The inter-related principles of access, equality and fairness
The Australian legal system has its origins in British law and is shaped by Judeo-Christian heritage and values. It is built on foundational principles aimed at ensuring justice for all.
This commitment to justice is echoed in the Magna Carta, which famously
declared: “To no one will we sell, to no one will we deny or delay, right or justice.”
The principles of Justice – equality, fairness, and access – are interrelated. Together, they
ensure that everyone is treated with respect under the law, that legal decisions are made
openly and transparently by an independent arbiter, and that all people, regardless of
background or circumstances, can understand and have the benefit of the legal system to protect their rights. These principles also promote social cohesion and uphold the rule of law. By following these principles, the justice system protects individual rights, holds
everyone (including the government) accountable to the law, and creates a more
predictable, safe and fair society for all Australians.
Access
“Freedom or ability to obtain or make
use of something.” Merriam-Webster Dictionary
Access to the law means that citizens
understand their legal rights and have
the ability to exercise them. This
includes being informed of any charges
made against you, having the
opportunity to take action in court,
receiving a prompt trial, obtaining legal
advice and being represented in court by
a qualified lawyer. It also involves
support services such as interpreters for
people who do not speak English
fluently.
Barriers such as cost, language,
distance, or disability can prevent
people from getting the help they need.
Services like Legal Aid and pro bono
work completed by lawyers, court
interpreters, and the use of video
links for remote appearances are all
ways the justice system tries to make
itself more accessible to everyone. The
availability of Alternative Dispute
Resolution, which reduces the formality
and complexity of processes, can also
assist individuals resolve disputes in
ways that avoid costly court
proceedings. Community education
programs can enable citizens to avoid
breaking the law or resolve conflict
before it escalates to court.
Access also requires that the law is clear
and predictable so people know what is
expected of them and can understand
the consequences of their actions.
Making sure everyone, regardless of
background or personal situation, can
understand and use the legal system is
key to achieving a fair society.
Equality
“Being equal in rights, status,
advantages, etc.” Oxford Learner’s Dictionary
Equality means that all people are
treated the same under the law and
have an equal opportunity to present
their case in court. In Australia, this
principle protects citizens by ensuring
they are not treated unfairly or
discriminated against (for no good
reason) based on their race, gender, age,
disability, religion, or background.
Whether someone is a student, a
politician, a police officer or
experiencing homelessness, the legal
system is expected to treat them equally
and without bias.
For example, if two people in the same
state commit the same crime, they
should both be subject to the same
investigation process, have the same
charges laid, be given access to legal
representation, and receive a fair trial.
Unless there are valid reasons for a
different outcome, they should also
receive similar punishments.
These rights apply equally to all people,
regardless of their background, personal
circumstances or the nature of the
offence. Consistent application of the
law ensures that all people can receive
protection from the law, even in cases
against those in power. It helps prevent
arbitrary or discriminatory decisions and
allows people to live with confidence,
knowing how the law works and how it
will be applied.
Fairness
“Lack of favouritism toward one side or
another.” Merriam-Webster Dictionary
Fairness means that everyone in the
legal system should be treated equally
and without bias. In Australia, fairness
is protected by clear and consistent
legal rules and processes that apply to
all people. This is reflected in the
principle of due process (following
proper legal steps to protect a person’s
rights) and procedural fairness (making
sure decisions are made in a fair and
transparent way). These principles
ensure that both sides in a case can
present their argument, and that
decisions are made based on the law,
evidence, and facts, not on personal
experiences or opinions.
Fairness is also protected through an
independent judiciary, which ensures
that legal decisions are made free from
government influence or conflict of
interest, and through sentencing that is
proportionate to the severity of the
crime.
However, fairness also recognises that
not everyone is the same, and so people
may be treated differently when it is
appropriate to treat them differently.
This includes the judge’s ability to
use discretion to consider people’s
individual circumstances when deciding
on a sentence. Judges must
consider mitigating factors (like remorse
or mental illness) and aggravating
factors (like the level of harm caused to
a victim or repeat offending) in deciding
a fair sentence.
