The book comes with a Foreword by the Hon. Michael Kirby AC CMG.
The contents of the federal Constitution are a mystery to most people, yet it is in the Constitution that are found the rules of how our institutions function, and what powers they may exercise over us. In a time of increasing voter dissatisfaction with how government is conducted in Australia, this book explains how our Constitution works, and why it is in need of reform, covering issues such as how our electoral system can be made fairer, why the innate dignity of the person requires that fundamental freedoms be protected by a Bill of Rights, and how politicians can be made more accountable to Parliament. The book also examines issues such as federalism and an Australian republic, before discussing how civics education could be improved so as to produce citizens who are knowledgeable about their Constitution. The book ends with the full text of a proposed new Australian Constitution.Harris' work includes 'A critique of the CCAAC Report of 2009 and the statutory guarantee of acceptable quality in the Competition and Consumer Act 2010 (Cth)' (2011) 19 Competition and Consumer Law Journal 152; 'A Model Australian Code Relating to Defective Goods' (2010) 3 Journal of Politics & Law 1; 'The Place of Indigenous Rights in the Bill of Rights Debate - A Rawlsian Justification' (2009) 13 Australian Indigenous Law Reporter 70; and 'The Bill of Rights Debate in Australia - A Study in Constitutional Disengagement' (2009) 3 Journal of Politics & Law 2.
One reason for a Bill of Rights is to minimise abuses. A perspective is provided by Samuel Gross in 'How Many False Convictions are There? How Many Exonerations are There?' in Wrongful Convictions and Miscarriages of Justice: Causes and Remedies in North American and European Criminal Justice Systems (Routledge, 2013) edited by Huff & Killias.
Gross comments that
The most common question about false convictions is also the simplest: How many are there? The answer, unfortunately, is almost always the same and always disappointing: We don’t know. Recently, however, we have learned enough to be able to qualify our ignorance in two important respects. We can put a lower bound on the frequency of false convictions among death sentences in the United States since 1973, and we have some early indications of the rate of false convictions for rape in Virginia in the 1970s and early 1980s. These new sources of information suggest – tentatively – that the rate of false convictions for serious violent felonies in the United States may be somewhere in the range from 1% to 5%. Beyond that – for less serious crimes and for other countries – our ignorance is untouched. ... The very occurrence of false convictions is a reflection of our ignorance. If we know that a defendant is innocent, he is not convicted in the first place, and we are not likely to do better later on. The essence of the problem is that we are trying to count events we can’t observe. There are other unknown quantities in criminal justice: for example, the number of crimes that are not reported to the police. That one, however, can be estimated by a comparatively straightforward method, the victimization survey: a representative sample of the general population is contacted and asked how often members of their households were victimized in the past year, and in what manner (e.g., Rand and Catalano, 2007). This is an imperfect but serviceable tool. We don’t know the exact number of unreported robberies, rapes and assaults, but we can estimate approximately how many occur, and where, and who the victims are. We have no comparable estimates for false convictions.
False convictions are not merely unobserved – like unreported crimes – but in most cases they are unobservable. The problem is not simply that we don’t know whether a particular prisoner is innocent. We also may not know whether he is HIV positive, but we can test him for that condition, or the prison population as a whole, or a random sample. We can’t do anything like that for false convictions, so we’re left with two strategies: (1) We can attempt to infer the frequency of false convictions without direct information, or (2) we can try to use the false convictions we do know about – exonerations – as a basis for estimates about the entire category.He goes on to conclude -
So where does that leave us? I’ll summarize briefly:
- We know of at least 2000 exonerations in the United States since the beginning of 1989, and there have been many others that are not known to researchers – very likely more than those that are known.
- These exonerations cannot be used to directly estimate the rate of false conviction because the great majority of erroneous convictions are never detected.
- We do know, however, that 2.3% to 3.3% of death sentences in the United States since 1973 have ended in exoneration. This is not a complete count. Some innocent defendants who were sentenced to death have not been exonerated – mostly, I expect, defendants who have been removed from death row but remain in prison.
- We also know that among convicted defendants in rape (and a few homicide) cases for which physical evidence was sent to the Virginia Department of Forensic Science from 1973 through 1987, at least 3.2% to 5% were innocent, and almost certainly quite a few more.
The information at hand is still very limited, and generalizations are difficult. There are strong theoretical reasons to believe that the rate of false convictions may be higher for murders in general, and for capital murders in particular, than for other felony convictions (Gross, 1998). The rape cases for which biological evidence was submitted to the Virginia Department of Forensic Science in the 1970s and 1980s may not be representative of rape cases in the United States generally, let alone other felony cases. We don’t know.
Still, this is a start – considerably better than total ignorance. It’s enough to make some initial and tentative estimates. Marvin Zalman (2012) makes what he calls a very general “intelligence estimate” of the rate of false convictions in the United States, from 0.5%- 1.0% at the low end to 2% to 3% at the high end. In light of the new information from Virginia, my own tentative estimate would be a similar but somewhat higher range: 1% to 5% of convictions for serious felonies in the United States are erroneous.
Is that a lot or a little? That depends on your point of view. If as few as 1% of serious felony convictions are erroneous, that means that perhaps ten- to twenty-thousand or more of the nearly 2.3 million inmates in American prisons and jails (Glaze, 2011) are innocent, and thousands of new innocent defendants are locked up each year. If the rate is higher, these numbers will go up.
If as few as 1/10 of 1% of jetliners crashed on takeoff, we would shut down every airline in the country. That is not a risk we are prepared to take – and we believe we know how to address that sort of problem. Are 10,000 to perhaps 50,000 wrongfully imprisoned citizens too many? Can we do better? How? There are no obvious answers. The good news is that the great majority of convicted criminal defendants in America are guilty. The bad news is that a substantial number are not.
