Access to Justice in Australia: Exploring the Various Facets

20 September 2018

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 1.
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 Constitution2, 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 Constitution3 . Thus,
1 Francesco Francioni, Access to Justice as a Human Right (Oxford University Press, 2007).
2 Australian Constitution, 1901 (Cth).
3 Australian Constitution 1901, s71.

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
representatives4. 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 well5.
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 Amadio6 , both the parties were given the equal chance to present the
4 Australian Institute of Family Studies, Child protection and juvenile justice (2018) <
https://aifs.gov.au/cfca/bibliography/child-protection-and-juvenile-justice>.
5 Queensland Government, Prisoner's rights (2018) < https://www.qld.gov.au/law/sentencing-prisons-and-
probation/prisons-and-detention-centres/prisoners-rights>.
6 [1983] HCA 14