The Australian Legal System

These notes are from the Monash University Law School website

 

The Adversarial System

The adversarial system has five main features:

• the conduct of the litigation both prior to and during the trial is left substantially in the hands of the parties;

• evidence is generally elicited by a procedure whereby each party in turn calls witnesses whom it questions and who are then cross-examined by the other party with a view to discrediting or casting doubt on the accuracy or relevance of their testimony;

• the role of the judge is to preside and to act as a form of umpire rather than to take any active part in the selection or questioning of witnesses;

• the judicial function is designed to be concentrated into one continuous hearing; and
• compliance with the rules of court is, in general, enforced only at the request of one of the parties

 

•              
  

  The Inquisitorial System

• The principal alternative to an adversarial system is the inquisitorial system which is used in civil law countries. Under this system the judge plays a more active role both prior to and during the trial which may take the form of hearings at various stages rather than one continuous hearing. His or her role is to inquire as to the truth rather than to act as umpire. In general, the procedure is more informal and the role of the lawyer less critical, although still important

The Rationale for the Adversary System

• .The rationale for the adversarial system is that each party will do its best to present all the facts and legal arguments which support its case and to demonstrate any weakness in the other party’s evidence and that it therefore provides an effective method for bringing all the relevant facts and issues before the judge who is then able to give an impartial verdict. It is, however, open to criticism on the basis that it works well only where there is a genuine equality between the parties and that it works to the disadvantage of migrants, Aborigines, the uneducated and those who cannot afford the best legal representation.

• It is also tends to result in lengthy and expensive cases.Although the adversarial system is used in the courts, the majority of tribunals which are required to adjudicate disputes adopt some of the features of an inquisitorial system (they tend to be more informal and tribunal members may play a more active role in proceedings)