Introduction

The terms 'adversarial' and 'inquisitorial' describe two distinct procedural

frameworks used in criminal and civil dispute resolution within various
legal systems. In an adversarial system, parties independently select and
present evidence to the court, while in an inquisitorial system, the court
actively participates in investigating the evidence. Although these
systems are often perceived as entirely separate, the practical differences
between them have gradually diminished, leading to a convergence of
practices that exhibit shared characteristics and mutual influences. This
essay argues that both adversarial and inquisitorial systems possess
unique strengths and weaknesses and that a hybrid approach,
incorporating elements of both, may more effectively serve the pursuit of
justice. Furthermore, the roles of tribunals, royal commissions, and
ombudsmen will be examined to highlight their contributions to achieving
justice within this blended framework.

The Adversarial Model

The adversarial system, predominant in common law jurisdictions such as

Australia, relies on the parties involved to present their cases before an
impartial judge or jury. This model emphasizes procedural fairness, with
strict rules governing the admissibility of evidence and the standing of
parties. It ensures that both sides have an equal opportunity to present
their arguments and challenge the evidence brought by their opponent,
thereby promoting a balanced and fair judicial process.

Strengths of the Adversarial Model

One of the primary strengths of the adversarial system is its strong
emphasis on fairness and equality. This system operates on the principle
that both parties should have an equal opportunity to present their case,
thereby promoting a balanced and equitable judicial process. The strict
rules of evidence and procedure serve to protect the rights of all parties
involved, ensuring that only reliable and relevant evidence is admitted,
thus preventing the possibility of prejudicial material unfairly influencing
the case's outcome. Additionally, this system grants the parties significant
control over their own cases, allowing them to decide which evidence to
present and which witnesses to call, thereby enabling them to
strategically shape their case in the manner they believe will best support
their position.

The case R v Baden-Clay [2016] HCA 35 illustrates how the adversarial

model operates, particularly in the presentation and assessment of
evidence by the jury. In this case, the High Court of Australia considered
whether the jury's verdict was unreasonable given the circumstantial
nature of the evidence. The court upheld the conviction, emphasizing the
jury's role in weighing evidence and determining credibility. However, this
case also highlights a potential limitation of the adversarial system: the
reliance on the jury's interpretation of evidence, which can be influenced
by the quality of legal representation and the persuasiveness of the
arguments presented.

Weaknesses of the Adversarial Model

However, the adversarial model is not without its weaknesses. The strict
rules of evidence can result in the exclusion of relevant information,
potentially hindering the court's ability to ascertain the truth. For instance,
hearsay evidence, which may be reliable in certain contexts, is generally
inadmissible. Additionally, the system can exacerbate inequalities
between parties with varying resources. Wealthier parties can afford
superior legal representation and more extensive investigations, leading
to an imbalance in the presentation of evidence. Moreover, the
competitive nature of the adversarial system can cause parties to
prioritize winning over uncovering the truth, often employing strategies
aimed at discrediting the opposing party's evidence rather than
presenting a comprehensive and accurate view of the facts.

The Inquisitorial Model

In contrast, the inquisitorial system, used in many civil law jurisdictions,

places the court in a more active role. Judges in these systems are
responsible for investigating the facts, calling witnesses, and gathering
evidence. This model is designed to be more collaborative, with the court
working alongside the parties to uncover the truth.

Strengths of the Inquisitorial Model

One of the primary strengths of the inquisitorial model is the

thoroughness of its investigations. Judges in inquisitorial systems have the
authority to investigate the facts of the case, leading to a more
comprehensive search for the truth. This includes calling their own
witnesses and independently gathering evidence, rather than relying
solely on the parties involved. Inquisitorial courts also have greater
flexibility in admitting evidence, allowing them to consider a broader
range of information, which contributes to a more nuanced understanding
of the case. Additionally, the court's active role in the investigation can
help to mitigate resource disparities between the parties, ensuring that
the outcome is less dependent on their ability to present their case
effectively.
The practices of French criminal courts exemplify this approach. In France,
judges are deeply involved in the investigative process, conducting
interrogations and collecting evidence themselves, as prescribed by the
French Code of Criminal Procedure. This method is designed to ensure a
thorough and unbiased examination of the facts. However, while this
approach can lead to a more comprehensive uncovering of the truth, it
also raises concerns about judicial impartiality. The active involvement of
judges in the investigation may lead to preconceived notions about the
case, potentially influencing their final judgment.

Weaknesses of the Inquisitorial Model

The inquisitorial model has its drawbacks. The judge's active role in
investigating the case can raise concerns about impartiality, as judges
may develop preconceived notions that could influence their decisions.
Parties also have less control over the presentation of their case,
potentially leading to feelings of disempowerment and the perception that
the court is not fully considering their perspective. Additionally, the
thorough investigative process can be time-consuming and resource-
intensive, leading to delays in case resolution.

A pertinent example is the handling of the Volkswagen emissions scandal

(Dieselgate) in Germany. German courts, empowered by the German Code
of Civil Procedure (Zivilprozessordnung), took an active role in
investigating the corporate misconduct. Judges were able to call witnesses
and demand documents, ensuring comprehensive and efficient evidence
gathering. This authority helps mitigate resource imbalances between
parties, ensuring that less resourced parties are not disadvantaged by
their inability to procure evidence.
Comparative Analysis- Admissibility of Evidence and Judicial
Discretion

The Evidence Act 1995 (Cth) establishes stringent rules for admissibility
of evidence in Australian courts, emphasizing relevance, reliability, and
fairness. Hearsay evidence, for instance, is generally inadmissible under
Section 59, with specific exceptions. This framework aims to protect
parties' rights by ensuring only reliable evidence is considered, but it can
also exclude important information, potentially limiting the court's ability
to uncover the truth.

Conversely, the French Code of Criminal Procedure allows for greater

flexibility, granting judges significant latitude to admit any relevant
evidence. This inclusivity enables a more comprehensive examination of
facts, including hearsay if it aids in understanding the case. However, this
flexibility raises concerns about the reliability and potential bias of
admitted evidence.

Australian judges exercise considerable discretion under the Evidence

Act 1995 (Cth), ensuring evidence meets legal standards of admissibility
and maintaining trial fairness. Judges can exclude relevant evidence if its
prejudicial effect outweighs its probative value, as outlined in Section
137, thereby safeguarding the judicial process's integrity.

In inquisitorial systems like those governed by the French Code of Criminal

Procedure, judges actively gather and assess evidence, functioning as
investigators rather than mere arbiters. They have the power to call
witnesses, request documents, and conduct independent investigations.
While this proactive role allows for a thorough exploration of facts, it also
risks judicial bias, as judges' deep involvement might influence their
impartiality.

Tribunals, royal commissions, and ombudsmen complement the

adversarial and inquisitorial systems, offering flexibility in fact-
finding without the rigid constraints of traditional courts.

The Royal Commission into Institutional Responses to Child Sexual Abuse

exemplifies the extensive investigative capabilities of royal commissions,
empowered by the Royal Commissions Act 1902 (Cth) to conduct in-depth
inquiries into systemic failures across various institutions. The commission
gathered a vast array of testimonies and evidence, often inadmissible in
traditional courts due to procedural rules, leading to significant
recommendations for legislative and institutional reforms. These powers,
including summoning witnesses, requiring document production, and
conducting hearings, enable royal commissions to delve deeply into
complex public concerns, revealing systemic issues and proposing
comprehensive reforms. However, the non-binding nature of their findings,
combined with reliance on subsequent legislative and policy actions for
implementation, can sometimes limit the immediate impact and
effectiveness of their work.

Similarly, the Administrative Appeals Tribunal (AAT) showcases the

flexibility of tribunals in handling cases. The AAT's procedures allow for a
broader range of evidence, including hearsay and other forms of
testimony usually excluded in courts. This flexibility enables the AAT to
conduct a more holistic review of each case, often leading to outcomes
that better reflect the substantive realities of the issues at hand. For
example, in immigration cases, the AAT can consider personal testimonies
and documents that might not meet the strict admissibility standards of a
court, thus providing a more comprehensive assessment of the applicant's
situation. However, this flexibility can also raise concerns about
consistency and predictability in decision-making, which are more strictly
maintained in traditional court settings.

The Ombudsman Act 1976 (Cth) outlines the role of the

Commonwealth Ombudsman in investigating complaints about
government actions. The ombudsman has the authority to investigate
administrative actions of government agencies, providing an accessible
and informal avenue for individuals seeking redress. This role is crucial for
ensuring accountability and transparency within public administration. The
ombudsman's investigations are typically less formal and more flexible
than court proceedings, allowing for a pragmatic approach to dispute
resolution. However, similar to royal commissions, the ombudsman's
recommendations are not legally binding, which can limit their
enforceability and impact.

Application of Relevant Case Laws- Summary Judgment and

Procedural Fairness

In Craig v South Australia (1995) 184 CLR 163, the High Court of
Australia delineated the principles distinguishing jurisdictional errors from
non-jurisdictional errors. The court highlighted that jurisdictional errors
involve a fundamental misunderstanding of the court's authority, whereas
non-jurisdictional errors occur within the court's scope of authority. This
distinction is crucial in summary judgment applications, as the court must
ensure it does not exceed its jurisdiction while efficiently managing its
caseload.

The case of Attorney-General (NSW) v Quin (1990) 170 CLR 1 is

particularly relevant to summary judgment. In Quin, the court emphasized
the necessity for courts to act within their jurisdictional limits, especially
when making procedural decisions that could summarily dispose of a
case. This case underscores the importance of ensuring that summary
judgments are not granted unless the claim is evidently unsustainable,
thereby preventing the misuse of summary procedures to unjustly dismiss
legitimate claims.

Jurisdictional Errors and Judicial Review

The case of Kirk v Industrial Court (NSW) (2010) 239 CLR 531 is a
landmark decision that reinforces the boundaries of jurisdictional errors
and underscores the importance of procedural fairness. The High Court
held that jurisdictional errors, such as a court making decisions without
the requisite legal authority or misinterpreting its powers, warrant judicial
review. This case is pivotal in understanding the limits within which courts
must operate when handling summary judgments and highlights the
potential for judicial review if those limits are breached.

In Harradine v District Court of South Australia (2012) 280 LSJS 572,

the court examined the interplay between minor civil actions and the
review process. The decision clarified that the review of minor civil actions
by the District Court is not a traditional appeal but an inquiry into the
substantial merits of the case. This case underscores the necessity of
maintaining procedural integrity and the court's obligation to act
according to equity, good conscience, and the substantial merits of the
case, particularly in summary disposal situations.

Practical Application in Minor Civil Actions

The practical application of these principles is evident in a recent case
where plaintiffs, unrepresented in the Magistrates Court, sought damages
for the encroachment of trees from an adjoining property. The Magistrate
dismissed the action as unsustainable without providing detailed reasons,
prompting an appeal to the District Court. The District Court overturned
the Magistrate’s orders, emphasizing the necessity for the court to act
according to equity and good conscience, as stipulated in the Magistrates
Court Act 1991 (SA) s 38. The case was subsequently subject to judicial
review, requiring the court to evaluate whether the District Court's
decision involved jurisdictional errors.

In Spalding v Gillott, the plaintiffs’ application for a minor civil review

was considered by the District Court Judge, who annulled the Magistrate’s
orders and awarded damages to the plaintiffs. The defendant's
subsequent judicial review application, which challenged the District
Court’s decision on grounds of jurisdictional error, was summarily
dismissed. This case exemplifies the application of the principles
established in Kirk and Quin, underscoring that summary dismissal
procedures must be based on a clear understanding of jurisdictional limits
and procedural fairness.

Parliamentary Debates on the CCC's Role- A Case Study

The debates surrounding the Corruption, Crime and Misconduct and

Criminal Property Confiscation Amendment Bill 2017, as recorded in
Hansard, provide a practical lens through which to examine the
convergence of adversarial and inquisitorial systems in Australia. During
these debates, Hon Alison Xamon expressed concerns that the bill would
shift the Corruption and Crime Commission (CCC) away from its primary
function of police oversight, potentially compromising its independence
and effectiveness. Xamon argued that by diverting resources to other
investigatory functions, the CCC’s ability to maintain accountability within
law enforcement could be undermined.

This parliamentary discourse illustrates the ongoing tension within hybrid

legal frameworks that seek to balance adversarial fairness with
inquisitorial thoroughness. The concerns raised highlight the risks of
overextending investigatory bodies like the CCC, thereby reinforcing the
importance of clear jurisdictional boundaries to safeguard procedural
fairness. These legislative discussions, therefore, align with the broader
analysis of how adversarial and inquisitorial elements can be effectively
integrated without compromising the integrity of the justice system.

Convergence of Adversarial and Inquisitorial Models

Dr. Jacoba Brasch QC, in her 2021 Commonwealth Law Conference

speech, posited that the adversarial and inquisitorial systems are more
intertwined than separate. She emphasized that while the adversarial
system prioritizes procedural fairness, there are scenarios where less
adversarial proceedings, mediation, and other forms of alternative dispute
resolution are more suitable. This viewpoint suggests a merging of the two
systems, moving towards a continuum rather than rigid distinctions.

Similarly, Sir Anthony Mason, former Chief Justice of Australia, noted this
convergence, observing that adversarial justice has incorporated features
from the inquisitorial system through managerial judging and alternative
dispute resolution practices. The Australian Evidence Act and the Family
Law Act reflect these shifts by accommodating different hearing styles and
imposing duties on judicial officers to disallow improper questions,
particularly in cases involving vulnerable parties.
Conclusion

The pursuit of justice involves more than just ascertaining the truth; it
encompasses fairness, equality, and the comprehensive examination of
facts. The adversarial model in Australia, with its focus on procedural
fairness and equality, ensures that both parties have an equal opportunity
to present their case. However, its strict procedural rules can sometimes
hinder the search for the truth. Conversely, the inquisitorial model offers a
more thorough investigation of facts but raises concerns about judicial
bias and reduced party control. Tribunals, royal commissions, and
ombudsmen serve as vital supplementary bodies in the pursuit of justice,
providing flexibility in investigating facts and addressing systemic issues.

The integration of adversarial and inquisitorial elements, as suggested by

Dr. Jacoba Brasch QC and Sir Anthony Mason, reflects a pragmatic
approach towards achieving substantive justice. This convergence allows
for managerial judging, alternative dispute resolution practices, and a
blend of procedural fairness with thorough fact-finding. Ultimately, a
hybrid legal framework that incorporates the strengths of both adversarial
and inquisitorial systems, while mitigating their respective weaknesses,
can better achieve the overarching goals of truth, fairness, and justice.
This critical evaluation supports the argument that while traditional courts
are essential for procedural justice, alternative bodies are indispensable
for achieving comprehensive truth-finding and substantive justice.