Rules And Penalties In Criminal Justice System: A Comparative Study Between Australia And Nepal
Primary and secondary rules in the constitution in relation to acts of violence
A number of rules were developed in the new constitution that were meant to protect a member of the tribe from violent acts from another member of the tribe. The constitution sets out some principles that can be termed as duty imposing rules because they tell citizens what to do and not to do. In relation to acts of violence, the rules include the duty of every citizen to uphold other citizens’ rights to be free from torture, assault, rape, arson, robbery, slavery, battery and harassment. Any person charged and found guilty of violating any of these provisions will be penalized either through fines, imprisonment or both -considering the nature of the crime- as provided in the constitution. The constitution also provides for correctional behavior forms of punishment including rehabilitation, probation and open jail system.
These set of rules comprise of what Hart (1994) describes as primary rules. They are the set of rules which tell individuals to do things or not to do things. From this list, it is evident that primary rules impose particular obligations upon the residents of a state to act in a specific way, or they might be liable to certain legitimate authorizations. They can be seen as duty imposing and they are characterized as basic rules.
Another set of rules in the constitution in relation to acts of violence are those that see on the recognition, change and adjudication of the duty imposing rules. They are rules on the jurisdictions of the different levels of the courts on acts of violence brought before them, the procedure to be undertaken in reviewing the constitutional provisions among others. Precisely, Hart (1994) terms these set of rules as secondary rules. These set of provisions can be generalized as power-conferring rules.
H.L.A Hart notes punishment as a mode used by legislatures to ensure compliance of the law. Failure to uphold legal obligations set out in legislations incur penalties on the part of the defaulter (Payne, 1976). As a result, there are several penalties at the disposal of judges for crimes committed within any state. In Australia, these penalties are given with due consideration to the nature of the crime and the potential threat the offender poses to the community. Generally, misdemeanors are mostly punished by sending the offenders for probation or parole, fines, honing and restitution (Gans, 2016). Noteworthy is also the fact that fines are based on a system called penalty units which are calculated by multiplying the value of one penalty unit by the number of penalty units set for that crime (Queensland Government, 2018). Rehabilitation which is conducted by the department for Correctional Services is also utilized for people who have been convicted with drug and substance related offences. On the other hand, felonies are punished by more extreme penalties which include incarceration with respect to the nature of crime. Prisons are set out separately for the detention of minimum, medium and maximum security offenders sentenced in both territorial and federal courts.
Jurisdiction of different levels of courts in reviewing the constitutional provisions
Nepal is another country with an almost similar mode of punishment in their criminal justice system. Minor offences are mostly penalized by fines. For instance, kissing and cuddling in the sacred temple of Shica will attract a fine of between $200 and $300 (Raut, 2016). The fine depends on the severity of the crime. Felonies are often punished by imprisonment with the most heinous crimes attracting a maximum jail term of 20 years. This is different from Australia which has a life imprisonment penalty for the most heinous crimes. Another difference is evident in the alternatives available for Australia which are not being utilized in Nepal. Rehabilitation of offenders through probation, parole, open jail system and cognitive behavioral therapy are yet to be adopted in the land (Raut, 2016).
Issue of Common Law
The following issues were contested in the case:
- Whether a lessor has the right to terminate a lease agreement without notice where a lessee has defaulted in paying a shortfall.
- Whether a property owner has the right to terminate a covenant of lease emanating from rights conferred to him/her by purchase of the property
Rules Applied in the Case
The following rules guided the court on the issue:
- The details of a lease covenant are treated in the same manner as the details of a contractual agreement.
- The lessee in a covenant has the contractual duty to pay rent to the lessor and failure to do so is a breach of covenant.
- The lessor has the power to summarily terminate the lease agreement and seek for damages for a breach of covenant in case of default in payment.
Application
The plaintiff, in this case Gumland Property Holdings, had bought property from Transit Management Property. The defendant, Duffy Bros, had just run down 8 years of a 15 year lease agreement with Transit. As a result of the purchase, the plaintiff had also been accorded all the rights which were entitled to the former owner. In the lease agreement, the defendant had agreed to pay an annual rent of $243,343, a sum that was later reduced to 156,000 by the former owners following financial struggles on the part of the defendant. This happened two years before the plaintiff bought the property. After the purchase, the defendant subleased a portion of the leased property to Woolworths Ltd. The sublease expired a year later but Woolworths Ltd continued their occupation of the premise even though they did not renew their sublease. This resulted to a shortfall from the lack of pay. The plaintiff took immediate action by terminating the lease with the defendant citing the failure to uphold covenant obligations in paying rent. The plaintiff sought remedies in arrears accrued from the failure to pay rent.
The court first dealt with the lease agreement as a contractual agreement. In a contract, both parties have duties to perform as contained in their agreement. Failure to perform a particular obligation is a breach of the covenant and makes the contract voidable on the part of the aggrieved party. Similarly, in the foregoing case, the lessee in the covenant had the contractual duty to pay rent to the lessor. The failure to uphold this obligation was a breach and thus the lessor had the option of either keeping up with the contract or terminating it. There were two notable facts from the case: that when Transit sold the premises to the plaintiff, it transferred with it all the rights including those set in the lease agreement and the defendant, not Woolworths, was obligated to make payments to the plaintiff even in the sublease. Accordingly, the defendant had failed to observe an essential part of the contract and thus the termination was justified.
Penalties for crimes committed in Australia and Nepal
Conclusion
The court found the defendant to have breached an essential part of the lease agreement. as a result, the plaintiff was entitled to remedies. A number of damages were given. First was compensation in unpaid rents and outgoings that had totaled to arrears within the time the defendant used the plaintiff’s premises. The court also awarded reinstatement damages which was the costs of reletting the premises. Finally, the court also awarded damages emanating from the loss of bargain for the rest of the 15 year term.
Case to Be Used
The case of Pryor v Given (1979) 24 ALR 442
Issue
Whether an individual can ask a court to cancel a contract on a product, commodity or property on the basis of fraudulent misrepresentation.
Rules
- A contract founded on fraudulent misrepresentation is voidable, and gives the victims the right to withdraw the contract and/or claim damages.
- Every consumer has the right to be provided with true and reliable information about a product, service or commodity by the promoter or seller of the particular substance of trade.
Analysis
Fraudulent misrepresentation in contracts occur when a false, misleading or deceptive statement is made by a party –be it in writing, verbally by the use of even a simple gesture or by keeping silence- to induce another to enter into a contractual relationship.
Common Law
Common law demands that for one to prove that fraudulent misrepresentation has occurred, a number of facts have to be proven. i) that the statement in question was false in nature ii) that it was a statement of fact and not just an opinion and iii) that he or she indeed relied on the statement to make up his or her mind on reaching a contractual agreement (LawTeacher, 2013).
In the case of Pryor v Given (1979) 24 ALR 442, the company had placed an advertisement for the sale of a piece of land, with a caption “a wonderful place to live” together with pictures of houses. It was held that the information given was misleading. The court held that the phrase and the pictures put together created a misleading impression that houses could be built on the piece of land. This was despite the fact that the land required a planning scheme that was subject to onerous conditions which had to be approved before setting up anything on it.
In the case of Australian Equity Investors, An Arizona Limited Partnership v Colliers International (NSW) Pty Limited [2011] FCA 442, a valuation company was deemed to have made false and misleading statements concerning the price to be paid for a piece of land.
Consumer Legislation
A number of statutory provisions have also been put in place to ensure that consumers are protected from fraudulent statements made by organizations in an attempt to lure consumers into contracting with them
Fraudulent misrepresentation in contracts
Section 18 of the Australian Consumer Law in the Competition and Consumer Act 2010 provides that “An individual must not, in trading activity or commerce, engage in conduct that is deceptive or misleading or has the potential of misleading or deceiving the other party into contracting.”
Section 52 of the Trade Practices Act 1974 (Cth) states that: A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. In the case of ACCC v Gary Peer & Associates Pty Ltd [2005] FCA 404, it was held that the defendant had contravened statutory provision by giving misleading information. The real estate agent –defendant in this case- had advertised a house for auction with a tag of $600,000, when in reality, the vendors had prepare the house for a substantially more amount of money.
Finally, Section 30 of the Australian Consumer Law prohibits people or organizations from making false or misleading statements in relation to a number of matters including sponsorship, approval or affiliation; the price to be paid for a property; the nature of the interest in a property; The location of the property; the characteristics of the property; the uses for which the property or commodity may be used or for which it is capable of being used; and the availability or existence or facilities that could be connected with the property.
Conclusion
Fraudulent misrepresentation makes a contract voidable on the part of the victim. The victim can choose to terminate the contract and seek damages or equitable remedies. Damages include rescission and compensation while equitable remedies include specific performance.
Issue
Whether a business owner can enforce a contractual promise on a former partner, barring the latter from engaging in trade on a similar commodity.
Rule
Any contract or clause that restraints a business partner from starting a business similar to the one he or she leaves is void unless there is a reasonable cause of action.
Pedro and Lisa were both retailers selling imported French jewellery in Melbourne, Victoria. Lisa sold her business to Pedro and in the contract agreed that for two years, she would not institute or be engaged in the trade of imported French jewellery anywhere in Australia. A year later, Lisa establishes a new business in Cairns, Queensland, selling imported French jewellery, begging the question whether Pedro can enforce the contractual promise against Lisa.
Statutory provisions that protect consumers
Generally, the restraints to trade are considered void in the face of it. However, they are legal, and enforceable for that matter, provided that they are reasonable. To pass the test of reasonableness, the restraint has to serve a legitimate interest, be limited to that particular legitimate interest and not contradict the interest of the public (Dean, 2013). Gauging each of these requirements can help assess whether Pedro will be able to enforce the contractual promise.
First is the requirement of a legitimate interest. With respect to this, the court will look at the purpose of the restraint. In most cases, trade restraints are meant to protect the restraining party’s business from leakage of a trade secret or from competition. These reasons form part of what is considered as legitimate interest by the courts. Pedro’s restraint agreement was meant to ease competition and thus passed the legitimacy test.
Second is the requirement that the clause should be limited to that particular legitimate interest. In this case, the restraint should be reasonable in the geographical area it covers, duration and the type of business to which it is placed. In the case of Fitch v Dewes [1920] 2 Ch 159A, a lifelong restraint of trade was deemed to be reasonable. In the foregoing case, the duration agreed in the covenant between Pedro and Lisa was a mere two years. Additionally, in the case of Nodenfelt vs Maxim Nordenfelt Guns and Ammunition Co. [1894] AC 535, it was held that area covenants in trading restraint cases are readily enforceable even if the area is worldwide. As for the type of business, the restraint can only be on a business unto which the restrained partner was participating in –in this case it was the sale of imported French jewellery. Thus, the restraint between Pedro and Lisa qualify on the test of being limited to the particular interest.
Lastly, the restraint should not contradict the interest of the public. The onus of proving that the restraint contradicts public interest is on the person challenging its enforcement. In this case, Lisa has the burden to prove that her decision to neglect the agreement of not selling jewelry was at the best interest of the public. That it would be injurious for the public if the business was not opened up. However, from the case, this burden would be so great to prove. The court looks at issues of possible exploitation, need for competition, market demand and even the nature of the business when assessing whether the public would really benefit from the waiver of the restraint.
Conclusion and Remedies
In conclusion, Pedro can successfully initiate a suit seeking to enforce the restraint order as it passes the reasonability test. Remedies available for him will be both in damages for the loss suffered as a result of lost customers and equitable remedies in temporary injunction till the end of the agreed duration of restraint.
References
ACCC v Gary Peer & Associates Pty Ltd [2005] FCA 404
Australian Equity Investors, An Arizona Limited Partnership v Colliers International (NSW) Pty Limited [2011] FCA 442
Dean, R. L. (2013). Unraveling restraint of trade clauses. Sydney, NSW: Law Society of New South Wales.
Fitch v Dewes [1920] 2 Ch 159A
Gans, J. (2016). Modern criminal law of Australia. Cambridge University Press.
Hart, H. L. A. (2017). Positivism and the Separation of Law and Morals. In Law and Morality (pp. 63-99). Routledge.
Hart, H.L.A. (1994). The Concept of Law. Oxford: Clarendon Press.
Nodenfelt vs Maxim Nordenfelt Guns and Ammunition Co. [1894] AC 535
Pryor v Given (1979) 24 ALR 442
Payne, M. (1976). Hart’s concept of a legal system. William & Mary Law Rev., 18, 287.
Queensland Government. (2018, July 05). Sentencing fines and penalties for offences: Types of crime. Retrieved from https://www.qld.gov.au/law/crime-and-police/types-of-crime/sentencing-fines-and-penalties-for-offences
Raut, B. P. (2016). Alternative Measures to Reform the Prison Policies in Nepal. NJA LJ, 10, 89.
LawTeacher. (November 2013). Misrepresentation and making contracts void. Retrieved from https://www.lawteacher.net/free-law-essays/contract-law/misrepresentation-and-making-contracts-void-contract-law-essay.php?vref=1
The Australian Consumer Law in the Competition and Consumer Act 2010
The Trade Practices Act 1974