The Adversarial System in Australian Courts: A Critical Evaluation

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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
Common law as defined in many studies is primarily large of body who passes the judge
made rules and decisions related to criminal law and offences. The system evolved in England
initially once the Norman Conquest was over. The reason for establishing the common law
system in Australia was to change the court ruling in the country. From this study, a perception
of favoring the adversarial system in the Australian common law is discussed.
Discussion
The most favorable condition of the adversarial system in the Australian system is that it
helps both the parties, the defendant and the pleading party to present their case in front of the
jury or the judge. In this system each of the party come up with their set of evidences and
supporting documents. The first reason to agree or support this system is that it gives both the
parties equal opportunities to present their opinions thus providing an equal opportunity for the
judge or jury also to analyze the case without the influence of anyone 1. Also, through this
system, the parties get a better chance to afford and appoint better experienced lawyers to present
the case in order to have a better stand and argument in the court proceedings. Also, this system
helps in protecting all any party or offender to not get penalized unnecessarily which can lead to
a state of disbelieve among the common people on the law and order system. The adversarial
system in the Australian law and order, gives the other parties involved a state of primacy. As
per the Australian Law Reform Commission 103, the primary responsibility off defining the
issue in the court is on the parties involved which decreases the chances of getting the case take
deformed in any way2. The judge plays an impartial role in the case proceeding by just calling
the evidences and intervention them rather than getting involved in actual investigation process.
The major reasons for supporting the Australian adversarial system is due to the presence of its
good features like impartiality, independence, consistency, flexibility and the democratic nature
of the case proceeding process 3. As stated in many studies related to Australian adversarial
1 Booth, T., & Carrington, K. (2017). Victims support in policy and legal process in
Australia. Handbook of Victims and Victimology.
2 Keyes, M. (2017). Australia: Foreign Law in Australian International Litigation: Developing the
Common Law. In Treatment of Foreign Law-Dynamics towards Convergence?(pp. 503-528). Springer,
Cham. 3 Sossin, L., & Green, S. (2016). Administrative Justice and Innovation: Beyond the
Adversarial/Inquisitorial Dichotomy. In The Nature of Inquisitorial Processes in Administrative
Regimes (pp. 85-106). Routledge.

2Importance of the adversarial approach in Australian common law
system, a general trial is something which does not involve the search for the truth in any means
but this system is rather overcome in the adversarial system where justice is provided by
adhering to a set process. This is the sole reason why this system is also known as a ‘prove it’
system.
Conclusion
As per study in this report, the traditional definitions of trail and judgement does not
involve any search for the truth but rather the adversarial system gives equal chance to both the
parties to plead and proceed their case in the court. The judge is only involved in the intervention
of the evidences but not actually in finding the evidences for the parties involved in the case. As
the adversarial system has positive features like being impartial, independent, consistent, flexible
and democratic in nature, the system proves to be a great system to favor.

3Importance of the adversarial approach in Australian common law
References
Booth, T., & Carrington, K. (2017). Victims support in policy and legal process in
Australia. Handbook of Victims and Victimology.
Keyes, M. (2017). Australia: Foreign Law in Australian International Litigation: Developing the
Common Law. In Treatment of Foreign Law-Dynamics towards Convergence?(pp. 503-
528). Springer, Cham.
Sossin, L., & Green, S. (2016). Administrative Justice and Innovation: Beyond the
Adversarial/Inquisitorial Dichotomy. In The Nature of Inquisitorial Processes in
Administrative Regimes (pp. 85-106). Routledge.