The legal system must operate effectively in resolving disputes. Effective operation allows for just outcomes. For the legal system to operate effectively, three elements must exist:
Entitlement to a fair and unbiased hearing
The law entitles parties to a hearing where they have a sufficient and equal opportunity to present their case, and the adjudication of an impartial judge. A number of rules are in place and followed through to ensure that a hearing is fair and unbiased:
- Strict rules of evidence and procedure: rules of evidence help to ensure that only credible evidence is admitted, and rules of procedure help to reduce costs and delays.
- Consistent hearings: the law is theoretically applied consistently, with offenders who commit similar crimes receiving similar sanctions.
- Right to an open hearing: with the exception of the Children’s Court, court proceedings are open to the public. This helps to ensure transparency in the legal system, and therefore, justice.
- Right to appeal: this allows for parties who are dissatisfied with the outcome of their case a chance to have their case reviewed by a superior court.
- Presumption of innocence: in criminal proceedings, the court presumes the innocence of the defendant. Therefore, the burden of proof rests with the prosecution.
- Right to silence: the defendant does not have to answer questions in court, which upholds their right to a presumption of innocence
- Pre-trial proceedings: in civil proceedings, each party informs the other party of their case before the trial. This encourages transparency and an out-of-court settlement.
- Each party prepares and presents their own case
Effective access to the legal system
In order to ensure a just and effective legal system, dispute resolution mechanisms must be accessible to all members of society. To ensure universal access, the legal system provides for a range of processes and procedures to settle different disputes.
- Civil disputes can be resolved through the courts, or through VCAT, which is generally resolves an issue quickly and without exorbitant costs.
- Criminal disputes are only resolved through courts, but processes, such as committal proceedings, exist to reduce delays and allow for more efficient resolution.
- The Koori court is a specialist court that has been established to help Aboriginal and Torres Strait Islander peoples overcome language and cultural barriers.
- Community legal centres and legal aid services provide low-cost assistance to parties.
Timely resolution of disputes
Disputes must be resolved in a timely manner for social cohesion and confidence in the legal system to exist. If disputes are not resolved in a reasonable time, they may fester in the community. There must, however, be a balance between giving the parties adequate time to prepare an effective case and resolving the dispute in a timely manner.
Presentation of evidence, use of juries and rules of evidence and procedure all may cause delays in the outcome of a case. Ultimately, delays can have direct negative ramifications on the parties involved in the dispute. In civil procedures delays may mean that a party does not receive damages for a long time. In criminal procedures, a defendant may have had their freedom denied by being held in remand, only to be found not guilty.
Problems and difficulties faced by individuals in using the legal system
Recent changes and recommendations for change in the legal system designed to enhance its effective operation
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