Australian Contract Law Should Be Codified

In the 21st Century many things have been called into question. Among those things is the adversarial system that Australia’s Rule of Law system follows. The argument stands that the adversarial system is too aggressive in its approach to the legal system. Would Australia benefit more from the adversarial system changing into the inquisitorial system or would it be more beneficial to create a hybrid of the two. This essay will aim to discuss the advantages and disadvantages of both the current system of adversarial and the more European system of inquisitorial. Highlighting why it is important to begin moving away from a traditional adversarial system drawing evidence from the Family court of Australia, the Netherlands and Nigeria’s current

The Australian justice system implements the adversarial system in which opposing parties present their case before an unbiased decision maker, to ensure procedural fairness and the principles of natural justice are upheld.The system has been structured this way to ensure justice is served for the victim, offender and the broader community. The nature of justice is that it is equal to all, fair from bias and is accessible. In the case on R v Rolfe and R v Weston (2017) the two offenders; Timothy Rolfe and John Weston, members of the Rebels Outlaw Motorcycle Club were sentenced at the NSW Supreme Court on a joint criminal enterprise for the murder of 29-year-old Laurence Starling. The killing was motivated by revenge for an unpaid extortion debt of $200,000 between the deceased’s business partner Mr Fields and a high-ranking member of the ‘’Rebels’’ who sent his subordinates to seize Mr Field’s assets as compensation. The complex circumstances of the crime were problematic for the justice system because particular methods had to be implemented in the process of achieving justice however the justice system was relatively effective in reaching a just outcome for majority of the stakeholders due to its resource efficiency, responsiveness, accessibility, standards of fairness, protection of individual rights and meeting society’s needs.

Critically assess the applicability of this statement as an analysis of the current approach of the judiciary to statutory interpretation in Australia.

The Australian legal system follows a formal structure, strict rules of evidence and conduct and utilizes the adversarial system of trial for both criminal and civil proceedings. The procedure relies on the skills of representatives of each party and evidence concerning the case presented to an impartial judge or magistrate (and sometimes a jury). Courts apply fairness to a profound extent through adopting the doctrine of natural justice, parties involved have the right to know accusations made so they are able to collect evidence for defence and cross examination. Fairness was practiced in the case Southan v Costa (2017) NSWLEC 1230 that cited the Trees (Disputes between Neighbours) Act 2006 which instructed the Land and Environment Court NSW on only making an order if the tree concerned had caused harm or posed future threat. Fairness was also demonstrated through the referral to precedents including the Freeman v Dillon (2012) NSWLEC 1057 to assess the degree of damage, necessary action and consistent orders. The previous cases assisted in concluding the orders of the Court ‘requiring periodic removal of dead wood’ to reduce the risk of injury and annoyance of natural shedding past the respondent’s property. Court jurisdiction and high enforceability aid in achieving justice for individuals when ruling sentences and court orders. Enforceability is exemplified when the actor Steve Bisley was ordered to perform 300 hours of community service by the magistrate of Sydney's Downing Centre Local Court for charges of actual bodily harm relating to domestic violence towards his former wife Sally Burleigh in September 2009. This case additionally reflected equality in application regardless political, social and religious standing, gender and racial identity. The effectiveness of courts achieving justice in

In today's Australia the price of handling a substantial litigation matter is unobtainable for the average Australian, justice does indeed go to the highest bidder and “Unless you are a millionaire or a pauper, the cost of going to court to protect your rights is beyond you.” George Brandis, shadow attorney-general. To say that justice is earned and reserved for the population of Australia is a myth and it is true that legal aid community centres are grossly underfunded and explicitly for those in dire need of legal aid and do not represent the common Australian, there is no universal legal safety-net unlike the education and health systems.

Justice is the concept of moral rightness that is based on equality, access and fairness. This means that the law is applied equally, understood by all people and does not have a particularly harsh effect on an individual. In Australia, the adversary system is used as a means to achieve justice by proving the accused, beyond reasonable doubt, committed the crime. The criminal trial process has many features which aim to fulfill the requirements of achieving justice. These elements, though considers equality, fairness and access, are flawed in practice. Flaws such as the handling of evidence, jurors not understanding instructions, inadequate funds for legal

The Australian Constitution is a rich amalgam of various classical political principles. The concepts of the Rule of Law and the doctrine of the Separation of Powers evident in Montesquieu’s Spirit of the Laws are both salient examples of political theses that are central to Australian Constitutional Law. The structure of the Constitution itself and decisions of the High Court of Australia unequivocally validate the entrenchment of the doctrine separation of powers in the Commonwealth Constitution . In particular, the High Court has applied this with relative rigour with respect to the separation of judicial power. The separation of the judicial power is fundamentally critical to upholding the rule of law. The High Court in Wilson v Minister for Aboriginal Affairs noted that “the separation of the judicial function…advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Chapter III judges” . Kitto J in R v Davidson also identified that the judiciary should be subject to no other authority but the law itself . This is a critical aspect ensuring the concept of legal equality is upheld. Therefore, its role clearly extends to providing checks and balances on the exercise of power by the legislative and executive arms of government . This ensures the liberty of the law and limits the abuse of the judicial system. Judicial Power is defined as “the power which every sovereign must of necessity have to decide between its subjects

Having made visits to the Supreme, District and the Local Courts, I was able to obtain a better understanding of the Australian adversarial system. This report will attempt to analyze the distinctions between the different types of courts through primary observations. The report will also assess the models of justice in operation, the triviality of the lower courts compared to the higher courts and assess court procedure in each court.

There are certain areas of conflict between the Aboriginal Justice system and the Australian Law. Persons following the aboriginal customary laws if

It is widely recognised that Australia’s System of decision making in the court is in need of significant reform, if the nation’s present and future need for fair justice is to be met.

The Australian Legal system is made up of three institutions; the Legislature, the Executive and the Judiciary. The functions of law are Social Cohesion and Social Progress, and each of these have a number of components within them that the legal system upholds. Social cohesion is the willingness of members of society to cooperate with each other to not only survive, however, thrive. Social cohesion involves Values of society, Acceptable standard of conduct, Dispute resolution, Evolve when necessary and Right and responsibilities. Social Progress is the improvement of social, political and economic structures, which can be a direct result of human action, or naturally as part of a society’s evolution and allows a smooth transition from one

First, we as a society still have to add by by common laws; common laws are still in effect but are outdated for certain situations and cases. Common laws need to be reformed. Judges should not have so much power and authorization when it comes to common laws. Judges are capable of coming up with any ruling that they believe is fair; I think common law gives judges too much authority. More importantly, the judiciary is supposed to interpret not, create law. Secondly, the legal system sometimes can be unfair, unsympathetic, harsh, unhelpful, and unreasonable. The system have falsely accused people of serious crimes in result with them having to be hold in confinement, be convicted and go to jail, having to pay fines, or maybe even death. For

Members of the legal profession are claiming that changes to the availability of legal aid brought about by the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 could cause harm to the rule of law. The Act it is claimed creates an environment in which those who, without the financial resources to access justice will be denied access to justice. In principle the rule of law is intended to ensure that the law is just, accessible to all and that it is enforceable. That is to say, everyone should be able to enforce their legal rights, have access to legal advice and have access to some form of adjudication if they have a legal claim. The high cost of obtaining legal advise and bringing claims to the courts is an obstacle to the vast majority and therefore, the vast majority of the population require financial assistance in order to obtain effective access to justice.

Despite the appealing notion of blind and fair justice, many question the existence of this ideal in reality – and rightly so. Many of the challenges to law’s claim of impartiality concern the influence of social characteristics such as race or sex when they should be irrelevant. Marc Galanter introduces a more structural argument, related to the frequency with which one litigates, bringing disputes before a court. Galanter claims that those who regularly engage in similar litigation, whom he labels “repeat players” (RPs) have multiple advantages over “one-shotters” (OSs), who rarely enter the forum of law, where courts interpret and apply official rules to settle disputes, in their ability to achieve desired legal outcomes. The fact that

‘It is well-known that the Separation of Powers doctrine is sine qua non for maintaining the rule of law however, an absolute separation of power does not exist in the Australian legal system.’