Inquisitorial Justice Project

 

Project Director: Grant Hoole

The inquisitorial justice project is concerned with studying legal institutions and processes that employ an inquisitorial method of decision-making, broadly conceived as “one in which the decision-maker plays an active role in identifying the issues, gathering evidence and controlling the proceedings.”[1]

Inquisitorial processes stand in contrast to an adversarial archetype more familiar to lawyers trained in the common law. They nevertheless play a prominent role in the modern administrative state, being employed to varying degrees – sometimes in isolation, sometimes as a hybrid with adjudicative and other procedures – across a range of institutions. These include coronial inquests, royal commissions, standing commissions against corruption, ombudsman’s proceedings, and immigration review tribunals, among other investigative and determinative bodies. Despite the proliferation of these institutions in Australia and other common law jurisdictions since the 1970s,[2] their use of various types of inquisitorial procedure has attracted relatively little concerted scholarly attention.

The central goal of the inquisitorial justice project is to deepen understanding of the inquisitorial method – its potentials, limitations, uses and misuses, intrinsic and instrumental values – in order to deepen critical reflection about the legal institutions in which it is employed. Key questions directing the project will be:

·         What is the value in distinguishing between inquisitorial and adjudicative or adversarial procedure? Do these labels clarify or confuse important methodological distinctions? Are new labels needed?

·         Is it possible to express a normative ideal informing the inquisitorial method, and if so, how does it impact the type of justice pursued through inquisitorial proceedings?

·         Are lawyers trained in the common law currently well-equipped to conduct inquisitorial proceedings? Are judges well-equipped to preside over them? Do inquisitorial proceedings challenge prevailing ideas about legal advocacy and ethics, and if so, how might the legal profession adapt?

·         Can practices and principles from civilian jurisdictions, where the inquisitorial method has a deep history, be constructively incorporated into common law systems?

·         How are inquisitorial processes best reconciled with other forms of decision-making within hybrid institutions? Do inquisitorial processes sit well within the broader ‘architecture’[3] of Australia’s institutions of state?

Pursuit of these questions will involve the study of institutions both individually and collectively, and be guided by a combination of doctrinal, empirical, and theoretically-driven research methods. A particular emphasis will be given in 2017 to research concerning the design of ad hoc commissions of inquiry and standing anti-corruption commissions, reflecting the ongoing work and public engagement of several Centre members.




[1]  Laverne Jacobs, Sasha Baglay  et al., “The Nature of Inquisitorial Processes in Administrative Regimes: Global Perspectives Research Workshop Report” (2011) 24 Canadian Journal of Administrative Law and Practice 261 at 261-62.

[2]  Ibid. See also Narelle Bedford and Robyn Creyke, Inquisitorial Processes in Australian Tribunals (Melbourne, AIJA Publications, 2006).

[3]  Bedford and Creyke, ibid at 64.