Melioration of the Equity in the Australian Legal System, VisaVis Individuals - Research Paper Example

MELIORATION OF THE EQUITY IN THE AUSTRALIAN LEGAL SYSTEM, VIS – A – VIS INDIVIDUALS 1. INTRODUCTION This essay deals with measures for improving equity in the Australian legal system. In this regard, the elements of right to a fair hearing, justice and equality in the legal system were discussed. The role of Alternate Dispute Resolution and Specialist Tribunals in ensuring the objectives of the equity principle has been described. The Australian legal system incorporates and adheres to the fundamental concepts of procedural fairness, judicial precedent and the separation of powers. It is based upon the common law system of the United Kingdom. This legal system is characterised by an independent judiciary. It ensures that people are not subjected to discrimination; and it prohibits unfair or arbitrary treatment of the people living in Australia, by government officials1. Equity can adapt itself to changing circumstances; and it can develop new rights and remedies, in conformity with the existing circumstances in society. It is a creative concept developed by English law2. 2. RIGHT TO A FAIR HEARING The right to a fair hearing is essential for protecting human rights; such as equal access to the courts; equality before the law; right to legal advice and representation; right to procedural fairness; right to a hearing without undue delay; right to a competent, independent and impartial court or tribunal recognised by law; right to public hearing; and the right to an interpreter, if necessary3. Although the common law has incorporated these principles, their implementation entails the development of legal policies. The right to a fair hearing involves the arrival at an appropriate balance between the procedural and substantive aspects. There are several instances, in which Australia had failed to provide equal access to the courts4. In Dudko v Australia, the United Nations Human Rights Committee (UNHRC) stated that the Australian authorities had not permited a detainee to attend an application for Special Leave to the High Court of Australia. The UNHRC contended that this was a deliberate breach of its obligations under Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR). Australia failed to justify its greater unfavourable treatment of an unrepresented defendant in detention, in comparison to an unrepresented defendant, who was not in detention5. In Olo Bahamonde v Equatorial Guinea, the UNHRC stated that depriving individuals of their right to select the competent jurisdiction relating to their grievances, constituted a breach of Article 14(1) of the ICCPR. In Graciela Ato del Avellanal v Peru, the UNHRC declared that Article 14(1) of the ICCPR empowered married women to claim their matrimonial property. Moreover, such prevention constitutes discrimination on the basis of gender and marital status6. 3. JUSTICE AND EQUALITY Justice is founded on the principles of equality and rule of law. The Australian legal system treats its people in an equitable manner, without discrimination. It imposes the same punishment for violation of laws on all the people. Australian law assumes that every offender or law –breaker is equal before it, and that they should receive the same punishment. Thus, it provides formal equality to all, while imposing penalties that are independent of the financial or social status of the offender7. As such, formal equality disregards the impact of outcomes and the equality of results that arise from penalties or punishments. In order to ensure equality of outcomes, the inequalities that exist in society have to be eliminated. It is very difficult to establish true equality for legal outcomes. This is because all people are not equal in society. However, certain laws attempt to reduce the inequality inherent among the people by eradicating discrimination against people. The fundamental objective of anti – discrimination laws is to make all people equal in society. These laws aim to eliminate discrimination in any form, such as racial or gender discrimination. Thus, people cannot treat other people, in a biased manner, on the basis of race or sex8. Equality before law and fairness of the legal process are two concepts that should be provided to everyone, in theory. In practice, the distribution of power in society in inequitable; with the outcome that some people enjoy a greater degree of power, while interacting with the legal system9. There are several factors that impede equal access to law by individuals. These are; first, the cost factor; legal representation or the obtention of legal advice are very expensive. Therefore, most of the people cannot afford lawyers or costly legal processes. This applies even to people who belong to the middle or upper – middle income groups. The Government of New South Wales had made an attempt to reduce legal expenditure and to make the legal process available to each and every member of society. To this end, it had enacted the Legal Profession Reform Act (NSW). Despite these measures, legal costs have been increasing in New South Wales. Consequently, most of the people have been compelled to represent themselves in the courts. Not surprisingly, most of these cases end in failure10. Second, delays in the legal process discourage many people from accessing the Australian legal system. The number of courts and judges is insufficient to meet the demands of the vast number of cases in Australia. This results in delayed legal process in civil cases. A significant number of civil cases are delayed up to five or more years. In the case of criminal cases, there have been delays up to two or three years. Such inordinate delays cause the parties and witnesses to forget the circumstances of a case11. On account of delay in civil cases, compensation for the injured party will not be forthcoming in a timely manner. In respect of criminal cases, the alleged offenders who had been placed in remand would be deprived of their freedom, till such time as the case is decided. The detention of alleged offenders, for inordinate lengths of time, is especially unjust, when they are subsequently found to be innocent12. Third, discrimination assumes several forms, like racial discrimination, age discrimination, gender discrimination, and marital status discrimination. These have been found to be present in the existing legal system in Australia. There are anti – discrimination laws and considerable awareness regarding this despicable practice. However, in spite of these efforts, discrimination still continues in Australia’s legal system; and people face discrimination in their day-to-day social interactions13. Fourth, many people find courts and their proceedings to be alien to their experience. In addition, the courts insist upon a large number of abstruse rules and procedures to be followed by the parties to the cases. These procedures and their inherent unfamiliarity prevent many people from accessing the courts for resolving their disputes. In general, individuals are overawed by the arcane proceedings of the court that are comprehensible only to members of the legal profession. Moreover, the terminology employed in the courts proves to be bewildering to the common man, even if that person is well up in the English language14. Some of the ways to lessen the exorbitant cost of litigation, as well as the complexity of the procedures in the Australian legal system, which constitute important barriers to justice ,access and fair hearing, have been discussed in the sequel. A. Alternative Forms of Dispute Resolution Factors, such as abnormal delay, high costs and unfamiliarity prove to be major obstacles to accessing the courts in Australia. Consequently, alternate forums for resolving disputes have emerged; and there are special Tribunals and other institutions that aim to resolve disputes15. Alternative Dispute Resolution (ADR) has been deemed to be one of the major developments in the modern legal system. ADR is creative, cheap and fast. Disputants are increasingly turning towards ADR, instead of approaching the courts. ADR has several forms; such as mediation, conciliation, negotiation, and arbitration. Court proceedings are much costlier and entail considerable complication, and necessitate legal representation. Moreover, the time taken for obtaining a court ruling is unpredictable. In addition, parties are subjected to considerable emotional disturbance, during the court procedures; and face the risk of their private matters being exposed to the public at large16. Although the courts provide various benefits to the parties, by establishing judicial consistency and deciding on the basis of precedent, they remain inaccessible to the Indigenous or Aboriginal sections of Australia society. The people from these groups find it very difficult to file a case in the traditional courts. At that critical juncture, ADR came to their rescue; and a vast majority of them have commenced to approach the avenues provided by ADR. In addition, they have their own systems of ADR, such as Indigenous Dispute Resolution or the Indigenized form of Western ADR. These people can resolve their litigation, relating to patent applications or patent cancellations. Moreover, the international ADR bodies provide assistance to these people to resolve their disputes17. The procedures of ADR are less formal and simpler than those of the courts. The awards decided by the ADR are legally binding and can be enforced, in a much easier manner, at the international level. Moreover, the parties to a dispute can exercise control over dispute resolution proceedings. From this it is evident that the ADR mechanisms are better suited to the requirements of the Indigenous and Aboriginal communities. These mechanisms operate in the same manner, in which their elders had resolved internal and external disputes18. B. Specialist Tribunals There are several common features in the legislation that establish Tribunals, in the publications that promote or scrutinise the manner in which Tribunals are employed and in the second reading speeches that initiate legislation relating to the formation of Tribunals. Some of these traits are that Tribunals admit of a much lesser degree of formality; they are much simpler to approach than the courts; and their engrossment with legal forms and technicalities are far less in comparison to a court of law. Moreover, Tribunals are less expensive; arrive at a decision in a speedy manner; and attach greater importance to merits19. The advantages provided to disputants by Tribunals are several, and some of these are described in the sequel. First, the parties to a dispute need not engage legal representatives in a Tribunal. Second, these parties can safely present their case, without fear of the disadvantages that transpire, if such a course of action were to be adopted in a court; pursuant to the application of the rules of procedure, which is the hallmark of civil litigation. Third, Tribunals are constituted by Acts that mandate them to employ procedures that ensure an equitable evaluation of the dispute, while requiring the least technicality and formality that is possible, under the circumstances20. Furthermore, the recently established Tribunals have to function as places; wherein dispute resolution measures, like mediation, early neutral evaluation, conciliation and expert assessment are not only provided, but also encouraged. This is in addition to resolving disputes, which had been the chief task of the earlier Tribunals21. A large number of disagreements are based on legal issues, which have to be determined, prior to any attempt to come to a rapprochement. For instance, the very jurisdiction of the Tribunal to take up the matter, could be contested; or there may be a contention that non – compliance with a technical necessity could prove to be critical to the proceedings. In addition, dispute resolution would end in a fiasco; if one the disputants believed that the facts were such that their success was assured22. It would be to the benefit of all involved, if such factors were to be isolated, in the preliminary stages of resolution phase, information session or conciliation conference. Subsequently, legal rulings could be arrived at, without much delay; and this would result in either an abandonment of the entire process or pave the way for meaningful discussion23. The majority of the Tribunals are extremely heedful of the value of time. These Tribunals utilise a number of methods to ensure that member time is used in the best possible manner. Some of these techniques include; hearing uncontested or simple matters on the basis of written statements; and employing video conferencing in hearings, thereby saving time and preventing inconvenience to the disputants24. A major advantage with Tribunals is that they are not constrained by the rules of evidence, which is an important feature of the courts. This characteristic is used by the Tribunals to permit parties to submit facts that relate to their dispute. Moreover, there is no insistence upon conformity with the stringent conditions enjoined by the rules of evidence. All the same, Tribunals insist upon sworn evidence, and some of these Tribunals have drastically reduced the amount of evidence that is to be sworn. Statements of the parties are accepted, and only the expert witnesses are subjected to cross – examination25. Specialist entities, in the form of tribunals and commissions are in existence on the Australian legal firmament. It is their task to resolve disputes between parties. There are separate bodies for specific disputes, and all of them have been established by explicit Acts of Parliament. There are a number of differences between the courts and the tribunals. First, the jurisdiction of a tribunal is limited to one particular subject. Second, the proceedings of tribunals are less formal, comparison to the courts. This is because tribunals do not insist upon strict rules of evidence. Third, it is not necessary to have legal representation during the proceedings of a Tribunal. Fourth, the proceedings in a Tribunal are quicker and involve much less cost, in comparison to the proceedings of a court26. An important feature of a Tribunal is the manner in which it discharges its function. A Tribunal is seized with effecting an early settlement of the dispute placed before it. The effectiveness and prestige enjoyed by Tribunals, in general, are determined by the quality of their decisions and their consistency. Moreover, such consistency and value of decisions improve the chances of arriving at a compromise27. Most of the Australian Tribunals function in an atmosphere that is characterised by a lack of ceremony. Albeit, the functioning of the Tribunal does not insist upon formality; its procedures are in no way devoid of justice. For instance, any decision placed before it, is subjected to a close scrutiny. Such examination is generally much more rigorous than that of the entity that had decided previously. As such, Tribunals combine a process imbued with considerable care with an informal approach. This allows the disputants to express their opinion, without any hindrance or let. The procedure adopted by a Tribunal admits of considerable flexibility, and this greatly enhances its importance. The Statute requires Tribunals to perform a review that is speedy, informal, equitable and inexpensive. Moreover, a Tribunal is enjoined by the Statute to be formal and technical to the least extent possible, whilst conducting its proceedings in the shortest time possible28. The decisions of the government that affect its citizens have to be equitable; and this has been promoted to a very great extent by enhancing the power and jurisdiction of Tribunals. It is essential to ensure human rights, and the provision of access to legal aid and advice constitute an important component of such rights. This objective has been assisted to a major extent by the Tribunals29. Since, exorbitant costs, as extant in the system of justice purveyed by the courts, defeat these aims; Tribunals have come to the forefront30. The latter have been successful in striking a balance between equity and justice; and expeditiousness, informality and cost effectiveness. Despite the fact that judges and other decision makers are required to engender improvements to the legal system; considerable importance continues to be attached to the promotion of legal consistency. The latter makes it possible to predict the outcome of any suit filed in a court of law; and the parties to a dispute, would be better placed to anticipate the legal consequences of their actions31. Undeniably, the law has to be developed; all the same, such development must be acceptable to the community. 4. CONCLUSION Unlike the courts, the ADR Tribunals are not bound by their previous decisions; and they do not have to give credence to government policies. This renders the Tribunals, vastly superior to the courts, with their myopic obsession for formality and obscure procedure32. To surmise, a justice system should pronounce judgements that are equitable; accord just treatment to disputants; enjoin procedures that are not prohibitively costly; dispose off of cases within a reasonable period of time; should be comprehensible to those who employ it; be amenable to requirements of the litigants; provide a reasonable degree of certainty; and should sufficiently organised and effective. As such, the Australian legal system is inequitable, in some of its important features; and this has been described in the analysis conducted on several issues. It is indisputable that the Australian legal process entails several inequitable practices. Factors, like justice and equality, and the right to a fair hearing are indispensable to any legal system. Therefore, the disadvantages in Australian law, and the means to rectify them were taken up for discussion. 5. BIBLIOGRAPHY Books Belinda Brassil, Excel HSC legal studies (2001) Peter Gillies, Business Law (12th ed, 2004) Articles Carl Osi, ‘Understanding Indigenous Dispute Resolution Processes and Western Alternative Dispute Resolution: Cultivating Culturally Appropriate Methods in Lieu of Litigation’ (2008) 10 Cardozo Journal of Conflict Resolution 163 Joan L. Dwyer, ‘Fair Play the Inquisitorial Way: A Review of the Administrative Appeals Tribunal’s Use of Inquisitorial Procedures’ (2002) 22 Journal of the National Association of Administrative Law Judges 81 Websites Department of Foreign Affairs & Trade, Legal System (2008) at 22 October 2009 Fleur Kingham, Reforming Queensland’s Tribunals Procedural Reform to Realize the Rhetoric (2004) Land and Resources Tribunal at 1 November 2009 Garry Downes, Australian Tribunal Reforms (2009) Administrative Appeals Tribunal at 1 November 2009 Human Rights Law Resource Centre Ltd, The Right to Fair Hearing and Access to Justice: Australia’s Obligations (2009) at 22 October 2009 Michael Kirby, Full text of Michael Kirby’s speech: Equity’s Australian isolationism (2008) The Australian at 23 October 2009 Cases and Legislation International Covenant on Civil and Political Rights, opened for signature 16 December 1966, art 14(1) (entered into force 23 March 1976) Read More