Historical Foundations of Australian Law Free-Samples for Students

Questions: 1.Provide a summary of the constitution that your tribe developed in Workshop. 2.Research a legal system of a foreign country and explain how it addresses the requirements of Harts 3-part legal system. 3.Research a single case and report to your supervising partner advising him or her about the case. Answers: 1.A summary of the Constitution of developed by the tribe is provided as below: The Constitution of the tribe aims at providing welfare of the community and purports to act in the best interest of the tribe. It states that a group of persons shall be nominated by the people of the tribe who shall be conferred with the powers to implement the rules and regulations made by the decision-makers that is, the eldest members of the tribe. Such group of persons shall ensure that the decisions made by the decision-makers are executed effectively. The Constitution of the tribe states that such rules and regulations shall have equal application for each members of the tribe. In case of any uncertainty with respect to the primary rules, the constitution shall lay down secondary rules that would ensure the certainty of the primary rules. Further, such secondary rules shall rectify the rigidity of the primary rules and in the event, of any infringement of the primary rules, the secondary rules shall be applied to adjudicate such primary rules[1]. The members of the tribe shall elect group of persons who shall be conferred with the power to address and resolve the issues that may arise out if the decisions or rules made by the decision-makers of the tribe. The legal theory introduced by Prof. Hart is based on two principles- primary and secondary rules. According to Prof. Hart, it is sufficient that a community can sustain on primary rules, however, the primary rules are subject to certain shortcomings such uncertainty, stagnancy and inefficiency[2]. The shortcomings of the primary rules can be remedied with the introduction of the secondary rules. The secondary rules of recognition are the most common secondary rules that aims at rectifying the issues related to the uncertainty of the primary rules[3]. The secondary rules of change shall lay down the procedure to vary, add, introduce, modify the rigid primary rules and incorporate new rules as per the requirements of the changing needs and circumstances of the society[4]. The secondary rules of adjudication shall be applied in order to adjudicate the violation of the primary rules or to determine whether there has been a breach of the primary rules at all. In the given scenario, the protestors of the tribe are not contented with the decisions made by the eldest members of the tribe as they allege that the decision-makers are biased and in case their family is involved with any offense or misconduct, they tend to give decisions in favour of their own family members. Moreover, they do not provide reasons to justify the decisions, which give rise to unnecessary arguments among the tribe members, as they tend to apply their reasons to the decisions[5]. Furthermore, once the eldest members or the decision-makers of the tribe gave their decisions regarding any matter in dispute, the decision cannot be challenged even if such decision is unfair or bias, hence completely denies justice to the aggrieved person. The decisions given by the decision-makers of the tribe do not have a binding effect. It fails to bind the wrongdoer and the other members of the community and the victim does not have a say against such decision. The Constitution of the tribe laid down provisions related to the secondary rules of change, recognition and adjudication. The Constitution states that the secondary rules shall address and resolve the issues that may arise out of the primary rules of the tribe. In case of an infringement of the primary rules, the decision-makers may resort to the procedure outlined by the secondary rules of adjudication to determine any violation of the primary rules and act accordingly in order to ensure effective administration of justice. With the application of the legal theory introduced by Prof. Hart, the decisions made by the decision makers shall have a binding effect upon the wrongdoer as well as upon the entire community. The secondary rules of adjudication shall determine whether there was a breach of the Constitutional rules and if so, the wrongdoer shall be held liable for it. Thus, it would enable to administer justice top the victim and with justified reasons given for the decisions, the community shall become by the decision and shall think before committing similar offense or misconduct 2.The legal system in Austral Legal System is different from the legal system of the tribe with respect to the binding nature, recognition and the enforceability of the statutory rules. The tribal legal system the decisions taken by the decision-makers are biased and no jreaosns are provided to justify the decisions made by them. The other members of the tribe usually apply their own logical reasoning and this gives rise to unnecessary arguments aamong the tribe members, thus, breaking the unity within the tribal community[6]. Moreover, the victims of the tribe are denied justice as the decisions made by the eldest members or the decision makers of the tribe are biased in nature and it lacks binding effect. Therefore, the decision neither bind the wrongdoers nor the other members of the community.The victims are not entitled to challenge the decisions even if it is unfair and wrong. Furthermore, the decision given regarding a matter in dispute, the same decision is not followed while dealing with same issue subse quently, irrespective of the fact that the facts and circumstances of the subsequent issue is completely same. There is irregularity in the legal system followed by the tribal community. The legal system of Australia derives its sources from Common law and Parliamentary laws or the statutory laws. It follows the doctrine of separation of powers introduced by the English legal system. The doctrine of separation of power states that therte are three separate branches of the government the legislature, the executive and the judiciary. The legislature comprises the Parliament that is empowered to frame laws which are known as statutory laws or Parliamentary laws. The Executive comprises the Ministers who are under the statutory obligation to administer or implement the laws legislated by the Parliament. The Judiciary comprises the courts and the judges who are empowered to interpret the laws legislated by the Parliament and implemented by the executive. The courts shall also adjudicate matters in dispute that arises out of the violation of the statutory laws. It would also determine whether there is an infringement of the statutes at all and if so, the wrongdoer shall b e punished accordingly[7]. The significance of the separation of powers is that these three organs of the government act separately and independently. They do not interfere with each others responsibilities. The decision made by the courts is binding upon the parties to the dispute, the society and upon the subordinate courts as well. The decision of the superior courts is followed by the subordinate courts in the event they adjudicate matters that have already been adjudicated by the superior courts, provided the facts and circumstances of the subsequent matter is similar. This is known as the doctrine of stare decisis or precedents or judge made laws. The courts make rules where there are no provisions made in the statutes and unlike the legal system of the tribe, the courts provide ratio decidendi that is, a valid reason to justify their decisions[8]. Further, under the tribal legal system the decision of the decision-makers cannot be challenged even if it is wrong, unfair or biased. However, in the Australian legal system, if any person is aggrieved before the decision of et court, the person is entitle to prefer an appeal before the appellate court. In case of the legal system followed by the tribe, the eldest members make the decisions without listening to both the parties to the dispute. In the Australian legal system, before deciding matter, the court shall provide opportunities to both the parties and allow both the parties to the dispute to adduce sufficient evidences and advance their respective contentions. After perusing the evidences, the court shall decide against the wrongdoer and entitle the aggrieved person to challenge such decision. However, both the legal systems have certain similarities. The victim at times is incapable of adducing sufficient evidence due to their inaccessibility to the justice system. The rigid nature of the laws and the social pressure acts as a hindrance to the legal systems. The procedure that is followed to amend, vary or add new rules is time consuming and often takes years to administer justice to the aggrieved person. A significant difference between the legal systems that have a major impact in practice is the independence and the binding nature of the legal rules. The three organs act separately and their respective responsibilities do not overlap with each others responsibilities. Whereas, the legal system of the tribe does not have any separate entities to frame, administer or adjudicate the rules[9]. Therefore, the probability of biased decisions and denial of justice is high in the tribal legal system as compared to the Australian legal system. 3.ACCC v TPG Internet Pty Ltd [2013] HCA 54 Facts In this case, TPG was involved in a multi-media ad campaign and was using newspapers, radio, TV and websites as a means to offer Unlimited ADSL2+ an internet broadband service worth $29.99 per month to its customers. However, the offer was only available if the customers subscribed to the TPGs home phone service, which was worth $30/month and was required to make commitment of minimum 6 months. Further, the customers must pay an additional set up fee of $129.95 and a deposit fee of $20 as telephone charges. The charges were mentioned in the advertisement in fine print under the headline offer. The Australian Competition and Consumer Commission (ACCC) acknowledged TPG regarding the fact that the ad was misleading and consequently, TPG made necessary changes by enlarging the size of the ad, in particular the texts that was advertising the additional costs. The ACCC was not contented with the ad and the changes that TPG incorporated in the ad. It initiated a legal proceeding against TPG on the ground that the ad was misleading and deceptive owing to the difference between the original headline offer of $29.99 and the original term of the offer. Issue Whether TPGs advertisement amounted to misleading and deceptive advertisement under section 18 of the Australian Consumer law Rule According to section 18 of the Australian Consumer law (formerly section 52 of the Trade Practices Act 1974 (Cth), any action that is misleading or deceptive or is likely to mislead or deceive any person is strictly prohibited under the Act. Misleading advertisements often have an adverse effect upon the purchasing preferences of the customers. Any conduct is considered as misleading or deceptive if such conduct induces a customer to commit an error. It is pertinent to establish that there was some kind of a casual connection between the conduct in the advertisement and the error made by the person by relying on the misleading and deceptive conduct. The aggrieved person must establish that the advertisement induced such person to rely on the misleading and deceptiveness of the advertisement that made the person to commit the error. In case of any infringement of the laws that causes damage to the consumers, the aggrieved person shall be entitled to compensation under section 236 of the ACL for the damages suffered as a result of the deceptiveness and the misleading nature of the advertisement. Further, an injunction may be granted by the court under section 237 of ACL against the wrongdoer. Application The High Court asserted the significance of section 18 of the Act that it safeguards the interests of the consumers. It stated that in order to determine the deceptiveness of an advertisement, regards must be had to the circumstances and the information received by the consumers regarding the advertisement. In the case, the advertisement was showed in a manner that it cannot be expected from the consumers to pay close attention to the advertisement. The court further emphasized that if a representation creates a particular mental impression in the minds of the consumers with the intention to do so, then such representation shall be considered to be deceptive or misleading. Conclusion Therefore, TPG was held liable as the advertisement was misleading or deceptive under section 18 of the ACL and was entitled to pay penalty for the same. The court refused to exempt the companies from their liabilities on the ground that they relied on the fine print disclaimers. The Court asserted that the companies should focus on the kind of impression the advertisements create in the minds of the consumers. Reference list Brudner, Alan.The unity of the common law. OUP Oxford, 2013. Cole, Jared P. "The Political Question Doctrine: Justiciability and the Separation of Powers." (2014). Fras-Aceituno, Jos V., Lzaro Rodrguez-Ariza, and Isabel M. Garca-Snchez. "Is integrated reporting determined by a country's legal system? An exploratory study."Journal of Cleaner Production44 (2013): 45-55. Huq, Aziz Z. "Libertarian Separation of Powers." (2014). Lindsay, Geoff. "Building a Nation: The Doctrine of Precedent in Australian Legal History."Historical Foundations of Australian Law: Institutions, Concepts and Personalities(2013): 267. Michaels, Jon D. "An Enduring, Evolving Separation of Powers."Columbia Law Review(2015): 515-597. Rubenstein, David S. "Administrative Federalism as Separation of Powers." (2015). Rubenstein, David S. "Administrative Federalism as Separation of Powers." (2015). Vines, Prue.Law and Justice in Australia: Foundations of the legal system. Oxford University Press, 2013. Waldron, Jeremy. "Separation of powers in thought and practice."BCL Rev.54 (2013): 433. Fras-Aceituno, Jos V., Lzaro Rodrguez-Ariza, and Isabel M. Garca-Snchez. "Is integrated reporting determined by a country's legal system? An exploratory study."Journal of Cleaner Production44 (2013): 45-55. Vines, Prue.Law and Justice in Australia: Foundations of the legal system. Oxford University Press, 2013. Huq, Aziz Z. "Libertarian Separation of Powers." (2014). Rubenstein, David S. "Administrative Federalism as Separation of Powers." (2015). Lindsay, Geoff. "Building a Nation: The Doctrine of Precedent in Australian Legal History."Historical Foundations of Australian Law: Institutions, Concepts and Personalities(2013): 267 Michaels, Jon D. "An Enduring, Evolving Separation of Powers."Columbia Law Review(2015): 515-597. Cole, Jared P. "The Political Question Doctrine: Justiciability and the Separation of Powers." (2014). Rubenstein, David S. "Administrative Federalism as Separation of Powers." (2015). Brudner, Alan.The unity of the common law. OUP Oxford, 2013