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Australian commercial Law PDF

   

Added on  2021-05-31

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Running head: AUSTRALIAN COMMERCIAL LAWAustralian Commercial LawName of the StudentName of the UniversityAuthor Note

1AUSTRALIAN COMMERCIAL LAWTable of ContentsPart A...............................................................................................................................................2Part B...............................................................................................................................................4Answer 2......................................................................................................................................4Answer 3......................................................................................................................................7References......................................................................................................................................11

2AUSTRALIAN COMMERCIAL LAWPart A 1(a)A proposal for a new Constitution has been made in order to address the issues arisingamongst the tribe members from their distinct dispute settlement procedures. The fundamentalrule that has been proposed to be incorporated within the new Constitution is to ensure that thelegal decision-making procedure is used more in order to resolve the issues compared to theother dispute settlement mechanisms. In the given scenario, it is observed that the decision takenby the eldest members of the tribe is contradictory to the former decisions taken by the elders ofthe tribe. The new Constitution that has been proposed must ensure that all the decisions takenby the elders shall be considered as consistent where the facts of the every case are identical. Thefacts of the scenario also stated that the elders are often bias while determining issues especiallywhen their family members are involved in that issues. The new proposed Constitutionguarantees to fill up these lacunae as it purports to introduce rules regarding equal treatment anddetermining issues impartially.Further, the new proposed Constitution aims at introducing secondary rules to address theissues arising from primary rules. In order to ensure that the tribe members who participate in thedecision-making process comply with such rules, the statutory provisions within the Constitutionto establish an Executive body which will enforce the rules. It shall also include provisions thatwill permit amendment of rules from time to time based on the needs of the society. Since theeldest members of the tribe are responsible to take decisions to resolve any issues, a panel ofjudges shall be established who would be empowered to determine the veracity of the decisionsmade by such tribe members based on the evidence adduced with respect to the disputes.

3AUSTRALIAN COMMERCIAL LAWThe proposed Constitution that has been introduced to resolve the disputes reflects thepresence of the tier-system devised by Professor Hart in his legal theory1. This is evident as theproposed Constitution has incorporate the Hart’s rule of recognition in the form of the secondaryrules, which purports to address the issues arising from the primary rules. The Constitution alsostipulated provisions that incorporate the rule of change in the form modification of the rules asper the needs and changing circumstances of the society. Moreover, such modifications arerequired to be in conformity with the Constitution. Further, the provisions related to rules ofchange in the Constitution has led to the necessity to establish an Executive Body to enforce thedecision of the decision-maker in the society and are empowered to make their own decisionswhile exercising their powers to settle the disputes. As Hart points out, there must be a closeconnection between the rules of change and the rules of recognition. The provision related to the rules of adjudication has been incorporated within theConstitution that has been proposed before the tribe members2. This is evident from theprovisions set out in the proposed, which proposes to establish a judge panel only to ensure thatthe decision-makers of the tribes do not contravene the rules and act in accordance to the rules.The judges shall determine veracity of their decision-making based on the evidence adduced. Similar to the provisions proposed to be incorporated in the Constitution for the tribemembers, the legal framework of Australia also incorporates the three-tier legal system devisedby professor Hart. The provision in regards to the consistency in the decision-making is presentwithin Australian legal framework as the decisions are made in compliance with the commonlaw through precedents. The legal system of the nation considers every person as equal in theeyes of law. The Common Law principles are used to rectify the issues or any lacuna present1 Wacks, Raymond. Understanding jurisprudence: An introduction to legal theory. Oxford University Press, 2017.2 Campbell, Tom D. The legal theory of ethical positivism. Routledge, 2016.

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