Aborigines were the first inhabitants of Australia, migrating there at least 40,000 years ago. While Asian explorers had landed in northern Australia well before AD 1500, it was not until the 17th century that the first Europeans from Holland managed to sail to Australia. Of the several Dutch expeditions into the southern oceans, the most successful was that of Abel Tasman, who in 1642 discovered an island now known as Tasmania. However, the Dutch did not formally occupy Australia, finding little there of value for European trade, opening the way for the later arrival of the English. Starting in 1765, Captain James Cook led a series of expeditions to Australia and he subsequently supported settlement in Australia. Curiously it was a rising crime rate in England that led to the occupation of Australia. After the American Revolution ended in 1783, Britain moved quickly to establish its first settlement in Australia as a place to send its convicts, since it could no longer ship British convicts to America. In 1786, the British government announced that it would establish a penal settlement at Botany bay in Australia, and in 1788, retired Royal Navy captain Arthur Phillip arrived at Botany Bay with more than 1,450 passengers. This included 736 convicts, 211 marines, 20 civil officers, and 443 seamen. Subsequently, he moved the fleet north to Port Jackson, an excellent natural harbor, and began the first permanent settlement on January 26, 1788 (now known as Australia Day). This settlement was subsequently named Sydney in honor of Lord Sydney, Britain's home security who was responsible for the colony. Food supply was a major problem in the early settlement days, and needed food supplies came mainly from Norfolk Island, which Phillip had occupied in February 1788, an island that later served as a jail for convicts who committed new crimes while serving their sentence in Australia. (In fact, the later Warden of Norfolk Prison, Captain Alexander Maconoche is legendary for having instituted a then controversial practice of releasing convicts early for good behavior as a means of managing an unruly population of convicts. This innovation resulted in Maconochie being dubbed "the father of parole," and also led to his dismissal as warden.) The New South Wales Corps replaced the Royal Marines in 1792. They were given grants of land and became excellent farmers. Through controlling the price of rum, used as an internal means of exchange, they posed a threat to the governors. When Captain William Bligh (whose crew aboard the Bounty had mutinied in the Pacific) became governor in 1806 and threatened the corps with the loss of their monopoly, they responded with a so-called Rum Rebellion. Bligh was arrested and sent back to London, giving the leaders of the corps a victory. Coincidentally, one of the corps leaders, John Macarthur, found a solution to the colony's lack of valuable exports by interesting British manufacturers in Australian wool. After 1810, the wool of the Australian merino sheep became the basis for a major economic activity. The New South Wales Corps was sent home by the next governor to be followed by more free settlers claiming farmland on which convicts could serve as laborers. As convicts completed their sentences, the convicts agitated for land and opportunities, and were known as emancipists, opposed by the free settlers, who were known as exclusives. In 1825 the island settlement of Van Diemen's Land (today's Tasmania) became a separate colony, having been established in 1803 as a penal colony because of fear that the French would claim the island. Sheep grazing expansion caused a growth of land claims by squatters and resulted in the colonization of the Port Phillip district that became the colony of Victoria in 1850, with its capital at Melbourne. Another colony to the north, Queensland, was settled by graziers and separated from New South Wales in 1859. Other settlements of European people were subsequently established elsewhere, resulting in the creation of six independent British colonies: New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania. In 1850, the sending of convicts to New South Wales was abolished. It was abolished to Van Diemen's land in 1852. (More than 150,000 had been send to the two colonies.) Owed to a movement toward free trade, which nullified the need for colonies, from 1842 to 1850, Australian colonies received constitutions and were given legislative councils (preventing a war of independence which might have unified the Australian colonies). Australia had its own gold rush in the 1850s, which resulted in an influx of Chinese immigrants attracted by gold, a movement that was opposed by the white settlers in their exclusion of all but European settlers. This became known as a "White Australia" policy, a policy that endured up until recently in Australia. Seemingly, this policy also applied to the Aborigines who as the frontier pushed inland, were often poisoned, hunted, abused, and exploited by the settlers. After a constitutional convention in sydney from 1897 to 1898, the six colonies approved and became a federation. The Commonwealth of Australia was subsequently approved by the British Parliament in 1900 and came into existence on January 1, 1901 (although since then, the Northern Territory and the Australian Capital Territory have been granted self-government). The federal constitution combined British and American practices, with a parliamentary government, but with two houses - the popularly elected House of Representatives and Senate representing the former colonies (which were now states). However, the Balkanization of Australia into separate unrelated states continued until WWI when the nation unified, sending 330,000 volunteers to fight with the allies. WWII brought a greater alliance with the United States. This alliance has endured until today through Australian participation fighting along-side the Western alliance in the Korean War and fighting in the Vietnam war as an ally of the United States. The White Australia policy was discarded during the 1950s through 1970s. Under the Colombo Plan, Asians were admitted to Australian universities in the 1950s. In 1967, a national referendum granted citizenship to Aborigines, and in the 1970s, the entry of immigrants began to be based on criteria other than race. Australia remains part of the British commonwealth, after a national referendum failed to win a majority vote to change Australia's form of government to a republic. The Commonwealth of Australia has nine separate parliaments or legislatures, most of which have lower and upper houses. There are also several hundred local government authorities, known as councils or shires. The national or Commonwealth Government is responsible for defense, foreign affairs, customs, income tax, post and telegraphs. The State or Territory Governments have primary responsibility for health, education and criminal justice, although the Commonwealth Government is also influential in these areas. There exists a level of tension between the governments at the State or Territory level and the Government of the Commonwealth. This tension is almost exclusively concerned with the issue of the allocation of monies raised from income tax and the appropriate distribution of power. Since the 1970s, there has been a noticeable shift of power toward the Commonwealth Government.
"Australia." Microsoft Encarta Online Encyclopedia 2002, http://encarta.msn.com (23 June, 2002)
Crime is generally defined in Australia as any conduct which is prohibited by law and which may result in punishment. Crimes can be classified as either felony, misdemeanor or minor offenses, but more commonly they are classified as indictable or not indictable offenses. Indictable offenses are those which are heard by the superior courts and may require a jury, whereas non-indictable offenses, which comprise the vast majority of court cases, are heard in magistrates courts, where no juries are employed. While there are some classification differences among the various jurisdictions, in all jurisdictions indictable offenses generally include homicide, robbery, serious sexual and non-sexual assault, fraud, burglary and serious theft. Homicide includes murder, manslaughter (not by driving) and infanticide. Assault is defined as the direct infliction of force, injury or violence upon a person, including attempts or threats. Sexual assault is a physical assault of a sexual nature, directed toward another person where the person does not give consent; or gives consent as a result of intimidation or fraud; or is legally deemed incapable of giving consent because of youth or temporary/ permanent incapacity. Sexual assault includes: rape, sodomy, incest, and other offenses. Rape is defined as unlawful sexual intercourse with another person by force or without the consent of the other person. Robbery is defined as the unlawful removing or taking of property or attempted removal or taking of property without consent by force or threat of force immediately before or after the event. Unlawful entry with intent (UEWI) is defined as the unlawful entry of a structure with the intent to commit an offense. UEWI offenses include burglary, break and enter and some stealing. Motor vehicle theft is the taking of a motor vehicle unlawfully or without permission. "Other theft" or stealing is defined as the taking of another person's property with the intention of permanently depriving the owner of property illegally and without permission, but without force, threat of force, use of coercive measures, deceit or having gained unlawful entry to any structure even if the intent was to commit theft. In some jurisdictions, such as South Australia, there is a group of "minor indictable" offenses which can be heard in the superior or lower courts, according to the wish of the accused. Criminal justice statistics are based on a classification scheme which divides crimes into offenses against the person, property offenses and "other." The minimum age of criminal responsibility and the upper age limit for hearings in juvenile courts varies among Australian States and Territories. The minimum age of criminal responsibility in juvenile courts is 7, while the minimum age to be tried in an adult court is 16. In all jurisdictions, any child above the age of criminal responsibility who is charged with homicide can be tried in an adult court. In some jurisdictions, juveniles may have their offenses tried in adult courts for offenses such as rape and treason. Drug offenses constitute a major focus of all Australian criminal justice systems. The possession, use, sale, distribution, importation, manufacturing or trafficking of a wide range of drugs is illegal in all Australian jurisdictions. Illegal drugs include: marijuana (cannabis), heroin, designer drugs (ice, ecstasy), amphetamines (speed, LSD) and cocaine (including crack). While the possession or use of any of these drugs is illegal, in some jurisdictions, notably South Australia and the Australian Capital Territory, marijuana has been partially decriminalized. Its possession or use may result in the imposition of a relatively small fine without the need to appear in court. Tasmania is one of the world's major suppliers of licit opiate products; government maintains strict controls over areas of opium poppy cultivation and output of poppy straw concentrate
INCIDENCE OF CRIME
The following data has been compiled by the Australian Institute of Criminology from information contained in the annual reports of Australian police forces for the year 2000. In year 2000, there were 346 homicides reported to the police, for a rate of 2.0 per 100,000 population. The percentage of homicides committed with a firearm was 17%. Attempts are not included. In 2000 there were 141,124 assaults reported by the police at a rate of 737 per 100,000 population. There were 15,630 victims of sexual assault recorded by the police in Australia in 2000, about 82 victims per 100,000 population. Police recorded 23,314 victims of robbery during 2000, with 122 per 100,000 population. In 2000, there were 436,865 incidents of unlawful entry with intent to commit an offense, a rate of 2281 victims per 100,000 population. Police recorded 139,094 motor vehicles stolen in 2000, with 726 victims per 100,000 population. A total of 674,813 victims of "other theft" was recorded by the police in 2000, with 3,523 victims per 100,000 population in Australia. A victim survey of households was conducted by the the Australian Bureau of Statistics in 1998 for some of these crimes. From this survey it was estimated that 4.3% of households were victimized by assault, .4% by sexual assault, .5% by robbery, 5.0% by break-in, and 1.7% by motor vehicle theft. If these were converted to rates per 100,000, the rates would be 4300 for assault, 400 for sexual assault, 500 for robbery, 5000 for break-in, and 1700 for motor vehicle theft, in all cases higher than the incidence recorded by police.
Trend analysis has been done for years 1973/4 to 1991/2. Trend data using official statistics indicate apparently ever-increasing levels of crime. By contrast, national crime victimization surveys show much more stable trends in crime. Total property crimes reported to police increased from 385,453 to 1,168.423 in 1990/1 (an increase of 203%) before falling in 1991/2 to 1,024,569. Total violent offenses rose from a mere 7,056 to 36,909 in 1991/2, an increase of 423%. Expressed as an annual rate per 100,000 population, property offending went from 2834.4 crimes reported per 100,000 to 6563.8 in this period; violence increased from 51.9 to a startling 213.4. Adjusting for population change, then, these increases are of 132% and 311% respectively. Of particular concern are trends in reported sexual assaults (rape rates up 426%) and other serious assaults (up 452%). In addition, reported drug offenses were up 612% between 1974/5 and 1991/2. However, the national statistics for homicide remain remarkably steady within a range between 1.62 per 100,000 and 2.40 per 100,000. By contrast, National Crime Victims Surveys done for years 1974/5 through 1991/2 show less of a change. These figures suggest increases in these eighteen years of 51% for break, enter and steal, and no increase at all for motor vehicle theft. For robbery, the survey suggests a 33% increase, a decrease of 9% for assault, and no change in incidence for sexual assault. The discrepancy between police and survey data is partly explained by increased reporting which itself is explained by an increase in the numbers of police. The number of police rose from 178 per 100,000 population in 1973/4 to 244 in 1991/2.
INTERNATIONAL CRIME RATE COMPARISONS
In a comparison of survey victimization from the International Crime Victim Survey, it appears that Australia has a high rate of crime. Car theft is virtually double the average rate for 21 countries, and in most of the other offenses including burglary and violence, Australia risks are at least fifty percent higher than the average. These offenses include car theft, theft from car, car damage, burglary, theft of personal property, robbery, sexual assault, and other assault. Only bike theft ranks low in comparison to the average of other counties.
The Commonwealth of Australia is a federalist government composed of a national government and six State governments. If Territories are included, there in effect nine different criminal justice systems in Australia - six state, two territory, and one federal. The eight States and Territories have powers to enact their own criminal law, while the Commonwealth has powers to enact laws. Criminal law is administered principally through the federal, State and Territory police. There is no independent federal corrective service. State or Territory agencies provide corrective services for federal offenders. The government of the Commonwealth is responsible for the enforcement of its own laws. The most frequently prosecuted Commonwealth offenses are those related to the importation of drugs and the violation of social security laws. Offenses against a person or against property occurring in Commonwealth facilities are also regarded as offenses against the Commonwealth. The States are primarily responsible for the development of criminal law. Queensland, Western Australia, and Tasmania are described as "code" States because they have enacted criminal codes which define the limits of the criminal law. The remaining three States, New South Wales, Victoria, and South Australia are regarded as "common law" States because they have not attempted codification. In practice, however, there is little difference in the elements of the criminal law between the "code" and "common law" States. Local governments can pass legislation, known as bylaws. These generally include social nuisance offenses as well as traffic and parking rules. Local government officials or the State and Territory police generally enforce the local government bylaws. The maximum penalty that can be imposed for conviction of a bylaw offense is a monetary fine. However, non-payment of fines can result in imprisonment. The structure of the Australian legal system is derived from, and still closely follows, that of the United Kingdom. In addition to parliament-made law, there is the "common law" inherited from the English courts which has since been developed and refined by Australian courts. It should be noted, however, that since 1963 Australian courts have ceased to regard English decisions as superior or even equal in authority to those made by Australian courts. The legal system is adversarial in nature and places a high value on the presumption of innocence. Due to the federalist system of government, there are nine separate legal systems in operation. Although there are some significant differences between these systems, they are essentially similar in structure and operation.
Australia has one police force for each of the six States, the Australian Capital Territory, and the Northern Territory. There is also a Commonwealth agency known as the Australian Federal Police (APF) which provides police services for the Australian Capital Territory and is also involved in preventing, detecting and investigating crimes committed against the Commonwealth, including drug offenses, money laundering, organized crime, and fraud. The APF was brought into existence by the Australian Federal Police Act of 1979. However, because of findings of several Royal Commissions in the late 1970s and early 1980s that revealed the extent of organized crime in Australia, the Commonwealth Government in July 1984 established the National Crime Authority (NCA). Legislation was passed in each State, the Northern Territory, and the Australian Capital Territory, to support the work of the NCA in those jurisdictions. The NCA is the only law enforcement agency in Australia not bound by jurisdictional or territorial boundaries. Its single mission is to combat organized criminal activity. Thus, there are now ten separate police forces for the nation, including the NCA and the AFP, police for the two territories, as well as police for the six states (New South Wales, Victoria, Queensland, South Australia, Western Australia, and Tasmania). There are, however, a large number of other agencies which have specific law enforcement functions, including health inspectors, tax officials, and immigration and customs officers. All Australian police forces have a hierarchical organization. In the larger police forces, the chief officer is known as the Commissioner, except in Victoria, where he or she is known as the Chief Commissioner. The larger forces also have one or more Deputy Commissioners and a number of Assistant Commissioners. Below these ranks are Chief Superintendents, Superintendents, Chief Inspectors and Inspectors. Officers achieving the rank of Inspector or above are known as commissioned officers. The remaining ranks consist of Senior Sergeants, Sergeants, Senior Constables and Constables. In the State and Territory police forces, the administration is divided into geographical districts, which are themselves divided into divisions and subdistricts. There is also a movement towards increasing the autonomy of regional police commanders in many Australian police forces. The Commissioner of Police is directly accountable to a Minister, but the Minister is usually not permitted to influence the operation and decisions of police commanders. An Australian Police Ministers Council (APMC) meets at least once a year and is supported by the Commissioners in this context as the Senior Officers Group (SOG). The APMC and SOG structures have attempted to create a higher level of cooperation and uniformity of police practices throughout Australia. Australian police forces are not closely associated with the military forces. Australian military forces have no responsibility for the maintenance of civil order. However, on very rare occasions the military forces have been required to provide assistance to the police. In the event of a serious natural disaster, such as a flood or bush fire, the military forces are asked to assist the police and other civilian authorities. Australian police recruits are required to have completed their secondary education, although it is not always essential to have been awarded a qualification known as Higher School Certificate. A university degree is not generally required of police in Australia except for specialist posts. University training is encouraged for all recruits to the Australian Federal Police and increasingly in other police forces. Recruits must undergo medical and psychological tests and are evaluated on their overall suitability, competence, physical fitness and character. Recruit training is a combination of classroom and field-based experience which takes approximately 18 months to complete. A portion of this training takes place in a police academy and the remainder is conducted on the job. All police officers may use "appropriate" force when encountering violent persons. "Appropriate" is defined by the level of force required to overcome and apprehend the person(s). Police officers may use "lethal" force on a person if they believe their life or the life of another person is in danger. "Lethal" is defined as the level of force that might result in the person's death. All police officers carry handguns and handcuffs. They rarely carry batons; these are usually kept in police cars. In general, a police officer may stop and apprehend any person who appears to be committing, or is about to commit, an offense. The law provides that law enforcement officials may arrest persons without a warrant if there are reasonable grounds to believe a person has committed an offense. The vast majority of arrests are made without a warrant although there are jurisdictional differences concerning prerequisites to arrest. Law enforcement officials can seek an arrest warrant from a magistrate when a suspect cannot be located or fails to appear. Once individuals are arrested, they must be informed immediately of the grounds of arrest and given a "criminal caution," that is, informed of their rights. Police are generally required to obtain a search warrant from a judge or a magistrate before they enter premises and seize property. However, illegal drugs and weapons can be seized without a warrant. Whereas the issue of obtaining confessions from suspected offenders has been a controversial subject in the past, the controversy has diminished with the onset of video. Virtually all interviews with persons suspected of serious offenses are videotaped. Complaints against the police are investigated by different authorities in different jurisdictions.
Once taken into custody a detainee must be brought before a magistrate for a bail hearing at the next sitting of the court. Persons charged with criminal offenses generally are released on bail except when charged with an offense carrying a penalty of 12 months imprisonment or more, or the possibility of violating bail conditions is judged to be high. Attorneys and families are granted prompt access to detainees. Detainees held without bail pending trial generally are segregated from the other elements of the prison population. The law prohibits all such practices; however, there were occasional reports that police mistreated suspects in custody. Some indigenous groups charge that police harassment of indigenous people is pervasive and that racial discrimination among police and prison custodians persists. Amnesty International reported several incidents that involved such abuses. State and territorial police forces have internal affairs units that investigate allegations of abuse and report to a civilian ombudsman. The federal Government oversees six immigration detention facilities located in the country and several offshore facilities in the Australian territory of Christmas Island and in the countries of Nauru and Papua New Guinea. These facilities were established to detain individuals who attempt to enter the country unlawfully, pending determination of their applications for refugee status. Hunger strikes and protests have occurred at immigration detention facilities over allegedly poor sanitary conditions, inadequate access to telephones, and limited recreational opportunities.
All accused persons have the right to defend themselves in court but in serious cases most prefer to be represented by a legal practitioner. A recent decision by the High Court of Australia held that in all serious matters if the accused does not have access to legal advice, the case must be adjourned. In any trial, both the prosecution and the defense have the right to question and cross-examine witnesses. In New South Wales, the accused person also has the right to make an unsworn statement, thus avoiding being cross- examined by the prosecution. This practice has been abolished in all other Australian jurisdictions. A national system for the provision of free legal aid to accused persons was established in 1993 and subsequently some of the States have established legal service commissions which monitor and oversee the provision of this service. Eligibility to receive legal aid depends on the financial means of the individual and the merit of the case being defended. Legal aid is provided either through the salaried staff of a Legal Aid Commission or by assignment to private legal practitioners. Also, an extensive number of Aboriginal legal services throughout Australia receive separate funding from national or state legal services. Arrested persons are brought to a police station where charges are brought against them. Before being charged, the arrested person is usually searched. The police are empowered to use force if the search is resisted. In all serious cases, arrested persons are photographed and finger printed before being charged. If no charges are brought, the accused person is released. In most jurisdictions the police allow arrested persons to make a telephone call to a legal adviser, friend or relative. After the charging procedures are completed, the accused is either released on bail or held in custody. The role of the police in pre-trial decision- making includes performing the necessary investigation and detection work, filing charges and, except for the Australian Capital Territory, prosecuting the case in court. In some cases and in all Federal matters, the Director of Public Prosecutions is involved in determining what charges will be brought. If the Director decides that the case should be heard on indictment (heard in a superior court), a committal or preliminary hearing in a lower court is usually held in order to discover whether there is sufficient evidence to proceed with the trial. If the accused pleads guilty to a charge, the judge or magistrate may immediately impose a sentence without setting the case for trial. Thus, guilty pleas help to speed case flow and reduce case overload in the court system. If the accused pleads not guilty, the evidence of the prosecution and defense are heard in an adversarial manner in court. Cases involving serious charges are heard in a higher court with a 12-member jury. However, in some cases, the accused person has the right to waive a jury trial. Police will often conduct the prosecution for lower court cases, but not for those in the higher courts. In some jurisdictions there are alternatives to formal charging and court appearance procedures. These alternatives involve the use of community justice centers or dispute resolution centers to provide for the resolution of disputes between conflicting individuals. The proceedings in these centers are relatively informal and the hearings are less expensive than court procedures. In addition, most States have small claims tribunals or courts that allow for minor matters to be settled without involving the police or lawyers. Although plea bargaining is not officially permitted in any jurisdiction, some commentators have suggested there exists a form of charge bargaining, an arrangement by which an individual chooses to plead guilty to one or two particular charges with the understanding that other charges will be dropped. Pre-trial incarceration is usually referred to as "remanded in custody." In all jurisdictions there is a strong presumption in favor of granting bail. Bail can be granted either by police or by the courts. There are three main grounds for the denial of bail and remanding an individual in custody: 1) to prevent the offense from being continued or repeated; 2) to ensure that the offender does not abscond and appears in court as required; and 3) to ensure that the accused person does not interfere with the process of justice (for instance, by contacting jurors or witnesses). Generally, suspects brought on very serious charges, such as homicide, are remanded in custody for a substantial period of time while awaiting trial. Approximately 13% of all Australian prisoners are awaiting trial with the period of stay on remand varying between a few days to more than one year in a small number of cases. Australia has a hierarchical system of courts with the High Court of Australia operating at the top. The High Court of Australia is the final court of appeal for all other courts. It is also the court which has sole responsibility for interpreting the Australian Constitution. Within each State and Territory there is a Supreme Court and, in the larger jurisdictions, an intermediate court below it, known as the District Court, District and Criminal Court, or County Court. There is no intermediate court in Tasmania or in the two territories. Below the intermediate courts there are Magistrates Courts at which virtually all civil and criminal proceedings commence. Approximately 95% of criminal cases are resolved at the Magistrates Courts level. Cases passing through the courts generally share the following common elements: lodgment - the initiation of the matter with the court; pre-trial discussion and mediation between parties; trial; and court decision - judgment or verdict followed by sentencing. Cases initiated in Magistrates' Courts account for 98.1% of all lodgments in the criminal courts. The majority of criminal hearings (96%) take place in Magistrate's Court. The duration between the lodgment of a matter with the court and its finalization is referred to as "timeliness." Generally, lower courts complete a greater proportion of their workload more quickly because the disputes and prosecutions heard are less complex than those in higher courts, and cases are of a routine and minor nature. Committals are the first stage of hearing indictable offenses in the criminal justice system. A magistrate assesses the sufficiency of evidence presented against the defendant and decides whether to commit the matter for trial in a superior court. Defendants are often held in custody pending a committal hearing or trial, if ordered. Defendants' cases are finalized at the higher court level in one of the following two ways: adjudicated - determined whether or not guilty of the charges based on the judge's decision; and non-adjudicated - a method of determining the completion of a case thereby making it effectively inactive. Overall, 77% of the defendants whose cases are heard by a higher court are found guilty of an offense. Parallel to the Supreme Courts in the States and Territories is a Federal Court that is primarily concerned with the enforcement of Commonwealth Law, such as that related to trade practices, but that also hears appeals from the Supreme Courts of the Territories. Each State and Territory has a children's or juvenile court. Children's courts are invariably closed to the public and the press in order to protect the anonymity of the accused. The High Court of Australia has seven judges. Since its creation in 1901 there have been 37 appointments to the High Court. Except for one, all appointments have been male. A Chief Justice heads the Supreme Courts in each State and Territory. The actual number of judges varies according to the size of the state. In some jurisdictions, lay persons are appointed as Justices of the Peace. Although, in the past, these lay persons were able to convene courts and sentence offenders, this power has largely been removed in recent years. All of the persons appointed to the High Court of Australia have been distinguished members of the legal profession, but a significant minority of them have also had political experience or have been judges in a Supreme or Federal Court. The appointment of judges at each government level is the responsibility of the relevant government. In the case of the High Court and the Federal Court, formal judicial appointments are made by the Governor General. The Governor of the State formally appoints judges to the Supreme Courts. The identification and recommendation of persons to be appointed as judges in each jurisdiction is primarily the responsibility of the corresponding Attorney-General. In cases where a person either pleads guilty or is found guilty, the judge or magistrate responsible for the case determines the sentence. In complex or serious cases there is frequently an adjournment to allow the judicial officer to consider the appropriate sentence and to hear argument from the prosecution and defense in relation to sentence. Victim impact statements may be submitted in South Australia. In other jurisdictions pre-sentence reports are prepared to assist the judicial officer, usually by probation officers. Pre-sentence reports may also include a psychiatric opinion. There are a variety of sentencing options available at each court level; fine, good behavior bond, probation order, suspended sentence, community supervision, community custody, home detention, periodic detention, and imprisonment. All jurisdictions permit the following penalties to be imposed: fines, probation orders (supervision or recognizance orders), community service orders or imprisonment. Some jurisdictions provide for the imposition of home detention. Home detention is usually employed as a post-prison order rather than as an order imposed directly by the sentencing court. Capital punishment and corporal punishment have been abolished in all Australian jurisdictions. The last execution took place in 1967.
Prisons are the responsibility of states or territories. There are no federal penitentiaries or local jails. There are approximately 80 prisons throughout Australia. This number is an approximation because several large institutions are subdivided into administratively independent units. Although most prisons are designated as either high, medium, or low security facilities, prisoners at varying levels of security classification occupy most. In June, 2000, the total number of prisoners in Australia was 21,714, 94% of which were male. The rate for imprisonment in Australia was 148 per 100,000 population. According to a report by the Australian Bureau of Statistics, as of June 30, 2000, aboriginal adults represent 1.6 percent of the adult population but constituted approximately 19 percent of the total prison population, or approximately 14 times the nonindigenous rate of incarceration. The main offenses for which male offenders were sentenced included break and enter, robbery, and sex offenses. For female offenders, the main offenses included drug offenses, fraud, and robbery. Male prisoners sentenced for the violent offenses of homicide, assault, sex offenses, and robbery accounted for almost half of all sentenced male prisoners in 2000, while for females only one-third of sentenced prisoners were incarcerated for violent offenses. Generally, the training period for prison officers varies from 3 to 12 months and always involves a combination of classroom study and on-the-job training. Prison officers are required to undertake further study and pass examinations in order to be considered for promotion in the prison system. In Western Australia, persons who are appointed as superintendents or officers in charge of institutions must obtain some form of tertiary qualification. Until recently all convicted Australian prisoners were entitled to earn remissions or time off for good behavior. This approach has since been changed in New South Wales and Victoria as a result of support for an approach known as "truth in sentencing." This change is said to have resulted in a significant increase in the number of inmates in prisons, particularly in New South Wales. All States and Territories in Australia have provisions for parole and virtually all persons serving sentences of one year or more are released under a parole system. Most of the time, the number of persons serving parole is approximately two thirds of the total number of persons in prison. In addition, for every person in prison, there are approximately four persons serving other forms of non-custodial sentences such as probation or community service. All prisons have provisions for work, education and training, recreation and support. Inmates classified as requiring low security are able to obtain weekend leave. Other privileges are also available.
A number of large victim surveys conducted in Australia have consistently shown that most victims do not report crimes to the police. The main reasons that victims have cited for not reporting are that they consider the offense to be trivial or they believe the police either could not or would not do anything about the crime report. Such surveys have also found that victims are more likely to be men than women, young than old, unemployed and less well educated than the Australian norm. The most recent crime survey data for Australia come from the International Victims Survey (ICVS), which was conducted in March 2000. The most commonly mentioned personal crimes for Australia were consumer fraud (9%), assault (7%) and theft from the person (7%). About one in five persons reported being a victim of personal crime in 1999. The most common household crimes were motor vehicle damage (9%) and theft from a motor vehicle (6%). Just over 4% of households reported being a victim of a completed burglary (break-in). About 10% of households own a firearm in Australia (compared to 33% in the United States). About 66% of murders and 41% of robberies occurring in the United States in 2000 involved the use of a firearm, compared to 20% and 6% of murders and robberies, respectively, in Australia. There are a number of agencies that provide crime victim assistance in all Australian jurisdictions. These agencies include rape crisis centers, women's shelters, safe houses and voluntary organizations such as Victims of Crime Assistance League (VOCAL) and Victims of Crime Services (VOCS). Crime victims do not play an active role in the prosecution or sentencing of an offender in any Australian jurisdiction. South Australia has enacted a Victims of Crime Charter, based on the United Nations Charter. This charter provides for victim impact statements to be prepared and used in certain cases and for victims to be consulted at the various stages in the criminal iustice process.
Violence against women is a problem. Social analysts and commentators estimate that domestic violence may affect as many as one family in three or four, but there is no consensus on the extent of the problem. While it is understood that domestic violence is particularly prevalent in certain Aboriginal communities, only the states of Western Australia and Queensland have undertaken comprehensive studies into domestic violence in the Aboriginal community. It is agreed widely that responses to the problem have been ineffectual. The Government recognizes that domestic violence and economic discrimination are serious problems and the statutorily independent Sex Discrimination Commissioner actively addresses these and other areas of discrimination. A 1996 Australian Bureau of Statistics (ABS) study (the latest year for which statistics are available) found that 2.6 percent of 6,333 women surveyed who were married or in a common-law relationship had experienced an incident of violence by their partner in the previous 12-month period. Almost one in four women who have been married or in a common-law relationship have experienced violence by a partner at some time during the relationship, according to the ABS study. Prostitution is legal or decriminalized in many areas of the states and territories. In some locations, state and local governments inspect brothels to prevent mistreatment of the workers and to assure compliance with health regulations. There were 14,074 victims of sexual assault recorded by the police in 1999 (the latest figures publicly available; they do not distinguish by gender), a decrease of 1.8 percent from 1998. This amounts to approximately 74 victims of sexual assault per 100,000 persons. Spousal rape is illegal under the state criminal codes. Though prostitution is legal or decriminalized and occurs throughout the country, child sex tourism is prohibited within the country and overseas. In the past, the occurrence of female genital mutilation (FGM), which is criticized widely by international health experts as damaging to both physical and psychological health, was insignificant. However, in the last few years, small numbers of girls from immigrant communities in which FGM is practiced have been mutilated. The Government has implemented a national educational program on FGM, which is intended to combat the practice in a community health context. Trafficking in women from Asia and the former Soviet Union for the sex trade is a limited problem that the Government is taking steps to address. Sexual harassment is prohibited by the Sex Discrimination Act.
According to the Australian Institute of Criminology (AIC) report released in March, indigenous people were imprisoned nationally at 14 times the rate of nonindigenous people in 1999. The indigenous incarceration rate was 295 per 10,000 persons, while the nonindigenous incarceration rate was 18 per 10,000 persons. The AIC reports that the incarceration rate among indigenous youth was 18.5 times that of the nonindigenous youth population in 1999. Over 45 percent of Aboriginal men between the ages of 20 and 30 years have been arrested at some time in their lives. Aboriginal juveniles accounted for 42 percent of those between the ages of 10 to 17 in juvenile corrective institutions during 2000, according to the AIC. Human rights observers claim that socioeconomic conditions give rise to the common precursors of indigenous crime, for example, unemployment, homelessness, and boredom. Controversy over state mandatory sentencing laws continued throughout the year. These laws set automatic prison terms for multiple convictions of certain crimes. Human rights groups have criticized mandatory sentencing laws, which they allege have resulted in prison terms for relatively minor crimes and indirectly target Aboriginals. In July 2000, the U.N. Human Rights Commission issued an assessment of the country's human rights record that was highly critical of mandatory sentencing. The federal Government decided not to interfere in what it considered to be the states' prerogative, arguing that the laws were passed by democratically elected governments after full political debate, making it inappropriate for the federal government to intervene. The newly-elected government of the Northern Territory repealed the territory's mandatory sentencing laws in October. Australia's Aboriginal and Torres Straits Islander Commission (ATSIC) welcomed this repeal and called upon Western Australia to follow suit. Western Australia continued to retain its mandatory sentencing laws, which provide that a person (adult or juvenile) who commits the crime of home burglary three or more times is subject to a mandatory minimum prison sentence. Indigenous groups charge that police harassment of indigenous people, including juveniles, is pervasive and that racial discrimination among police and prison custodians persists. Human rights groups have alleged a pattern of mistreatment and arbitrary arrests occurring against a backdrop of systematic discrimination.
Although Asians make up less than 5 percent of the population, they account for 40 percent of new immigrants. Public opinion surveys have indicated concern with the numbers of immigrants arriving in the country. Upon coming to power in 1996, the Government reduced annual migrant (nonrefugee) immigration by 10 percent to 74,000; subsequently, it has increased to approximately 80,000. Humanitarian immigration figures remained steady at approximately 12,000 per year from 1996 through this year. The significant increase in unauthorized boat arrivals from the Middle East during the past 3 years has heightened citizens' concern that "queue jumpers" and alien smugglers are abusing the country's refugee program. Leaders in the ethnic and immigrant communities expressed concern that increased numbers of illegal arrivals, as well as violence at migrant detention centers, contributed to a few incidents of vilification of immigrants and minorities. Following the September 11 terrorist attacks on the United States, a mosque in Brisbane was subjected to an arson attack, and cases of vilification against Muslims rose.
TRAFFICKING IN PERSONS
Legislation enacted in late 1999 targets criminal practices associated with trafficking, and other laws address smuggling of migrants. Trafficking in persons from Asia, particularly women (but also children), is a limited problem that the Government is taking steps to address. The Government's response to trafficking in persons is part of a broader effort against "people smuggling," defined as "illegally bringing non-citizens into the country." Smuggling of persons--in all its forms--is prohibited by the Migration Act, which calls for penalties of up to 20 years imprisonment. In September Parliament also enacted the Border Protection Act, which authorizes the boarding and searching of vessels in international waters, if suspected of smuggling of persons. The country is a destination for trafficked women and children. In June the Australian Institute of Criminology (AIC) issued a report entitled Organized Crime in People Smuggling and Trafficking to Australia, which observed that the incidence of trafficking appears to be low. The Department of Immigration and Multicultural and Indigenous Affairs and the Australian Federal Police (AFP) have determined that women and children from Thailand, the Philippines, Malaysia, China, Indonesia, South Korea, Vietnam, and parts of the former Soviet Union have been trafficked into the country. They are believed to be entering primarily via air with fraudulently obtained tourist or student visas, for purposes of prostitution. There also have been reports of women trafficked into the country from Afghanistan and Iraq. The high profit potential combined with factors such as the difficulty of detection, unwillingness (or inability) of witnesses to testify in investigations, apparently short stays in the country by workers in the sex trade, and previously low penalties when prosecuted have contributed to the spread of groups engaged in these activities. There have been some instances of women being forced to work as sex workers in the country by organized crime groups. There are some reports of women working in the sex industry becoming mired in debt or being physically forced to keep working, and some of these women are under pressure to accept hazardous working conditions especially if their immigration status is irregular. Some women have been subjected to what is essentially indentured sexual servitude in order to pay off a "contract debt" to their traffickers in exchange for visas, plane tickets, food, and shelter. However, the available evidence suggests that these cases are not widespread. Some women working in the sex industry were not aware prior to entering the country that this was the kind of work they would be doing. Investigations in past years by DIMIA have found women locked in safe houses with barred windows, or under 24-hour escort, with limited access to medical care or the outside world. These women have been lured either by the idea that they would be waitresses, maids, or dancers or, in some cases, coerced to come by criminal elements operating in their home countries. There are also reports of young women and children, primarily from Asia, being sold into the sex industry by impoverished families. Prostitution is legal or decriminalized in many areas of the states and territories, but health and safety standards are not well enforced and vary widely. In September 1999, the Criminal Code Amendment (Slavery and Sexual Servitude) Act came into force. The act modernizes the country's slavery laws, contains new offenses directed at slavery, sexual servitude, and deceptive recruiting, and addresses the growing and lucrative trade in persons for the purposes of sexual exploitation. The act provides for penalties of up to 25 years' imprisonment and is part of a federal, state, and territory package of legislation. No prosecutions have been brought under this federal law. Another government initiative was the 1994 Child Sex Tourism Act, which provides for the investigation and prosecution of citizens who travel overseas and engage in illegal sexual conduct with children. Under the act, there have been 11 prosecutions, resulting in 7 convictions. Another case was pending at year's end. During the year, the Customs Service increased monitoring of all travelers (men, women, and children) entering the country who it suspected were involved in the sex trade, either as employees or employers.