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The Australian Legal System Essay

1513 words - 7 pages

Since the dawn of time for a society to work it needs to have a level of structure that applies to everyone and is understood by everyone. Australian legal system is broad and complex. It is the nature of the encompassing laws and regulations which reflect how people, organisations and governments behave on the many different levels of operation and these are created to make sure that everyone understands their rights and obligations. There are two sources of Law in Australia: Statute Law regulated by Parliament and comprise of legislations and acts; and Judge-made Law or Common Law where decisions made by judges are based on previous cases.
Legislation and the Common law are not separate ...view middle of the document...

As such, it is important for the legal system to ensure that there is fairness across the board for those involved in the system, whether defendants, plaintiffs, or others.

There are two ways in which the legal system ensures fairness. On one hand, there are the general presumptions and procedures to ensure a fair trial or court hearing. On the other, there is the system of law which is intended to ensure fairness in society; this is known as the Law of Equity (C, 2009)

What is justice? Justice is the combination of transparency, equality, freedom from bias and human rights (C, 2008). Transparency provides openness to general public. What happens in the legal system can be seen and understood by the community that courts and tribunals are open to the public, rather than their decisions being made behind closed doors. Australian legal system is quite transparent. There are many official sources with free access to the cases and legislations.
Equality means that everyone is treated the same and that everyone enjoys the same rights and opportunities so that no-one is disadvantaged. In an equal society, everyone has the same opportunities to receive an education, gain employment and live comfortably but it was not always the case.
Historically (before 1902), the law might seem biased in that a large part of the law's original job was resolving disputes between male members of society who owned property. In early legal systems, women were not allowed to own property, and upon marriage a woman gave up most of her rights and possessions to her husband. Women were denied access to public life. A woman was considered as one entity with her husband, meaning a married couple was considered as unito caro, or 'one flesh' (C, 2009).
Freedom from bias – a decision maker must not have a personal interest in the decision she or he is making and must not prefer one person over another when they are making a decision (Banks, 2007). In another word, judges are requires to be impartial. For example, a judge is set to hear a case regarding a company's conduct in business, and the judge's wife is a shareholder in that company. Considering this conflict of interest, the judge is expected to 'recuse' himself from
hearing the trial. All of these rules and procedures are intended to provide a fairness of process in the legal system.
A person who is affected by a decision made by the legal system has a right to present their views and facts that support that view (evidence) to the decision maker before the decision is made (Banks, 2007). The presumption of innocence is a right that is intended to apply across all countries and cultures in the world, as a basic human right. Article 11 of the Universal Declaration of Human Rights (1948) states that: 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. 'The 'guarantees necessary...

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