
Information accessibility:
- People with cognitive or neurological disability may not understand complex legal language
- Deaf people need information communicated differently (e.g., through Auslan interpreters who may not be available)
Lack of understanding by others about disability
The Law Council of Australia identified key problems:
Stigma and discrimination:
- People with disability face negative stigma, prejudice and discrimination
- Stigma results in unwillingness to report crime or seek help due to fear of not being believed, being seen as difficult, or not getting needed support
Inadequate disability training:
- Training is important for police, court staff, judges and magistrates
- Concerns raised about adequacy of training in identifying various disabilities, responding appropriately, and accommodating needs
- Lack of awareness can result in discrimination
Examples of consequences:
- Deaf person in custody may face punishment for failing to follow instructions if disability not properly identified
- Person with speech impediment may not seek help for fear of not being listened to or understood
Other difficulties
Additional challenges include:
- Lack of services: support services and support people often required but not readily available, particularly in prisons
- Lack of appropriate accommodation: insufficient beds for prisoners with serious mental health conditions; risk of not getting needed treatment
- Lack of rehabilitation programs: insufficient programs available for people with disability; often require tailored or intensive support not available in prisons
- Community attitudes and discrimination: fear that reporting crimes will result in not being believed or viewed as credible
Addressing difficulties for people with disability
Specialist courts and programs:
- Assessment and Referral Court (Magistrates' Court): helps accused people with mental illness, intellectual disability, acquired brain injury, autism spectrum disorder or neurological impairment address underlying factors contributing to offending
- Mental Health Advice and Response Service: operates in some courts, providing advice and support to people who may need mental health treatment
Courtroom adjustments:
- People with cognitive impairment who are crime victims can give evidence through pre-recorded statement
- May have support person when giving evidence
- May have intermediary (skilled communication specialist) to assist in giving evidence
Specialist community legal centres:
- Mental Health Legal Centre: provides free legal services to people with lived experiences of mental health issues
Victoria Legal Aid supports:
- National Relay Service: for people who are deaf or find it hard to hear or speak on the phone
- Legal Help Chat: online support service
Remember!
Key points:
- The criminal justice system can be daunting, difficult to understand, expensive and potentially unfair for many people
- Four main groups face particular difficulties: First Nations people, young people, CALD people, and people with disability
- First Nations people face cultural differences, language barriers, and distrust due to historical injustices and intergenerational trauma
- Young people struggle with understanding the adult-orientated system and face negative effects of custody that increase reoffending
- CALD people experience limited awareness of the system, language differences, and risk of misidentification as offenders rather than victims
- People with disability face physical barriers to access, lack of understanding by others, and inadequate support services
Key terms:
- Royal Commission - highest form of inquiry with wide investigative powers
- Intergenerational trauma - psychological response to historical oppression passed through generations
- Customary law - body of norms and practices accepted by a community as legal requirements
- Diversion program - method to redirect offenders away from court and avoid criminal record
- Psychosocial disability - severe, long-term mental health condition preventing basic daily functioning
Ways difficulties are addressed:
- Specialist legal services (VALS, Djirra, YouthLaw, Mental Health Legal Centre)
- Specialised courts (Koori Court, Assessment and Referral Court, youth diversion programs)
- Cultural competence training for court personnel
- Free interpreters and information in multiple languages
- Intermediaries to assist vulnerable witnesses
- Adjustments to courtroom procedures to accommodate different needs
Exam technique: When discussing difficulties, always explain the specific group affected, describe the nature of the difficulty with examples, and explain how the system attempts to address it. Use real cases (like Buckley v The Queen or Saira's story) to illustrate your points.