Reflections on Justice as Fairness

To me, the linking theme in the chapters in this first part of Justice Connections is the idea of “fairness” in justice, interrogating it from both a subjective and objective perspective.

The chapter by Jess Kennedy and Professor Patricia Easteal, “View from the Inside: The Sexual and Violent Offences Legislation Amendment 2008” (Kennedy and Easteal), and that by Christina Lewis, Anthony Hopkins and Dr Lorana Bartels, “The Relevance of Aboriginality in Sentencing: The Potential of Pre-sentence Reports — Missed Opportunities in the Australian Capital Territory” (Lewis et al), focus principally upon the subjective aspect of justice and the lived experience of individuals within the justice system. For Kennedy and Easteal their reflective analysis is informed by surveys and interviews; for Lewis et al, it is through critical consideration of cases and by interviews. Each of these two chapters is concerned with justice as fairness at an individual level: to victims of sexual assault (Kennedy and Easteal); to Aboriginal accused and convicted offenders (Lewis et al).

The challenge in placing a critical lens on justice in the sense of “fairness” felt or perceived at an individual level, is to ensure that the systemic aspects of justice — the sense of a justice “system” in a wider society — also actively protect the right to a fair trial for an accused at the same time as extracting the best possible evidence from witnesses who may otherwise be at a disadvantage. The issue at a systemic level is, therefore, how to let the subjective in.

The focus on the subjective aspect of justice as fairness is clearly evident in the title of the first of the chapters, by Kennedy and Easteal: “view from the inside”.

The chapter by Lewis et al begins with the challenging question as to why Aboriginal and Torres Strait Islander offenders are overrepresented in the custodial population in Australia — 13 times higher than the general population on 30 June 2011.^[6] Their work also demonstrates the power of a support person, this time in the form of a barrister or legal practitioner to put the case for the individual, bringing to the consideration of sentencing relevant issues of the individual’s life and circumstances — including in this case the offender’s Aboriginality. The signal role that pre-sentence reports may play in this context is identified. The challenge posed by this chapter is the appropriate way in which such matters can be considered. How do you recognise the “full complexity of post-colonial Indigenous experience” and its relevance “to achieving equal justice in sentencing”?^[7] Lewis et al point to the Canadian model as an example of how “culturally relevant sentencing options” may be developed.^[8] The sample in this chapter was also a very small one, but the questions are still key ones for future research.

The objective perspective of fairness is seen most strongly in the third of the chapters in this set, by Dr Lorana Bartels, “Sentencing in the Australian Capital Territory”. In its consideration of sentencing data in the ACT, this chapter acts as a bridge between the idea of fairness or justice as subjective and the broader needs of justice in an objective or systemic sense. Bartels emphasises that the availability of public sentencing data and the role of sentencing councils play a vital part in developing evidence-based sentencing policy and improving public knowledge and understanding about sentencing.