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"Failure of the Australian legal system to provide true justice have been blamed on its use of the adversarial method and on its relative in accessibility to many ordinary people. Discuss."

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Introduction

"Failure of the Australian legal system to provide true justice have been blamed on its use of the adversarial method and on its relative in accessibility to many ordinary people. Discuss." 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. ...read more.

Middle

In the inquisitorial system, the use of legal representatives or lawyers are not necessary. The parties usually just represent themselves because in the inquisitorial system, truth is believed to be discovered through enquiry and not powerful argument like in the adversary system and hence, the parties need not have too much legal background and would not have to waste the money in hiring a lawyer. Next, the presumption of innocence until proven guilty also applies in the system. However, it differs from the adversary system in the sense that the case would not commence unless there is strong evidence against the accused and hence, the assumption of guilt once the trial begins is heavy. In the adversary system, the defendants have the right to remain silent and hence can choose not to reveal certain things and this makes it harder for the case to be resolved. However, in the inquisitorial system, no such right exists and the defendants and witnesses must answer all the questions put to them. Another feature that differs in comparison with the adversary system is that there is an extra type of verdict available in the inquisitorial system, being the intermediate verdict. An intermediate verdict is a verdict that says that the accuse is neither innocent nor guilty but has to be further proven to decide. ...read more.

Conclusion

Confidentiality is also another plus point of the ADRs. This is because the disputes are not heard openly in the courts. (B.Bash, 2001, Legal Studies Essentials, pg.163) The Australian legal system has slowly been accepting alternative methods to resolving disputes other than the adversarial system. Various use of the Alternative Dispute Resolution methods have already been put to use as shown above. Other than that, the advantages of the inquisitorial system has also been reviewed and it has slowly, but only to a certain extent made its way into the Australian legal system. Aspects of the inquisitorial 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. ...read more.

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