The Australian Court System
Access to Justice’ is one of the constitutionally recognized human and fundamental rights. As a part of the society, humans need to abide by the values of the, rules and the principles collectively called as the framework of the laws and legislations. These would guide and regulate the conduct and relationship among each other, while being the part of the same society, under the sanction of the state and the essence of the same is equality and fairness towards all .
In a general manner, the access to justice is referred to as the possibility of the individual to bring his case to the court of law and have a court adjudicate it. In a qualified sense it refers to the right of an individual not only to entre in a court of law, but also to be heard, the right to take part in the various procedures, while following the substantive standards of fairness. Finally, in a narrow sense, it means that the legal procedures are available to the people of every section of the society, irrespective of the cost of the financial resources and the administration of justice. The essay is aimed at exploring the various facets of the justice, taking Australia as the background.
Laws are regarded as the foundation of the society and the index of civilization. As laid down in the Australian Constitution, the federal power in Australia lies with the Australian High Court and the various other Federal Courts that are created by the federal Parliament. The other federal courts include the Family Court of Australia, Federal Circuit Court of Australia, and the Federal Court of Australia. The State courts can also have the Federal jurisdiction. The states and territories have their supreme courts, which have general and unlimited jurisdiction within their own state or territory, and are regarded as the superior courts of record. The High Court is the highest court in Australia, both on the matters of the federal and the state laws, and the same was created by section 71 of the Constitution . Thus, an individual in Australia is provided with a wide range of courts, where he or she can get his case registered. The comprehensive legal system in Australia enables an individual to protect his s legal rights, freedom, and interests. The Juveniles can address the court through their representatives. During the civil court process, the persons with the limited capacity to act, or the ones whose capacity is removed due to one or the other reason, can avail the representation being made by a temporary guardian. In addition, an obstruction of a prisoner to contact a lawyer is itself a violation of his right to access to court. Thus, the prisoners are allowed to access the judicial system as well.
The Importance of Due Legal Process
However, the right to address the court is not the absolute right of an individual. By “life,” it is not to be regarded only in the physical sense, but must be viewed alongside the bundle of the rights that makes life worth living. The right to address to court has a number of various components such as deadlines, various kind of procedures, court fees, economical and the physical parity between the individuals, age, ability to act and many more. Thus, an individual also must have a right to due legal process, which would guarantee the right of every person to protect his legitimate rights of access to court and the other competent bodies. The right to participate in the judicial proceedings is an important part of the right access to court.
The individuals that are the parties to the proceedings, should have the right to present the observations, which according to the are relevant for the concerned case. The courts must ensure that each and every party to the proceeding is equally heard, each and every material possessed by them is equally taken into consideration. As in the case law of Commercial Bank of Australia Ltd v Amadio , both the parties were given the equal chance to present the matter and the decision was pronounced after due consideration of matter of each party. The appellants must be ensured that he or she has the access to the relevant documents that are being possessed with the administrative authorities. This is necessary when a procedure requires the same or for the purpose of disclosure of documents.
In the cases, where a liability has been incurred, or the imprisonment has been pronounced, for damages arising out of an offence, the same is based on the thorough evaluation of the decisions held, evidences possessed, and there must be adequate reasons to believe that the liability must be ensued on account of the seriousness of the offences. For instance, in the case of ASIC v Adler, the wrong doing party was rightly held responsible for misdeeds after due consideration of evidences. In addition to the above discussion, it can be stated that as per the recommendations at the international levels and the problems identified in actual practice, the lawyers must be competent and trained enough to respect the laws, legislations and the rules made thereunder. They must be competent enough to interpret the decisions, and the interpretations as held in the previous case laws, to serve the individuals to the bets of their capabilities and the implementation of the respecting of the human and legal rights. A procedural flaw in the judgement should be subject to review by an independent higher judicial body. A comprehensive verification must be made of the pronouncements of the lower court.
The Significance of Competent Lawyers
Another significant element to the access to justice is that the process of adjudication must be speedy. As it has been famously said, “A justice delayed, is a justice denied,” the regulators must ensure that the process of the justice is not so time consuming, laborious, indolent, and frustrating, that the one who is seeking justice loses the confidence and the trust in the legal system. It can further dissuades or deters them from seeking the resort of the courts in future. In addition to the above, one of the significant criteria, the individuals when registering his or her case must fulfil in the court is the payment of the requisite fees. Court fees are generally subject to changes as prescribed by the governments. Every court has a different framework of the fees and the same may vary from region to region. For instance, the application fee for filing the consent orders in the Family Court is $ 165 . The highest fee in the same court is the application for leave to appeal, and the notice of appeal to the full court including an appeal from the Federal Circuit Court, i.e. $ 1360. The lack of the payment of the fee would lead to the failure of the court procedures to start. At times, the court fees prevents many citizens from participating and applying for the legal procedures. Moreover, the time and the complexities in the legal systems pose additional difficulties for the citizens. Thus, many not for profit organisations and non-governmental communities are engaging in providing the free legal assistances to the individuals by donating the funds or aiding the hiring of the advocates.
As discussed in the previous parts, it is clearly evident that the right to access justice is crucial for the overall development of the nation and the society, of which the individuals are a part. The individuals can misuse the same as well. This can occur by registering faulty cases in the court and presenting wrong and unlawful information in the proceedings. Thus, it is important for the courts to make sure that the fairness of the proceedings is apparent. This becomes significant when the parties to a proceedings at times, hand over the irrelevant and unnecessary documents and details to the courts, which can make the proceedings unnecessary long and tedious. In addition, the observations presented in the court may be of the nature that may influence the decision and the fairness of the trials. The same must be evaluated by the court objectively and must be denied in order to protect the time, money and the efforts involved in the legal proceedings.
Thus, from the discussions held in the previous parts it can be conclude that the right to access the courts has both negative and positive elements and thus, the regulators must ensure that the mechanisms are being adopted for the proper implementation and the management of the legal systems, laws, and regulations. In addition, it must be ensured that the implementation does not results in the violation of the human and the legal rights of the individuals. Every party to the proceeding must be given fair chance to present his or her share of observations, irrespective of the parities in terms of the economic and the physical conditions of the individuals. In order to make the judicial procedures sound and fair, it is important to impart continuous training to lawyers and judges and to monitor the same. In addition, it is necessary to regard each observation objectively to serve the society.
Adam Cooper, Justice delayed, justice denied (2018) < https://www.theage.com.au/national/victoria/justice-delayed-justice-denied-20180804-p4zvj8.html>.
Francesco Francioni, Access to Justice as a Human Right (Oxford University Press, 2007)
ASIC v Adler (2002) 41 ACSR 72; [2002] NSWC 171.
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14
Australian Constitution, 1901 (Cth).
Australian Institute of Family Studies, Child protection and juvenile justice (2018) < https://aifs.gov.au/cfca/bibliography/child-protection-and-juvenile-justice>.
Family Court of Australia, Court Fees (Family Law) (2018) <https://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/forms-and-fees/fees-and-costs/fees>.
Queensland Government, Prisoner’s rights (2018) < https://www.qld.gov.au/law/sentencing-prisons-and-probation/prisons-and-detention-centres/prisoners-rights>.
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