Activity 5p

1. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of the responsibilities of the judgeto achieve the principles of justice requires students to write about relevant strengths and weaknesses of the judge. Responses will vary according to the arguments selected.

        Arguments in support of the responsibilities of the judgeachieving the principles of justice include:

• Judicial impartiality relates to actual impartiality, but also to the appearance of impartiality – in 2020 the Australian Law Reform Commission was given terms of reference to inquire into whether the law provides enough clarity to judges to manage potential conflicts of interest and public perceptions of judicial partiality or impartiality, in order to maintain fairness and public confidence.
• Actual judicial impartiality, and independence of the parties as well as the government, allows both parties an equal chance to present their cases before the court.
• One of the judge’s responsibilities is to balance procedural equality with substantive equality or equity, by adjusting some rules and procedures to ‘level the playing field’ – for instance, the High Court precedent set in MacPherson permits judges to inform self-represented litigants of “the rules of the game” so they have equal access to natural justice.
• The judge is given significant powers to manage trial features such as cross-examination, to ensure that reliable evidence is elicited while at the same time protecting the witnesses and the efficiency of the trial process – this promotes access to effective resolution processes
• The judge can bring the different elements of the trial together for the jury in their summation. Witnesses give evidence one by one, but the judge can help the jury identify the inconsistencies and agreements. The judge can also receive questions from the jury and clarify issues they have understanding the law. This helps to achieve a more reliable and fair verdict.
• The case management powers of the judge can be used to promote a more efficient and effective resolution to the case, giving both parties better access and ensuring that neither party uses bad faith strategy designed to unfairly disadvantage their opposition by submitting contradictory evidence or dragging the trial timeframe out.

        Arguments against the responsibilities of the judgeachieving the principles of justice include:

• Judges cannot entirely divorce their society and humanity from their professional judgment: they are trained to be impartial, but complete impartiality is impossible – the background of a judge affects their perspective.
• Judges may be inconsistent across matters in which they are not bound by precedent – such as awarding remedies. This prevents equality across cases, particularly in areas vulnerable to the judge’s subjective calculation, such as general compensatory damages.
• Judges have been given significant power under the Civil Procedure Act 2010 (Vic) to control the choices made by the parties in how they present their case – parties may feel that their access is being diminished, and that some of the judge’s directions are unfair and limit natural justice.
• The judge generally does not participate in the trial by calling witnesses, deciding which legal arguments and precedent to raise or presenting and arguing the interpretation of evidence – thus, their legal expertise cannot be used to support access for either party in the case or to actively search for the truth.
• Judges can only make decisions based on evidence and arguments put to them, and the outcome should be based on the best legal arguments rather than whom the court thinks is right – judges have limited scope to use their own judgment, and are reliant on the parties and legal representatives.

2. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the arguments for and against the responsibilities of the judge, that theydo achieve one principle of justice. Responses will vary according to the arguments selected.