Volume 32, Issue 1, 2020
Volume 32, Issue 1, 2020
JUSTICE – EQUALITY, FAIRNESS AND ACCESS
David Hamper – Deputy Principal Malek Fahd Islamic School
‘Justice’ – a legal concept and term we often see used in many different contexts. Justice is also a term that is often misused and poorly defined. At the core of justice, in a legal sense, are three fundamental concepts: equality, fairness and access. When these three concepts combine and are present we can see justice.
However, justice or injustice (meaning the lack of justice) is often seen through just one of these concepts. For example, we might see justice as being about achieving a fair outcome but if it does this at the expense of equality then justice has not been served. These core principles of justice are often in competition with each other and as a consequence justice must aim to achieve some kind of balance between them. Equally, justice must provide a balance between the rights of the accused and the rights of the victim. This can lead to tensions as, what one side may consider justice may in fact be far from it, from the perspective of the other side.
Figure 1: The core principles that lead to justice
Justice can only exist in an environment where the law is applied equally to all people, there can be no one who is above the law or exempt from it regardless of their position, wealth or power. The case of former Federal Court judge, Justice Marcus Einfeld, demonstrates this point in action.
In 2009, Einfeld was found guilty of the crime of perjury, meaning that he lied when dealing with the legal system. His conviction stemmed from a 2006 speeding ticket when his car was photographed by a speed camera in Sydney exceeding the legal speed limit. Einfeld challenged the ticket on the grounds that he was not driving the car at the time, he did this through a written affidavit. However, this was proven to not be the case and in fact he was driving the car and so had lied in a legal document. Despite the fact that Einfeld was a highly regarded member of the legal profession who had held one of the most senior legal positions in the country, it did not make him immune from prosecution.
It is also essential that the enforcement of the law is applied equally. The extent to which the Australian legal system demonstrates this point is questionable. In 2019, 28 per cent of all prisoners held in Australian prisons were Aboriginal and Torres Strait Islander, yet Indigenous Australians account for just two per cent of Australia’s population (ABS, 2019). Indigenous Australians also accounted for 21 per cent of the total number of community-based corrections issued by Australian courts. These corrections include probationary orders, community service orders, parole etc. The situation for young offenders is even more stark. Data from the 2016-17 Youth Justice Report found that 54 per cent of young people held in youth detention were Indigenous (Australian Institute of Health and Welfare, 2018). An Indigenous man is 15 times more likely to be in custody than a non-Indigenous man, and for Indigenous women it is 21 times more likely that they will spend time in custody (Russel & Cunneen, 2018). The extremely high rates of imprisonment of Australia’s Indigenous population demonstrates that while the law applies to everyone equally, its actual enforcement may not be equal.
Fairness is the concept that we most readily associate with justice. As a community we expect that the justice system will be fair in the way that it deals with individuals. However, it is here that conflict often arises in regards to one’s perspective, what appears fair for the victim may to someone else appear as unfair to the accused and vice versa. Fairness may also conflict with equality. In order to be fair it may be necessary for the law to treat people differently depending on their circumstances.
In considering the operation of the criminal law in Australia, judges must balance individualised justice and consistency across similar cases, in other words balance the notions of equality and fairness. The judge needs to consider the individual circumstances of an offender and the reasons for the offence taking place – the mitigating factors. Equally though the judge needs to also consider the sentencing guidelines and the precedents set by other courts, especially those that are more senior. We would consider it unfair for a judge to issue a sentence that was very much greater (or indeed very much lower) than what was given to other offenders who committed similar offences in similar circumstances.
Sivasubramaniam (2017) points out that the typical human response to an injustice is to assess who is to blame and to seek revenge for the injustice. In thinking like this, there is often little regard given to the circumstances of the offence and the offender. We often see this in the media.When a crime is committed there are calls for swift and harsh action to be taken against the accused. However, judges have a deliberative and systematic response.They are trained to consider all the circumstances and to avoid engaging at an emotional level. This is one reason why our legal system makes use of prosecutors and judges in the criminal justice system. Prosecutors do not represent individual victims, instead they represent all of society, hence the term Crown (in this sense meaning society). The role of the prosecution in the Australian legal system is to ensure that justice is served and to do so they and the judge must act with fairness as a key principle.
The impact of the enforcement of the law may achieve an equal outcome but in doing so may in fact became very unfair. A point in case would be to consider the disqualification of a person’s driving licence for a traffic offence. In a urban area with considerable public transport and access to ride sharing services the disqualification causes considerable inconvenience but for a person living in a regional or remote area, where there are no alternative forms of transport this punishment can have a dramatic impact on a person’s ability to function. It can result in the loss of employment, an inability to attend appointments, which in turn may impact on access to government, medical and other services and support and cause social isolation.In this instance the equal application of the law, that is the loss of a right to drive a car has been achieved. Both the person in the city and remote area committed a similar offence and consequently received a similar punishment. However, the impact of that punishment was considerably different.One faced inconvenience, the other faced potentially life changing consequences. Hence in a bid to achieve equality the legal system, in this case, has created an unfair outcome.
In order to achieve justice individuals must have access to the law. There are a range of factors that influence access. Geography is a key factor, Australians living outside major cities have less access to legal professionals, advisory services and even the court system itself. This can be a major source of injustice. Language and other cultural factors can also limit access. The legal system is complex and formal and this can discourage those for whom English is not their main language from accessing the law. Equally those people originally from countries with corrupt legal systems may have a distrust of the law and therefore not access it to assert their rights here in Australia. A person’s financial situation is another key factor in determining their capacity to use the legal system. Legal representation is expensive and Legal Aid services are over-stretched.
In a 2018 speech, the President of Law Council of Australia, Morry Bailes, noted that people living in remote and regional Australia face considerable challenges in terms of access to the law. He made the point that in many cases people were unaware that an issue they were dealing with was in fact a legal one because they have such limited access to legal advice. The Law Council’s Justice Project reports that while 29 per cent of Australians live outside major cities, just 10.5 per cent of solicitors practice in these areas (Law Council (a), 2018).
Research by the Law and Justice Foundation of NSW (cited Law Council (b), 2018, p.6) found that recent arrivals in Australia with a non-English main language report experiencing significantly lower levels of legal problems than those with English as their main language. This is most likely due to a lack of knowledge and reporting of legal issues rather than as a result of a lack of actual issues. This highlights some key issues around access for people newly arrived to Australia, who typically use non-legal sources for legal advice and information, such as migrant support centres, community organisations and family and friends. This is due to limited access to quality legal advice that is affordable and provided in the arrival’s main language. Typical issues faced by recent arrivals tend to include financial law matters, tenancy, motor vehicle issues, unfair contracts as well as issues around discrimination. Many of these areas are complex legal issues that require considerable knowledge of individual legal rights and methods of redress.
Legal representation is also extremely expensive. Research by the Law Council of Australia revealed that in 2014, 14 per cent of Australians lived below the poverty line, yet only 8 per cent of Australians could qualify for Legal Aid (Law Council, 2018 (c)). This is because the restrictions on who can access Legal Aid are so strict now that few people can qualify.In 2016 over 150,000 Australians were turned away by Community Legal Centres, which are often seen as an alternative to Legal Aid. The challenges in accessing legal assistance has seen an increase in the number of people who now represent themselves before the courts. According to the Law Council in 2016, more than 100,000 matters were heard in the Victorian Magistrates’ Court, where the accused represented themselves. In family law almost 40 per cent of cases that go before the courts now have self-representing plaintiffs. As the High Court highlighted decades ago in cases such as Dietrich v The Queen (1992), self-representation is a major source of injustice.
A study by the ABS looking at the status of all prisoners in Australia on the first day of the month between September 2014 and September 2019 found that on average 33 per cent of all prisoners were unsentenced. This means that one-third of persons held in prison across Australia have either yet to be tried or have yet to receive their actual sentences. For some of these prisoners, they will be found not guilty when their case eventually gets heard in the courts and their pre-trial detention was therefore unjustified. In 2017 Chief Justice Chris Kourakis, of the South Australian District Court, spoke out to the media about the impact of very long delays in cases being brought before the courts. He noted that cases were taking around 12 months to come before the District Court and during this time witness memories fade and become less reliable and injustices can occur (cited Royal, 2017). The situation with civil law matters is even more extreme with many cases taking years to come before the courts.
Extensive delays, considerable costs, socio-cultural barriers, such as language, and locational disadvantages all serve to limit access to the legal system. This limited access means that the legal system favours advantaged people and provides for them more opportunity to use the legal system to benefit themselves, while the disadvantaged are more likely to suffer injustice.
Justice is an ideal held by many societies but is seldom achieved. Legal outcomes are rarely satisfactory and tend to be a series of compromises. As Crisp (2014) points out justice has always been an instrument of those with whom power rests (p.16). While here in Australia we have a justice system that aims to promote equality, fairness and access there are considerable limitations as seen in the examples outlined above. Consequently, those who face disadvantage based on factors such as ethnicity, economic and social status, gender and many other factors also face these disadvantages in their dealings with the legal system and hence justice is impacted.
1. Why is it necessary to incorporate all elements of justice to actually achieve justice?
2. Why do you think one person could see an outcome as just but another person may see that same outcome as unjust?
3. Explain the 2009 Einfeld case. How does this case relate to equality? Do you think it was a just outcome? Discuss.
4. Explain this statement using statistics to illustrate your point. ‘While the law applies to everyone equally its actual enforcement may not be equal.’
5. Why may it be necessary to treat some people differently in order to achieve fairness?
6. Explain how giving the same punishment to two accused, for the same offence, could result in injustice for one.
7. What groups of people are less likely to be able to access proper legal advice?
8. Why is unequal access a problem in achieving fair outcomes?
9. Why do you think self-representation is a major source of injustice?
10. How can delays in cases being adjudicated in courts cause injustices in both civil and criminal cases?
11. Why do you think that advantaged people are more likely to be able to access justice than disadvantaged people? Discuss.
Australian Bureau of Statistics (ABS) (2019) 4512.0 Corrective services, Australia, September quarter 2019, https://www.abs.gov.au/ausstats/abs@.nsf/mf/4512.0 [accessed 19 February 2020]
Australian Institute of Health and Welfare (2018) Youth Justice in Australia 2016-17, https://www.aihw.gov.au/reports/youth-justice/youth-justice-in-australia-2016-17/data [accessed 9 February 2020]
Bailes, M.(2018), ‘Access to justice in RRR Australia’ Speech delivered at Symposium of Constitutional Law, 11 January 2018, https://www.lawcouncil.asn.au/docs/6ec1c18f-48fb-e711-93fb-005056be13b5/Access%20to%20justice%20in%20RRR%20Australia.pdf [accessed 9 February 2020]
Crisp, R.(2014) ‘Justice: The Achilles’ heel of democracy’, Australian Quarterly, v.85 (4), pp.14-20
Law Council of Australia (2018 a) The Justice project final report – part 1, rural, regional and remote Australians https://www.lawcouncil.asn.au/files/web-pdf/Justice%20Project/Final%20Report/Rural%20Regional%20and%20Remote%20%28RRR%29%20Australians%20%28Part%201%29.pdf [accessed 9 February 2020]
Law Council of Australia (2018 b) The Justice project final report – part 1, recent arrivals to Australia https://www.lawcouncil.asn.au/files/web-pdf/Justice%20Project/Final%20Report/Recent%20Arrivals%20to%20Australia%20%28Part%201%29.pdf [accessed 9 February 2020]
Law Council of Australia (2018 c) The Justice project final report – part 1, people experiencing economic disadvantage https://www.lawcouncil.asn.au/files/web-pdf/Justice%20Project/Final%20Report/People%20Experiencing%20Economic%20Disadvantage%20%28Part%201%29.pdf [accessed 9 February 2020]
Royal, S. (2017) ‘Unacceptatble – SA District Court delays in excess of 12 months, Chief Justice says’ ABC News Online (11 May 2017 1:15pm) https://www.abc.net.au/news/2017-05-11/chief-justice-frustrated-unacceptable-district-court-delays/8515262 [accessed 23 February 2020]
Russel, S.& Cunneen, C. (2018) ‘As Indigenous incarceration rates keep rising, justice reinvestment offers a solution’, The Conversation https://theconversation.com/as-indigenous-incarceration-rates-keep-rising-justice-reinvestment-offers-a-solution-107610 [accessed 16 February 2020]
Sivasubramaniam, D. (2017), ‘The justice motive: Psychological research on perceptions of justice in criminal law’. In Levy, R.et al (Eds.) New directions for law in Australia, (pp.181-189), ANU Press, Canberra