Analysis of Tribal and Australian Legal Systems: A Comparative Study on the Harta Framework and Consumer Law

Analysis of Tribal and Australian Legal Systems: A Comparative Study on the Harta Framework and Consumer Law

You must choose one of the following questions:

1. Summarize the constitution created by your tribe during Workshop 1, Tasks 1 and.

2, elucidating how it fulfills the criteria for the Harta three-part legal framework.

Alternatively:

Investigate the legal framework of a foreign nation and elucidate how it fulfills the stipulations of the Harta 3-part legal system. 

Contrast the legal system outlined in Part A with the Australian legal system, highlighting both their similarities and differences. In your conclusion, express your viewpoint of which disparity between the legal systems would have the most significant practical impact.

Your objective in this section is to investigate a specific case and provide a report to your supervising partner, offering guidance on the case. Nonetheless, this instance must include a transaction that was influenced by misleading and deceptive conduct, either according to section 18 of the Australian Consumer Law or the former section 52 of the Trade Practices Act 1974 (Cth.). This indicates that it must pertain to an Australian case. The report must be produced in writing using the IRAC procedure. The analysis must include both the legislative remedy for misleading and deceptive behavior and the potential outcome under the common law of misrepresentation. Consequently, there will be two conclusions: one pertaining to the statutory action and another regarding the common law. Misrepresentation and misleading or deceptive behavior are included in Module 6 of the course.

Section A

1. The youthful members of the tribe have expressed discontent with the subsequent measures. The tribe and its members agreed to adhere to the following regulations:

• The tribe's activities should align with its wellbeing.
• The selection of the tribal council should occur via an electoral process, since this body is responsible for implementing the decisions of the senior tribe members.
• The tribe's judgments should be impartial.
• The regulations must be executed efficiently.
• A committee should be established to resolve the conflict over the regulations established by the senior tribal members.
• Primary rules must follow secondary rules.
• All tribe members should be treated equally per the established regulations.

Hart's Legal System necessitates three effective secondary rules: the Rules of Change, the Rules of Adjudication, and the Rules of Recognition, which must be applied to the propositions established by the tribe. Secondary rules were necessary to eliminate any confusion about the basic rules. The social pressures influencing the actions of tribe members in the plan aimed to be alleviated; the establishment of these rules would facilitate the identification of any breaches of the fundamental regulations.

The Constitution of Australia authorizes the formation of secondary rules as an integral component of the legal system. The Australian courts adhere to the Common Law system, provided it does not conflict with Parliamentary legislation. The Constitution has delineated its powers among three distinct branches: the legislative, executive, and judicial. The "legislature" is seen as the law-making entity, the "executive" typically enforces the law, and the "judiciary" adjudicates and penalizes offenders for unlawful actions.

A minority of tribe members express dissatisfaction with the tribe's judgments, seeing them as biased and unjust in some instances. Additionally, they are discontented with the lack of opportunity to contest these decisions. The Australian Legal System is applicable in this context. They enact laws that apply equally to all members, ensuring impartiality and fairness, while also providing justifications for their actions. The rulings issued by the upper courts will influence the subordinate courts.

The Australian Legal System and the tribal legal system vary in their principles of uniformity, recognition, and enforcement. The tribe members exhibited consistency in their previously made decisions, as the senior members dictated these choices. However, their judgments were seen as biased and often lacked any binding effect on the transgressors, who often disregarded them. The tribe members were not had the opportunity to contest the judgments of the older members; they were compelled to accept and adhere to these rulings, even if they believed the victim was being denied justice. This fostered dishonesty and deception over the improper actions of tribal members to attain justice as dictated by the senior members of the tribe. The decision-making members did not provide any rationale for their choices, since this may incite conflict among the tribal members on the ongoing disagreement.

The Australian Legal System is founded on two sources: Common Law and Parliamentary Legislation. The three primary organs of the governing system operate independently and individually. The Parliament is the legislative body that enacts laws and legislation. The government ministers are regarded as the executive entities empowered to enforce the laws enacted by parliament. The Judiciary comprises judges and courts endowed with the authority to penalize those who engage in unlawful activities and violate legal statutes. The separation of powers is a theory that operates independently and distinctly, without encroaching upon the roles and responsibilities of one another.

Section B

The court's decisions are binding on all parties including lower courts. The subordinate courts must adhere to the rulings of higher courts to ensure the applicability of precedents in like instances. Nonetheless, the rulings rendered by the courts are neither prejudiced nor unjust, since the court provides rationale for its choices. The tribe's judicial system penalizes the offender post-evidence presentation, allowing the accused to mount a defense only after seeing all evidence. If the parties are dissatisfied with the court's ruling, they may appeal to higher courts.

Similarities have been noted between the two legal systems regarding their operational characteristics, including their nature and the binding effect of their legal principles. In both judicial systems, victims often get no justice. Tribe members denied justice lack the ability to contest the judgments of older tribe members, but under the Australian Legal System, judicial decisions are subject to appeal in higher courts.

The two legal systems exhibit major differences. The Australian Legal System is split into three branches: the executive, which is the legislation-making body; the judiciary, which enforces the law; and the judiciary, which adjudicates and punishes wrongdoers. All three organs operate independently, each with distinct functions and responsibilities. Furthermore, the court's rulings are obligatory for both the populace and the judiciary. The regulations are obligatory for both the legal system and its participants. The tribe's legal system lacks distinct legal entities, since decisions are made by its older members.

Case: Google Inc v. Australian Competition and Consumer Commission

Google's search engine is used for generating 'organic' and 'paid' links. These sponsored links were a component of the paid advertising. Some marketers have used the names of rivals as keywords. In this instance, it has been emphasized that Google engaged in "misleading and deceptive" behavior as defined under section 18 of the Australian Consumer Law.

The trial judge claimed that the advertising included in the sponsored link included misleading and deceptive statements. This kind was seen as a deceptive portrayal by Google and other corporations. Justice Nicholas noted that Google could not be deemed liable for this action, since it just functioned as a conduit for displaying the advertising to the public without providing any endorsement. The court decided that Google had engaged in "misleading and deceptive" assertions independently, rather than just acting as a conduit for the advertising. The High Court upheld Google's appeal. A number of prominent Justices said that Google had not engaged in any misleading or deceptive activity, nor had it used any type of self-representation in its advertising. Justice Hayne upheld the appeal, noting that the exhibited advertising resulted from a payment made by a third party.  Section 52 stipulated that it was insufficient to demonstrate that Google had adopted such representations; hence, this alone should not permit Google to appeal to the court. He also said that there is no evidence to suggest that Google engaged in such advertising. No notifications indicated that Google was accountable for establishing this kind of sponsored link.

In 2010, the Court of Justice of the European Union rendered a ruling in the AdWords case that might be applicable to Google France. Despite the differing cause of action, the case's conclusion parallels that of the Adwords case. It was emphasized that such adoption was not intended to violate any rights by Google. The case revealed a contradiction in the result about the actions of the internet service provider, which functioned as a third party. Google's search engine served as an interactive platform, primarily facilitating various sorts of ads.

Final Assessment

AdWords implemented significant policy modifications between 2010 and 2011, replacing the term 'sponsored links' with 'ads' and introducing a distinct symbol for this kind of campaign. Clicking on the icon would elucidate its specific function. This may aid in reducing the ambiguity on Google's website. The use of the trademark was eliminated in 2013; even if a complaint was filed, the trademark could not be the primary subject of it. Significant changes ensued from this legislation, resulting in consumers benefitting more than they previously had. Overall, Google's consumers regarding the advertising were satisfied with the recent changes implemented.

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