Legal Systems Analysis: Hart's Three-Part Rule and Advertisement Laws

This assignment evaluates the legal systems of India and Australia through the lens of HLA Hart's three-part legal system, focusing on primary and secondary rules, the rule of recognition, and the rule of adjudication. The analysis highlights the influence of the UK legal system on India, the role of the Constitution, and the process of lawmaking. It then examines the Australian legal system, noting similarities and compliance with Hart's principles. Furthermore, the assignment addresses a case study involving misleading advertisements by an internet service provider, referencing the Competition and Consumer Act 2010 (Cth) and the ACCC v TPG Internet Pty Ltd case. The analysis concludes that consumers have rights to seek remedies for misleading claims, including setting aside contracts and claiming damages.

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Student Name
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Word Count Question 1
Word Count Question 2

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Question 1
The three-part legal system was developed by Herbert Lionel Adolphus Hart who provided
that there are primary and secondary rules which forms a legal system of a country. This
paper will evaluate the legal system of India based on the three-part legal system of HLA
Hart. Furthermore, this rule will be implemented on the legal system of Australia to
understand how the country complies with these provisions. The Indian legal system is
influenced by the legal system of the United Kingdom which incorporates both primary and
secondary rules.1 The country is governed by a Constitution which has separated the powers
between executive and judiciary authorities. The Constitution of the country was
established in 1950, and it has been amended 101 times by the government. The rights and
authorities of lawmaking are given by the Constitution to the Parliament. Based on these
rights, the parliament can form new laws and amend the current regulations in the country.
The key sources of laws in the country include the constitution, case laws, customary laws,
and legislation. The Government of India has given the power to propose new laws in the
parliament which are focused on bridging the gap in the legal system of the country.2 After
the proposal of these laws, the ministers who are appointed by the public in the parliament
discuss such proposed law (bill) to decide with a majority whether they should accept them
or not.
The laws are made by two main parliamentary bodies in the country which include Rajya
Sabha and Lok Sabha. The process of lawmaking in the country is clearly highlighted by the
constitution which provides that the government proposes a bill which is then discussed by
both Rajya Sabha and Lok Sabha to determine whether it should be a law or not. After the
bill is accepted in both of these parliamentary houses, it is sent to the President of the
country.3 The bill becomes a law and applies throughout the country after the signature of
the President. The laws which comply by everyone are included in the Constitution and
other legislation of the country. The punishments for non-compliance with these provisions
1 Raj Kumar Bhardwaj and M. Madhusudan, "Online Legal Information System (OLIS) Leveraging Access To
Legal Information Resources In Indian Environment" (2016) 36(1) DESIDOC Journal of Library and Information
Technology.
2 Rajvir Sharma, "Judiciary As Change Agent: Some Insights Into The Changing Role Of Judiciary In India" (2012)
58(2) Indian Journal of Public Administration.
3 Raj Kumar Bhardwaj, "The Indian Judicial System: Transition From Print To Digital" (2013) 13(03) Legal
Information Management.

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are also provided in the laws. The judiciary power is divided into different courts in the
country by the Constitution under which there are separate courts for entertaining civil and
criminal matters. The highest judiciary entity in the country is the Supreme Court which has
the power of judicial review as given by article 32 of the Constitution. This also allows the
Supreme Court to check the actions of the government as well. The judgements of the
higher courts are applied on the small courts, and they are bound by those judgements. The
principles given HLA Hart in the three-part legal system apply to the legal system of India.
The rules of recognition principle provided the key fundamental policies which are
necessary to comply by both private and governmental authorities. In the case of Indian
legal system, the primary rules which apply on all citizens and governmental authorities are
clearly defined in the Constitution and other legislation which also highlight key rights and
liabilities of parties as well.4 These are primary rules which apply to everyone, and the
process of creating these laws are defined in the Constitution of the company as well. The
rules of change provided that the process of making changes in the law must be clearly
defined in the legal system. In the case of the Indian legal system, the provisions are clearly
mentioned regarding how to add, remove, amend or change the regulations in the country.
Moreover, proper authority is given to the Supreme Court to oversee the operations of the
government which assist in avoiding misuse of powers. The rule of adjudication provides
that the provision regarding adjudication must be clearly established in a country. It is the
case with the Indian legal system in which different courts are established for different civil
and criminal cases, and the judgement of higher courts are binding on lower courts.5 Parties
also have the right to make an appeal in the higher court against the decision of a lower
court. Based on these principles, it can be stated that the Indian legal system complies with
the provisions given under Hart’s three-part legal system.
In the case of Australia, the provisions of Hart’s three-part legal system apply as well. There
are many similarities in the Australian and Indian legal system since both of them are heavily
influenced by the English legal system. In Australia, the government is given the right to
proper the law in the parliament which is accepted after arguments regarding whether it
should be a law or not. The rules of changes are included in the Australian legal system since
4 Arthur Berriedale Keith, A Constitutional History Of India, 1600-1935 (Taylor and Francis, 2017).
5 Yashomati Ghosh, "Indian Judiciary: An Analysis Of The Cyclic Syndrome Of Delay, Arrears And Pendency"
(2017) 5(1) Asian Journal of Legal Education.

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the procedure for changing, amending, deleting and adding new laws is clearly mentioned in
the court.6 The rule of adjudication applies in the country as well because separate courts
are established for separate civil and criminal cases. The decision of higher courts is
enforces on lower courts as well. The rule of recognition also applies in Australia in which
the primary laws which apply to everyone in the country are mentioned not only in statutes
but also in common law as well. The statutes are the laws which are implemented by the
government, whereas, the common law principles are derived from custom and judicial
precedent rather than statutes.7 Both of these principles apply to the parties and govern
their actions which show that the Australian legal system complies with the three-part legal
system developed by HLA Hart.
6 Michael K Meek, Australian Legal System (Lawbook Co., 2008).
7 Russell David Hinchy, The Australian Legal System (Pearson Education Australia, 2008).

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Question 2
Issue
Whether any legal actions can be taken by Sandra against jjNet for misleading
advertisement and whether she is bound by the terms of the contract?
Rule
When two or more parties enter into a legal contract, they have the right to enforce its
terms on each other. Certain elements are necessary to be fulfilled in order to ensure that a
valid contract can be formed between parties. Based on fulfilling these terms, the parties
enter into a legal relationship in which they can enforce each other to comply with the
contractual terms. However, a contract which is formed on misrepresentation is not
considered as valid. If a party of the contract relied on a false statement of fact or law in
order to induce another party to form a contractual relationship, then it is considered as
misrepresentation. The parties who make a false claim regarding their products or services
during advertisement are referred as false and misleading advertising.8 The objective of
misleading advertisement is to induce the customers to purchase products or services of a
company. The rights of customers are violated by the parties if they make false claims
regarding their products or services. In Australia, the government has implemented the
Competition and Consumer Act 2010 (Cth)9 which is focused on protecting the rights of
customers. This act also provides various provisions regarding protecting the customers
from misleading or false claims which are made by a corporation in order to induce the
customers into signing a misleading claim.
Section 18 of the Act provides that corporations which made a claim regarding their
products or services which are misleading or deceptive or which are likely to mislead or
deceive customers is considered as prohibited. In the case of advertisement, section 29 of
the act provides key provisions for protection of customers. This section provides that a
party must avoid making misleading or deceptive claims regarding its products or services
8 Beatrice Parguel, Florence Benoit-Moreau and Cristel Antonia Russell, ‘Can evoking nature in advertising
mislead consumers? The power of ‘executional greenwashing', (2015) 34 (1) International Journal of
Advertisement 107-134.
9 Competition and Consumer Act 2010 (Cth)

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while advertising.10 It should also avoid making any claims which are likely to mislead its
customers to protect the customers. The court has provided judgement in several cases in
which it was held that the parties should avoid making misleading claims regarding their
products or services during advertisements. A good example is ACCC v TPG Internet Pty Ltd11
case in which the court provided that the company has issued a misleading advertisement
to induce its customers. In this case, the Australian Competition and Consumer Commission
(ACCC) alleged TPG of contravening the provisions of the Trade Practices Act 1974 (Cth)
which has now amended into the Competition and Consumer Act 2010 (Cth) or Australian
Consumer Law.12
In this case, the company made misleading advertising regarding the prices of ADSL2+
unlimited broadband. The company provided that the customers can purchase the product
for a cost of $29.99 a month. The company included in a small print that this price is
bundled with a home line rental which will cost customers $30 per month.13 A suit was filed
by the ACCC against the company alleging it for violating consumer protection policies. The
High Court provided in its judgement that the advertisement posted by the company is
considered as misleading and deceptive which is posted in order to induce the customers
into signing a contract with the company. The court ordered the company to remove its
advertisement and imposed a penalty on the company. The court provided that the
customers who have entered into a contract with the company based on the advertisement
can set aside such contact because it is considered as void based on misrepresentation
made by the corporation.14 The parties are not bound by the contractual terms of such
advertisement, and they can demand remedies from the parties. The remedies available for
the customers in this scenario include rescission, specific performance, injunction,
repudiation, and damages.
10 Legislation, Competition and Consumer Act 2010 (2018) <
https://www.legislation.gov.au/Details/C2013C00620>.
11 [2010] FCA 1478
12 Stephen Corones, ‘Australian Competition and Consumer Commission v. TPG Interney Pty Ltd., Forrest v.
Australian Securities and Investments Commission: Misleading Conduct Arising from Public Statements:
Establishing the Knowledge Base of the Target Audience’, (2014) 38 Melb. UL Rev. 281.
13 Hannah Marshall, ‘Penalties for misleading advertising Eight things you need to know’, (2012) 64 (8) Keeping
Good Companies 489.
14 Rani John and Andrew Willekes, ‘Consumer law: Deceptive advertising: Is it a question of audience?,’ (2014)
52 (3) Law Society Journal: the official journal of the Law Society of New South Wales 42.

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Application
In the given case study, Sandra May purchased an Internet/phone packages after seeing an
advertisement from her internet service provider. In the advertisement, it was mentioned
that customers could pay $59.99 per month to get internet speed of ‘100 Megabits per
second’ and they will receive 10GB data per month. The online brochure of the company
provided that the internet modem and a mobile phone are included in this package from
which customers can make unlimited calls. After three months, Sandra realised that the
internet speed of 100 Megabits only available in the early hours of the morning and the
speed decreases as she approaches close to 10GB data limited. The phone also causes many
problems because it was not in a new condition and its keys and battery were damages as
well. As per the judgement of ACCC v TPG Internet Pty Ltd case, this is considered a
misleading advertisement which is posted by the company to induce its customers. This
advertisement violated section 29 of the Australian Consumer Law based on which Sandra
has the right to set it aside. She is not bound by the terms of the contract, and she has the
right to claim remedies from jjNet for the false advertisement made by them. The internet
provider is liable to pay damages to its customers who signed a contract with the company
based on false and misleading advertisement.
Conclusion
To conclude, Sandra has the right to make a claim against jjNet for misleading
advertisement based on which she can set aside the contact formed with the company. She
can claim damages from jjNet for the problems which she faced due to the misleading
advertisement.