Evaluation of Legal System of UK and Australia based on three-part legal system of HLA Hart
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. 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. 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. 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.
Legal system of UK: Primary Rules, Secondary Rules, Constitution, Rule of Recognition, Rule of Change, Rule of Adjudication
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. 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. 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.
2.Issue
Legal system of Australia: Primary Rules, Secondary Rules, Constitution, Rule of Recognition, Rule of Change, Rule of Adjudication
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?
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. 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. 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 Ltdcase. 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 Act 2010 or ACL. TPG posted an advertisement in which it included the prices of ADSL2+ unlimited broadband which was $29.99 a month.
Overview of Consumer Law in Australia
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. 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. 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.
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.
Conclusion
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.
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