The Principles of Justice (VCE SSCE Legal Studies): Revision Notes

The Principles of Justice

Introduction

When civil disputes are resolved, parties and the community expect justice to be achieved. However, measuring whether justice has been achieved is challenging and often depends on individual perspectives.

In VCE Legal Studies, we assess whether justice has been achieved by examining three key principles: fairness, equality, and access. These principles provide a framework for evaluating the civil justice system and its processes.

Fairness

Fairness means that all people can participate in the justice system, and its processes should be impartial and open. This principle ensures that the civil justice system operates in a way that is just and equitable for all parties involved.

Impartial processes

Impartiality is fundamental to fairness in the justice system. All participants involved in civil dispute resolution—including judges, magistrates, jury members, mediators, and conciliators—must be independent and unbiased. This means they cannot favour either party and must base their decisions solely on the facts presented and relevant legal principles, rather than personal views or prejudices.

Bias refers to a prejudice or lack of objectivity toward a person or group. The requirement for impartiality extends beyond actual bias to include apprehended bias. This occurs when a fair-minded observer might reasonably believe that the decision-maker may not bring an impartial mind to the case.

Open processes

Civil trials, hearings, and tribunal proceedings are generally open to both the public and media. Additionally, court judgments (statements outlining the court's decision and legal reasoning) are made publicly available, including online. This openness allows the community to observe and evaluate how justice is administered.

However, the private nature of civil disputes means that many are resolved outside public view. This is particularly common because parties have some control over how their dispute is resolved. For instance, less than 5% of civil claims proceed to trial, with most being resolved beforehand through methods like mediation (where an independent third party helps disputing parties reach a resolution). Given that hundreds of thousands of civil claims occur each year, it is impractical for courts and tribunals to publicise written judgments for every case. Consequently, many civil claims and their outcomes remain unknown to the public.

Participation

Fairness requires that all parties to a civil dispute can actively participate in the justice system. This means both the plaintiff and defendant—and sometimes ordinary community members—should be able to engage meaningfully in the case.

Participation involves several key elements:

Understanding the case: Before trial, both parties must disclose relevant information. The plaintiff must reveal their claims, the basis for those claims, relevant documents, and the evidence (information and materials used to prove facts) they will rely on. This allows the defendant to understand the allegations against them. Similarly, the defendant must disclose their defence, including the nature of their arguments, relevant documents, and evidence. This mutual disclosure ensures both parties can participate meaningfully and eliminates surprises at trial.

Presenting their case: Both parties should have equal opportunities to present their version of events. This includes making submissions to the judge or magistrate, calling witnesses, conducting cross-examination (questioning witnesses called by the opposing side), and delivering opening and closing addresses. If parties are prevented from fully participating in these ways, this may constitute grounds for an appeal.

Equality

Equality means that all people engaging with the justice system should be treated in the same way. However, if identical treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without unfair disadvantage.

While fairness focuses primarily on processes, equality concerns how parties are treated during proceedings. This treatment can involve either the same treatment or different treatment, depending on circumstances.

Same treatment (formal equality)

In the civil justice system, plaintiffs and defendants should generally be treated identically. This is known as formal equality—where no modifications are made to court or tribunal processes, and everyone receives the same level of support or treatment.

Different treatment (substantive equality)

Sometimes parties need to be treated differently to achieve true equality. This is called substantive equality. When identical treatment would disadvantage someone because of their personal attributes (characteristics such as age, language ability, or disability), adjustments to processes help avoid or reduce this disadvantage.

People who don't understand or communicate in English: Judges or magistrates may simplify their language, avoid complex legal terminology, and provide opportunities to engage an interpreter to ensure these individuals can participate fully.

Young people: Young individuals may lack the skills and experience to conduct their own case effectively. Judicial officers may speak as plainly as possible, allow flexibility in how the young person conducts their case, and provide extensive assistance to ensure they understand proceedings.

People with religious or cultural differences: Adjustments may be necessary to respect religious and cultural diversity. For instance, people who don't practise a religion shouldn't be required to swear to tell the truth "before God" or use the Bible. Cultural considerations might include making hearing rooms more culturally accessible and less intimidating.

Self-represented parties: People representing themselves face significant disadvantages because they must run and present their own case, often against legally represented opponents. Self-represented parties may lack sufficient skills, experience, or objectivity. Judges or magistrates may need to take extra steps to ensure these parties understand processes and procedures, have adequate time to consider documents or issues, and comprehend their rights.

Access

Access means that all people should be able to engage with the justice system and its processes on an informed basis. This principle has two key features: the ability to engage with the system and the ability to do so with adequate knowledge and information.

Engagement

People must be able to engage with the civil justice system in practical terms. This includes several aspects:

Range of dispute resolution bodies: If only courts existed, access would be severely limited because courts are expensive, often involve delays, and can be intimidating. The civil justice system provides various dispute resolution bodies, including tribunals, complaints bodies, and ombudsmen, to enhance accessibility.

Physical access: People should be able to physically access courts, tribunals, services, and legal representation. Court and tribunal venues exist outside Melbourne to improve geographic accessibility. However, some people—such as those with physical or intellectual disabilities or those in remote areas—may still struggle to physically access the civil justice system.

Technological access: When virtual or online methods are used for services or hearings, people must be able to engage with those technologies. This can be particularly challenging for people with special needs, those unable to use technology, or those without computer access (such as people in custody or elderly people in aged-care facilities).

Timely resolution: The civil justice system should resolve cases without unreasonable delays. Delays impact access by limiting the system's ability to achieve just outcomes, particularly when they affect people's memories of events.

Informed basis

To engage effectively with the civil justice system, people need to be informed. This means having the knowledge and information necessary to pursue their case and understand their rights, including knowing that a dispute exists or that a remedy may be available.

Several factors help people become more informed:

Education: Education helps people understand their rights and the avenues available to resolve disputes. An educated population is better equipped to navigate the civil justice system.

Information: People should have access to information about the civil justice system, dispute resolution processes, and their rights. This information is available from legal aid services (legal advice, education, or information, including legal assistance and representation), Victoria Legal Aid, and community legal centres (CLCs) (independent community organisations providing free legal services to people unable to pay). Courts, tribunals, and other dispute resolution bodies also provide information—for example, all courts offer basic information on their websites about resolving civil disputes.

Legal representation: Being represented by a lawyer allows people to be better informed. Lawyers explain the processes involved, parties' rights, appropriate steps in proceedings, and chances of success. Legal practitioners possess the skills and experience to help parties navigate the civil justice system more easily and effectively.