11 Psychology and Law in Australia

Alfred Allan and Maria M. Allan

Introduction

The extensive interaction between psychology and law – which we broadly define as the legal, corrective, investigative, and justice systems (Allan, 2020) – is sometimes referred to as the psycholegal field (as it will be in this chapter). The field can be divided into four levels: the law of psychology, psychology and law, psychology of law, and psychology in law, which we will use  to structure this chapter. We will identify the roles and careers psychologists can have at each level, and where relevant, refer to research at this level. We will then briefly discuss how one qualifies to work at each of these levels, before concluding by explaining what it’s like to work in the psycholegal field.

The Law of Psychology

Psychologists, like all citizens and professionals, should obey the law. Australian law can be found in the federal and state or territory common (i.e., as laid down in cases) and statutory (legislation) law. Most are familiar with criminal law where the government prosecutes people who have allegedly committed criminal offences, but there are two other areas of law that are of particular importance to psychologists: civil law which governs the legal relations between private persons and/or organisations, and administrative law which consists of the regulations governmental agencies follow and enforce.

The Privacy Act 1988 is an example of Commonwealth legislation that is important for most private practicing psychologists because it governs the collection, use, disclosure, and disposal of clients’ private information. One state and territory statute that is important to practising psychologists is the Health Practitioner Regulation National Law Act passed by the parliament in the jurisdiction where they work (e.g., the Health Practitioner Regulation National Law Act, 2009 [National Law Act, 2009] in Queensland). These statutes together provide for a national accreditation and registration scheme for psychologists in Australia and the formation of the Psychology Board of Australia (PsyBA). Anyone who calls themself a psychologist or practises psychology without registration with the PsyBA can be found guilty of committing criminal offences (Ahpra v Hickman, 2021; Health Practitioner Regulation National Law Act, 2009). The PsyBA, assisted by the Australian Health Practitioners Agency (Ahpra), registers suitably qualified and competent applicants if they meet the PsyBA’s registration requirements as provisionally or generally registered psychologists (Part 7 of the National Law Act, 2009). These two bodies also regulate provisionally and generally registered psychologists, and investigate any notifications or complaints made to the PsyBA about psychologists’ professional conduct. Part 8 of the Act provides that the PsyBA can take steps against psychologists who – because of their health, conduct, or lack of competency – place the public at risk of harm. The PsyBA must refer serious matters to a tribunal a type of court that deals with administrative matters, that can suspend or cancel the psychologist’s registration (section 196[2] of the National Law Act, 2009).

Tribunals and the PsyBA take psychology’s ethics into account when they judge the professional conduct of psychologists (Allan, 2021a). The PsyBA adopted the Australian Psychological Society’s Code of Ethics (APS, 2007), and this will most likely remain an important code even though the PsyBA has indicated that it plans to develop its own code of conduct (PsyBA, 2020). The roots of the APS Code (see Allan, 2021a) go back to the Code of Professional Ethics of the Australian Overseas Branch of the British Psychological Society (1949), and it has been applied in several legal cases (e.g., PsyBA v Knobel, 2021). The preamble to the APS Code states that psychologists must act in accordance with the laws of the jurisdictions (i.e., state or territory) in which they practise, and that the APS Code should be interpreted with reference to these laws. The APS Code should also be interpreted with reference to any organisational rules and procedures to which psychologists might be subject, and if there is a conflict between the demands of the Code and the rules, they must seek a constructive resolution of the conflict that upholds the principles of the Code (standard B.12, APS, 2007). Ethics is more aspirational than law, considers both psychologists’ motivation and their behaviour, and is sometimes stricter than law. Law for instance, doesn’t prohibit psychologists from having sexual relationships with other consenting adults, but standard C.4.3(a) of the APS Code makes it unethical for them engage in sexual activities with their clients or anybody who is closely related to one of their clients (Allan & Thomson, 2010). The APS Code is based on aspirational principles that have been combined into three overarching general principles with standards that sets out the minimal behavioural requirements expected of psychologists (Allan, 2011).

A principle of importance to this chapter is the social justice principle that requires psychologists to contribute to the interests of society. One way they do this is by providing relevant information when courts require such information to resolve legal disputes. Psychologists must therefore obey any subpoenas (i.e., court orders instructing them to testify and/or provide documents to the court) they receive. Psychologists who fail to obey a court order and who haven’t been excused by the court from testifying can be found guilty of contempt of court. It’s important to understand the different forms testimony can take. The general rule is that witnesses may only testify about factual material they observed through their senses. These witnesses are sometimes called witnesses of fact. There is, however, an exception to this rule. Courts can allow experts to further express opinions in their field of expertise based on the facts they have collected. These witness are called expert witnesses. Unlike witnesses of fact, expert witnesses can’t generally be compelled to testify, but will be asked by the lawyers of one of the litigants to testify about a specific issue. Expert witnesses are usually experienced researchers who have published peer-reviewed papers in a specific area. We’ll return to them later in this chapter. Psychologists who are subpoenaed to testify about their clients are usually called as witnesses of fact, but courts can also allow them to express opinions, such as the diagnosis of their clients.  In psychology, they’re often referred to as treatment witnesses (see Allan, 2015).

The APS Code is complemented by the APS’ Ethical Guidelines (available to members only) (APS, 2019), which explain and expand the application of the principles and standards of the Code in specific areas (e.g., working with young people). Psychologists are considered to have acted unethically if their actions aren’t consistent with these Guidelines (APS, 2007). Psychologists who do research should further be familiar with the provisions of the Australian Code for the Responsible Conduct of Research (National Health and Medical Research Council, 2018).

Psychologists’ Contribution in the Law of Psychology Area

Psychologists should be aware of any laws (and ethics) relevant to their profession, but some psychologists have specialised knowledge of the law, and specifically the law of psychology. Psychologists with legal qualifications can work both as lawyers and psychologists, using their broader knowledge to provide services that someone with only one of these qualifications would not be able to provide. A lawyer who is also a psychologist will, for instance, better understand what the implications of the Privacy Act 1988 are for psychologists than those who are not dually-qualified. Psychologists with dual qualifications are well-equipped to investigate notifications and complaints against other psychologists. The PsyBA and other organisations such as the APS use them in this way, but these bodies also often use non-legally qualified psychologists who have expertise in ethics as investigators. These experts report their findings to the institution that instructed them, and they might testify as expert witnesses if there are legal proceedings against the psychologist under investigation. There are so few Australian psychologists with legal qualifications – and they come from such diverse backgrounds and work in such unique settings – that it’s difficult to assess their contribution as a group.

Psychology and Law

Law’s primary purpose is to regulate human behaviour. Psychology can be defined as the science of human behaviour (Haney, 1980) – therefore it comes as no surprise that lawyers have been interested in psychology since its early development as a science. Two pupils of German psychologist Wilhelm Wundt the pioneer of psychology as a science – were probably the first psychologists who testified in court cases as expert witnesses. In 1896, Albert von Schrenk-Notzing testified in a criminal case in Munich about the credibility of witnesses. Then in a civil case in Frieburg in 1911, Karl Marbe was called to testify whether a driver of a train engine could have prevented a railway accident by stopping his train sooner. The court accepted his evidence that data on people’s reaction times showed  the driver could not have stopped the train any earlier.

Psychology researchers’ interest in the psychology and law field continued into the twentieth century. This led to well-known studies such as the Stanford prison project (Haney et al., 1973), which demonstrated some of the ethical difficulties of doing research in the field (see Le Texier, 2019; Savin, 1974; Zimbardo, 1974). Lawyers’ quest for information also contributed to the early development of experimental psychology across the world, and specifically, psycholegal research in Australia (Allan et al., 2018). By the early 1980s, a prominent psychologist concluded that the interest in psychology and law had reached ‘epidemic proportions’ (Haney, 1980, p. 149), and this interest has not abated since. The area is so vast that it’s impossible to cover all the research, but we’ll briefly discuss four prominent areas.

Investigations and Investigators

Flaws in the investigations that precede criminal and civil court cases (litigation) can have negative outcomes such as wasted costs, criminals remaining undetected, wrongful convictions, and unfair awards of damages in civil cases. Investigators must therefore use legally defensible techniques that are based on research data, and optimally effective in collecting reliable evidence that can be used during litigation. Early researchers found that people often have trouble recalling events accurately and identifying people who were involved in incidents. Researchers also found that people’s memories change if they receive new information after events, and that it’s possible to manipulate people’ memories by changing the way questions are asked (Loftus, 1975; Loftus et al., 1978). In one experiment, researchers showed participants visual material of a staged accident at a Stop sign, but when they asked them whether they ‘saw the Yield sign’, participants agreed that they did. Later when they had to give their own account of the event, they referred to a ‘Yield’ sign rather than a Stop sign. Psychologists therefore advise investigators to avoid any leading questions (e.g., ‘Did you see the man with the knife?’), and rather ask open questions such as ‘What did you see?’ during interviews. Fisher and Geiselman (1992) used their research and that of other researchers (including Australian researchers such as Professor Donald M. Thomson – see Thomson, 1972; Tulving & Thomson, 1973) to develop a cognitive interview technique. Investigators using this approach allow witnesses to describe what they saw without interrupting them, and then probe by asking open questions (e.g., ‘Was there anything unusual about the person’s appearance?’) that might prod witnesses’ memory. Doing this can, however, be very distressing for some people – this technique therefore has to be adapted when working with people who have suffered traumatic events (Risan et al., 2020). Researchers such as Australian professor Martine Powell have also developed special techniques for interviewing children (Powell & McMeeken, 1998) and people from other cultures (Powell, 2000). Investigators use police line-ups (also called ‘identification parades’) to help identify suspects during their investigations. If these line-ups are flawed, it can lead to false identifications and wrongful convictions (Innocence Project, n.d.) (see Video 11.1). Psychologists were at the forefront of developing guidelines to make identification parades fairer (Wells, 2014; Yarmey, 2003) and finding and promoting alternative methods such as photo, video (Fitzgerald et al., 2018) and voice (McGorrery & McMahon, 2017) identification techniques.

Video 11.1: Linda Sachs: Problem Police Lineups

Investigators should avoid interviewing methods that could lead to false confessions, because even though you might find it unthinkable that an inocent person would confess to serious crimes they did not commit, there is ample evidence that this occurs (Innocence Project, n.d.). Psychologists have identified factors that contribute to false confessions, such as people’s tendency to focus on short-term goals (escaping an unpleasant interrogation situation) rather than long-term consequences such as a prison sentence (Kassin et al., 2010; Kassin & Gudjonsson, 2004). A major problem facing investigators is judging the honesty of those they interview because research shows people who anticipate that they might become involved in litigation are often dishonest. Cartwright and Roach (2016) found that 25 per cent of their 197 participants reported they would exaggerate existing symptoms, 9 per cent would fabricate non-existent symptoms, and 21 percent would report actual symptoms unrelated to an accident. Researchers have long tried to find methods investigators and forensic psychologists can use to avoid being deceived by people who malinger by faking or exaggerating mental health symptoms (Rogers, 2001; Rogers, 2018). More recently, psychologists have been addressing the risk that investigators’ own values might bias their objectivity (Neal & Grisso, 2014; Zapf & Dror, 2017) and lead them to prepare inaccurate and unethical reports (Allan & Grisso, 2014).

Credibility of Testimony and Jury Decision-making

Law makes several key assumptions that underpin the fairness of court decisions. One is that honest witnesses are also reliable witnesses, and that skilful cross-examination (Video 11.2) will expose any flaws in their testimony. Many lawyers and social and cognitive psychologists have long questioned this assumption, but it was only after courts started using DNA data in the 1990s that they could conclusively demonstrate the inaccuracy of testimony, especially eyewitness testimony (e.g., Innocence Project, n.d.) (Video 11.3). Psychologists including Australian professor Neil Brewer therefore try to find ways of improving eyewitness identification evidence and developing guidelines to assist investigators and courts (Wells et al., 2020). Psychologists have also examined key assumptions such as that jury members are competent, unbiased, and able to understand and follow the instructions of judges (Semmier & Brewer, 2002), and are able to ignore irrelevant evidence the judge orders them to disregard (Goodman-Delahunty & Martschuk, 2020).

Video 11.2: Cross Examination By Prosection – The Effect of Interpreters

Video 11.3: How Reliable is Eyewitness Testimony?

Origins, Prediction, and Management of Offending Behaviour

It’s a common assumption that we all have a free will and that street (but not corporate or white collar) crime is the product of poor choices autonomous people make because they are evil, immoral, or have personality disorders (Haney, 2020). During the nineteenth and early twentieth centuries, sociologists, biologists, lawyers, philosophers, psychiatrists, psychologists, social anthropologists, and criminologists (those who study crime and deviant behaviour) looked for the causes of crime within people. They related criminal behaviour to people’s skulls (size and shape, craniometry), brain pathology (phrenology), inherited criminal traits (e.g., intellectual disabilities, genetics), and biological traits that help them survive (instinct theory). Researchers have since debunked these pseudoscientific fields, and modern psychologists who study crime and criminal justice consider crime a function of social and individual factors (e.g., Megargee, 1976). They argue that social factors like exposure to family disorganisation, violent behaviour, and poverty as a child play a significant role in criminal behaviour, and use comprehensive developmental theories such as Garmezy and Masten’s (1986) five-component model to explain why some people become offenders. These theories suggest many offenders are exposed to risk factors –events and experiences that are also called criminogenic needs (Bonta & Andrews, 2017) – as children that are statistically associated with a greater likelihood of criminal behaviour. Known risk factors include early traumatic events and lack of appropriate parental guidance. Many offenders further experienced stressors that are ‘any change in the environment which typically – in the average person – induces a high degree of continual tensions and interferes with normal patterns of response’ (Garmezy & Masten, 1986, p. 6). Common stressors are the death of a loved one, parental discord, frequently moving locations and/or schools, and poor scholastic performance. Stressors’ impact depend on their duration, co-occurrence, intensity, timing (e.g., the age at which they occur), quantity, and whether children experience them across multiple systems such as family, neighbourhood, peer, and school (Ainsworth, 1989). People’s ability to respond to these stressors depend on their coping mechanisms, and some children’s circumstances preclude them from developing functional coping mechanisms, or they might develop situation-specific coping mechanisms (e.g., to survive in a violent neighbourhood) that are dysfunctional in other settings. Children who are exposed to these stressors might still not offend as adults depending on the absence or presence of two other factors. Their cognitive ability, health, and prior experience can increase their vulnerability, especially when their youth might deprive them of the ability to ‘perceive, interpret, and deal with stressors’ (Masten & Garmezy, 1985, p. 37). Neglect, as an example, appears to have ‘its most pervasive impact during the first decade of life’ (Van der Kolk et al., 2005, p. 399). Protective factors conversely shield otherwise vulnerable children when they experience trauma, and include good bonds with siblings and good cognitive abilities and athletic skills. It’s the cumulative effect of experiencing many risk factors and stressors simultaneously for a long time in the absence of coping mechanisms and protective factors that lead to negative life outcomes. Masten (2021) summarises the developmental systems perspective which includes concepts such as pathways, cascades, promotive factors, and protective factors. Her five-components in the ‘Resilience Framework for Action’ provide an excellent framework for mitigating risk, identifying the available resources, and optimising the adaptive systems.

Criminal behaviour causes individuals emotional, physical, and financial hardship, and is a financial burden on society. Psychologists are on the forefront of developing theoretical models and instruments to reduce crime in several ways. Andrew and Bonta’s (1994) Risk-Need-Responsivity model is commonly used in Australia to assess, and develop rehabilitation programs for offenders. The model requires that programs should match offenders’ risks, criminogenic needs and their learning style and abilities (responsivity). Key assumptions of this model are that higher risk offenders require higher intensity programs, and that cognitive social learning methods will be effective in modifying offenders’ criminal behaviour (Bonta & Andrews, 2017). Other psychologists developed theories and instruments that assist sentencing judges, parole boards, and prison administrators with predicting the likelihood that offenders will reoffend – particularly violently (Harris et al., 2016) or sexually (Hart et al., 2003). Many of these instruments were developed in North America and the United Kingdom, and their predictive ability in Australia is uncertain, especially when used to assess Indigenous people’s risk of reoffending (Allan et al., 2019; Allan et al., 2020). This is a concern because Indigenous people – especially youths – are over-represented in Australian prisons. It’s therefore important to understand Indigenous offending, and Australian psychologists are doing research to identify the underlying factors associated with offending by Indigenous people (see Allan et al., 2006) and developing interventions to address those factors (Daffern et al., 2018; Day, 2003).

Psychologists’ Contribution in the Psychology and Law Area

Australian psychologists working mostly as full- or part-time researchers at universities and/or Departments of Justice or Corrections or other institutions have made a notable contribution to the psychology and law knowledge base (see Brewer & Douglass, 2019). Lawyers, investigators, practising psychologists, and psychiatrists use this knowledge, and their findings can have a significant impact on people’ rights and interests. This places an ethical burden on researchers to ensure their research products are reliable to avoid any unfair impact (Allan, 2020). An inherent problem within some areas of psycholegal research is that practical and ethical realities require it to be undertaken in simulated circumstances, which raises questions about the ecological validity of such research findings in real life settings. Researchers can’t, for instance, do experiments during legal proceedings to determine the impact ordered versus voluntarily-given apologies have on the outcome (Allan & Allan, 2021). Critics have also complained that psychologists have in the past focused too much on individual pathology when they do research about offenders (e.g., Haney, 2020).

Psychologists’ research is nevertheless generally well-received and much-used (Allan, 2020), even though Allan (2021b) points out that psychologists might not always be good at translating their research into practice. Some psychologists, however, make a career of translating their and others’ research into practice by acting as consultants who advise lawyers, for instance, of what to ask in cross examination or, in some jurisdictions, whose selection on juries to oppose or support.

Psychology of Law

Law can have an intended and unintended impact on people’s psychological functioning and lawyers interested in this phenomenon of law work under the therapeutic jurisprudence banner (see Wexler & Winnick, 1996). Psychologists don’t necessarily work under this banner, but they have contributed to the psychology of criminal law by examining questions such as whether prison sentences deter people from offending, and what type of interventions work best to reduce offending (McGuire, 1995). Psychologists’ contribution to the psychology of civil law includes examining the impact of the stress litigants experience when they’re involved in court proceedings – so-called ‘litigation response syndrome’ (Lees-Haley, 1988). This is an important issue in personal injury cases where courts decide what defendants who caused damages to plaintiffs should pay them as compensation. Defendants should only be held liable for the symptoms they caused, not those caused by the litigation, but there is a risk that courts might order defendants to compensate plaintiffs for damages they didn’t directly cause if they ignore stress caused by the litigation. Conversely, courts might conclude plaintiffs are malingering the symptoms caused by the litigation, not believe what they say about the symptoms caused by the primary trauma, and award them a lesser amount of compensation than is fair.

Psychologists have also contributed to the modification of legal procedures to minimise their negative emotional impact on those involved, and ideally improve their behaviour and emotional functioning. This includes critical examinations of drug and mental health courts (Fox et al., 2021), restorative justice, the use of apology in legal procedures (Allan, 2008), and the management of offenders in prisons (Birgden, 2004). Mental health law is a specific focus in the psychology of law and therapeutic jurisprudence research area where researchers examine questions such as how to best manage situations where governments exercise their coercive powers to protect their citizens from harm. An unintended impact of these interventions is that they often have short- and/or long-term negative psychological consequences for those subject to them because they violate their moral and legal rights and interests (Allan, 2003). The best-known example of these interventions is where the state detains people with psychiatric disorders in psychiatric hospitals because they pose a risk of harm to themselves or other people (e.g., Mental Health Act 2014). Force-feeding people suffering from Anorexia Nervosa to save their lives is another example of an intervention that could make clients’ long-term treatment more problematic (see Hebert & Weingarten, 1991).

Psychologists’ Contribution in the Psychology of Law Area

Much of psychologists’ contribution to the psychology of law area has been at a theoretical level, but some researchers have conducted studies in this field that still lacks research. A problem facing researchers working in this area is that the ecological validity of the research is often not good (Allan & Allan, 2021; Allan et al., 2021). Some psychologists have nevertheless undertaken research that has influenced policy and legislation (see Wexler & Winnick, 1996). Psychologists with the necessary experience might provide consultation services to corrections, disability, and mental health systems or as advocates for people in them.

Psychology in Law

Some psychologists are embedded in law, providing psychological services that are ultimately to the benefit of the broader society and often don’t require them to interact with the people of professional interest to them. When these psychologists interact with these people of interest to them, they normally call them clients, but it’s important to note that the word client here has a different meaning from what it would have in areas such as clinical and counselling psychology. We’ll discuss psychologists’ contribution to the psychology in law field under six discrete headings, even though the psychologists providing these services often use the same knowledge and skill set and apply the same psychological instruments.

Forensic Psychology

Judicial decision-makers such as judges, parole officers, and administrators of correction facilities who need psychological information about people that will allow them to make legal decisions often ask psychologists to undertake investigations and provide reports and/or testify. These forensic psychologists provide a wide range of services in both criminal and civil law, and their forensic assessments differ notably from conventional psychological assessments (Allan, 2015). The most obvious difference is that their clients are generally parties to legal proceedings, their lawyers or legal decision-makers who need psychological information to answer specific legal questions, such as whether people had, or have, the ability to make decisions that have legal implications. A court might, for example, have to decide whether a person suffering from dementia had the legal capacity to enter a contract to buy a house.

In criminal law, forensic psychologists might on their own or as part of a larger team assess people accused of crime who have intellectual disabilities and/or might have suffered severe mental illnesses when they allegedly committed offences. The legislation of the different states and territories in Australia differs regarding the management of people who are mentally incapable, but all this legislation is based on the moral assumption that it’s wrong to punish people who, by reason of mental incapacity, are or were incapable of making voluntary and rational decisions. Accused found to be unfit to stand trial can be detained in institutions until they are fit to stand trial or if that is unlikely to happen, the justice system considers it safe to discharge them – usually with conditions regarding treatment and/or supervision. Few accused are found unfit to stand trial and/or not criminally responsible because there’s an assumption of sanity in Australian law, but if they are found unfit, they’re usually detained and treated in mental health facilities as opposed to prisons. They can be discharged with or without conditions once a designated statutory body decides it’s appropriate to do so. Psychologists frequently prepare pre-sentencing reports to assist courts with  better understanding how offenders’ mental health or psychosocial histories might have contributed to their offending. The role of these psychologists is to help courts better understand offenders’ criminal behaviour, and not to justify or excuse their offending. Psychologists will often make recommendations regarding how such offenders should be managed to reduce their risk of reoffending. Psychologists might in the process of preparing pre-sentence assessments or other reports to courts or at the request of prison administrators assess the risk that offenders will reoffend and how the risk can be best managed. They generally collect and consider information about offenders’ static (historical and unchangeable, such as criminal history) and dynamic (potentially changeable, such as substance use) risk factors and protective factors that decrease the likelihood of recidivism. When they make recommendations regarding the management of offenders, they focus on the dynamic risk factors or criminogenic needs of offenders, what the best method would be to provide the intervention, and how it might be possible to optimise offenders’ protective factors. Forensic psychologists in a multicultural country such as Australia must have the necessary cultural competencies when they assess offenders from other cultures or use cultural consultants when necessary (Allan et al., 2020; Ogloff et al., 2017).

Psychologists might also assess victims of crime – primarily those who apply for compensation or when courts require information regarding what the impact of the offence was on the victim. Psychologists do similar assessments in civil law to determine what impact traumatic events such as motor vehicle accidents or workplace accidents might have had on the mental health of victims, and what compensation they require to assist them with dealing with the legally relevant losses they suffered (Morgan & Palk, 2013). Civil courts frequently need to decide whether people have the competency to make decisions that have legally binding consequences or undertake certain activities, such as parents’ ability to care for their children, or a person’s ability to care for their self or their property, consent to treatment, and make wills. A recent development is that Australian legislators have specified that psychologists may assess the decision-making capacity of terminally ill people who request access to voluntary assisted dying (see Voluntary Assisted Dying Act 2017). Psychologists can also be appointed by the Family Court or parties to proceedings in this court to undertake assessments. This most commonly occurs when the court appoints psychologists as single expert witness to assess the needs of children whose parents are involved in family court proceedings.

Corrective and Prison Psychology

Psychologists providing corrective services in criminal law can work in the community, but most work as corrections or prison psychologists in adult or juvenile correctional facilities (see Polaschek et al., 2019, for more information). These psychologists assess sentenced offenders to determine their mental health and criminogenic needs and then develop intervention plans for them. A big part of their work is to provide well-structured group rehabilitation programs to groups of offenders aimed at reducing their risk of reoffending. They seldom provide interventions at individual level, but sometimes develop and oversee the implementation of behavioural programs for disruptive prisoners, and might assess detainees approaching key events such as parole hearings or discharge to gauge the progress they’ve made in addressing their criminogenic needs and determine their risk of reoffending.

Investigative and Police Psychology

For centuries, investigators have been trying to find methods for identifying whether somebody is lying – some of which are quite bizarre. For instance, in 1000 BC, Chinese people considered those who spit out dry rice powder after chewing it to be liars (Vrij et al., 2010). Criminal profiling is another topic both psychologists and investigators have long been interested in – Sir Arthur Conan Doyle’s fictional detective Sherlock Holmes is an early example of a criminal profiler. While investigators are keen to involve psychologists in their investigations, and psychologists have conducted interesting research in headline-attracting areas such as lie detecting and profiling offenders, in reality, their involvement has been ethically and practically controversial (see Grisso, 2001). Psychologists can become involved in investigative work, but only if they use methods that generate scientifically reliable data (Allan, 2018), and the absence of such reliable methods is currently limiting their involvement in investigative work in Australia. Psychologists involved in lie detection for instance use methods that are sometimes based on flawed assumptions (e.g., that there’s a link between nervous behaviour and lying) or have failed to produce research data that meet the legal or scientific thresholds for acceptance of their methods (see Vrij & Fisher, 2020). These two fundamental problems have also been raised regarding criminal profiling (see Kocsis & Palermo, 2015).

Psychologists could also assist law enforcement with preventing crime (Fein et al., 1999) or reducing offenders’ risk of reoffending by analysing data police lawfully collect during undercover police operations work (e.g., Grisso, 2001; Schafer, 2001). Psychologists are increasingly working as members of joint mental health and police threat assessment teams to identify people with mental health problems who pose a risk to others and to manage such threats (see Riddle et al., 2019). The threat of terrorist attacks has shone the light on the activities of these teams, but it’s not only people with ideological motives that pose a threat to specific people (e.g., celebrities) or the public. Some people’s mental health problems can lead them to become fixated on injuring or killing others, whether it’s an ex-partner, family, or merely a group of people going about their everyday lives.

Therapeutic and Counselling Services

Psychologists might provide conventional therapeutic or counselling services to individuals and/or groups of offenders in detention facilities or in the community but subject to correction orders. The focus of these psychologists is to provide beneficial psychological services to offenders, but they also have responsibilities to their employers (e.g., a Department of Corrections) – therefore the level of confidentiality they can offer these clients is limited. They would, for instance, have to report any reasonable suspicion they form that a prisoner might plan to escape to prison authorities. One of the major functions of these psychologists is to identify and manage offenders who are at risk of harming themselves.

Employment Services

Working in the corrective, investigative, and justice systems is stressful, and this stress increases if staff work with people who are challenging, disruptive, or have suffered severe trauma (see Rønning et al., 2020). Staff sometimes also work with distressing material such as the exhibits of murder scenes and child exploitation material (see Krause, 2009). These systems therefore have an obligation to protect their staff’s psychological health and appoint psychologists to assist them in selecting appropriate staff and supporting staff who experience work-related stress disorders. Systems frequently outsource mental health support services to external organisations, but some provide internal psychological services. Psychologists assist in the assessment and placement of applicants who want to work in systems associated with law (e.g., in corrective and police services – see Aamodt, 2004).

Consultation and Training

Psychologists with the necessary knowledge and skill sets might provide consultative and training services at various levels. Lawyers working for the state or privately could ask psychologists to assist them in their preparation for litigation (e.g., by helping them understand psychological reports) or cross-examination of psychologists called by the opposite legal team. Australian lawyers rarely, if ever, use psychologists to help them decide which jurors to object to as is the practice in some jurisdictions. The administrators of detention facilities might consult psychologists who specialise in the assessment and provision of rehabilitative services to offenders. They also they often engage them to provide training to their staff, which can include psychologists and other professionals such as psychiatrists, social workers, and parole workers. Training can include helping staff to identify their unconscious biases and understand how they might impact on their service delivery (see James, 2017), as well as teaching them how to work with people who have mental disorders (Morrissey et al., 2009) and negotiate with hostage-takers and terrorists (Augustin & Fagan, 2011).

Psychologists’ Contribution in the Psychology in Law Area

Psychologists generally work in this area as employees of government and police departments. The largest employers of corrective and prison psychologists are adult and juvenile correction institutions, but other government departments might also appoint psychologists with the necessary knowledge and skill set – for instance departments providing services to people with disabilities. Many forensic psychologists work as private practitioners who provide services to private lawyers or institutions (e.g., insurance companies) and government departments as private contractors. Working as a psychologist in law can be stressful and difficult, and especially those working in corrective and prison psychology can find it difficult to maintain their professional boundaries, and consequently might act unethically. The legal ethical burden of psychologists working in law as discussed in this section is significant because their decisions, reports, and testimony can have a major impact on people’s legal rights and interests (Allan, 2013, 2018; Allan & Grisso, 2014). Their work is also often public, with the media reporting on what they say and do, and there’s also a risk that they’ll bring the profession into disrepute if lawyers, judges, and the public question the quality and credibility of their services. Their services must therefore be of the highest standard, and there is a concern that some psychologists claim to be able to do assessments that are not currently supported by research. One such area is lie detection even with the assistance of sophisticated physiological (Synnott et al., 2015) and imaging methods (Spence, 2008), psychologists can’t detect with certainty whether someone is lying (Denault et al., 2020). Another is the inappropriate use of psychological assessment instruments (e.g., using projective tests – see Areh et al., 2021) and other methods such as hypnosis (McConkey, 1995).

No matter where they work, psychologists play an integral and essential role in law and there is a demand for their services. It’s also an exciting field to work in for psychologists who have a critical and investigative mindset.

Qualifying to Work in the Psycholegal Field

No Australian university currently offers joint postgraduate law and psychology degrees as some US universities do. Some universities offer degrees that focus on the interaction between law and psychology, but their main emphasis is generally psychology and not law.  Those who want to work in the psycholegal field with or without a legal degree must have a good knowledge of the basic principles of psychology taught during the undergraduate years – the cognitive and social psychology units are especially important. Units that are of importance to those who want to work in law as psychologists are psychopathology and psychological assessment. All who want to work in the psycholegal field need an honours degree in psychology, ideally with a major in criminology or justice, or in the case of those who intend on working in the psychology in law area – a major in substance abuse and addiction studies.

Psycholegal researchers don’t need to qualify as psychologists, but will generally have a PhD in an area of psychology. Most psychologists who work in the psycholegal field, however, want to call themselves forensic psychologists, but this is a protected title in Australia and psychologists must be endorsed by the PsyBA to use it. There are several pathways for psychologists who want to apply for endorsement – the simplest is completing an applicable postgraduate qualification and supervised practice.  There is, however, currently a lack of training opportunities for psychologists who want to work in this field (see Allan et al., 2018). Universities find it difficult and expensive under current accreditation standards to provide forensic psychology programs.

One major problem is that psychologists working in the field need knowledge and skills from other specialist areas of psychology (e.g., clinical psychology or neuropsychology). Students must therefore do coursework and placements from these areas on top of their forensic coursework and placements. As the previous section demonstrated, the range of activities forensic psychologists undertake is broad. Subsequently, programs should cover many topics, but doing this in a single course is difficult. Few universities in Australia offer these courses, but Swinburne University of Technology offers an accredited Doctor of Psychology (Clinical and Forensic Psychology), while the University of New South Wales offers an accredited Master of Psychology (Forensic) and joint PhD/Master of Psychology (Forensic). Those programs don’t accept many students, therefore most people interested in becoming forensic psychologists do a postgraduate psychology degree (masters or professional doctorate) in another speciality that will lead to endorsement – for instance as clinical psychologists or neuropsychologists. The accreditation and registration standards allow universities to offer bridging programs that will make it possible for such endorsed psychologists to qualify as forensic psychologists. The Swinburne University Graduate Diploma in Forensic Psychology (post-masters bridging) degree is the only such course that we are aware of within Australia. Other endorsed psychologists who are interested in doing forensic work generally develop the necessary psycholegal knowledge, skills, and experience through self-study, professional development, and working under supervision of endorsed forensic psychologists. They might also find it useful to join professional bodies such as the Australian and New Zealand Association of Psychiatry, Psychology and Law (ANZAPPL) and the APS College of Forensic Psychologists.

Conclusion

This chapter shows that psychology and law overlap in many ways, and that there are many opportunities for psychologists to be become involved in the psycholegal field as researchers, consultants, providers of various psychological services, and in other roles that we don’t have the space to discuss, such as acting as mediators between parties in disputes. Those interested this field should bear in mind that the psycholegal field is interdisciplinary and requires knowledge beyond what most psychology degrees offer. Researchers should have a good enough understanding of law to develop ecologically valid research projects. Providers of psycholegal services should have the appropriate forensic knowledge, skills, and experience to meet the unique practical and ethical (Grisso, 2001) challenges found in this field. Those who want to become involved in the psycholegal field will therefore have to make an extra commitment, but it can be worthwhile for those who are looking for a non-mental health focused career in psychology.

This chapter has been written by Alfred Allan and Maria M. Allan, Discipline of Psychology and Criminology, School of Arts and Humanities, Edith Cowan University.

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Please reference this chapter as:

Allan, A.,  & Allan, M. (2022). Psychology and law in Australia. In T. Machin, T. Machin, C. Jeffries & N. Hoare (Eds.), The Australian handbook for careers in psychological science. University of Southern Queensland. https://usq.pressbooks.pub/psychologycareers/chapter/psychology-and-law-in-australia/

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