U3AOS1 Topic 11: Impact of costs/time/cultural differences

Key Knowledge Dot Point:

The impact of costs, time and cultural differences on the achievement of the principles of justice.

Note:

This topic has not yet been assessed in the VCE Legal Studies Units 3/4 exam (as of 2025). As a result, the open-ended nature of this dot point can be confusing to interpret, particularly when considering how it may apply in contexts such as cultural differences. Cultural differences is the vague one whereas the other two are pretty straightforward in terms of what they represent and entail. So, to be safe, I'll break down the impact of 'cultural differences' for two pertinent groups: asylum-seekers/refugees/recent migrants and First Nations peoples.
This topic contains a substantial amount of content and is one of the most conceptually dense areas of the entire course. Rather than memorising every detail, students should focus on developing a clear understanding of a small number of strong, well-explained examples for each area discussed below. This topic is particularly important because it directly assesses the key skill of being able to discuss the impact of costs, time, and cultural differences on the achievement of the principles of justice during a criminal case. As a result, it lends itself to high-mark questions, including the possibility of a 10-mark extended response in future examinations. A strong grasp of this content will allow students to evaluate how effectively the criminal justice system achieves fairness, equality, and access in practice, rather than merely describing legal processes.

Costs and its impact in a criminal case:

Engaging with the criminal justice system can be costly, meaning that not all individuals have the financial capacity to afford it. When an accused person faces a criminal charge, they often incur significant legal expenses in defending themselves, particularly if they require ongoing legal advice or representation.

Examples of costs include:

Legal representation fees — Solicitor and barrister fees can be substantial, and because legal representation is a critical component of the criminal justice system, an accused person may incur significant costs in defending a charge. For example, a senior or partner-level lawyer at a private law firm may charge hundreds of dollars per hour, with fees in some cases reaching around $800 per hour. These high costs can create a major financial burden for accused persons and limit access to effective legal representation.
Appealing to a higher court — An offender who seeks to appeal against a verdict, sentence, or sanction may incur significant costs. These can include a filing fee payable to the relevant appeal court, legal fees for a solicitor to prepare the required written submissions and documentation, and the cost of engaging a barrister to present legal arguments before the judges of the appeal court. Collectively, these expenses can create a substantial financial barrier to appealing a decision.
Witness fees — In some criminal cases, particularly those involving technical or scientific evidence, parties may need to engage expert witnesses to explain or challenge complex material presented to the court. Expert witnesses typically charge professional fees for preparing reports and giving evidence. For example, where the prosecution relies on a forensic scientist to interpret forensic evidence, the accused may need to engage their own expert to critically assess or dispute that evidence. The cost of obtaining expert testimony can be significant and may place the accused at a disadvantage if they are unable to afford an expert of comparable expertise, potentially limiting their ability to fully challenge the prosecution’s case.

Costs in relation to the criminal justice system's ability to uphold the principles of justice: fairness, equality and access:

How costs in relation to the criminal justice system uphold fairness:

Independent judges and magistrates promote fairness by ensuring that the rules of evidence and court procedure are strictly followed, regardless of whether an accused can afford legal representation. Even where an accused is self-represented due to the high costs of engaging a lawyer, judicial officers are required to apply evidentiary rules consistently, excluding inadmissible or unfairly prejudicial material and ensuring proper trial procedure is maintained. This helps safeguard fairness by preventing outcomes from being determined solely by an accused’s financial capacity. However, while this judicial oversight mitigates some cost-related disadvantage, it cannot fully compensate for the absence of skilled legal advocacy, meaning fairness may still be limited in practice.
In serious criminal cases, juries act as independent decision-makers, ensuring that verdicts are reached impartially. For Commonwealth indictable offences, an accused has a constitutional right to a trial by jury, and the Commonwealth bears the cost of empanelling and administering the jury. This ensures that an accused’s ability to access an impartial decision-maker is not dependent on their financial capacity, promoting fairness by preventing wealth from influencing whether justice is administered through an independent and representative body.
Although Victoria Legal Aid (VLA) operates with limited resources, it provides legal representation to accused persons charged with serious offences who have a very low socioeconomic status. By prioritising those who would otherwise be unable to afford private legal representation, VLA helps reduce financial disadvantage within the criminal justice system. This promotes fairness by ensuring that disadvantaged individuals are able to participate meaningfully in court proceedings and are not denied justice solely due to their inability to pay for legal services.
Plea negotiations can reduce the financial burden faced by parties in a criminal case by resolving the matter early, often avoiding the need for a full trial. By limiting court appearances, legal preparation, and ongoing legal fees, an accused person may avoid the substantial costs associated with contested proceedings. This reduction in expense can increase an accused person’s ability to participate meaningfully in the criminal justice system and engage with its processes, thereby promoting both fairness and access to justice.

How costs in relation to the criminal justice system do not uphold fairness:

Where an accused person cannot afford legal representation, they may be forced to represent themselves. Due to the complexity of criminal law and court procedures, self-represented accused persons may struggle to present evidence and legal arguments effectively or to challenge the prosecution’s case. This can place them at a significant disadvantage and increase the risk that their case is not presented in the best possible light, thereby jeopardising fairness in the criminal justice process.
Where legal representation between the parties is unbalanced, the accused may be unable to prepare and present a case that is as comprehensive or persuasive as that of the prosecution. This disparity can limit the accused’s ability to effectively challenge the prosecution’s evidence and arguments, increasing the risk that the outcome of the case is influenced by differences in legal expertise rather than the merits of the evidence, thereby undermining fairness.
The quality of a party’s case presentation, which is often correlated with the cost and quality of legal representation, may influence the outcome of a criminal trial. As a result, decisions may be affected not solely by the facts and the law, but by how effectively arguments and evidence are presented. This disadvantages unrepresented or poorly represented accused persons and undermines fairness by allowing financial capacity, rather than legal merit, to shape case outcomes.
Where an offender is imprisoned, they may lose their employment and source of income, limiting their ability to pay compensation or restitution orders to victims. As a result, victims may be unable to receive financial redress for the harm suffered, which can be perceived as unfair and may undermine confidence that the justice system adequately addresses victims’ losses.
An accused person may feel pressured to plead guilty to a criminal offence despite knowing they are not guilty due to the high financial costs associated with defending a case through the courts. In such circumstances, the decision to plead guilty may be driven by economic constraints rather than the merits of the case. This undermines fairness by increasing the risk of wrongful convictions and demonstrates that the criminal justice system is not always equally open or fair to all accused persons, particularly those experiencing financial disadvantage.

How costs in relation to the criminal justice system uphold equality:

Judges in the County Court and Supreme Court have the power to order Victoria Legal Aid (VLA) to provide legal representation to accused persons who cannot afford a lawyer. This power helps address financial disadvantage by ensuring that access to legal representation is not determined solely by an accused person’s economic circumstances. By directing additional legal resources to those most in need, the courts reduce disparities between the parties and promote equality before the law, enabling disadvantaged accused persons to participate in the justice system on a more equal footing.
Victims in criminal cases are represented by the Office of Public Prosecutions (OPP), which acts on behalf of the state and the community at no cost to the victim. This ensures that victims receive consistent and equal representation, regardless of personal characteristics such as income, background, or social status. By removing financial barriers to legal representation and focusing on the protection of the community at large, the OPP promotes equality before the law and ensures that the prosecution of criminal offences is not influenced by individual disadvantage.

How costs in relation to the criminal justice system do not uphold equality:

Where aggrieved parties are unable to initiate an appeal due to the financial costs involved, equality before the law is undermined. In such circumstances, access to appellate review becomes dependent on a person’s financial capacity rather than their legal rights, meaning not all individuals are able to engage with the justice system on an equal basis.
Where a party cannot afford private legal representation and does not meet the eligibility requirements for grants of legal assistance provided by Victoria Legal Aid (VLA), they may be left without adequate representation. This can place them at a disadvantage compared to legally represented parties, undermining equality before the law by allowing financial circumstances to affect an individual’s ability to participate effectively in the justice system.
Where an accused person is self-represented, they may be placed on an unequal footing with the prosecution, which is typically represented by experienced legal practitioners. Without equivalent legal knowledge or advocacy skills, the accused may be unable to present their case as effectively or challenge the prosecution’s arguments. This imbalance can result in unequal treatment before the law and increase the risk of unjust outcomes driven by disparities in legal expertise rather than the merits of the case.

How costs in relation to the criminal justice system uphold access:

Victoria Legal Aid (VLA) may provide duty lawyer services or grants of legal assistance to disadvantaged accused persons facing criminal charges. By offering free or low-cost legal advice, representation, and support, VLA helps remove financial barriers that might otherwise prevent accused persons from engaging effectively with the criminal justice system. This support improves access to justice by enabling disadvantaged individuals to understand court processes, assert their legal rights, and participate meaningfully in criminal proceedings.
Where interpreters are required during court proceedings, the prosecution arranges and funds these services. This removes the financial burden from the accused and ensures that language barriers do not prevent effective participation in the trial. By enabling non-English-speaking accused persons to understand the evidence, legal arguments, and court processes to the same extent as the prosecution, interpreter services promote access to justice by ensuring meaningful and informed participation at no personal cost.

How costs in relation to the criminal justice system do not uphold access:

The high costs associated with appealing a decision, including court filing fees and the expense of legal representation, can discourage individuals from seeking appellate review. As a result, access to appeals may become effectively inaccessible for those who cannot afford these costs, limiting their ability to challenge potentially incorrect verdicts or sentences and undermining access to justice.
Individuals who cannot afford legal representation may struggle to understand criminal court procedures and their legal rights during a trial. This lack of understanding can prevent them from engaging meaningfully and on an informed basis with the criminal justice system, thereby undermining access to justice by limiting their ability to participate effectively in proceedings.
The funding available through Victoria Legal Aid (VLA) is limited, meaning that some individuals may fall outside the low-income eligibility thresholds for grants of legal assistance while still being unable to afford private legal representation. As a result, these individuals may be left without access to legal advice or representation, limiting their ability to engage effectively with criminal proceedings and undermining access to justice.

Time and its impact in a criminal case:

The criminal justice system is affected by significant delays, which can be further exacerbated by external or unforeseen circumstances, such as the COVID-19 pandemic. These delays are problematic because prolonged proceedings can have serious emotional, financial, and psychological impacts on the accused, the victim, and the victim’s family. Extended delays may increase stress and uncertainty, disrupt employment and personal circumstances, and undermine confidence in the justice system’s ability to deliver timely and effective outcomes.

Sources of delays include:

Court backlogs.
The time taken for appeal judgements and sentences to be delivered can result in significant delays in the final resolution of a case.
A hung jury, where no verdict is delivered.
Mistrials because they result in retrials having to be conducted.
The jury empanelment process.

Impacts of delays on members of a criminal trial:

Victim — Prolonged delays in criminal proceedings can significantly exacerbate the suffering experienced by victims and their families. Extended periods of uncertainty can prevent closure and create ongoing emotional distress, as there is no timely resolution or assurance that justice will be achieved. Additionally, criminal trials often rely heavily on oral evidence, and as time passes, witnesses’ memories may fade or become distorted. This can reduce the accuracy and reliability of witness testimony, increasing the risk that an accused person is either wrongly acquitted or wrongfully convicted based on inaccurate or unreliable evidence.
Witness — Giving evidence in a criminal trial can be an extremely stressful experience for witnesses. Delays in proceedings can prolong this stress, as witnesses are left waiting for extended periods before giving evidence, often while reliving the events of the offence. This ongoing uncertainty can increase anxiety and emotional strain, potentially affecting a witness’s wellbeing and their ability to give clear and reliable evidence.
Accused — Prolonged delays while awaiting trial can be highly stressful for an accused person and their family, particularly when the outcome of the case remains unresolved. As criminal trials often rely heavily on oral evidence, delays may cause witnesses’ memories to fade or become distorted over time. This can reduce the accuracy and reliability of their testimony, increasing the risk that an accused person is wrongly found guilty on the basis of inaccurate or unreliable evidence.
Community — Prolonged delays in criminal proceedings may place the community at risk where individuals charged with serious or violent offences remain in the community while awaiting trial, particularly if the accused is not held on remand. During this period, there is a risk of further offending, which can undermine public safety and confidence in the criminal justice system’s ability to protect the community effectively.

Time in relation to the criminal justice system's ability to uphold the principles of justice: fairness, equality and access:

How time in relation to the criminal justice system upholds fairness:

The Victorian court hierarchy is deliberately structured to allocate cases according to their seriousness and complexity, with the aim of promoting efficient and fair outcomes. Lower courts, such as the Magistrates’ Court, are designed to resolve a large volume of summary and less serious matters, allowing these cases to be finalised quickly. In contrast, superior courts, including the Supreme Court of Victoria, focus on a smaller number of serious and complex offences, enabling greater judicial time and resources to be devoted to each case. This allocation of workload helps manage court delays and supports fairness by increasing the likelihood that matters—particularly those involving victims—are resolved within a reasonable timeframe, rather than being unnecessarily prolonged by systemic inefficiencies.
Plea negotiations can promote the early resolution of many criminal matters by allowing a verdict to be reached without the need for a trial. By reducing the number of cases that proceed to lengthy hearings, plea negotiations help minimise delays within the criminal justice system. This supports fairness by ensuring that accused persons and victims are not subjected to prolonged uncertainty and that justice is achieved within a reasonable timeframe.

How time in relation to the criminal justice system does not uphold fairness:

Delays in criminal proceedings can compound the suffering experienced by both victims and accused persons by prolonging uncertainty and preventing timely closure and resolution. Extended waiting periods often increase stress, anxiety, and emotional harm. Because such delays are typically caused by systemic factors beyond the control of the parties involved, particularly victims, this undermines fairness by imposing ongoing harm on individuals who are not responsible for the delay.
Prolonged delays can cause critical evidence to be lost, degraded, or rendered unreliable, particularly where cases rely heavily on oral testimony. As time passes, witnesses’ memories may fade or become distorted, reducing the accuracy and reliability of their evidence. This increases the risk that courts will reach incorrect outcomes, such as wrongful convictions or acquittals, based on incomplete or inaccurate information. Consequently, delays undermine fairness by preventing decisions from being made on the best available evidence and compromising the integrity of the trial process.

How time in relation to the criminal justice system upholds equality:

Plea negotiations can promote equality by providing most accused persons with the opportunity to resolve their case in a timely manner. Where a plea negotiation is successful, court proceedings may be avoided altogether, reducing delays and procedural burdens. Importantly, the opportunity to engage in plea negotiations is generally available to accused persons regardless of personal characteristics such as wealth, background, or education. This supports equality before the law by ensuring that access to this mechanism is based on the circumstances of the case rather than the individual characteristics of the accused.

How time in relation to the criminal justice system does not uphold equality:

Delays in criminal proceedings can have a disproportionate impact on victims and accused persons with mental health conditions or disabilities. Extended periods of uncertainty and stress may exacerbate existing conditions, making it more difficult for these individuals to cope with the legal process. As a result, they may experience greater hardship than others involved in the same proceedings, undermining equality by affecting individuals differently based on their personal circumstances rather than treating all parties equally before the law.
Delays in criminal proceedings may disproportionately disadvantage elderly victims, who may not live long enough to see their case resolved. This can result in some individuals being denied the opportunity to achieve justice due to factors beyond their control, such as age. Consequently, equality before the law is undermined, as elderly victims are placed at a disadvantage compared to others who are able to endure lengthy legal processes.

How time in relation to the criminal justice system upholds access:

Only a relatively small proportion of criminal matters proceed to a jury trial, meaning that delays associated with empanelling juries and jury deliberations are confined to a limited number of cases. Most criminal matters are resolved through summary proceedings or non-jury trials, which are generally quicker and more efficient. This helps reduce overall court backlogs and frees up judicial resources, enabling other victims and accused persons to have their matters heard sooner. As a result, access to justice is improved by ensuring that cases are resolved in a timely manner across the broader criminal justice system.
Each court within the Victorian court hierarchy specialises in hearing particular types of cases and matters, which helps reduce delays across the criminal justice system. Judges in each court develop expertise in the matters they regularly hear, allowing them to manage proceedings more efficiently and make decisions in a timely manner. This specialisation enables cases to be processed more quickly, increasing the number of matters that can be resolved each year and improving access to justice by ensuring parties are not subject to unnecessary delays.

How time in relation to the criminal justice system does not uphold access:

Awareness of significant delays within the criminal justice system may discourage victims from reporting offences to the police in the first place. If victims anticipate lengthy and stressful proceedings, they may choose not to pursue a complaint, preventing them from engaging with the justice system at all. This reluctance to report crimes limits access to justice by creating barriers at the earliest stage of the legal process and denying victims the opportunity to seek legal resolution and protection.
The longer a criminal trial continues, the greater the legal costs incurred, particularly through ongoing solicitor and barrister fees. Prolonged delays therefore increase the financial burden on accused persons, making legal representation less affordable and restricting access to justice by limiting an individual’s ability to participate effectively in the criminal justice process.
Delays within the criminal justice system were significantly exacerbated by the COVID-19 pandemic, with many criminal trials postponed or placed on hold for extended periods, in some cases up to 12 months or longer. These prolonged interruptions made it more difficult for parties to access a timely hearing, limiting access to justice by delaying the resolution of criminal matters and prolonging uncertainty for victims and accused persons alike.

Cultural differences and its impact in criminal cases:

There are several groups within Australia’s diverse society who may not be fully familiar with the Australian legal system and, as a result, may find it difficult to engage with and navigate it effectively. Groups such as asylum seekers, refugees, migrants, and First Nations Australians may be particularly impacted by cultural differences, language barriers, and unfamiliar legal practices when involved in criminal cases. These challenges can limit their ability to understand legal processes, assert their rights, and participate meaningfully in the criminal justice system.

The impact of cultural differences in a criminal case on asylum seekers/refugees/new migrants:

Limited English communication skills — Where a victim or accused person has limited English proficiency, they may experience significant difficulty giving evidence in court, particularly if the accused is self-represented. Given the Victorian criminal justice system’s heavy reliance on oral evidence, language barriers may result in evidence being misunderstood or inaccurately conveyed, increasing the risk of incorrect or unjust outcomes. For self-represented accused persons, limited English skills can further hinder their ability to question prosecution witnesses, respond to evidence, or understand court procedures. In addition, difficulties may arise when researching the law or preparing a defence, as many legal resources may not be available in the accused’s first language or may not be accurately translated. These barriers can significantly restrict meaningful participation in proceedings and limit access to justice for non-English-speaking individuals.
Limited knowledge about Victoria’s legal system — Refugees and migrants may be unfamiliar with the Australian and Victorian legal system, which can significantly limit their ability to engage with the criminal justice process. As victims, they may be unaware of their legal rights, available protections, or the support services they are entitled to access. As accused persons, individuals born outside Australia may not know that they are entitled to seek legal representation when defending a criminal charge, or how to access legal information, advice, or assistance through services such as Victoria Legal Aid or community legal centres. Where individuals are self-represented, this lack of legal knowledge may be further compounded, as they may be unaware of their right to present evidence in their own defence or may not understand how to do so effectively within court procedures. As a result, limited familiarity with the legal system can prevent meaningful participation, increase the risk of disadvantage, and undermine access to justice for migrants and refugees.

The impact of cultural differences in a criminal case on First nations peoples:

Over-representation in the criminal justice system and prisons — Aboriginal and Torres Strait Islander peoples are significantly over-represented within the Australian criminal justice system. For example, data from 2020 indicates that the Aboriginal imprisonment rate in New South Wales was nearly ten times higher than that of non-Aboriginal people (ABS, 2020). Further, a report by the United Nations Association of Australia found that the incarceration rate of First Nations peoples continues to increase annually (Temple et al., 2021). Although Aboriginal and Torres Strait Islander peoples comprise approximately 3% of Australia’s population, they accounted for 29% of the adult prison population in 2020. This trend is also evident in Victoria, where the Sentencing Advisory Council (2023) reported that Aboriginal and Torres Strait Islander imprisonment rates almost doubled between 2011 and 2021. Such alarming levels of over-representation may lead First Nations individuals to fear that they are more likely to be convicted or sentenced harshly on the basis of race rather than evidence, undermining confidence in the criminal justice system and limiting the achievement of equality and fairness before the law.
Limited trust in the criminal justice system due to historical and systemic disadvantage — Many Aboriginal and Torres Strait Islander peoples have a deep mistrust of the criminal justice system, shaped by a long history of dispossession, marginalisation, and social exclusion by governments and institutions. This mistrust is reinforced by contemporary incidents, such as the death in custody of an Aboriginal woman in Victoria in 2020, who was arrested over an alleged shoplifting offence and died in a maximum-security prison after repeatedly requesting medical assistance that was not provided (Ore, 2023). Incidents of this nature contribute to perceptions that First Nations peoples may be treated unfairly or negligently within the justice system. As a result, Aboriginal and Torres Strait Islander victims may be reluctant to report crimes or engage with legal processes, fearing that systemic discrimination or racial bias will prevent them from achieving justice even if they pursue it. This lack of trust, rooted in both historical and ongoing experiences, undermines access to justice and limits the ability of the criminal justice system to achieve fairness and equality for First Nations communities.
Cultural practices affecting participation in legal proceedings — Certain cultural practices within Aboriginal and Torres Strait Islander communities can make aspects of the criminal justice process particularly challenging. In some communities, discussing specific subject matter—such as referring to deceased persons by name or viewing images of them—is considered culturally inappropriate and may cause distress or offence. As a result, victims or accused persons may feel uncomfortable or unable to engage fully when evidence relating to such matters is presented in court. Additionally, direct and confrontational questioning, which is common in police interviews and courtroom examination, may be viewed as disrespectful in some Aboriginal cultures. This can cause individuals to feel “shame”, a cultural response involving feelings of embarrassment, intimidation, or discomfort. Without cultural awareness, police, legal practitioners, or jurors may misinterpret this behaviour as evasiveness, uncooperativeness, or even an indication of guilt. Such misunderstandings can disadvantage First Nations individuals and undermine fairness and equality by allowing cultural differences—rather than the reliability of evidence—to influence legal outcomes.

Cultural differences in relation to the criminal justice system's ability to uphold the principles of justice: fairness, equality and access:

How cultural differences in relation to the criminal justice system upholds fairness:

The prosecution has a duty to present all relevant facts and applicable legal principles to the court, regardless of the background of the parties involved. This obligation promotes fairness by ensuring that criminal proceedings are conducted through open, objective, and impartial processes, allowing the whole truth to emerge. By focusing on evidence and law rather than personal or cultural characteristics, this duty helps reduce the risk that cultural misunderstandings, communication barriers, or unfamiliarity with the legal system will disadvantage certain groups, thereby supporting fair outcomes for all accused persons.
The presumption of innocence and the requirement that the prosecution prove guilt beyond reasonable doubt protect accused persons who may have difficulty presenting evidence or mounting a defence. Because the accused is not required to prove their innocence, individuals who face barriers such as limited legal knowledge, language difficulties, or cultural disadvantage are less likely to be unfairly convicted. This safeguards fairness by ensuring that a conviction can only occur where the prosecution has met a high evidentiary threshold, regardless of the accused’s personal circumstances.
The Evidence Act 2008 (Vic) sets out circumstances in which evidence may be excluded from court proceedings where it is considered unreliable, including situations where language barriers affect the accuracy of an accused’s or victim’s account. By preventing unreliable evidence from being admitted, the Act helps ensure that decisions are based on accurate and trustworthy information, promoting fairness in criminal proceedings and reducing the risk that language difficulties will lead to unjust outcomes.

How cultural differences in relation to the criminal justice system do not uphold fairness:

Witnesses, victims, and accused persons from minority cultural backgrounds may experience difficulties when presenting evidence, due to factors such as language barriers, differing communication styles, or unfamiliarity with court processes. These challenges can increase the risk that evidence is misunderstood or misinterpreted by the court, potentially leading to incorrect or unjust verdicts. As a result, fairness may be undermined where cultural differences affect how evidence is received and assessed, rather than the outcome being determined solely by its legal merit.
Individuals for whom English is not their first language, including refugees and recent migrants, may experience significant difficulty when giving oral evidence in court. Language barriers can affect the clarity, accuracy, and nuance of their testimony, increasing the risk that judges or jurors may misunderstand or misinterpret key facts. This can result in evidence being given less weight or misconstrued, potentially leading to incorrect or unjust outcomes that undermine fairness in criminal proceedings.

How cultural differences in relation to the criminal justice system upholds equality:

Victoria Legal Aid (VLA) provides legal representation to accused persons, including Indigenous and migrant accused persons, provided they meet the relevant eligibility criteria. By offering assistance based on need rather than personal characteristics, VLA helps reduce disadvantage experienced by culturally diverse groups and promotes equality before the law, ensuring that access to legal representation is not determined by race, background, or social status.
Interpreter services are available to all accused persons who require them, with the responsibility for arranging and funding interpreters resting with the courts, rather than the accused. This ensures that non-English-speaking accused persons are able to understand court proceedings, evidence, and legal arguments to the same extent as English-speaking parties, without incurring significant personal expense. By removing language-based and financial barriers, interpreter services promote equality before the law by ensuring that an accused person’s ability to participate in proceedings is not determined by their linguistic background.
The Koori Court is available to Aboriginal and Torres Strait Islander accused persons who plead guilty and incorporates culturally appropriate sentencing practices into the court process. By involving Elders and focusing on cultural context, the Koori Court ensures that sentencing takes into account the unique experiences and circumstances of First Nations peoples. This tailored approach promotes equality by addressing systemic disadvantage and ensuring that sentencing processes are more responsive to Aboriginal and Torres Strait Islander cultural practices, rather than applying a one-size-fits-all model of justice.

How cultural differences in relation to the criminal justice system do not uphold equality:

Due to cultural and language differences, some First Nations peoples and recent migrants from non-English-speaking backgrounds may be less able to present evidence effectively as victims or accused persons. Difficulties in communication, unfamiliarity with legal processes, or differing cultural norms may limit their ability to convey information clearly or respond appropriately in court. This can place these individuals at a disadvantage compared to others, undermining equality before the law by allowing personal characteristics to affect participation and outcomes in criminal proceedings.
The disproportionately high rates of incarceration among Aboriginal and Torres Strait Islander peoples suggest the presence of systemic bias within the Australian criminal justice system. These entrenched inequalities may arise from conscious or unconscious prejudices held by decision-makers or from broader structural disadvantages. As a result, First Nations peoples may be more likely to receive harsher penalties or less favourable outcomes, not because of the legal merits of their case, but due to factors linked to race. This undermines equality before the law by allowing differential treatment based on personal characteristics rather than the principles of justice.
Aboriginal and Torres Strait Islander peoples are more likely to live in regional or remote areas, where access to legal practitioners and support services is often limited. Geographic isolation can restrict timely access to legal advice, court services, and culturally appropriate representation. Unless effective measures are implemented to address these barriers, equality before the law is undermined, as accused persons of Aboriginal or Torres Strait Islander descent may experience reduced access to legal resources compared to individuals living in metropolitan areas.

How cultural differences in relation to the criminal justice system upholds access:

The Victorian Aboriginal Legal Service (VALS) is a community legal centre that supports Aboriginal and Torres Strait Islander peoples by providing culturally appropriate legal advice and assistance tailored to the needs of Indigenous Victorians. VALS delivers services across regional and remote areas, as well as metropolitan Melbourne, helping to overcome geographic and cultural barriers that may otherwise prevent First Nations peoples from engaging with the criminal justice system. By offering accessible and culturally responsive legal support, VALS enhances access to justice for Aboriginal peoples who might otherwise be excluded due to distance, disadvantage, or lack of appropriate legal services.
The use of the Koori Court aims to improve access to justice for Aboriginal and Torres Strait Islander offenders by providing culturally appropriate sentencing processes. By incorporating Elders, community perspectives, and an offender-focused approach, the Koori Court enables First Nations offenders to engage more meaningfully with the sentencing process. This culturally responsive model can address underlying causes of offending and has the potential to more effectively reduce reoffending, thereby enhancing access to justice outcomes that are both rehabilitative and responsive to cultural context.

How cultural differences in relation to the criminal justice system do not uphold access:

Refugees and other migrants may be reluctant to report crimes if they lack trust in police due to past adverse experiences with law enforcement in their home countries. This hesitation can prevent victims from engaging with the criminal justice system at the earliest stage, denying them protection, support, and legal remedies. As a result, access to justice is undermined, as these victims are effectively excluded from the system due to fear, mistrust, or cultural barriers rather than the merits of their case.
Migrants and refugees may be unfamiliar with the Victorian legal system and less aware of their legal rights and obligations as victims or accused persons. This lack of knowledge can limit their ability to engage meaningfully with criminal proceedings, seek assistance, or assert their rights, thereby undermining access to justice and increasing the risk of disadvantage within the legal process.
Cultural norms and expectations may prevent some migrants from engaging with the criminal justice system. In certain cultural contexts, values such as female compliance or deference may discourage women from reporting abuse or seeking legal protection, as they may believe such treatment should be tolerated or endured. As a result, victims may never access the justice system, undermining access to justice by preventing legal intervention, protection, and accountability due to cultural barriers rather than a lack of legal entitlement.