Legal System in the US and Australia

This article compares the legal systems in the United States and Australia. It discusses the differences in the legislative, judiciary, and executive powers, as well as the rules of recognition and adjudication. It also explores the influence of the Constitution on the legal systems.

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Australian Commercial Law
Student Name:

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Question 1
Legal System in the US: The legal system in the United States is different from the
legal system in Australia as the United States has a federal government which follows
the written constitution where each and every detail is specified under the constitution1.
It can also be observed that there is a separate system for each of its states. There is an
individual separate constitution for their every state, but such a constitution is based on
the national federal constitution of the country. The legislative, judiciary and the
executive powers of the country and states are exercised separately by the different
branches of the government. The laws of the country are legislated by the United States
Congress who is the members of both Senates and the House of Representatives. Both
Senates and House of Representatives are elected for six years and two years term
respectively2. Each state has two Senates who speak for the rights and obligations of
each state. There are a total of 435 members of the House of Representatives who are
elected for two years. The executive powers remain in the hands of President of the
country where the approval of legislation, approvals, the signing of treaties and various
other actions are done by the President of the country.
The rule of recognition is also applicable to all the states in the United States of
America where each state has its own constitution which is based upon the federal
1
Wald and Calhoun-Brown. Religion and politics in the United States. Rowman & Littlefield. (ed,
2014)
2 Wilson. Constitutional government in the United States. Routledge ( ed, 2017).

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constitution of America3. The rules and regulations in the United States of America are
identified in the form of both primary and secondary rules where the primary rules are
duly mentioned in the constitution where the secondary rules are the judicial
judgements made by the higher court of justice which are prevailing in the lower court
of law. The court of law has also the power of judicial review where the court of law
has the power to make a critical review on the decisions made by the government of
United States of America. The law that is primary laws and the secondary laws which
are made by the constitution can be easily changed, updated, and deleted. Such process
has adopted both principles of change which helps the government of United States of
America to amend and update laws according to the needs and requirements of the
citizen of the country4. One of the basic functions of the rule of recognition is that the
constitution of the country, as well as the constitution of states, is generally available to
the public domain which can be easily accessed by the citizens of the country. The rule
of adjudication is a legal ruling given by the higher courts of law which helps in settling
other similar cases with a faster and an easier framework5. The constitution of United
States of America gives a right to the courts of law that their judgements could be
referred and prevailed by the lower court of law6.
3 Beard, An economic interpretation of the Constitution of the United States. (Routledge ed, 2017).
4 Bray, S.L.et al, The Constitution of the United States. Foundation Press (2016).
5
Appleby, and Webster, Executive power under the constitution: a presidential and parliamentary
system compared. (U. Colo. L. Rev., 87, p.1129 ed, 2016).
6

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The legal system in Australia: The legal system in Australia is different from the legal
system in the United States as there is a federal form of government in Australia where
the powers are duly distributed between the centre and states. Apart from the centre and
states there are also three self-governing territories. It can also be observed that the
legal system in Australia was inherited from the legal system in the United Kingdom.
The constitution of Australia is also known as Commonwealth Constitution which
contains all the provisions relating formation and execution of laws in the country. The
constitution of Australia has given powers to the government of the country to enact
laws and to execute laws for the benefit of the country7. The lawmaking powers are not
specified in the commonwealth constitution as the state has the power to make and
amend laws according to their requirements8. In other words, it could be easily
understood that the constitution of Australia has divided powers between the centre and
state. The limited power is given to the centre where the crucial decision s of the
country such as budget, finance, foreign trade, immigration etc. is being granted to the
centre. Most of the powers are also mentioned in section 51 of the constitution where
the powers of the country are divided in the concurrent list where both state and centre
has the right to practice such laws. But in case of any conflict with the centre and state,
the powers mentioned in the commonwealth constitution to the centre will prevail.
Tooker. The United States Constitution and the Iroquois League. In The Invented Indian. Routledge
(pp. 107-128 ed, 2017).
7 French, Book Review: Lisa Burton Crawford the Rule of Law and the Australian Constitution(ed,
2017).
8 Beck, Religious Freedom and the Australian Constitution: Origins and Future. (Routledge ed,
2018).

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According to Hart, the foundation and origin of the legal system are the rules of
recognition which is recognised by all, such recognition is in the form of judicial
judgements, new enactments and declaration of specialised persons who are authorised in
the constitution. The Australian legal system is way different than the legal system in the
United States of America, although there are very much similarities between the legal
system of both countries. The constitution of Australia is heavily influenced by the
English laws9. In Australia, the laws are discussed in Parliament where the arguments
between the parties are being done and on the basis of such arguments the laws are being
implemented by the government of the country. Rules of change are one of the basic
ingredient and element of the Australian legal system where the Australian constitution
grants the government of Australia to make the necessary changes in act presented by the
government. The changes can be in the form of changing, adding and deleting laws. It
can also be noted that the decisions given by higher courts are also prevailing on the
lower courts of justice. The rules of recognition provide a basis to all the primary laws
which help the people to recognise such laws. Such primary laws are applicable to all
people living in Australia and the secondary or common laws are also applicable to the
people of the country10. The primary laws are made and implemented by the government
of Australia whereas the secondary laws are made and implemented by the judicial
9 Rogers, Shame, Pain and Melancholia for the Australian Constitution: In Narcissism, Melancholia
and the Subject of Community . Palgrave Macmillan, Cham. (pp. 161-184 ed, 2017)
10
Lau, Handsley, and Reynolds, Obesity Prevention Laws and the Australian Constitution. Journal of
law and medicine, (25(1), pp.248-266 ed, 2017).

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decisions of the courts. All such principles apply to the Australian legal system which is
developed from a three-part legal system developed by HLA Hart.

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Question 2
Issue
Are there any legal actions taken by the Sandra against the jet company with regards
to the misleading advertisement or whether she is bound by the conditions and the
terms of the contract?
Rule
The focus of the case is to deal with the Competition and Consumer Act 2010 which
deals with the contractual obligations between the supplier and the consumer. The
main focus of such act is to provide security to the consumers of Australia. As per
the Contract Review Act 198011, the two parties have full rights of the enforcement of
the terms present in the contract, in each other when two or more parties are entered
into the legal contract. For the verification of whether the contract is valid or not
there are certain elements that can determine the authenticity of the valid contract.
Once these terms are satisfied by both the parties the legal relationship is established
between both the parties and the in which any of the party can enforce the other to
have contractual terms complied with, whereas the contract which is formed in the
basis of the misinterpretation is the typically considered as the invalid contract.
Misrepresentation is the misleading statement of fact which is made by the one party
to another party during the formation of the contractual relationship. When the false
claims are made regarding the products and the services by the company than it is
termed as the false and misleading advertisement. The main purpose of the
misleading the customers is to attract the customers to buy more products and
11 Contract Review Act 1980

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services and with the assistance of the false information, the company can induce the
volume of the sales as well12.
The Competition and Consumer Act 2010 describes the enormous provisions that
determine the protection policies of the customers against the misleading and false
claims covered by the corporation so that the customers are induced to purchase the
products and the services of the company and involves the customer into the
misleading the claim.
Under the Section 18 of Competition and Consumer Act 201013, there is a prohibition
of the corporations, where the claim is made regarding the corporation in inducing the
customer under the false interpretation or for the products and the services regarding
the misleading of or the deceptive nature14. Also in the case of the advertisements,
Section 29 of Competition and Consumer Act 2010 provisions regarding the
protection of the consumers are laid down. The main purpose for the introduction of
this section is to make aware the parties that they must avoid making misleading or
deceptive claims for the products and the services and shall also disapprove and regard
the practices involved in producing the malware products and services.
12 ACCC, Telstra misled customers over premium billing charges , (2018)
<https://www.accc.gov.au/media-release/telstra-misled-customers-over-premium-billing-
charges>.
13 Competition and Consumer Act 2010
14 Business Dictionary, Misrepresentation (2017)
<http://www.businessdictionary.com/definition/misrepresentation.html>.

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There are several cases provided by the court in relation to this type of situation where
it is mentioned that the parties are strictly prohibited to mislead their products and
services, a good example of the same is the non-jurisdictional case study between
ACCC v Telstra Corporation Ltd15 under which it was found that the court issued a
notice against the company for introducing the misleading advertisement to the
consumers by advertising the mobile data plans with the unlimited data facility16. The
company provided that the plan of 40GB at usual speed and thereafter the usage
slowed down to 1.5mbps and more slowly during the busy periods. The Court
considered Telstra advertisements with Unlimited", and found that the company was
misleading with the customers or providing the practices which are of deceptive
nature in relation to the Australian Consumer Law whereas in reality, the services
were always subject to the use of limitations and exclusions17.
The suit was filed up by the ACCC against the Telstra and imposed the penalty of $10
million for making the false and the misleading advertisement in relation to the third
party billing services known as premium direct billing. Due to this event, the court
ceased the services and ordered to pay the refunds to the affected customers. The
customers who have entered into this contract can set aside the contract as then it is
15 [2018] FCA 571
16 Telstra to pay $10 million for misleading premium billing charge representations (2018)
<https://www.accc.gov.au/media-release/telstra-to-pay-10-million-for-misleading-premium-
billing-charge-representations>.
17 Australian Consumer Law, Consumers and the ACL (2017)
<http://consumerlaw.gov.au/consumers-and-the-acl/>.

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void on the basis of the misrepresentation made by the Telstra Corporation and the
parties are not bound by the terms and conditions of the advertisements. Further, they
can demand remedies from the parties. The remedies are available on the grounds of
rescission, damages, an injunction and repudiation.
Application
In the given case study, Sandra purchased the internet plan after watching the
advertisement where it was mentioned that the customers are required to make a
payment of $59.99 per month to get the speed for the internet of ‘100 Megabits per
second and in return, the customers will get 10GB data per month. Also, form the
brochure of the company it was visible that the internet modem and the mobile phone
will also be available from which the customers can avail the facility of call.
Nevertheless, after three months, Sandra realized that the facility is available only
during the morning time and then it decreases as she approaches 10GB data limited.
There were several other problems with the phone because of the low battery and the
obsolete conditions. The advertisement not only violated section 29 of the Australian
Consumer Law under which Sandra can set it aside. She also has the right to claim for
the remedies from jet for the false advertisement made by them. The internet provider
is liable to pay the claims for the damages to its customers who signed for the
misleading the advertisement and false information as it could be observed in the case
study of Telcos Internet Pty Limited where the court of law has ordered $10 million
for providing misleading information to the consumers18.
18 Telstra to pay $10 million for misleading premium billing charge representations (2018)
<https://www.accc.gov.au/media-release/telstra-to-pay-10-million-for-misleading-premium-
billing-charge-representations>.

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Conclusion
To conclude, Sandra can claim the remedies from the jet for misleading the
advertisement, also she can keep aside the contract as it is void and the damages will
be paid to her as she was the caught unintentionally in the false advertisement by the
company.