LAWS20058: Exploring Legal Systems & Consumer Rights in Australia

This assignment provides an analysis of the legal systems of the United States and Australia, focusing on Herbert Lionel Adolphus Hart's three-part legal system. It examines the presence of the rule of recognition, rule of change, and rule of adjudication in both countries, highlighting similarities and differences. Additionally, the report addresses a consumer rights issue involving Sandra May and jjNet, advising Sandra on potential claims under the Australian Consumer Law (ACL) and the Sale of Goods Act, specifically concerning false advertising and merchantable quality. The analysis includes relevant case law and legislation to support the conclusions regarding Sandra's rights and potential remedies.

Australian Commercial
Law
2019

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ANSWER 1
This paper will analyse the legal system of the United States and Australia to determine
whether the principles given by Herbert Lionel Adolphus Hart in the three part legal system
are present in them or not. In the case of the United States, the Constitution is the key
document which governs the operations of the federal and state government. It is the
supreme document which provides executive and judiciary powers to related authorities.
The statutes are referred to the laws or regulations which are implemented by the federal
and state authorities in order to govern the operations of people and entities. The three
part legal system provides that the laws are categorised into primary and secondary rules.
The primary rules govern the actions of parties and distribute the powers between the
federal and state. The secondary rules, on the other hand, focuses on providing policies to
ensure that the primary rules are followed by the parties.1 The rule of recognition principle
is present in the legal system of the United States. The primary rules are provided by the
Constitution of the country which is recognised by everyone.
These laws govern the operations of parties to ensure that they did not go beyond the scope
of primary rules by violating them which leads to punishment. These rules are available in
public documents which are accessible by everyone. Moreover, the policies regarding
enforcement of these rules are given under the secondary laws which govern the operations
of parties. The rule of change is present in the legal system of the United States as well.
These change policies are targeted towards making changes in the current laws to update
them which make them relevant as per change in time.2 Along with policies to make
changes in the law, the provisions which are followed by authorities to add new laws are
given in the legal system as well. A set procedure is followed in order to add, remove or
change any regulations in the legal system. These changes are proposed in a bill which is
generally given by the government. The government propose this bill to make necessary
changes which are required to meet the interest of the public. This bill is presented in the
House of Congress or in the House of Representatives which include many senates and
representatives.
1 Richard Abel, The Politics of Informal Justice: Volume 2: Comparative Studies (Elseview, 2014).
2 Seymour Martin Lipset, Continental divide: The values and institutions of the United States and Canada
(Routlege, 2013).

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Both these houses discuss on the pros and cons of the bill and propose necessary changes.
These changes are made in the bill, and it is again presented before both houses which it is
passed by a majority votes. After passing the bill, it is sent to the President who gives her
affirmation to the bill. After this affirmation, the bill becomes a law which applies on the
country. The rule of adjudication is also present in the legal system of the United States. The
civil and criminal cases in which dispute arise between parties are handled by different
courts. These courts are specialised in different field, and they provide their judgement
based on statutes, precedents and natural justice. The hierarchy of court is followed based
on which the cases are filled in the lowest courts after which the parties can make an appeal
to the higher court if they are not satisfied with the judgement.3 This hierarchy shows that
the rule of adjudication is present in the legal system of the United States. The Supreme
Court is the highest court in the country which has the authority to conduct investigation in
the matter of other courts.
In Australian legal system, the element of three part legal system is present as well. The
legal system is influenced by the English legal system implemented in the United Kingdom.
As per this system, the Constitution is the supreme law which divides it between
Commonwealth and states. The provisions of the legal system are taken from
Commonwealth of Australia Constitution Act 19004 under which the constitution is formed.
The powers of the federal and state government are also divided based on the constitution
which complies with both primary and secondary rules. In case of an inconsistency, the laws
implemented by the Commonwealth prevail over the regulations implemented by States.
The elements of three part legal system are present in the legal system as well. The rule of
recognition applies because the primary laws are included in the constitution of the country
which is available by everyone.5 These laws are included in both statute and common laws
which are also assessed by the court while providing judgement in particular cases. As per
these laws, the actions of people and entities are governed.
The rule of change element is present in the legal system as well. The changes made in the
federal and state based laws are made by fulfilling a specific procedure. The provisions
regarding making changes are included in the secondary rules. As per the legal system of the
3 Roscoe Pound, Criminal Justice in America (Routledge, 2018).
4 Commonwealth of Australia Constitution Act 1900
5 Gunther Doeker, The treaty-making power in the Commonwealth of Australia (Springer, 2012).

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United States, a bill is proposed by the government in order to amend, remove or add new
laws. These bills are presented in either the House of Representatives or the house of
senates. The house of representative is also called the lower house or the people’s house.6
These bills are passed based on majority votes by the ministers who propose changes in the
bill. After making these changes, the bill is again presented in either house which passes the
bill based on majority votes. Later this bill is sent to the Governor-general for the Royal
Assent after which it applies on the country. Thus, there are various similarities in the legal
system of the United States and Australia since both of them comply with the three part
legal system.
6 Peter Gerangelos, ‘The Executive Power of the Commonwealth of Australia: Section 61 of the Commonwealth
Constitution,‘nationhood’and the Future of the Prerogative,’ (2012) 12 (1) Oxford University Commonwealth
Law Journal 97-131.

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ANSWER 2
ISSUE
The issue which is present in this scenario is relating to violation of consumer rights of
Sandra May. The goal is to give advice to Sandra May regarding whether she can make a
claim under the Australian Consumer Law and the Sale of Goods Act.
RULE
In Australia, the rights of consumers are protected under the Australian Consumer Law
(ACL). Various guidelines are issued in the ACL which ensure that the rights of customers are
not violated by entities which they offer their products and services to them. The
Competition and Consumer Act 2010 (Cth)7 is the main legislation which is implemented by
the Australian Government in order to recognise the rights of customers. These policies
protect customers from unfair trade practices to ensure that companies did not misuse their
position while offering them products or services. There are various aspects of customer
rights which are governed under this Act such as false advertisement. Section 29 (1) (a) of
ACL prohibits false advertisement and provides a remedy to the customers whose rights are
breached.8 As per this section, the corporations should avoid making any claims regarding
their products or services in the advertisements which are misleading or deceptive or which
are most likely to mislead or deceive customers. This prohibition ensures that customers are
protected from the false advertisement of parties.
This provision was implemented by the court in the judgement of ACCC v TPG Internet Pty
Ltd [2010] FCA 1478.9 In this case, the rights of customers were violated by TPG because the
company posted an advertisement which misleads customers. In its advertisement, the
company included in large print that the price of its unlimited broadband connection is
$29.99. However, the company also included in small print below the advertisement that
this offer is only available for those customers who pay an additional $30 to acquire home
rental line from the company. The court provided in the ruling that the company has
included hidden costs in its offer which mislead customers based on which the company was
7 Competition and Consumer Act 2010 (Cth)
8 Legislation, Competition and Consumer Act 2010 (2018) <
https://www.legislation.gov.au/Details/C2011C00003>.
9 [2010] FCA 1478

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held liable for violating section 29 (1) (a) of ACL.10 The recent ruling of ACCC v H.J. Heinz
Company Australia Limited11 is a good example in which the company was penalised for
violating provisions given under section 29 (1) (a). In this case, the corporation was found
guilty of posting a false advertisement based on which the company was penalised for $2.25
million.12
The company made false claims regarding its products that by stating that they are good for
children, whereas, they were full of sugar. Along with the ACL, customer rights are
recognised under the Sale of Goods Act 1896 (Qld)13 as well. In this act, the provision of
implied terms is recognised which imposes on obligation on businesses to ensure that they
offer their products to customers that are in merchantable quality. In this Act, section 17
provides that it is an implied term on Australian businesses that they must maintain
merchantable quality while offering their products to customers. This is especially the case
when the buyer has purchased the goods as per the description given by the seller (section
17 (c)).14 In case either of the above mentioned rights of customers is violated, then the
consumers have the right to claim remedy from the court. Payment of damages is one of the
most common remedies available for customers whose rights are violated under the ACL or
the Sale of Goods Act.
APPLICATION
Based on the advertisement of jjNet, Sandra purchased an internet/phone package. In the
advertisement, it was mentioned by the company that the customers will receive an
internet speed of 100 megabits per second. This speed will be available till the users
consume 10 GB of data. Moreover, the customers who pay $59.99 will also receive a phone
and a modem from the company. The phone can be used by customers for making
unlimited calls. Sandra paid $59.99 and purchased the whole package. She realised that the
promises made by the company in the advertisement are not fulfilled. The speed of 100
10 Thomas Hurley, ‘High court and federal court notes,’ (2014) 34 (2) Proctor 56.
11 [2018] FCA 360
12 ACCC, Heinz ordered to pay $2.25 million penalty over misleading health claim (2018) <
https://www.accc.gov.au/media-release/heinz-ordered-to-pay-225-million-penalty-over-misleading-health-
claim >.
13 Sale of Goods Act 1896 (Qld)
14 Austlii, Sale of Goods Act 1896 (2018) <
http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/qld/consol_act/soga1896128/ >.

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megabits per second is only available in certain times in the early morning, and it reduces as
she approaches 10 GB data limit.
She also found that the phone looks old and its keys are hard to press. jjNet has violated the
customer rights of Sandra as given under the ACL. Sandra can hold jjNet liable for violation
section 29 (1) (a) of ACL for making a false advertisement in which the company included
misleading statements regarding its products. Sandra’s rights which are given in the Sale of
Goods Act are also violated by jjNet. She purchased the phone as per the description of the
seller, and it was not merchantable quality based on which section 17 (c) is violated by jjNet.
Based on breach of these rights, Sandra can claim remedies from jjNet. She can claim
damages for the loss from the company.
CONCLUSION
In conclusion, Sandra’s rights given under the ACL and Sale of Goods Act are violated by
jjNet. She can hold the company liable and claim damages for the loss suffered by her.