Australian criminal justice system history and development

The Australian Capital Territory and Victoria had the lowest rates with 24 and 26 cases per 1, persons respectively.

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Criminal cases a rate rate rate rate rate rate rate rate rate Supreme Court 0. Offences Summary offences can be tried in a Magistrates' Court. The Magistrate decides the guilt or innocence of the defendant.

These offences are usually of a less severe nature and carry lower penalties. Offences such as shoplifting or traffic violations are summary offences. Indictable offences are triable by a higher court, and hence, by a jury. They are usually of a more serious nature and carry heavier penalties. Offences such as murder, rape and armed robbery are usually indictable offences.

For some indictable offences, a defendant may choose to waive the right to be tried in the higher courts by a jury.

History of Criminal Law and Trials | Victoria University | Melbourne Australia

Legal representation Access to legal representation is important for a fair justice system. Australia has a system of legal aid services which helps pay the legal costs involved in court appearances for those assessed as being least able to afford such costs. Legal aid policy and development is largely undertaken by the Office of Legal Aid and Family Services while the aid itself is delivered by independent Legal Aid Commissions, Aboriginal Legal Services and other community-based legal agencies. In the federal budget statement, the States and Territories were called on to pay for the costs of legal aid for all cases being tried under State and Territory law.

Lawyers Barristers are lawyers who can represent others in any court. Solicitors are lawyers who can advise clients and instruct barristers but cannot represent clients except in some lower courts. Juries A jury may be called to try criminal cases depending on the type and seriousness of the crime in question. If a crime is indictable then the defendant has the right to a trial by jury in a higher court. A jury consists of 12 people with no legal training and no previous connection to the case. In most States and Territories, a jury decision on guilt or innocence must be unanimous.

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However in some, a majority decision involving at least 10 members is sufficient where a unanimous decision could not be achieved within a specified period of time at least two hours. Judges Judges and magistrates control and arbitrate the functions of the courts. They make the crucial decisions concerning the evidence that can be admitted and in what form, thus deciding what information the jury will get, and often how they must use it 2.

Only one woman has ever served as a Justice of the High Court. She was appointed in and is still serving. There are currently 40 judges of the Federal Court, of whom five are women. Prior to , judges in the High Court and the Federal Court were appointed for life. However, judges appointed since must retire at the age of There are still two judges of the Federal Court with life appointments i. Corrective services There are three main categories of correctional actions available to the courts when convicting offenders.

The first category includes those that do not involve supervision or detention of the offender, such as fines and bonds. Options in the second category involve supervision in the community, usually for a specified period, or until some educational or community reparative target is achieved. These include probation or community service orders. The third category includes options involving detention, either in prisons or other institutions, or at home.

In recent years it has become common for courts to impose sentences combining options from several different categories. Separate provisions exist in each State and Territory for dealing with juvenile offenders. The Commonwealth Government does not operate any prisons or other correctional services, and persons convicted of offences under federal laws are held in State correctional agencies. There were 88 prisons operating in Australia in This exercise of the chain of command lessens the possibility for breaches of military discipline. The chain of command is a hierarchical system designed to ensure that orders will be followed, and followed without question.

As a corollary to the importance that is placed on obeying orders, failing to do so, assuming it is a lawful order, is an offence. Until passage of the Defence Act Cth the colonial naval and military legislation continued in force in each of the States.

Criminal Justice, 1780-1925

The general situation was summarised in the Manual of Military Law : [47]. Certain provisions of the Army Act have been applied by the law of the Commonwealth, save so far as they are inconsistent with the Defence Act and the Regulations made thereunder The law in relation to the composition, procedure and powers of courts-martial contained in the Army Act and the regulations and under that Act have been applied by the law of the Commonwealth except so far as they are inconsistent with the Defence Act and the regulations made under the Defence Act to the Australian Military Forces wherever serving at all times.

Specifically, the military discipline of the emerging Australian Army was regulated in Australia by the Army Act until the enactment of the Defence Act Cth and the subsequent introduction of the Australian Military Regulations and Orders in and amended in which provided, in a form adapted from the Army Act and Regulations , a series of military offences and a regime for the conduct of courts martial and summary proceedings. That scheme remained in place but was subject to a significant revision and re-write by the Australian Military Regulations Cth , which repealed the Australian Military Regulations Cth.

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For the Navy, matters remained as provided under the Imperial statutes until passage of the Naval Defence Act Cth , which provided for the continued application of the Imperial law as modified by the Defence Act Cth. The DFDA now provides the legislative framework for the military discipline system. It creates tribunals to try members of the Defence Force on charges of Service offences against the Act, and provides these tribunals with powers to try civilians accompanying the Defence Forces on operations.

The Act creates a system of appeals, and covers related matters such as investigation of offences, suspension from duty, and powers of arrest. The Act when viewed as a whole, has the effect of dividing the Australian military justice system into two sub-systems: an Administrative System, and a Discipline System, both designed to support the command and organisational structure of the ADF.

It is analogous to a civilian coronial inquiry.

Crime and Criminal Justice

It combines the investigating of allegations that, if proven, constitute an offence contained in the DFDA ; the laying of charges; the conduct of the trial; sentencing; and, finally, custodial detention if ordered. These are steps that would be conducted in the civilian system by the police, Director of Public Prosecutions, a criminal court judge and jury or magistrate and Corrective Services, respectively.

However, is the military justice system founded on a proper constitutional basis? Figure 1. Australian Military Justice System [50]. Note: The solid lines on this diagram represent the framework of the military justice system. However, all parts of the system may interact and this interaction is represented by the dotted lines. The Court's judgments reveal three distinct theories on this issue. The third view was challenged most recently in in Re Tracey; Ex parte Ryan. The narrowness of the base upon which the High Court decided that constitutional exceptionalism survived was highlighted upon the delivery of judgment when the following exchange [57] took place:.

No order as to costs. Mr Muecke counsel for the Commonwealth : I note that the Court has made no order as to costs. On my instructions, the matter of costs has not been argued. If the Court is not prepared to award the Commonwealth costs [now] perhaps the Court would allow 21 days? Mason CJ: What I suggest you do is read the judgment. Whilst on the face of the Court's order you appear to have won the battle, I think you will find on reading the judgment you have limped away emphasis added.

The succession of decisions by the High Court dealing with the DFDA clarifies, although does not truly settle, the current basis of the power of military tribunals to hear disciplinary offences by service personnel. However, it remains the case that the High Court has long struggled with the constitutional basis for exceptionalism. The relationship between the judicial power and a service connection can only be fully appreciated once the constitutional and historical basis for the power exercised by military tribunals is acknowledged. In attempting to answer that question it requires a discussion of the attempts by the Commonwealth Parliament to enact a new military justice system to replace that under the DFDA when it enacted the Military Court of Australia Act Cth , which was subsequently declared unconstitutional by the High Court [59] for breaching ch III of the Constitution.

As such, the answer to that question is outside the scope of this article. It is strongly argued that the time for the Commonwealth to act is now, in peacetime, when it can get it right.


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Perhaps, even, the nation is mature enough to consider the benefits of the European model of abolishing military courts entirely in peacetime. In its more modern usage, the phrase has become a watchword about the erosion of civil liberties during wartime and civil unrest. French original, free translation.

The first Act was in and each governed the conduct and discipline of the British Army. The Act made desertion, mutiny, and sedition of officers and soldiers crimes triable by court martial and punishable by death.


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  • The Governor was thereby directed to consult with act upon its advice. The British troops were promptly withdrawn in August Enter an Australian post code for delivery estimate. Link Either by signing into your account or linking your membership details before your order is placed. Criminal Responsibility IntroductionAims and functions of the criminal lawSources, prescriptions and influences on the criminal lawElements of a crimeExtensions of criminal responsibilityConclusion2. Expanding Crime Investigation IntroductionNew methods, new agendas? Punishment and Penalty IntroductionCrime and punishmentPrinciples of punishmentThe demise of retribution?