Business Law Short Essay
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 a fair and public hearing proceedings. In Australia right to
fair trial and hearing encompasses: Each and every individual is equal before courts and
tribunal. Secondly, individuals have the right to fair and public hearing before an independent,
competent neutral court or tribunal recognized by the law (Namakula, 2014). The statute also
guarantees 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
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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 (Martin, 2014). Each individual has the
right to public hearing whether proven guilty or not. Accused also has the right to be
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represented by a qualified lawyer during court proceedings. 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 (Kirby, 2014). 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 (Naylor, 2013). It should not involve discrimination based
on sex, race, religion, language or social origin (Kennedy et al., 2012).
Limitations based on reasons such as public order, morals, national security etc.
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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 (Ewart et al., 2013). Limitation may also apply in situation where opinion of the court
publicity will result in prejudicing the interests of justice. In such situations the press and public
interest are barred from participating in the court proceedings. Article 14 of the Australian
statute provides that decisions regarding interests of children, family affairs should not be made
public (Cunliffe, 2012). Therefore, the public may be limited also from participating in court
proceeding in cases regarding to family issues, children affairs etc.
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 (Gray, 2012). 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). Those individuals who are deprived their right to fair trial and fair
hearing are often considered dangerous to the country’s interest and sovereign nature of state.
In conclusion, individuals in criminal and civil cases enjoy fair trial despite judge’s
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.
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Reference list
Cunliffe, E. (2012). Open justice: Concepts and judicial approaches. Fed. L. Rev., 40, 385.
Ewart, J., Pearson, M., & Lessing, J. (2013). Anti-terror laws and the news media in Australia
since 2001: How free expression and national security compete in a liberal democracy.
Journal of Media Law, 5(1), 104-132.
Gray, A. (2012). Constitutionally heeding the right to silence in Australia. Monash UL Rev., 39,
156.
Kirby, M. (2014). Judicial Stress and Judicial Bullying. QUT L. Rev., 14, 1.
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Kennedy, j., Easrteal, p., &Bartels,.(2012, October). How protected is she?“Fairness” and the
rape victim witness in Australia. In Women’s Studies International Forum (Vol. 35, No.
5, pp. 334-342). Pergamon.
Martin, G. (2014). Outlaw motorcycle gangs and secret evidence: Reflections on the use of
criminal intelligence in the control of serious organised crime in Australia. Sydney L.
Rev., 36, 501-557.
Namakula, C. S. (2014). Language and the right to fair hearing in international criminal trials.
Springer.
