Dispute Resolution

What are some core features of the adversary system

Two opposing parties, impartial judge or jury, and strict evidence rules

How does the adversary system ensure justice for both accused and victim?

Each side presents evidence, the judge or jury remains neutral, and rights are protected

How does the strict procedure rules in the adversary system limit finding the truth?

Some context or late evidence is excluded, which may be critical to the judge or jury making their decision

What is the role of the jury?

To listen to evidence, stay impartial and decide guilt

What challenges can the jury face?

Media influence, emotional cases, and complex evidence

How does jury selection support equality before the law?

It aims to create a fair, unbiased representation of the community

Why is the presumption of innocence important?

It prevents wrongful conviction and puts the burden on the prosecution

What does beyond reasonable doubt mean?

The judge or jury must be almost certain that the accused is guilty

Why is the standard higher in criminal cases?

Because the consequences, such as prison, are more severe

What limits some Australian from engaging with the system?

Language barriers, cost, and cultural differences

What is dispute resolution?

Various legal methods used to settle conflicts without litigation

What is negotiation?

Direct discussion between parties to find a solution

What is mediation?

A neutral third party helps parties reach a voluntary agreement

What is conciliation?

A neutral third party helps parties reach a voluntary agreement by suggesting solutions

What is arbitration?

A neutral arbitrator delivers a legally binding decision for parties

Describe the conflict between the Australian Legal System and Indigenous Customary Law

They both have different attitudes to guilt and responsibility

Give an example of a change that could be made to improve the Adversary System for Aboringinal People

Aboriginal people should not be required to give direct eye contact, as it is culturally considered to be rude or threatening

Give some examples of what happens in Aboriginal Courts

The magistrate sits at eye-level with Indigenous Elders and the discussion circle focuses on community impact and healing

Explain why Aboriginal people are under-represented on juries

Distance from the courts, criminal history, both parties are allowed to reject Aboriginal jurors from a trial (peremptory challenges)

What is the legal right that lets an attorney reject a potential juror during jury selection without needing to give a reason called?

Peremptory challenges

Explain how giving evidence is challenging for women in the Adversary system

It forces them to face their abuser in court, which can be intimidating and traumatic

Why is engaging with the Adversary system difficult for some women?

Lack of control of finances can mean they can’t meet the demand for legal services

Explain how trust is challenging for women in the Adversary system

Fear of not being believed impacts women’s willingness to engage with the justice system

Why is engaging with the Adversary system difficult for children?

Lack of access to money, inability to understand complex concepts, and courts can be an intimidating and confusing environment

Explain how giving evidence is challenging for children in the Adversary system

Child witnesses don’t understand their role in a trial, and intense cross-examination from strangers can be traumatic