Creighton, Alison --- "An adversarial system: a constitutional requirement?" [1999] ALRCRefJl 15; (1999) 74 Australian Law Reform Commission Reform Journal 65

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Reform Issue 74 Autumn 1999

This article appeared on pages 65 – 67 & 75 of the original journal.

An Adversarial System: A Constitutional Requirement

By Alison Creighton*

Lawyers and journalists love to debate the relative merits of the adversarial and inquisitorial systems of law. Like playing the English at cricket, the debate is enjoyed, but we do not respond well to evidence that the other might be a better side.

A major difference between the two systems is seen in the roles of the judge and the parties at a hearing. On a traditional view, in inquisitorial legal systems judges have a significant role in controlling the proceedings at a hearing or trial, including questioning witnesses. In criminal law this extends to assisting the detectives conducting the investigation. Hearings are a connected series of meetings and written communications rather than a single proceeding where parties have a relatively minor role in presenting written submissions. In adversarial legal systems, characteristically judges maintain their independence and impartiality from the dispute; their primary role at hearing is to adjudicate rather than participate - an umpire not a player. The hearing is the climax of the litigation process and the parties, generally through their lawyers, direct the proceedings, control the evidence that is presented and question witnesses.

The debate about which system is best has lost its impact because of changes to both systems. Civil law countries have taken on features traditionally seen as adversarial, while adversarial countries are considering and using inquisitorial techniques. In Australia this change is seen most strikingly in the adoption of case management practices in our civil law courts. Populist calls for Australia to change to an inquisitorial process focus on criminal trials and criminal procedure. Such calls, whether for changes in civil or criminal law practice, ignore the possibility that our Constitution may prevent any change to an inquisitorial system. Through the notions of judicial power and process our Constitution may be seen to have entrenched in legal proceedings principles of natural justice and procedural fairness - principles regarded as characteristics of an adversarial system.

Judicial power

Judicial power is the power distributed by Chapter III of the Constitution to the High Court and other federal courts created by parliament.¹ This is the power of the sovereign authority “to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property”.²

It is difficult to formulate a comprehensive list of what is encompassed by judicial power.³ Judicial power does not include “non-judicial powers that are not ancillary, but are directed to some non-judicial purpose”⁴ and powers which are foreign to the judicial power to be attached to Chapter III courts.⁵ It includes incidental activities, such as administrative duties, and power:

• “to compel the appearance of persons before the tribunal in which it is vested” ⁶

• “to adjudicate between adverse parties as to legal claims, rights and obligations, whatever their origin” ⁷

• “to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision” ⁸ and

• “to direct the preparation of the issues in controversy for decision and the execution of decisions so as to make them effective.” ⁹

“An essential feature of judicial power is that it be exercised in accordance with the judicial process.”¹⁰

What is judicial process?

Justice Gaudron has stated that the judicial process includes an open and public inquiry, the application of the rules of natural justice, a determination of the law and the facts, and the application of the law to those facts.¹¹ In Re Nolan she asserted that Chapter III provides a guarantee of a fair trial.¹² Justice Deane has described Chapter III as “the Constitution’s fundamental and overriding guarantee of judicial independence and due process”.¹³

Natural justice and procedural fairness

What then are the features of due process, natural justice, the essential character of the court, and the nature of judicial power? It is not suggested in any of the authorities that these features are inherently adversarial. However, such features are characteristics of an adversarial system and the adoption of some inquisitorial features may interfere with our notions of natural justice and due process.

Like judicial power and judicial process the extent of natural justice is not given precise legal definition. The primary requirement of natural justice is that “fairness in all the circumstances”¹⁴ must be achieved. Chapter III courts must:

“... exhibit the essential attributes of a court and observe, in the exercise of that judicial power, the essential requirements of the curial process, including the obligations to act judicially. At the heart of that obligation is the duty of a court to extend to the parties before it equal justice, that is to say, to treat them fairly and impartially as equals before the law and to refrain from discrimination on irrelevant or irrational grounds.”¹⁵

The critical test is “what does the duty to act fairly require in the circumstances of the particular case?”¹⁶ In terms of the Constitution, the question is not: is an adversarial system required by the Constitution? But rather: are those elements required by the Constitution, such as natural justice and procedural fairness, best protected in an adversarial system?

A duty to act fairly is not excluded from the procedure in non-adversarial legal systems. In civil law countries such as France and Germany, fairness is inherent in the system. A judge who conducts the investigation, assists the parties to clarify the issues and pleadings or questions the witnesses is not necessarily proceeding unfairly. However, in an adversarial system, to be fair, a judge must be independent of the State, be impartial, and be seen to be impartial. Procedural fairness is also preserved through party control of investigation and proceedings.¹⁷ These are elements that an adversarial system seeks to uphold.

Case management

Many recent national and international reforms of civil justice systems have promoted case management by judges as a means of addressing problems of high costs and delay. In Australia, case management is widely practised in State and federal courts.

A recent High Court case has raised the question of whether case management, in any one of its many manifestations, offends the guarantee of procedural fairness.¹⁸ Case management is not a traditional feature of adversarial systems, but more a halfway between the traditional inquisitorial practice of having a judge have control over the investigation, procedure and issues to be argued and the traditional adversarial concept of a judge as a referee.

In Australia an investigation by a judge is out,¹⁹ but judicial intervention by setting limits for procedural compliance and early intervention through directions hearings is in. However, the High Court has indicated that in a case where case management procedures compromise justice or procedural fairness, justice would not be done.

“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”²⁰

Where justice is jeopardised by case management, managerial judging or another procedural innovation, the decision of the court may be set aside.

Procedural intervention by the executive

In Australia the judiciary has initiated the change to case management and managerial judging. Future directions in court and case management may be introduced by the executive. However, such changes cannot interfere with the exercise of judicial power. Functions imposed by the legislature cannot be “incompatible either with the judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power”.²¹

The judiciary jealously and appropriately guards its role and independence.

“[T]he due process implication secures to the courts a guaranteed measure of control over their own procedures at the expense of parliament.”²²

This principle alone could be a significant barrier to implementation by the executive of procedures in federal civil litigation that do not accord with traditional adversarial principles.

Conclusion

The Australian adversarial system has changed significantly from the traditional model. We have enlarged the role of the judge umpire to include judicial management, but even with the continuing development of case management and other procedural innovations we are still some way from adopting an inquisitorial investigative role for judges. Such a role sits uneasily with our notions of procedural fairness and the attainment of justice and our Constitution may prohibit such modification of judicial functions and the judicial process.

* Alison Creighton is a Law Reform Officer working on the Australian Law Reform Commission reference into the federal civil litigation system.

Endnotes

1. Commonwealth Constitution s. 71.

2. Huddart Parker and Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, 357.

3. Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1994) 183 CLR 245, 267; Precision Data Holdings Ltd v Wills (1991) 173 CLR 1767, 188–89; R v Davison [1954] HCA 46; (1954) 90 CLR 353, 366; Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 122.

4. Leeth v Commonwealth (1992) 174 CLR 455, 469. See also Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, 70.

5. R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254, 289.

6. Waterside Workers’ Federal of Australia v JW Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434, 442.

7. Ibid.

8. Ibid, at 451.

9. Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 107–8.

10. Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501, 703.

11. Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 150.

12. Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460, 496.

13. Re Tyler; Ex parte Foley [1994] HCA 25; (1994) 181 CLR 18, 34.

14. National Companies and Securities Commission v News Corporation [1984] HCA 29; (1984) 156 CLR 296, 311.

15. Leeth v Commonwealth (1992) 174 CLR 455, 487.

16. Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585.

17. J Thibaut and L Walker The social psychology of procedural justice Plenum Press New York 1988, cited in M Shirley Procedural justice - A shifting focus Laws 99203 Dissertation, at 37.

18. Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146.

19. See R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556, 588–9.

20. Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, 154.

21. Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348, 365. See also R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254, 314–5.

22. F Wheeler ‘The doctrine of separation of powers and constitutionally entrenched due process in Australia’ [1997] MonashULawRw 18; (1997) 23(2) Monash University Law Review 248, 253.