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Australian Commercial Law (PDF)

   

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AUSTRALIAN COMMERCIAL LAW- LAWS20058TERM 1, 2018 – ASSESSMENT 1 – INDIVIDUAL ASSIGNMENT(Student Details: )

AUSTRALIAN COMMERCIAL LAW- LAWS20058ContentsPart A...............................................................................................................................................3Question 1(b)...............................................................................................................................3Part B...............................................................................................................................................5Question 2....................................................................................................................................5Issue.........................................................................................................................................5Rule..........................................................................................................................................6Application..............................................................................................................................7Conclusion...............................................................................................................................8Question 3....................................................................................................................................8Issue.........................................................................................................................................8Rule..........................................................................................................................................8Application..............................................................................................................................9Conclusion.............................................................................................................................11Page 2

AUSTRALIAN COMMERCIAL LAW- LAWS20058Part AQuestion 1(b)Legal system of any nation reflects the process or procedure which is followed in interpretationand enforcement of law. Through the legal system, the responsibilities and rights are elaborated.Majorly, the legal systems across the globe include common law and statutory law, with somesystems including religious laws as well1. The pre-legal systems were deemed to have certaindefects. These were cured by HLA Hart, when he brought his three part legal system, whichcovered the rules of recognition, rules of change and rules of adjudication2. The legal system of India is fairly developed legal system, which has both primary rules ofobligation and the three part Hart system also applies. As per Hart, the rules of recognition arethe foundation of any legal system, as these rules are accepted by officials and private personsand are authorities in identification of primary rule obligation. In the legal system of India, therules of recognition are presented through the Indian Constitution. The Indian Constitutionpermits the parallel legal systems to exist as personal laws, where the validity is derived fromreligious institutions. The Indian Constitution also permits the pre-constitutional laws tocontinue, including personal laws. In line with the rules of recognition, a hierarchy is set upwhere Constitution is at the top3. There is an integrated judicial structure in India under the Indian legal system, where the rules ofadjudication are upheld, and at the top of this structure, sits the Supreme Court of India. They1US Legal, Legal System Law and Legal Definition (2018) <https://definitions.uslegal.com/l/legal-system/>2 Luís Duarte d'Almeida, James Edwards and Andrea Dolcetti, Reading HLA Hart's 'The Concept of Law' (A&CBlack, 2014)3 Sheela Rai, Hart's Concept of Law and the Indian Constitution (2002) 2 SCC (Jour) 1<http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1&id=783>Page 3

AUSTRALIAN COMMERCIAL LAW- LAWS20058have been given the authority of interpretation of Constitution as well, along with the HighCourts of the State, which come below Supreme Court of India in the hierarchy chart. There is anapplicability of precedents under this system. Further, the judgments are given based on generalprinciples, objectives and structure of Indian Constitution4. The rules of change also are adoptedunder this system, as the established law can be amended or changed, and is done so, based onthe changed needs. The statutes are even repealed and replaced, to remove the inconsistencies inlaw or for changing with the changed times, where the old legislations have been proven to beredundant5. The Indian legal system is based on English legal system, and this is also the case for Australia.As a result of this, there is a similarity in how the three part legal system given by HLA Hartapplies in India and in Australia. As is the case in India, in Australia also, the Constitution is thekey to governing the legal system of the nation. The Constitution of Australia is deemed as thesupreme law which was established back in 1901. It presents the doctrine of separation, wherethe functions are divided into executive, judiciary and legislative, which is also true in case ofIndian Constitution. There is a commonality of precedents being adopted. However, unlike India,the High Court of Australia sits at the top of hierarchy in Australia and the other courts comebelow it. The three part system also applies in Australia in context of rules of change where thelaws are amended/ repealed/ changed from time to time, based on changed circumstances6. Other similar points under the two nations adopting the three part Hart system include thedifferentiation between the primary and secondary law in terms of statutory and common law,4Ibid5 P.M. Bakshi and Subhash C. Kashyap, The Constitution of India (Universal Law Publishing, 2012)6 Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the AustralianConstitution (Cambridge University Press, 2009)Page 4

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