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Evaluating the Criminal Justice System

2 Dec


To be fair, the criminal justice system must be accessible to all members of society, with everyone being able to defend themselves and ensure that justice is done. The accessibility of the criminal justice system is dependent on its cost, time and knowledge. Unfortunately, criminal trials are usually expensive, lengthy and require expert knowledge of the criminal justice system and its procedures. Dietrich v The Queen [1992] HCA 57 established that a fair trial is difficult for most without legal representation, and Legal Aid exists to help those in greatest financial need to afford representation. The limited resources of the criminal justice system means that cases often take a long time to come to trial; a full trial is can often require that the defendant wait months or years while they are left in uncertainty. This is of particular concern when the accused is held in remand, as it is very real possibility that he is being incarcerated for an extended period despite not being guilty of the crime he is alleged to have committed.

Community Values

Society shows respect for the law if it adheres to the standards the community expects of it. As a result, certain questions arise: does the law accurately reflect community values? Does the law develop to meet the ever-changing standards of the community? Do those who make the law have a good understanding of the beliefs held in the community? To what extent should the law enforce the community’s beliefs? Does this extend to public morality or merely to standards of safety, property rights, freedom, and so on? The power of the community to determine the membership of legislative bodies is a direct means by which they influence the law.


If the nature of an offence makes it an impracticable or unreasonable task to detect the crime being committed or determine the perpetrator, the value of the law is diminished to the point where it is of little or no consequence. The question of how laws are enforced is also important to consider. Offensive language is frequently employed by many members of society, however some claim that laws relating to offensive language are selectively enforced in order to intimidate young people.

Protection of Rights

The law must simultaneously protect the rights of society as a whole and ensure that the rights of individuals are not compromised as a result. In some cases, the desire of police to convict somebody for the sake of society has led to their individual rights being contravened. It is also important that the rights of the victim are balanced with the rights of the accused.


It is said that everyone is equal before the law, however the extent to which an affluent person can better defend themselves than a poor one may be one example of inequality. Plea bargaining is a feature of the criminal justice system that many see as a contributing factor to inequality; a defendant that enters into a plea bargain will be treated very differently to a defendant who does not receive this opportunity, even if all other factors are equal.

Appeals and Review

Those convicted of a crime are entitled to apply for an appeal of the decision. In an appeal he would claim either that an error of law was made in reaching a decision or that the punishment given was too severe. The grounds for appeal are therefore exceptionally narrow and this may mean that some cases – such as the Lindy Chamberlain case – cannot be appealed and therefore remain poorly resolved.

Resource Efficiency

The criminal justice system is expensive and the fact that many reported crimes are never resolved by the police has led many to question its efficiency. Metrics such as clearance rate, conviction rate and recidivism can be used to evaluate the resource efficiency of the criminal justice system.


Hate Speech and Free Speech

8 Oct

In 2006, seven members of the far right-wing Westboro Baptist Church* undertook an anti-gay protest at the funeral of Albert Snyder’s son, who had died earlier that year serving in Iraq as a Lance Corporal for the US military. Mr Snyder filed a civil claim against the Church, after which he was variously awarded damages or had the matter dismissed, depending on the court. The case appeared today before the United States Supreme Court, where the First Amendment rights of the Church’s founder and pastor, Fred W. Phelps, Sr. will be put in opposition to Mr Snyder’s tortious claims. During the proceedings yesterday, judges hinted that although they disapproved of the actions of Mr Phelps and his posse, they would have little choice but to find in his favour.

Westboro Baptist Church Protesters

Meanwhile, some 6195 kilometres away in Amsterdam, the trial of controversial anti-Islam Dutch MP Geert Wilders has begun, wherein he is facing charges of inciting hatred and discrimination and giving religious offence to Muslims. Mr Wilders, who is the beneficiary of 24-hour police protection due to public anger at his populist policies, is liable to receive up to a year of incarceration or a €7.600 fine if convicted. Amongst other things, he has likened the Qur’an to Hitler’s Mein Kampf and described Islamic culture as “retarded”:

“I have had enough of Islam in the Netherlands: let there be no more Muslim immigrants. I have had enough of the worship of Allah and Mohammed in the Netherlands: let there be no more mosques. I have had enough of the Koran in the Netherlands: let us forbid that fascist book. Enough is enough.”

As a result of these views, his new role in the Dutch coalition government has led to it announcing plans to halve immigration and ban the burqa. Previous complaints in relation to his iconoclastic and racist statements have not gone to trial as the Netherlands also provides for freedom of speech in its constitution. As Mr Wilders declared:

“[I am] being prosecuted for believing there is something uniquely Dutch under attack that’s worthy of being preserved. The same could be said about that which is Italian, British, German, Spanish, Danish, Swedish, French or American. That [I face] trial for this belief shows [that] some aren’t willing to have this discussion, but all countries will face it eventually. Western tolerance shouldn’t be a suicide pact.”

Paradoxically, Mr Wilders has announced that he is exercising his right to silence during the proceedings, much to the annoyance of the trial judge, despite the fact that his case rests on his right to free speech.

Geert Wilders on trial

Each of these cases demonstrate a dilemma in the legal system of western countries. In endeavouring to protect the rights of the people, a legislative body must determine to what extent somebody’s right to free speech impinges on another’s right not to be the subject of speech that is clearly offensive or incites either hatred or violence. This was described by Rodney Smolla as “the most intractable and difficult problem in speech theory” in Free speech in an open society. Critics of hate speech law cite what John Stuart Mill called “the tyranny of the majority”, arguing that it is the opinions of the majority rather than purely objective views that are imposed on everybody. Mill argued in his treatise On Liberty that unorthodox ideas must be permitted in public discourse for the sake of debate, as without such ideas one could not ever conduct complete discussion. He claimed that individual expression was akin to thought in that it should be afforded special protection from government regulation.

In contrast to this, international agreements such as the International Convention on the Elimination of Racial Discrimination have induced hate speech statutes in many jurisdictions, although the presence of a right to freedom of expression in that Convention abated the extent to which these laws affected freedom of speech. The United Nations Human Rights Committee has made it clear that the right to free speech does not extend to “racial or religious hatred”. Although most developed countries have enacted hate speech laws, they are rarely in the constitution, Bill of Rights or similar law (including the Human Rights Act 1998 in the UK) whilst the right to freedom of expression is frequently included therein.

There is little doubt that the rights to free speech and not to be subject to hate speech are competing interests that must coexist for the sake of society. The means by which this is to be completed and the extent to which each right should exist is a problematic and ultimately a highly subjective one. Multiple countries, including Canada, provide that expression must intend to cause harm in order to qualify as hate speech, which is a more moderate approach than is employed by many other jurisdictions. The imbalance inherent in the fact that only South Africa has provided constitutional provisions relating to hate speech and how it relates to the right of free speech indicates that free speech is still considered a priority, perhaps due to its history as a right extending back to ancient Greece. Despite this, law around the world is gradually changing to reflect the developing view of societies that hate speech cannot be tolerated in modern and multicultural communities.

*Note the creative URL

Prosecuting the Pope

5 Oct

The inaction of the Pope in relation to claims of sexual abuse of children by priests has enveloped the international media for some months. It has been established that the Pope and much of the hierarchy of the Catholic Church are complicit in the active concealment of cases of paedophilia in the clergy. A typical case of a priest abusing children would be resolved by the Church using canon law, which generally imposes no substantial punishment, and the perpetrator would be moved to a different parish. Local law enforcement agencies are neither informed of nor involved in the matter wherever possible, and the priest inevitably returns to repeated abuse once more after moving.

Geoffrey Robertson, QC, has remarked at Sydney’s Festival of Dangerous Ideas that some action must be taken by the international community, and that he does not regard the Vatican as a proper state. In contrast, the high-profile American criminal lawyer Alan Dershowitz argued that although the Church’s actions and inactions should be condemned, they are essentially misunderstood and the Church is developing an effective albeit inadequate response to the problem.

The Pope

The well-publicised views of Richard Dawkins and Christopher Hitchens that the International Criminal Court is a suitable mechanism by which to address the Pope’s actions have, at times, been shared by Mr Robertson. In April, The Guardian published his article “Put the Pope in the Dock“, the content of which does not explicitly call for prosecution of the Pope but justifies it. Despite this, Robertson explained how he did not think international criminal law should be used against the Pope on yesterday’s Q and A program:

TONY JONES: Geoffrey, I’m just going to interrupt you there and I’m going to bring you back to the point that Paul Kelly made because it does seem to me that you are the person in the world who is making the case the pope should be made accountable for crimes against humanity, as you put it in your article in The Guardian [emphasis added]. Do you believe the pope should be indicted for those crimes or not?


Mr Robertson appears to have changed his mind somewhat in this respect.

His debating opponent at the Festival, Alan Dershowitz, maintained his softer views of the actions of the Church, as he explained to Tony on the Lateline of September 30:

“I think Pope Benedict has probably done more to protect young children since becoming Pope than any previous Pope. It’s a very complicated matter and it has to be obviously seen in context. I don’t think it’s right for non-Catholics to get deeply involved in the governance of the Church. It relates to issues of separation of Church and State. I think it would be a terrible mistake to put the Pope on trial.”

No matter whether the Pope should be charged with crimes against humanity as Mr Robertson suggested in his book The Case of the Pope, the legal possibility of such an action is the subject of considerable doubt.

In relation to the question about whether the crimes allegedly committed by the Pope could be the subject of prosecution, Mr Dershowitz considers crimes against humanity to include only war crimes, as he explained on Lateline:

TONY JONES: Let’s start with his basic proposition that the widespread or systematic sexual abuse of children is a crime against humanity – that’s the way he puts it. And so, he says covering it up, incidentally, and protecting the perpetrators also amounts to a criminal offence. This is the basis of it, he says in international law.

ALAN DERSHOWITZ: Well he’s wrong. International law deals with war crimes, it deals with systematic efforts by governments to do what happened, for example, in the former Yugoslavia and Rwanda, in Darfur and Cambodia. This is not in any way related to that. And I think – I’m afraid to call this a war crime or some kind of international crime – it will water down the very important concept of crimes against humanity. This is not a crime against humanity, this is a series of crimes by individual priests and others throughout the world and failures by institutions to come to grips with it quickly enough. But it’s very different from systematic attempts to use rape or murder as a genocidal – part of a genocidal program.

Geoffrey Robertson, however, took a different view when asked if the Pope’s actions constituted crimes against humanity:

“Crimes against humanity can be committed in peacetime as well as in war. In Kenya at the moment we have the ICC investigating electoral violence. It’s been voted on. Australia voted in favour of making crimes against humanity committed in peacetime.”

Robertson is undoubtedly correct — crimes against humanity were deemed by the UN to have taken place in South Africa while apartheid policies were in place, and there was certainly no war. It is due to this fact that crimes it is alleged the Pope had committed could be prosecuted in the ICC. Although this is the case, these charges could not be brought against him as he is the Pope and therefore a head of state.

Mr Dershowitz is correct on the question of whether the Pope is entitled to legal immunity as a head of state. Mr Robertson’s argument here is:

“I don’t agree and Alan Dershowitz didn’t agree when we – he agreed with me that the Vatican is not a real state. It’s a palace with gardens. It’s as big as a golf course and it’s not a real state in international law. It has to have a permanent population. There are no Vaticanians. There are a few dozen celibate priests. No one gets born in the Vatican except by unfortunate accident. So it’s not a real state…”

Robertson has elsewhere expressed his belief that “the notion that statehood can be created by another country’s unilateral declaration is risible”. All modern states are formed either through unilateral assertions of independence (eg Kosovo, Belgium, Indonesia, the Netherlands and the United States) or — in the cases of more credible claims — by mutual agreement between the new state and its prior owner. Vatican City and Australia are examples of the latter. The Vatican signed a treaty with Italy that ensured its independence, and its statehood is recognised by the vast majority of the world’s countries, which is a vital component of being a legally legitimate country. The fact that Robertson has the capacity to compare it to a golf course has no bearing on its statehood. As a result of its status as a country, the Pope retains immunity from prosecution in the ICC, and the debate about possible legal action is utterly irrelevant. Nevertheless, individual priests could be charged for their crimes under civil law*, and could be extradited from their new parish if necessary.

Even if we could prosecute the Pope, would it help?

Vatican City

*By civil law, I mean the opposite of canon law and not what is also called public law.

Wild Rivers

1 Oct

Today the federal government announced a comprehensive parliamentary inquiry into the Wild Rivers Act 2005 (Qld) and whether it should be overturned by the Commonwealth. The legislation states:

The purpose of this Act is to preserve the natural values of rivers that have all, or almost all, of their natural values intact.

[by] providing for the regulation of particular activities and taking of natural resources in a wild river and its catchment to preserve the wild river’s natural values; and having a precautionary approach to minimise adverse effects on known natural values and reduce the possibility of adversely affecting poorly understood ecological functions; and treating a wild river and its catchment as a single entity, linking the condition of the river to the health of the catchment; and considering the effect of individual activities and taking of natural resources on a wild river’s natural values.

The Act is controversial because despite the fact that it is an environmentally beneficial law, it detracts from the ability of aboriginal peoples to enjoy the use of their land. Opponents of the Queensland Act claim that aboriginal custodians have successfully maintained the rivers in the past and that the Act is an offense to the concept of native title. As Wilderness Society spokesman Tim Seelig points out, however –

“The Wild Rivers Act does not stop all development. We have to be absolutely clear about what it does. It stops large-scale development like mining, like damming, like intensive irrigation in and very close to some of the most pristine rivers in the country.”

Land rights activist Noel Pearson takes a different view. He believes it imperative that we preserve the ancient traditional rights of Aboriginal peoples to use intensive irrigation techniques for large-scale agriculture, construction of high-density houses and open cut mining that allows minerals to be exported to China. These activities have been practised uninterrupted for millennia before the colonial hegemony that is Peter Beattie arrived to deprive them of these important rights.

Some people might suggest that Abbot is seeking to remove the Act because he’s in bed with the business lobby. And that he is using the cover of aboriginal rights to allow mining companies such as Cape Alumina and Rio Tinto to establish a bauxite mine near the Wenlock River (below). But that’s just cynical.

The Wenlock River

The question of whether or not the federal government should feel entitled to overrule Queensland’s legislation is one that has received little attention. With some legislation, such as that concerning euthanasia, it is logical for the federal government to impose its will on the states given how easily people could move between states to subject themselves to euthanasia. With matters such as stationary rivers, which are of no importance outside Queensland, justification of any action at a federal level becomes a feeble exercise. A question of whether a decision by federal Parliament to overrule the Act would be constitutionally permissible was raised in the earlier Senate inquiry.

While Abbott is demanding the issue be addressed immediately, the completion of the report commissioned by Gillard is a lengthy process that serves as an ingenious political manoeuvre. If a vote on the issue can be delayed until after the Greens hold the balance of power in the Senate, the passage of the bill is granted a guaranteed impediment. The Wild Rivers Act certainly has a future, and this fact is a welcome blessing for the environment.

Gene Patenting

30 Sep

Ms Melissa Clarke MP, a Labor Party member and the federal member for Freemantle, publicly called for an amendment to the Patents Act 1990 (Cth) (Patents Act) that would prevent entities patenting human genes. The issue was the subject of a report by the Australian Law Reform Commission which was tabled in Federal Parliament in August 2004. The report was also used as a submission to the incomplete Senate inquiry conducted by the last Parliament.

At the moment, several companies own genes linked to disease or illness in Australia, including genes related to epilepsy and breast cancer. Those companies assert that they are entitled to decide what medical research is conducted on those genes and who undertakes that research. Ms Clarke said:

“In 2008 a Melbourne company, Genetic Technologies, ordered all Australian hospitals and clinical laboratories to stop testing for breast cancer as it claimed that such testing infringed the exclusive licence it had obtained from US genetics company, Myriad. There was a public outcry and the company backed down, but they still claim they have the legal right to insist upon nobody else doing it.”*

At the moment there exists a panoply of problems with patent law in relation to genes. Once a gene is patented, research on that gene is certain to be expensive considering that licensing costs must be paid, and these directly and unequivocally stagnate useful medical research in Australia. Public health is a victim of these patents not only due to the fact that research is more expensive, but also thanks to the increased expense of testing for genes in people for which they may pose a health risk.

Submissions to the commission’s inquiry included some that claimed that those granting patents for genes were not sufficiently qualified or knowledgeable to do so, and as a result such patents were approved far too frequently when compared with the patent offices of other countries. It is indeed true that gene patents generally cover broad subjects and are essentially too general and abstract to be useful in their own right.

All the aforementioned issues could be addressed without disallowing gene patents entirely, and thus the commission recommended a set of amendments that would diminish but not abolish gene patents. A frequent theme of submissions, however, and an argument employed by Ms Clarke, is that human genes are “natural phenomena” that are by no means akin to an invention and therefore not worthy of a patent.

Ms Clarke’s request for Labor to propose this amendment to the Act, and her commitment to propose it herself if the party does not, demonstrates an admirable intelligence and audacity and may be a reflection on the benefits of what has been given the rather trite title: “the new paradigm”.

Gene Patents

*A related account of the rather awkward behavior of the company can be found in this Sydney Morning Herald report.

Military Justice

28 Sep

Over the past day, debate has erupted concerning the prosecution of three soldiers for various crimes, including manslaughter, dangerous conduct, failing to comply with a lawful general order and prejudicial conduct. The charges relate to an incident in which six civilians died in an operation conducted by the Australian Defence Force in Orūzgān province in January 2009. Two of the soldiers have announced that they will contest the allegations when they go to trial next year:

“We will strenuously defend the charges and we look forward to the opportunity of publicly clearing our reputations, as well as the reputation of the ADF.”

Some participants, in particular those affiliated with the military, claim that the charges are inimical to the morale and utility of the troops in Afghanistan. It is disturbing to read reports of commentators who believe that soldiers should be above the rule of law or – in the case of Felix Sher, a father of a deceased soldier – that we should abandon the Geneva Convention:

“It makes life difficult [for Australian soldiers]. It’s all very well going by the Geneva Convention, but these insurgents don’t operate under the Geneva Convention.”

Apart from the issue of morale, others have claimed that the charges would endanger the lives of Australian soldiers. The alternative to instituting appropriate legal action in response to such incidents is turning a blind eye to soldiers committing acts akin to those of this US Corporal, who shot Afghani civilians as a sport, mutilated their corpses, posed for photos with them, then did the best he could to make the incident look like a sad necessity. In any case, not charging the soldiers could allow for proceedings to be commenced in the International Criminal Court, which could only be worse for Australia and the ADF than using the soldier-friendly domestic system.

Another interesting aspect of the announcement is that the charges would be heard by a court martial. It is the first time Australian soldiers have been subject to a court martial in connection with civilian deaths during combat operations. The Australian Military Court was declared unconstitutional last year after a strange tea bagging incident on the part of one soldier who decided to challenge the Court’s jurisdiction, and so courts martial have replaced said Court until the similarly named Military Court of Australia is established in 2011. The High Court’s judgment was fascinating, albeit inconvenient for the government, and one can only hope that Parliament establishes a court without the legal faults of the short-lived AMC.

The reporting of this issue has been substandard at best. Nine and The Courier Mail have reported that five children were killed in the incident, while the ABC claims it was four. Some sources quote the Director of Military Prosecutions in her assertion that the accused are “former soldiers”, while The Australian claims that they are still soldiers. Astonishingly, another story filed by The Australian on the same day by a different journalist contradicts the aforementioned report from the same newspaper in regards to whether the soldiers have left the ADF or not. ABC News 24 aired a comment by Neil James of independent think-tank the Australian Defence Association claiming that no Australian soldier had ever been charged with manslaughter, a claim that stands in direct contrast to an Adelaide Now (i.e. The Adelaide Advertiser) report that read:

“Military experts said the last time manslaughter charges were laid against Australian Diggers was in the Vietnam War – involving a soldier and an officer.”

The faults didn’t stop there. Some sources claimed that the incident was at Tarin Kowt, other said that it was 12 kilometres away. Some claimed the incident had not been predicted, but the Sydney Morning Herald predicted it three months ago. Much of this is just poor journalism, but it’s also possible that it’s at least partly due to the ADF’s irrational aversion to journalists that they don’t control and its dangerous habit of keeping information from the public. But that’s for Media Watch to decide.