Comparing Australian Commercial Law: An Essay On Hart's Legal System.

Describe the Australian Commercial Law For Hart Legal System. 

Secondary Rules in Hart's Legal System

The dissatisfaction shown by the young member of the tribe made provision for the following proposal. The tribe agrees to oblige under the following:

• They should act in accordance to the welfare of the tribe
• The decisions made by the tribe should not be partial in nature
• Election should take place for the appointment of the group of people who would enforce the decisions made by the eldest tribe member
• A different group should be made which will help in solving disputes in relation to the rules that are made by the eldest tribe members
• There should be effective implementations of the rules
• The rules should apply equally to everyone in the tribe
• There has to be formation of the secondary rule that will back up the primary rules

There should be three effective secondary rules in relation to Hart’s Legal System. They are Rules of Change, Rules of Adjudication, and Rules of Recognition. The proposal which the tribe prepared included the following rules of recognition, adjudication and change. It was observed that to avoid any form of uncertainty there should be secondary rules that will give effect to the primary rules when needed. The proposal also focuses on the removal of any kind of social pressure that has influence on the decisions made by the tribe by the formation of the rules that would show us if there is breach of the primary rules.

In Australia, the Constitution specifies that the secondary rules that have been created in the legal system. The common law system is applied by the Australian courts as long as they are not in opposition to the Parliamentary laws. The constitution has divided the powers between the three tiers, the legislative, executive and the judiciary. The statutory laws are made by the legislature. The legislative body make the laws; the executive body makes sure that these laws are followed while the judiciary punishes those who make infringement of these laws.

In this case, some of the tribe members are not content with the fact as they think the decisions made in the tribe are usually partial and unfair, and there in no scope to alter such decisions. In such situations the Australian Legal System comes to rescue. The legislation will frame those laws that will be applicable to every tribe member equally. It was also observed that, the courts would address and solve disputes in relation to the statutory legislations, their decisions should be impartial and also the courts should give full reason for doing so. These obligations shall be imposed on every tribe member. The decisions of the superior courts shall be binding on the subordinate courts. 

The legal system of the tribe is separate from the legal system of Australia in relation to the rules of certainty, recognition, and enforcement which are binding the nature of the rules. It is said that the tribe has been not in uniformity with their previous decisions. In the Legal System it is observed by the tribe that the elder members of the tribe who made decisions, their decisions were considered as partial in nature towards their families.

The decisions made against the people who did wrong did not have any kind of binding effects on the wrongdoers, and rather the other members of the tribe would usually ignore the decisions that were made by the elders in the tribe. The members of the tribe did not have the right to challenge or oppose these decisions that were made by the elder tribe members and in most of the cases the victims were denied justice. This had led to the tribe members lying or hiding their wrongdoing so that they could receive justice by the elder tribe members. When the decisions were made, the people making their decisions did not regard providing decisions because this would often lead to the tribe members fighting or arguing in relation to the dispute that arises.

Australian Legal System: Division of Powers

The Australian Legal System is based on two kinds of sources, the common law and the parliamentary laws. They have three main organs in the government that act separately and independently in their functioning. The parliament is the law making body that is also referred as the statutes or the legislation. The Executive are the ministers of the governmental departments that have the powers to administer the law that are framed by the parliament. The Judiciary is consisted of the judges and the courts, which have the power to construe the statutes that are framed by the Parliament to impart justice in case of infringement of any statutory provisions. This doctrine of separation of powers needs the branches of the government to act separately without obstructing each other’s path.

The courts decisions that are made are not only binding on the parties but also on the subordinate courts. The lower courts follow the decision that is made by the superior courts and the precedents will apply accordingly in similar cases.  The decisions made by the court are not biased or impartial and logical reasons are provided by the court for the decisions made by them. However, in the legal system that is followed by the tribe any offender shall be punished after the evidence have been brought and the accused can only defend themselves after  perusing all the evidences. Whereas, the court’s decision is made which is binding on the parties. If a party is not satisfied with the decision can further appeal to the higher courts.

However, there have been a certain similarities between the two legal systems in their nature and impact that are binding on the legal rules. In both the legal system victims are often denied justice. The tribe members when denied justice cannot challenge the decisions but in the Australian legal system the decision of the judges can be appealed in the higher courts. The laws can  be modified but are generally time consuming.

However there are still significant differences between the two legal systems. The executive branches have implemented the provisions for the statutes that have been framed by the legislations and it is the responsibility of the judiciary for making interpretations of the laws and to punish those who infringe the law. In this the three branches work together separately and in an independent form. Moreover, the decisions made by the courts are binding not only on the people but also on the courts. The rules are binding in both the legal system and their members have to abide by it. The legal system in the tribe has no separate branches, the elder members are the deciding parties. And the rules are not binding on the members or the victims who are detained of justice.

The search engine for Google is used to for the production of ‘organic’ and ‘sponsored’ links, the sponsored links are a form of a paid advertisement. In some cases the advertisers have used the keywords that had the name of competitors. It was laid down that Google was engaged in misleading and deceptive conduct, under section 18 of the Australian Consumer Law.

Legal System of the Tribe

It was held by the trial judge that the advertisements in the form of sponsored link, contained misleading or deceptive representations. That was considered as a false representation between Google and other companies. But Justice Nicholas had pointed out that Google was not responsible for these representations but rather Google had just acted as channel for conveying the advertisements for others without approving them. The court had all together framed an opinion that Google had on their own made such misleading and deceptive conduct and that it was not due to mere conduit of the advertisement. The High Court had upheld the appeal made by Google. Some of the renowned Justices have stated that Google had not by themselves made any misleading or deceptive conduct or had adopted such representations of advertisements that were being displayed. However, Justice Hayne upheld the appeal. He stated that the advertisements being displayed are an outcome of the payment made by a third part. Under section 52, the fact was not to prove that if Google had adopted such representations. And for such reason Google’s appeal to the court must be allowed. Justice Heydon, also upheld the appeal stating that, there was no standard of proof on whose basis it can be said that Google had adopted such an advertisement. Google had not created any message that delivered these sponsored links.

In 2010, the Court of justice of the European Union had made similar decision in AdWords case in relation to Google France. Despite the different cause of actions, the main outcome of the case was similar to that of the AdWords case, that such adoptions did not infringe any rights by Google. In this case also it was stated that the outcome was inconsistency with the approach of the service providers on the internet who act as the third party. The main object was that Google search engine is an interactive tool, and gave platform to different forms of advertisements.

Conclusion

The AdWords policies have changed drastically from 2010 to 2011, the ‘sponsored links’ were replaced with the term ‘ads’ and an image was added to the advertisements. When they clicked on that particular image it explained its use. Such things helped in reducing the confusions on the Google page. Also from the year 2013, Google omitted the use of trademark as its key object even if a complaint is made. This brought tremendous change and the consumers started benefiting more as a result. Most importantly, Google’s customers in relation to the advertisements were also happy. 

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