Chapter 7.1 Flashcards
The principles of justice
the principles of justice
The principles of justice are:
* fairness
* equality
* access.
The principle of fairness
fairness means that ‘all people can participate in the justice
system, and its processes should be impartial and open’. This incorporates three broad features:
impartial processes, open processes and participation.
- impartial process
- open process
- participation
Impartial processes
In both criminal and civil justice systems, courts and personnel—including judges, magistrates, jury members, mediators, and arbitrators—must be independent and impartial. They must not show bias and should base decisions solely on facts and law. Impartiality also requires avoiding any “apprehended bias,” where there is suspicion that a decision-maker might not be impartial.
arbitrator
an independent third
party (i.e. person)
appointed to settle
a dispute during
arbitration. Arbitrators
have specialised
expertise in particular
kinds of disputes and
make decisions that
are legally binding. The
decision is known as an
arbitral award
apprehended bias
a situation in which a
fair-minded lay observer
might reasonably
believe that the person
hearing or deciding a
case (e.g. a judge or
magistrate) might not
bring an impartial mind
to the case
Open processes
Civil trials and hearings, like criminal cases, are generally open to the public to ensure transparency and allow public scrutiny. Court judgments are made publicly available online, enabling people to observe how justice is administered. However, many civil disputes may be resolved privately, due to the personal nature of civil matters and the parties’ ability to choose how their dispute is resolved. For example, mediations, where disputes are settled out of court, are conducted privately, and the outcomes are usually confidential.
Participation
Fairness in the civil justice system ensures that all individuals can participate, including the plaintiff, defendant, and sometimes community members serving on a jury. Key aspects of participation include:
- Opportunity to know the case: Both parties must disclose their claims, defences, and evidence before the trial, allowing each side to understand the other’s case and narrow the issues in dispute.
- Opportunity to present their case: Each party can present their evidence, call witnesses, make submissions, and cross-examine the other party’s witnesses.
- Interpreter access: Non-English speakers should have access to interpreters, although free services are not provided in civil cases.
- No delays: Trials should occur without unreasonable delays, as delays can affect fairness, such as when witnesses forget details or plaintiffs age and cannot benefit from awarded remedies.
evidence
information, documents
and other material used
to prove the facts in a
legal case
cross-examination
the questioning of a
witness called by the
other side in a legal case
remedy
any order made by
a court (or tribunal)
designed to address a
civil wrong or breach. A
remedy should provide
a legal solution for the
plaintiff for a breach
of the civil law by the
defendant
The principle of equality
The second principle of justice is equality. equality means that ‘all people engaging with the justice system and its processes should be treated in the same way. If the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without disparity or disadvantage’.
Equality is about how the parties are treated in the proceeding, which could involve same treatment,
or different treatment.
- same treatment
- different treatment
Same treatment
As in the criminal justice system, the parties to a civil dispute should be treated in the same way. This
is known as ‘formal equality’; all people are treated the same and given the same levels of support,
regardless of who they are.
If both parties are treated the same, then the court will require both parties to complete these pre-trial procedures, regardless of who they are or whether they are represented by a lawyer.
disparity
a situation in which
two or more things or
people are not equal,
and the inequality
causes unfairness
Different treatment
The second feature of equality is that sometimes people need to be treated differently; known as
‘substantive equality’. Sometimes, treating two parties the same way results in disparity or disadvantage.
To achieve equality, the courts have recognised that changes may need to be made to processes
to try to avoid, as much as possible, any disparity or disadvantage suffered by a person because of
who they are.
some of the measures put in place to adress disparity
- Assistance for self-represented parties: Judges or magistrates may need to explain rights and processes, such as cross-examination, and provide flexibility if the party makes mistakes.
- Interpreters: Required for individuals who cannot understand or communicate in English.
- Alternative communication: Information may need to be provided in a person’s native language or delivered more slowly for clarity.
- Process modifications: Changes, such as using audio-visual links, may be necessary for individuals in remote areas or overseas.
- Flexible evidence presentation: Individuals can choose how to give evidence, including opting out of swearing on religious texts or using a specific text if they practice a religion.
