Australian Commercial Law: Analysis of Legal Systems

Australian Commercial Law

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Question 1
Introduction
In this paper, the Australian legal system and the legal system of the United Kingdom will be
analysed to determine whether they comply with the three-part legal system developed by Herbert
Lionel Adolphus Hart.
Australian Legal System
The legal system of Australia is similar to the English legal system, and both of them include primary
and secondary rules. The Constitution of Australia is referred as the supreme law, and it also governs
the relationship between different states in the country. The Commonwealth of Australia
Constitution Act 19001 is the key act based on which the Constitution was formed. The actions taken
by the government, organisations, and individuals are governed based on the primary and secondary
rules which are issued by the Constitution.
Rules of Recognition
The rules of recognition apply on the legal system of Australia because the laws are included in the
public documents which are accessible by everyone. The primary rules of obligation are formally
recognised, and they combined with secondary laws. These rules are given in both statute law and
common law which governs the actions of individuals in the country; therefore, the Australian legal
system complies with this principle. 2
Rules of Change
The rule of change is another fundamental rule which provides how the rules included in the legal
system are altered. As per HLA Hart, the primary laws included in the legal system must be subject to
identification and change by secondary rules. In this scenario, the rule of change provides key
1 Commonwealth of Australia Constitution Act 1900
2 Stephen Gageler, ‘Chapter IV: The Inter-State Commission and the Regulation of Trade and Commerce under
the Australian Constitution,’ (2017) 28 (3) Public Law Review 205-218.

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provisions regarding how regulations are altered and repealed. In the case of Australia, the
Parliament is given the right to make changes in the current regulations.3 The changes are made in
the statutory law after a bill is proposed by the government in which the changes are proposed. The
amendment, removal and changes in the statutory laws are made through this process after which
they either apply to the whole country or a particular state. Majority votes are taken to decide
whether a bill is passed or not in the House of Parliament.4 In the case of common law, the courts
are responsible for applying the relevant laws in particular cases. However, they also have the right
to amend certain laws and guidelines to fit a particular scenario.
United States Legal System
The legal system implemented in the United States complies with both primary and secondary rules.
Laws are made by both federal and state levels similar to the Australian legal system. The laws and
regulations are adopted by legislative bodies such as state legislatures and Congress which are
referred as ‘statutes’.5 Both the federal and state courts are responsible for enforcing the key
legislation and regulations in the country. These are the basis of the legal system in the United
States, and it complies with the principles of the three-part legal system given by HLA Hart.
Rules of Recognition
The rule of recognition assists in differentiating the legal rules from non-legal norms; these policies
assist in distinguishing the primary rules which are responsible for governing the legal system from
the secondary rules which ensures that the primary rules are enforced on parties. The Constitution
of the United States of America provides key provisions regarding separation of powers between the
federal and state government which avoids ambiguity.6 These are public documents which are
recognised by everyone, and they govern the actions of the citizens of the United States. In case
3 David Lowe and Dilip K. Das, Trends in the Judiciary (CRC Press, 2016).
4 John Halligan and Richard Reid, ‘Conflict and Consensus in Committees of the Australian Parliament,’ (2015)
69 (2) Parliamentary Affairs 230-248.
5 Charles Beard, An economic interpretation of the Constitution of the United States (Routledge, 2017).
6 Seymour Martin Lipset, Continental divide: The values and institutions of the United States and Canada
(Routledge, 2013).