However, the adversarial system does have its’ disadvantages. One of the disadvantages are that the adversary system has high costs as there are various fees such as lawyer’s fees, witness fees, court administration fees, payments of jurors, etc… Other than that, even after the introduction of case flow management, there are long delays and hence making courts less accessible to low-income earners. (B.Bash, 2001, Legal Studies Essentials, pg.166) Due to all these costs and prolonged processes, the system has a greater impact on the lower class groups in the community. Another disadvantage that should be greatly highlighted comes fro one of the features of the adversary system. In the adversary system, parties have great control over the case and hence they can also choose not to present evidence that they have found in fear that it will be used against them. Hence, not all evidences that ought to be presented are presented which will lead to injustice and hence a fair trial cannot be achieved.
The inquisitorial system on the other hand is a system of trial that is adopted in some overseas countries and sees a far greater involvement by the judge than in the adversary system. (Brown & Bailey, 1997, Legal Studies, pg.193) Other than that, the inquisitorial system also differs from the adversary system in various other ways.
In the inquisitorial system, the judge plays an active role. This means that the judge will go around collecting evidence, questioning witnesses and doing his own investigations. As opposed to the adversary system, the Doctrine of Separation of Power is not enforced here as the judge plays the role of both the judicial and executive body. This is said to be better as being in the executive means that the judge was elected and not appointed from the ranks of practicing lawyers, making the system more democratic. Another feature of the inquisitorial system is that the parties do not have control over the cases. In this system, it is the judge who decides what type of evidence and witness to bring into court. This way, the parties are not able to hide crucial evidences and hence there will be a fair trial. Next, the inquisitorial system, unlike the adversary system does not have a single continuous trial. A trial can be stopped at any one time to allow the judge to have more time to collect more evidence. The strict rules of evidence are also not being enforced in the inquisitorial system and hence all types of evidences are admissible. This can be seen as wasting time but viewed from a different angle, this can also bring out more truth in the cases. 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. Last but not least, in an inquisitorial system, there is only the option of trial by judge, meaning that there is no jury in the trials.
Hence, it is seen that in the inquisitorial system, as compared to the adversary system, many advantages stand out. First of all, the inquisitorial system is more flexible and accessible. This is shown as there are no strict rules of evidence, there is no need for lawyers, which means that the poor will be able to afford it. The inquisitorial system also proves to be able to provide a more fair trial through not using lawyers, and this results in no manipulation of truth as the judge controls everything. To add on to that, the intermediate verdict and the active role of the judge that allows him to understand the case better also ensures a fair trial. Moreover, the judges’ control ensures that the parties would not be able to hide any evidences.
Other than the adversarial and inquisitorial system, the Australian litigation and review system has also other ways of resolving disputes, also known as Alternative Dispute Resolution (ADR). The easiest way of resolving disputes is without involving any third party. There are a few ways to this. First of all, there is the self help method and this should always be the first option in any dispute as it is the least costly. (B.Bash, 2001, Legal Studies Essentials, pg.162) An example of this would be neighbourhood disputes can be resolved quickly by simply talking through the matter with the neighbour. However, this method must be within the law or there might be serious consequences. The following method is the consensus method can be quick and cheap if both sides of the dispute give in something. (B.Bash, 2001, Legal Studies Essentials, pg.162) Next, is the abandon or concede method which means giving up the claim or agreeing to settle for a smaller claim. (B.Bash, 2001, Legal Studies Essentials, pg.162) This usually is used when it comes to petty claims and is not worth pursuing. Besides that, there are also ADRs which include third party interventions. One of the methods would be mediation. This usually involves the presence of a neutral third person when the parties meet. (B.Bash, 2001, Legal Studies Essentials, pg.162) The third party will listen and help identify the needs and interests of both sides and then propose a reasonable solution to their problem that will satisfy both parties. This is usually used to resolve neighbourhood, family, industrial and environmental disputes. This method has become such a popular method that mediation centers have been set up to help neighbourhoods resolve their disputes. An example of this would be the Norwood Mediation Centre in South Australia. (B.Bash, 2001, Legal Studies Essentials, pg.162) The next method is conciliation which is somewhat similar to the mediation method but in this case, it is more of intervention. (B.Bash, 2001, Legal Studies Essentials, pg.163) The conciliation method is usually restricted to legislative requirements in its options for settlements. If conciliation is unable to settle the disputes, the cases are usually referred to tribunals. Arbitration is also another ADR but is slightly different as this is similar to going to court except that it is less formal and saves time. (B.Bash, 2001, Legal Studies Essentials, pg.162) An arbitrator makes decisions based on evidence from both sides and this decision is legally binding on both parties. Arbitration is normally used to settle industrial disputes. Tribunals are also another method of resolving legal disputes. It is similar to a court hearing but is less formal. Due to procedures and rules of evidence, tribunals also do not create precedents. (Gibson & Fraser, 2002, Business Law, pg.43, para 2) Tribunals have to observe the principles of natural justice to ensure a fair trial and they will also have to give reasons for their decision at the end of the trial. (Gibson & Fraser, 2002, Business Law, pg.43, para 4) Some examples of tribunals are the Administrative Appeals Tribunal which was established in 1975 and reviews the decisions of the Commonwealth government departments and statutory bodies (Gibson & Fraser, 2002, Business Law, pg.43, para 5), and the Equal Opportunity Tribunal which was established by the Equal Opportunity Act (1984) to hear discrimination disputes that the Equal Opportunity Commissioner cannot resolve. (Brown & Bailey, 1997, Legal Studies, pg.160, para 7)
The Alternative Dispute Resolutions have many advantages that encourage their use. The most obvious advantage that it carries would be that it is a faster and cheaper way of resolving disputes as they would not have to go through all the tedious processes of courts. Next, the ADRs are more flexible and responsive to individual needs. This is as they are not bound by so many legal requirements and hence will lead to a fair judgement. The parties will also tend to be more committed to the result of the resolution as they are more involved in the process of it. 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.
