Importance of the Adversarial Approach in Australian Common Law

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RUNNING HEAD: IMPORTANCE OF THE ADVERSARIAL APPROACH IN
AUSTRALIAN COMMON LAW
Importance of the adversarial approach in Australian
common law

1Importance of the adversarial approach in Australian common law
Introduction
The adversarial system can be defined as the legal system which is mostly used by common law
countries1. In this legal system, two advocates come forward and present their parties' cases in
front of a group of impartial people who are mostly assigned to analyse and pass judgement and
is known as the jury or judge. This is considered as more of a neutral system as this is represents
a two-sided structure under which the trial of the court takes place, by putting the prosecution
against the defence party.
Discussion
The New South Wales and the other Australian federal and state jurisdiction follows an
adversarial system in the common law. Also, in this system, the burden of proving the truth is on
the party who is raising the issue 2. Thus, the proceeding in this system consists of each party
presenting the case and its associated evidence in support of their version of events which
occurred to the court and then it is the court which decides on the fact whether the party who
commenced the proceedings has actually been able to prove their version of the event with
relevant pieces of evidence or not.
Another important term in this aspect which needs to be focused upon to understand the
adversarial system better is the common law which is as defined as a large body of judge-made
rules which includes the regulations related to evidence and definitions of criminal offences3.
The conventional law system was first evolved in England after the Norman Conquest. One of
the reasons for establishing the universal law system was that the court must use the court rulings
developed for the earlier cases which are termed as the precedents in determining the current
circumstances and disputes which have similar facts4. Australia is one of the countries who has
1 Varnham, S., & Squelch, J. (2018). Legal Approaches to Social Control in Australian Schools: Old Ideas
and New Trends. In The Palgrave International Handbook of School Discipline, Surveillance, and Social
Control (pp. 105-127). Palgrave Macmillan, Cham.
2 Moser, H. (2016). Mediation in the family court of Western Australia. Brief, 43(4), 20
3Lawreform.vic.gov.au. (2019). 2. The history of the common law adversarial criminal trial and the
experiences and needs of victims of crime | Victorian Law Reform Commission. Retrieved from
https://www.lawreform.vic.gov.au/content/2-history-common-law-adversarial-criminal-trial-and-
experiences-and-needs-victims-crime-0
4 Adversarial system. (2019). Adversarial system. Retrieved from https://legalanswers.sl.nsw.gov.au/hot-
topics-courts-and-tribunals/adversarial-system

2Importance of the adversarial approach in Australian common law
implemented the system of common law also many times commonly known as the law
jurisdictions. In many countries, it has been observed that the legislation is replacing the judge-
made law system, but Australia still uses the precedent, and the centrality of the judge made law
as the core elements of their universal law system. While the adversarial system holds a strong
position in Australia, some people find that this system has some potential drawbacks.
First, to list the advantages of having the adversarial system in Australia, the system is seen and
appreciated by many as a fair and a less prone to abuse system. This system mostly doesn't allow
any room for the state to favour or support anything against the defendant instead the system
enables the private litigants to settle down their differences and disputes through harmonious
pre-trials and discovery settlements. Also, another reason or many to consider this as a fair
means of law system as this allows both the parties to support their positions and claims. Coming
to the disadvantages of this system, the adversarial system in Australian common law obliges
each side to contest with each other which might lead to injustice due tampering the facts and
pieces of evidence. Also, there is a high probability in this system that the arguments rather than
the evidence will compel the judgements.
Conclusion
The adversarial system can be defined as the legal system which is mostly used by common law
countries. Another important term in this aspect which needs to be focused upon to understand
the adversarial system better is the common law which is as defined as a large body of judge-
made rules which includes the regulations related to evidence and definitions of criminal
offences. Thus, all the perceptions and the importance of the adversarial system in the Australian
common law can be easily analysed through the above discussion.

3Importance of the adversarial approach in Australian common law
References
Adversarial system. (2019). Adversarial system. Retrieved from
https://legalanswers.sl.nsw.gov.au/hot-topics-courts-and-tribunals/adversarial-system
Lawreform.vic.gov.au. (2019). 2. The history of the common law adversarial criminal trial and
the experiences and needs of victims of crime | Victorian Law Reform Commission. Retrieved
from https://www.lawreform.vic.gov.au/content/2-history-common-law-adversarial-criminal-
trial-and-experiences-and-needs-victims-crime-0
Moser, H. (2016). Mediation in the family court of Western Australia. Brief, 43(4), 20.
Varnham, S., & Squelch, J. (2018). Legal Approaches to Social Control in Australian Schools:
Old Ideas and New Trends. In The Palgrave International Handbook of School Discipline,
Surveillance, and Social Control (pp. 105-127). Palgrave Macmillan, Cham.