Business Law

Question

Judges have absolute authority in the courtroom and this means that an individual
can never get a fair trial. Do you agree? Explain how the doctrine of precedent
plays a part in this.

1. You are expected to use at least 6 and no more than 8 current business law
texts in researching your answer. Only Australian sources should be used and do NOT use the
Internet / web-based searches or the prescribed text as your sources.
2. The essay must be word processed in MS Word (.doc or .docx format). Files submitted in any
other format, including .pdf or .zip will not be marked.
3. The first page of your file should be a title page with the essay title, your name and student id.
4. The word limit is 1000 words +/- 10%. The word limit (count) should not include the list of
references, footnotes, etc.
5. The Harvard style of legal referencing must be used. Note that this is based on the Harvard
style that you have used in other commerce units but there strict “rules” about citations and
referencing that you need to follow, in particular rules about how cases and legislation must be
cited.
6. Overall your essay must be a professional document that has been carefully spell-checked and
proofread. Further information about good essay writing can be found in the Academic Skills
section of Moodle.
7. The marking rubric attached is a marking guide. You should ensure that these guidelines are
followed to avoid losing marks for omissions and unnecessary errors.
8. The assignment is marked out of 30 marks but is worth 15 marks i.e. 15% toward your overall
assessment in MLC101

Answer

In every country, there exist legal frameworks within which individuals are tried and sentenced in a court of law. Each person is legally guaranteed the right to fair and public criminal trial or individual is granted fair and public hearing proceedings. In Australia, the right to fair trial and hearing encompasses: Each and every individual is equal before courts and tribunal. Secondly, individuals have the right to a fair and public hearing before an independent, competent neutral court or tribunal recognized by the law (NAMAKULA, 2014). The statute also guarantees the right of presumption of innocence until proven guilty and the right to counsel and not to be forced to self-incriminate. However, judges have absolute authority in the courtroom and in some cases, the judgment is passed upon the discretion of the judge and not through a fair trial.

This paper argues the point that judges have absolute authority in the courtroom and this means that an individual can never get a fair trial. By outlining the scope of fair trial and hearing in the courts and situations where the right of fair trial ad hearing is limited.

The statute grants the right to fair trial and hearing to be applied in both civil and criminal proceedings and in cases before tribunals and courts of law. The right ideally ensures that there exists procedural fairness in court proceedings rather than a substantive decision made by the discretion of judges. The right to fair trial and hearing encompasses the rights discussed below

Equality

For a court proceeding to be regarded as fair hearing, the court should recognize the interests of the community, the accused and the victim not excluding all other parties involved in the civil proceedings. The proceedings should respect the principle of “equality of arms” (NAMAKULA, 2012). This principle dictates that all parties must be given a reasonable chance to present their case without feeling disadvantaged against other parties involved in the legal proceeding.

The right to public hearing

This right constitutes the notion that apart from administering justice, it must be subjected to legal proceedings and to public scrutiny. However, proceedings may be barred from public hearing on the grounds of national security or public interest.

An individual must be tried in an independent and impartial court

The doctrine of separation of judicial power in Australia requires that independent and impartial court should exist alongside executive and legislative power under the constitution (CUNLIFFE, 2012). The doctrine of judicial independence guarantees that disputes between an individual and governments, or disputes amongst individual are resolved by judges who are impartial. And are not puppets to improper pressure or control emanating whether from the government or private individuals. This implies that court proceedings must exempt biases and the objective discernment of bias.

However, in some cases, the right to a fair trial and limited can be limited. In such cases a person might not be allowed to exercise his right to fair trial and hearing and will solely depend on the judges and the law provisions to make and pass judgment. Such situations may include:

Derogation

Countries can take measures to derogate from certain obligations under the statute not excluding right to fair hearing and justice. For instance, when there is a public emergency that poses a threat to the nation. However, such measures should not extent the requisite by the exigencies presented by the situation. It should not involve discrimination based on sex, race, religion, language or social origin.

Limitations based on reasons such as public order, morals, national security etc.

The statute in Australia provides that the public and the press may be limited from all or part of a trial under the grounds of morals, the privacy of the parties, public order, and national security. Limitation may also apply in situation where opinion of the court publicity will result in prejudicing the interests of justice. Article 14 of the Australian statute provides that decisions regarding interests of children, family affairs should not be made public (CUNLIFFE, 2012).

Judges often follow the constitution and its provisions during court proceedings.  Though judges have absolute authority in the courtroom, they should often exercise the constitutional right of individual to fair trial. In some cases when the judges employ the powers vested in them by the constitution and disregards the right of individuals to fair trials. They often ensure that they do what the constitution dictates before making a decision KIRBY, 2014).

In conclusion, individuals in criminal and civil cases enjoy fair trial despite judges absolute authority in the courtroom. However, in the defense of the public interest, the law jurisdictions allow the judges to make a decision based on the powers vested in them, by the constitution (KIRBY, 2014).  There often exists a limited public interest defense to balance the risk arising from administration of just with the public interest when discussing public affairs. Consequently, in such situation judges involved in the proceeding may be forced to make decisions based on their jurisdiction powers disregarding the individual right to fair trial and hearing.

Bibliography

CUNLIFFE, E. (2012). Open justice: Concepts and judicial approaches. Fed. L. Rev., 40, 385.

KIRBY, M. (2014). Judicial Stress and Judicial Bullying. QUT L. Rev., 14, 1.

NAMAKULA, C. S. (2014). Language and the right to fair hearing in international criminal trials. Springer. Retrieved from http://dx.doi.org/10.1007/978-3-319-01451-7.

 

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