Unit 103 Legal Studies: Difficulties Faced by Different Groups in the Criminal Justice System

Overview of Challenges in the Victorian Criminal Justice System

• Complexity and Barriers: The criminal justice system is characterized as a complex, formal, and rule-based environment. It was designed primarily with a specific demographic in mind: adults who speak English proficiently and possess an inherent understanding of legal processes.
• Affected Groups: Several groups experience heightened difficulty navigating this system, whether they are the accused, a victim of crime, or a witness. These groups include:
  • First Nations people.
  • Young people.
  • Culturally and linguistically diverse (CALD) people.
  • People with disabilities.
• Primary Drivers of Disadvantage: Disadvantage within the system often stems from factors such as language barriers, cultural differences, physical or intellectual disabilities, age, and negative past experiences with authorities.

The Role of Inquiries and Royal Commissions

• Systemic Evaluation: Difficulties within the justice system are frequently examined through formal inquiries to identify systemic barriers, overrepresentation of certain groups, and failures in access, fairness, and equality.
• Types of Inquiries:
  • Parliamentary Committee: A small group of Members of Parliament (MPs) tasked with gathering together to discuss and investigate specific topics or issues.
  • Royal Commission: The highest form of formal inquiry. It is granted sweeping powers by the government to investigate matters of significant public concern.
• Specific Recent Inquiries:
  • Mental Health: Investigated by a Royal Commission in $2021$ and a Parliamentary Committee in $2022$.
  • Violence, Abuse, and Neglect against People with Disabilities: Subject of a Royal Commission from $2019$ to $2023$.
  • First Nations Justice Issues: Examined by the Yoorook Justice Commission in $2022$.

Difficulties Faced by First Nations People

• Cultural Context: First Nations people are the original custodians of the land, possessing diverse cultures, languages, cultural practices, and kinship systems.
• Historical and Intergenerational Trauma: The history of traumatic events—referred to as intergenerational trauma—and generations of discriminatory laws have resulted in a strained relationship between First Nations communities and the law, alongside a profound sense of loss regarding self-determination.
• Statistical Overrepresentation:
  • First Nations Australians are significantly overrepresented in arrests, deaths in custody, and imprisonment.
  • In Victoria, Indigenous people represent approximately $9\,\%$ of the prison population, while they make up only about $1\,\%$ of the state's total population.
  • Nationally, they represent $32\,\%$ of the prison population while comprising only about $3\,\%$ of the general population.
• Causative Factors: Socioeconomic disadvantage, feelings of disempowerment, intergenerational trauma, and systemic discrimination often lead individuals, particularly youth, toward crime or substance abuse.
• Cultural and Legal Clashes:
  • There is a disconnect between First Nations customary law and Australian criminal law.
  • Challenges include unfamiliarity with court processes, a lack of cultural recognition within the system, and the absence of Elders or Respected Persons in standard legal proceedings.
  • Aboriginal culture often focuses on restoring balance between relationships, which may not align with the adversarial nature of mainstream proceedings.
• Language Barriers:
  • Many individuals speak Aboriginal English or a specific Aboriginal language as their primary tongue.
  • This impacts communication with lawyers, police questioning, and the giving of evidence.
  • Interpreters are not always available to bridge this gap.
• Differences in Cultural Norms: Direct questioning in court may conflict with cultural norms, such as:
  • Avoiding eye contact as a sign of respect.
  • Maintaining periods of silence for reflection.
  • Sharing truth through discussion rather than answering direct, specific questions.
• Distrust and Access Issues:
  • Historical mistreatment leads many to avoid reporting crimes or engaging with legal services, reducing their access to justice.
  • Limited availability of legal services in regional, rural, and remote areas.
  • Lack of "culturally safe" services that understand First Nations history and lived experience.
  • Lack of culturally appropriate sentencing options in mainstream courts.

Addressing Challenges for First Nations People

• Fairness and Equality Initiatives: Measures have been introduced to improve access and fairness:
  • Aboriginal Legal Services: Organizations like the Victorian Aboriginal Legal Service (VALS) provide culturally appropriate representation and advice.
  • Specialist Courts: The Koori Court involves Elders or Respected Persons in the sentencing process to recognize culture, kinship, and community.
  • Training: Cultural awareness and competency training for police, court staff, lawyers, and judicial officers.
  • Self-Determination: Initiatives like Court Services Victoria’s Aboriginal Self-Determination Plan aim to create culturally safe court environments and involve communities in policy development.

Difficulties Faced by Young People

• Definition: In Victoria, a "child" is generally defined as a person under the age of $18$.
• Systemic Misalignment: Because the justice system is largely adult-oriented, it utilizes formal language and complex documentation that young people struggle to understand.
• Lack of Understanding: Young people often find it difficult to grasp their legal rights, court processes, or the long-term consequences of their decisions. This leads to a heavy reliance on adults, which can compromise their ability to participate meaningfully.
• Negative Impact of Custody: Custody is recognized as a "last resort" for youth due to:
  • Potential for stigma and labeling.
  • Associations with other offenders.
  • Higher likelihood of recidivism.
  • Disruption to education, family connections, and general development.
• Psychological and Practical Barriers: Factors such as fear, stress, low literacy levels, and a lack of specialist youth legal services outside metropolitan areas further hinder participation.
• Targeted Measures:
  • Specialist Services: YouthLaw provides specific legal assistance for young people.
  • Diversion Programs: These aim to prevent young people from being formally involved in the justice system.
  • Specialists: The use of intermediaries and communication specialists to help young people participate as witnesses or in trials.
  • Legislative Changes: Late in $2025$, Victoria raised the criminal age of responsibility from $10$ to $12$, with a commitment to increase it eventually to $14$.

Difficulties Faced by Culturally and Linguistically Diverse (CALD) People

• Demographics: Approximately $27.6\,\%$ of the Australian population was born overseas, leading to a high level of diversity.
• Adversarial System Confusion: Individuals may come from countries with vastly different legal frameworks. The Australian adversarial system—where two parties confront each other in a courtroom—may be completely unfamiliar.
• Language and Interpreter Barriers:
  • Limited English proficiency affects the ability to understand rights and communicate with justice personnel.
  • While Victoria Legal Aid (VLA) provides interpreters, they may not always be available for minority languages or matched to specific personal needs (e.g., matching a female interpreter to a female client).
• Cultural and Religious Factors:
  • Fear of being "disowned" or facing community stigma may prevent some victims from seeking help.
  • Recent arrivals may lack the financial resources to secure legal assistance.
  • Negative media portrayals and historical experiences of racism contribute to a deep distrust of the police and the criminal justice system.
• Available Support: Free interpreters via VLA and Community Legal Centres (CLCs), translated legal documents from the Supreme Court, and specialized CLCs for refugees and asylum seekers.

Difficulties Faced by People with Disabilities

• Prevalence: People with disabilities comprise $18.4\,\%$ of the Victorian population (approximately $1$ in $5$ individuals).
• Legal Definition: Per the Equal Opportunities Act 2010 (Vic), disability includes:
  • Total or partial loss of a bodily function or part of the body.
  • Presence of organisms in the body that may cause disease.
  • Malfunction of a body part, including mental or psychological disease/disorder.
  • Conditions resulting in learning more slowly (cognitive impairments).
  • Malformation or disfigurement of a body part.
• Vulnerability: This group is more vulnerable to crime and appears frequently as accused persons, victims, or witnesses.
• Physical and Systemic Barriers:
  • Inaccessible buildings.
  • Complex legal jargon.
  • A lack of alternative communication methods.
• Lack of Training and Support:
  • Justice personnel often lack training to identify disabilities or understand disability-related behaviors, leading to potential unfair treatment.
  • Gaps in support services (e.g., support persons) and a lack of appropriate prison accommodation for those with mental health conditions.
  • Lack of specialized rehabilitation programs.
• Community Attitudes: The $2022$ Inquiry into Victoria’s Criminal Justice System noted that discrimination and stigma might prevent people from reporting crimes, as they fear they will not be viewed as credible witnesses.
• Procedural Adjustments:
  • Allowing evidence to be given in alternative formats, such as pre-recorded statements.
  • Permitting additional breaks and modifying procedures to reduce stress.
  • Utilizing Intermediaries to assist with cognitive or communication impairments, ensuring questions are understood and evidence is accurate.
  • Problem-Solving Courts: Specialized courts and programs designed to address underlying issues (e.g., mental health) rather than focusing solely on punishment.