Evaluation of Legal Systems: UK and Australia

This report evaluates the legal systems of the United Kingdom and Australia based on the three-part legal system developed by HLA Hart. It analyzes the presence of primary and secondary rules, rules of recognition, change, and adjudication in both countries' legal systems. The report concludes that both the UK and Australia comply with the guidelines of the three-part legal system.

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Australian Commercial Law

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ANSWER 1
Herbert Lionel Adolphus Hart has provided a three-part legal system which focuses on
evaluating the legal system implemented by a country. As per this system, there are two
rules which form the legal system of a country which includes primary and secondary
rules. In this report, the legal system implemented by the United Kingdom will be
evaluated by using the three-part legal system of HLA Hart. The legal system of
Australia will also be analysed to determine whether or not the principle of the three-
part legal system is present or not. The legal system implemented by the government of
the United Kingdom complies with the three-part legal system. There is both primary
and secondary rule included in the legal system. The actions of the government and
other authorities are managed by the Constitution of the country.1 The secondary rules
include the rules of recognition, change and adjudication. As per the principle of the rule
of recognition, the law and process through which new laws are developed should be
clear and without ambiguity. There are three key sources of law in the UK which include
common law, legislation and the European Union Law. These sources are clear which
avoids ambiguity regarding the current and newly developed laws. These policies prove
that the element of rules of recognition is present in the legal system of the United
Kingdom. The authority to change the laws in the UK is given to the government and the
court. Both of these entities are responsible for dealing with any discrepancies which
are found in either public or private law.
The process of forming a new law is clearly defined in the legal system of the country as
well. A bill is proposed in the Parliament in which the laws are replaced, deleted,
changed or added. As per these policies, the element of rules of change given by HLA
Hart is present in the legal system of the United Kingdom. Moreover, the rule of
adjudication provides that the procedure of adjudication should be mentioned in the
legal system and the process should be defined clearly.2 In the case of the UK, different
authorities and bodies are authorised by the legal system which provides provisions
regarding violation of primary and secondary laws. The legal system is further
categorised into two divisions which include private and public law. The relationship
between the state and individuals comes within the scope of public law. On the other
hand, the relationship between private organisations and people are governed by
private law in the UK. The power of adjudicating civil and criminal matters is given to
separate courts, and they come within the orders issued by the higher courts. The
private matters include cases which are filed for breach of contract, tort, negligence,
land, employment issues, family matters and others.3 On the other hand, the parties
have to prove the element of mens rea or guilty mind in order to hold a party liable
under criminal cases. Based on these elements, the rule of adjudication is present in the
legal system of the UK. The Supreme Court of the United Kingdom is the highest court,
and its judgement is enforced on all other courts.
1 Richard Ward and Amanda Akhtar, Walker & Walker’s English legal system (Oxford University Press, 2011).
2 HLA Hart, HLA Hart and Leslie Green, The concept of law (Oxford University Press, 2012).
3 Fiona Cownie, Anthony Bradney and Mandy Burton, English Legal System in Context 6e (Oxford University
Press, 2013).

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In the case of Australia, the elements of three-part legal system developed by HLA Hart
are present as well. The legal system adopted by the Australian Government is heavily
influenced by the English legal system based on which both the legal system has
matching principles. There are both primary and secondary rules which govern the
actions of individuals, organisations and the government. The Constitution of Australia
1901 provides authorities and powers to the government. As per this Constitution, the
country is considered as a federation of States which is called Commonwealth of
Australia.4 The scope of the powers of the Australian Government is defined by the
Constitution of the country. Moreover, the Parliament is authorised to form, delete,
change or amend current laws. The rule of recognition element is present in the legal
system of Australia because both primary and secondary laws are commonly recognised
by everyone in the country. These rules are categorised into various acts which address
different elements of the legal system in the country. The rule of change is clearly
identified in the case of Australia as well. The procedure of changing, amending, deleting
or forming the laws is defined by the Constitution of the country.
A bill is proposed in the House of Parliament, and majority votes are required to pass
the bill. The bills are proposed by the government in order to make changes in the
current laws and introducing new laws to ensure that the interest of public is
protected.5 Thus, the rule of change is clearly included in the legal system of Australia.
The rule of adjudication is a key part of the Australian legal system as well. The
authorities and powers are divided between different courts. The civil matters are
handled by different courts than courts that handle criminal matters. The civil matters
are similar to the private matters discussed in the legal system of the UK. The criminal
matters require the parties to prove the element of mens rea or guilty mind to ensure
that a party can be held liable for violation of criminal act. The judgement given by
higher courts is enforceable on the lower courts. The Supreme Court is the highest court
in Australia, and it has the right to review and investigate the judgement given by
smaller courts. As per these policies, it can be concluded that the legal system of the UK
and Australia comply with the guidelines given by the three-part legal system developed
by HLA Hart.
4 Cheryl Saunders, The Constitution of Australia: a contextual analysis (Bloomsbury Publishing, 2010).
5 Christine Coumarelos et al., Legal Australia-wide survey: Legal need in Australia (Law and Justice Foundation,
2012).

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ANSWER 2
I: ISSUE
The key issue which is raised in this case is whether Sandra May has the right to hold
jjNet liable for misleading advertisement and whether she is liable to comply with the
contractual terms?
R: RULE
A contract creates a legal relationship between parties, and they have the right to
enforce its terms on each other. The parties of a contract have the right to ensure that
other party did not violate their contractual liability by failing to comply with the
contractual terms. This is not the case with all contracts, and there are many contracts
which are considered as invalid and in those contracts, the parties cannot enforce other
parties. There are specific terms which are necessary to be present to create a valid
contract. In a contract is constructed based on misrepresentation by a party, then it is
not considered as valid, and it is not enforceable by the law. Australia Consumer Law
(ACL) provides various guidelines which are focused on protecting customers from
contracts which are formed based on misrepresentation.6 In case a company makes a
false claim regarding its products or services, then it is considered as false or misleading
advertising. These statements are made by an organisation to induce the customers to
form legal relationship with them by selling their products or services. The Competition
and Consumer Act 2010 (Cth) recognises various rights of customers which provides
them protection from these unfair practices by businesses.
The misleading or false claims which are made by companies regarding their products
or services cannot create a legal relationship between companies and their customers.
This protection is recognised under section 18 of the Act which provides that entities
should not make misleading or deceptive claims regarding their products or services.
Statements which are likely to mislead or deceive customers are also prohibited under
this section. This act also governs the advertisements made by companies. Section 29 of
the Act provides that corporations that made misleading or deceptive claims or
statements which are likely to mislead or deceive customers can be held liable for false
advertisement.7 As per this section, companies should avoid making false claims
regarding its products and services in order to attract more customers. This restriction
was recognised by the court in the judgement of ACCC v TPG Internet Pty Ltd8case. In this
case, allegations were made against TPG Internet Pty Ltd by the Australian Competition
and Consumer Commission (ACCC) for violating the provisions given under the Trade
Practices Act 1974 (Cth). This act is not amended into the Competition and Consumer
6 Stephen Corones, The Australian consumer law (Thomson Reuters Lawbook Co, 2011).
7 Legislation, Competition and Consumer Act 2010 (2019) <
https://www.legislation.gov.au/Details/C2011C00003>.
8 [2010] FCA 1478

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Act 2010 or ACL. TPG posted an advertisement in which it included the prices of
ADSL2+ unlimited broadband which was $29.99 a month.9
This information was posted in large letters, whereas, the company also included in a
small print that this price is bundled with another charge of $30 per month which
customers will have to pay for a home line rental. Based on this advertisement, the
ACCC filed a suit against the company on the grounds of misleading advertisement.10 It
was argued that the company had violated the customer protection policies given under
the ACL. In the judgement, the High Court stated that the company is liable for making
misleading and deceptive claims regarding its products and services. The advertisement
was considered as misleading and deceptive based on which the court ordered the
company to remove the same. Based on violation of consumer protection policies, the
court also imposed a penalty on the company for posting a false advertisement. In its
judgement, the court provided that the contract which is formed between customers
and the company based on this advertisement is not considered as valid.11 These
contracts are not enforceable by the court since they are formed based on false
advertisements. Moreover, the parties have the right to claim remedies from the
company for its actions which include injunction, damages, specific performance,
rescission or repudiation.
A: APPLICATION
In the present scenario, a contract was formed between Sandra May and jjNet in which
she purchased an internet/phone package from the company. Sandra purchased this
package based on the advertisement of the company in which it was posted by the
company that customers will receive an internet speed of ‘100 Megabits per second’ for
a month by paying a fee of $59.99. It was also included in the online brochure of the
company that a mobile phone and internet modem is included in which package and
customers can make unlimited calls from the phone. After using the services for three
months, Sandra found that the data speed decreases as the 10 GB data limited approach,
and she only receives 100 Megabits speed in the early hours of the morning. There were
many problems with the phone as well since it was not in a new condition and its
battery was damaged. Sandra has the right to hold jjNet liable for misleading
advertisement as discussed in the case of ACCC v TPG Internet Pty Ltd. By making wrong
statements regarding the products and services, jjNet has violated the guidelines
included under section 29 of ACL. Therefore, it is advised that Sandra should file a claim
against the company to receive remedies for breach of her rights recognised under
section 29 of ACL. The contract formed between both parties is not considered as valid,
and Sandra is not bound by its terms since it is formed based on the misleading
advertisement.
C: CONCLUSION
9 Rani John and Andrew Willekes, ‘Consumer law: Deceptive advertising: Is it a question of audience?’, (2014)
53 (3) Law Society Journal: the official journal of the Law Society of New South Wales 42.
10 Stephen G. Corones, ‘Misleading conduct arising from public statements: establishing the knowledge base of
the target audience,’ (2014) 38 (1) Melbourne University Law Review 281-315.
11 Thomas Hurley, ‘High Court and federal court notes’, (2014) 34 (2) Proctor 56.

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Sandra should file a suit against jjNet in which she should claim remedies from the
company for failing to comply with its duties provided under section 29 of ACL. Sandra
should demand damages for the loss suffered by her, and she is not bound by the
contract formed with jjNet.