Australian Commercial Law : PDF

Running head: AUSTRALIAN COMMERCIAL LAW
AUSTRALIAN COMMERCIAL LAW
Name of the Student
Name of the Universities
Author Note

1AUSTRALIAN COMMERCIAL LAW
PART A
QUESTION 1(B)
The concept of law which was written by Herbert Lionel Adolphus Hart who was a British
philosopher, this book consists of the rule of recognition, to become a law this rule must follow
the major three necessities. These include the demonstration of a test for the valid law in the
applicable legal system, for the purpose of conferring validity of everything else in the legal
system and in order to unify all laws in the legal system1.
This referred to the usage of a system of three tier which recognizes what the constitute law is in
the system. This follows a structure in its descending order which begins from statues towards
the judicial precedents to the customs.
In the United Kingdom, the law follows all the demarcations which are created within the rule.
According to the measures, this legal system incorporates with the system of three tiers. There is
no codified constitution in the United Kingdom. This law of the UK is moreover a gross of the
legislations which have been approved year after year. Meanwhile, such an legislation states the
connection among the states and the individuals, and also operates the communication between
the legislature, the judiciary and the executive. This mostly lays down what is said to be valid
law according to legal system succeeding in the different legislations. Therefore, the first
principle is satisfied. This constitutions’ operates as the support regarding the presence of the
1 Hart, Herbert Lionel Adolphus. "Positivism and the Separation of Law and Morals." Law and Morality. Routledge,
2017. 63-99.

2AUSTRALIAN COMMERCIAL LAW
laws which are there in the system and therefore it brings together all the laws which are
prevalent in the system. These sources which are present in the constitution are said to be
common law, statutory law as well as customary law. Therefore, this system illustrates the legal
system of three tires which was created by H.L.A Hart. So, In the United Kingdom the rule of
recognition moves from the statutory laws towards the judicial precedents and then towards
customary law2.
Meanwhile, in the Australian legal system they too pursue with a similar path. The federal
system which is also a two tier structure is followed by the government of Australia. These
structure consisting of two tires are broken down among the federal government and the different
state governments. This country follows the supreme law of the federal government of Australia
which consists of a codified constitution. It is a codified document and describes the interaction
among the state and the individuals and also the different parts under the state. The common law
principle are also included by this country in their legal system. A binding effect is noticed when
the judicial precedents portrays the principles of the common law. Australia also includes the
different customs as these are the elements of the common law principles which overcomes the
legal systems of Australia. Therefore, it is understood that Australia also goes after the H.L.A
Hart’s rule of recognition3. This is obvious according to the facts that it incorporates the
constitution which characterizes what is said to be a law in the legal system in Australia, it also
describes the legislative powers according to which the statutory law is said to be developed.
Therefore, the H.L.A Hart’s three tier system demonstrate in Australia, through observing the
laws by a constitution, integrating the principles of common law by the judicial determination
2 Bix, Brian. "On the dividing line between natural law theory and legal positivism." Law and Morality. Routledge,
2017. 49-60.
3 Hart, Herbert LA. "The new challenge to legal positivism (1979)." Oxford Journal of Legal Studies 36.3 (2016):
459-475.

3AUSTRALIAN COMMERCIAL LAW
and integrating the customary law as well. Such a legal system in this country is compared to that
of the legal system of the United Kingdom, as the two incorporates with the three tier rule of
H.L.A Hart. The clearly visible difference among these two systems is that an unwritten
constitution is applied by the United Kingdom, this constitution is a bunch of legislations which
can regulate as well as define the constitutional provisions, it gives much more space to the
common law for clarifying the circumstances and hence there is broader opportunity for
recognizing the law. Meanwhile, Australia is having a codified law and therefore they have
better overview of what is recognized as law. It means that the principles of the common law
acquire a limited scope of incorporation, the judicial decisions will not be having any binding
effect in relation to the codified provisions. Therefore, it will also be followed that such limited
scope of recognition will be having more characterized test regarding the laws, and lesser
capacity for the subjective interpretations4.
PART B
QUESTION 2
RELATIVE ISSUE
A contract was made between Angelo and Barry regarding the purchase of the vegetable and
fruit store. This shop was said to be a extremely beneficial enterprise which had an income
amounting to $20,000 monthly, and their were no such competitors present this statement was
4 Cotterrell, Roger. Law, culture and society: Legal ideas in the mirror of social theory. Routledge, 2017.