Ways of Improving Fairness for Individuals in Australian Legal Process - Assignment Example

Ways of improving fairness for individuals in Australian legal process Australian legal process consist of many different complicated stages that differs in areas of jurisdiction and a large body of regulations and rules that must be adhered to. It depends on a number of principles that ensure that all individuals in the society place their trust in it. One of these principles is fairness; this ensures that decisions are made based on established rules that are known by people.1It imperative therefore that the legal system ensure that there is fairness for all individuals involved in the legal system, whether plaintiffs, defendants or other individuals. To do this, there are different ways that can be employed to ensure fairness of all individuals. This paper will address two aspects of Australian legal system, criminal law and civil law and ways of improving fairness to all individuals in Australia. The paper will address the various measures that have been put in place to ensure fairness as well as the procedures used in the legal process to ensure that all individual involved in the legal system are accorded the necessary assistance. Criminal law is used in dealing with regulation of conduct that the government considers against the interest of the society. The government does this on behalf of the society. In criminal cases, the government presents the case before the court of law. In the context of criminal law, the term crime refers to acts that involve violence against an individual, damage or theft of property, embezzling and simple offences like illegal parking. The nature of the crime, serious or less serious determines where the case will be decided. The less serious crimes are settled by magistrate at a local court while crimes that are more serious are settled by a judge or jury in District Courts or Supreme Courts. Criminal law is very important to all individuals in the society as it ensures harmonious relationship among people with those breaking the law being prosecuted and convicted to a serve an imprisonment for a given period or pays a fine to the government. This is aimed to discourage the offenders and those contemplating committing similar offences from doing that. However, all individuals accused of criminal offences deserve fair prosecution. It is for this reason that there are different measures that have been put in place in the Australian legal system to ensure that this is done. One of the ways of ensuring fairness in the Australian legal system when dealing with criminal cases is strict adherence to the element of justice of presumption of innocence. Presumption of innocence refers to a human right that requires that all individuals be presumed innocent until proven guilty. This is supposed to be applied across in all countries in the world and is one of the basic human rights. According to Article 11 of the Universal Declaration of Human Rights signed in 1948, Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.2 Paragraph 2 of the same Article goes ahead to state that: No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.3 Australia being one of the founding members of the UN was one of the eight nations that were involved in drafting the Universal Declaration. The nation support for human rights can be proved by the fact that it has ratified almost all crucial international human rights agreements. For this reason, Australian legal system adhere strictly to provisions in this Article and this can be proved by existence of public defenders and legal aid programs that are there to ensure that the government guarantees necessary defence as required by that provision. Individuals also have a right to represent themselves if they have chosen to do so. This provision is aimed at ensuring that those accused are accorded fair trial. Paragraph 2 of Article 11 is also adhered to in Australian legal system. This has ensured that fairness is accorded to all individuals that have been prosecuted for criminal offence in Australia. This can further be enhanced by ensuring that the entire community is enlightened of their rights, by doing so everyone will be able to question the authority incase he/she feels that she is not given the fair hearing in any given criminal case. This forms the corner stone of the criminal justice system. It is the principle of Australian criminal procedure that the jury reach an impartial verdict based on the admitted and admissible evidence and argument brought before the court. The jury should at all times give full weight to the law’s presumption of innocence and its insistence of one being innocent until proven guilty beyond reasonable doubt. This is normally referred to as burden of proof that is based on Blackstone’s Intuition that it is better for ten guilty individuals to escape rather than one innocent individual to suffer. It is also a requirement in Australian criminal trials to prove actus reus (that a crime occurred) and also mens rea which means that an individual was aware that he or she was committing a crime.4 This ensures that individuals with mental illness are treated fairly by the legal system. In addition an individual that has already been tried for a given offence cannot be tried again for similar offence if due trial in proper jurisdiction was followed for him to be acquitted.5 All this is done to ensure fairness of all individuals in Australian legal system. The impartiality of judges is another proposition that ensure that there is fairness in the Australian legal system. It is expected that a judge be impartial, neutral and be free from any influence when making any judgment in any case.6 This means that a judge should act solely on grounds of reason and principle keeping his intellectual rigor and his knowledge of the law as his guide. This ensures that the judges are not biased when giving their rulings in a given criminal case. Although this is the general proposition is Australia, it is common to find government expressing dissatisfaction in judicial decisions that do not agree to the government policy or rulings with the question of state security being one of the glaring example. In some cases, some government officers have made direct remarks at the judicial reasoning employed in a given case with most of those criticisms involving attacks on judges and some being even abusive. An example of this is that of the instance where a State Attorney- General described a decision made by a judicial officer as being daft and delusional.7 To ensure that any form of interference does not happen in the legal system several measures have been put in place in Australian judiciary. One of them is making sure that there is no communication between the judges and the government outside open court in relation to the details or results of any decision a judge may be required to make. Unlike in many other countries the government does not make any effort to influence judicial decisions. A judge should not communicate in any case with senior government officials or cabinet matters to seek opinion on whether the judgment he is going to make regarding a given case is politically acceptable. 8Australian people require that the judges be immune to any form of interference. If this were not the case, people would lack trust in the legal system. By a judge being impartial, it means that all criminal cases irrespective of their magnitude and who is involved will receive fair judgment. This is important in ensuring that there is fairness for all individuals in Australian legal process. This can be further enhanced by ensuring that all judges adhere to the set code of conduct that requires them to believe that any form of impartiality is evil and inimical to the code of conduct.9 If all this is adhered to fairness for all individuals in the Australian legal system will be improved. Civil law in Australia is concerned with the regulation of private conduct between the government agencies, organizations and individuals. It is different with criminal law in that most of the civil laws can be found in common law rather than statute law. Since civil law is concerned with relationships, it often involves contract that govern the legal relationship between different participants. Civil law is therefore concerned with dealing with disputes that occurs in these relationships. 10 Common law usually relies on the principle of precedent which means that the courts are normally guided by the decisions made previously by courts with higher authority. According to Australian contract law, contract refers to an agreement or a set of agreements that is legally binding. In this context, an agreement is an undertaking by an individual to refrain from doing something or to do something to another person. Any form of agreement in Australia will only be legally binding if it meets certain criteria. In everyday individuals enters in a form of agreement in one way or the other, an agreement can be as simple as taking a ticket in a car park, clicking on the agree button to the internet terms and conditions or as complex as the agreements set forth between employers and their staff or agreements between business traders. When one of the parties in an agreement believes that another person or an organization has acted in breach of the set agreements in their dealings one can bring a civil claim to the court. This is known as suing for damages in legal system.11 The different forms of transactions in day-to-day dealings call for a fair legal system to solve the disputes that occur between different parties. If this were not the case, some individuals would misuse the legal systems to get settlements for damages that did not actually occur. To ensure fairness when dealing with civil cases, Australian legal system requires that any civil dispute be dealt with by specialist tribunals that is set up to deal with particular civil cases or in courts. Examples of tribunals set up to deal with civil disputes include the Trader and Tenancy Tribunal and NSW Consumer. In every civil case, the outcome is a decision of whether or not an individual making a civil claim (plaintiff) has proved on the balance of probabilities that the other party breached their civil law obligations to them. When this happens, the respondent in that case is supposed to pay a given amount to the plaintiff that reflects the damage suffered by the plaintiff due to the failure of the respondent to honor the agreement.12 One of the significant areas of the civil in Australia is the family law. In the modern world, family disputes are increasing at an alarming rate. There is a need therefore to ensure that family disputes are dealt with amicably with the parties involved receiving fair judgment. Since the issues of marriage and divorce are covered by section 51 of the Constitution, family law is dealt with Federal Courts i.e. Federal Magistrate Courts and Family Court of Australia.13 To ensure fairness when dealing with some civil cases like that of divorce, there are Acts that govern how such issues should be dealt with. An example of this is the Family Law Act 1975. It is through this Act that the principle of no fault divorce was established in Australian law. According to this Act, it is not the responsibility of the Court to determine which partner was at fault in the breakdown of the marriage. This means that the irretrievable breakdown of the relationship usually demonstrated by separation of 12 months is the only ground for divorce.14By using this Act in divorce cases, fairness is guaranteed in that no party is presumed to have led to the breakdown of the marriage. This is very important because in one way or the other both parties have contributed to the breakdown and hence it would be unfair if the court were to consider who was at fault. The fairness in this process cannot be achieved if the individuals offering civil services in these offices do not observe the code of conduct as expected of them by the society. In Australia, just like in many other countries, judges serving in federal courts needs to be of high ethical and moral integrity. This is so because the task entrusted to them by the government is very important to the society and thus any unbecoming behavior should be highly discouraged. In an effort to ensure that they handle the cases presented before them fairly, transparency is very important. This can only be achieved if the judges serving in those courts are properly vetted for during appointment.15 In doing so, the society can be assured that only people of high integrity will serve in those courts. This will guarantee fair hearing of all the civil cases brought before the judges. However, cases of corruption in civil cases have been reported in the past and they still exist. This has been one of the major obstacle in ensuring that all individuals get fairness in our legal system. Australia is aware of the dangers posed by corruption not only in legal system but also in other sectors of the economy. In an effort to curb this behavior it has become a signatory to two important international anti-corruption conventions: Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public officials that came in effect in 15 Feb. 1999 and the United Nations Convention against Corruption that was entered in to force in 14 Dec. 2005.16 Unfortunately, only the New South Wales and Western Australia states have specialized bodies to deal with corruption. This means that a lot need to be done in other states to ensure that corruption in legal system is dealt with. This will improve fairness for all individuals in Australian legal process. Another way of improving fairness in Australian legal system both in civil and in criminal law is by ensuring accessibility to justice by all. In the recent past recent past, the concept of access to justice has received a lot of attention in the reform of legal system in Australia. Access to justice means access in social political terms and in basic terms. Many individuals have been unable to access justice due to many factors the major ones being the cost involved in getting legal representation and accessing the judicial system, lack of the necessary knowledge of the relevant legal rights, and finally the intimidating nature of the legal process. It is the obligation of the legal system therefore to ensure that the courts and other institutions in the legal systems are accessible to all members of the society in Australia.17 This can be done by providing facilities that are secure and safe, and that allow the public and the media to attend and observe what is happening. This is very important because courtrooms sometimes can be sites of violent dispute hence the need for individual to feel secure within the court system. Making the legal services to available and affordable to all individuals in Australia will go a long way in ensuring fairness in the legal system. Some individuals have been unable to access justice due to the cost involved. Legal representation in many cases is very expensive thereby making a large number of people who are required to appear before the court not to afford private legal council to represent them.18 As much as there are legal aids and public defenders to provide representation and advice to these individuals, this is not the best council that these people deserve.19 This is so unfair to those individuals because it means that they do not get a chance to get fair hearing for an offence that they may have committed. To solve this problem the government should work hand in hand with the private counsel to make legal representation to be affordable to as many people as possible. In conclusion, this paper has addressed the different methods that can be employed in Australia to make the legal system to be fair to all individuals. Among the methods discussed, include ensuring that strict adherence to the presumption of innocence in criminal cases, enlightening the community of their rights, ensuring that the jury is impartial and the verdict is always based on admissible evidence presented before the court. The judges in the legal system should also adhere to the code of conduct set in an effort to ensure that they are impartial at all times. Other methods of improving fairness in the legal system include ensuring accessibility to justice by all by making it affordable, safe and secure for all people. If all these measures are put in place, fairness for all individuals in Australian legal system will be improved. Bibliography Books Australian High Court, The Australian law journal reports, volume 78, (Law Book Co., 2004) Banks Robins, Hot Topics: Legal issues in Plain Language (Legal Information Access Centre, 2007) Campbell, Enid & Lee, H, The Australian Judiciary. (Cambridge University Press, 2001) Finlay Henry, Family law in Australia (Butterworths, 3rd ed., 1983) Lamb, Ainslie & John littrich, Lawyers in Australia (Federation Press, 2007) Lanham David, Criminal laws in Australia (Federation Press, 2006) The Australian Institute of Judicial Administration Incorporated, Guide to Judicial Conduct (AIJAI 2nd ed., 2007) Internet AustLII, Family Law Act 1975-Sect 48 (21 January 2010) < http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s48.html> Commonwealth of Australia, Judicial Appointment (7 December 2009) < http://www.aph.gov.au/senate/committee/legcon_ctte/judicial_system/report/c03.htm> Ipp David, Maintaining the Tradition of Judicial Impartiality, (13 March 2009) 2 The Australian Collaboration, Democracy in Australia-Corruption (January 2011) 1 United Nations (UN), United Nations Universal Declaration of Human Rights 1948, ( 21 September 2010) Read More