Failure of the Australian Legal System to Provide True Justice

Failure of the Australian Legal System to Provide True Justice

The Australian legal system uses the adversary system in solving legal

disputes. The adversary system is a judicial process where an

independent and impartial judge administers justice in courts and two

opposing parties present allegations and counter allegations regarding

a legal dispute placed before the court by one or both parties.

(B.Bash, 2001, Legal Studies Essentials, pg.164)

The adversary system has many basic features and are elaborated in the

following. First and foremost, the disputes take place before an

independent and impartial judge or judge and jury. (Brown & Bailey,

1997, Legal Studies, pg.173, para 8) The judge in the adversary system

has a passive role, meaning that they are independent from the

executive body and cannot simultaneously perform functions of the

Judicial and Executive or Legislative body. This is also an

enforcement of the Doctrine of Separation of Power. The judge is also

a person who has no personal interest in the outcome of the case.

Other than that, the judge also has the role of determining the

admissibility of evidence at a voir dire, oversee the empanelment of

jury, act as an adviser to the jury, and protecting the rights of the

witnesses, accused, and victims. (B.Bash, 2001, Legal Studies

Essentials, pg.165) The next feature of the adversary system is that

the parties have control over the case. (Brown & Bailey, 1997, Legal

Studies, pg.174, para 1) This is said in the sense that parties are

responsible in collecting evidence, calling witnesses, choosing their

lawyers, submissions and objections. It can be said that everything i...

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...rial system have been incorporated

into the courts and tribunals in the country. (Brown & Bailey, 1997,

Legal Studies, pg.202, para 5) The Equal Opportunity Tribunal for

example, has an inquisitorial method. Besides that, the Coroner’s

Court in which is located in Adelaide has the features of the

inquisitorial system as well. The power is vested in the coroner by

the Coroner’s Act. (Brown & Bailey, 1997, Legal Studies, pg.202, para

5)

All in all, the adversarial method used by the Australian legal system

has shown its flaws, and the advantages of other methods of resolving

disputes have been reviewed. It can be seen that the Australian legal

system is slowly adopting these other methods of resolving disputes

such as Tribunals, Alternative Dispute Resolutions, and also the

Inquisitorial system to a certain extent.