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...............................................................................................................................................21 (b)..............................................................................................................................................2Part B...............................................................................................................................................4Question 2........................................................................................................................................4Issue.............................................................................................................................................4Rule..............................................................................................................................................4Application..................................................................................................................................6Conclusion...................................................................................................................................7Question 3........................................................................................................................................7Issue.............................................................................................................................................7Rule..............................................................................................................................................7Application..................................................................................................................................8Conclusion...................................................................................................................................9References......................................................................................................................................10
2AUSTRALIAN COMMERCIAL LAWPart A1 (b)Several provisions and theories have been introduced to ensure smooth functioning of thelegal systems. Amongst the several theories, Hart’s theory of recognition has been known to beassociated with the legal system. In order to be recognized as a law, a rule must include threeessential requirements1. First, the rule must impose validity with respect to all those things thatare existing within the legal framework. Secondly, the rule must include a test, which provideslegitimate results that confirms the validity of such rule. Thirdly, the rule must have thecompetency to amalgamate all the existing provisions within a particular legal framework.These requirements indicate the three-tier system that was recognized by Hart, which must bepresent within a legal system. The system is said to be functioning from the bottom to the topwhere the flow ranges from the judicial precedents of distinct states to different customs from thelegal systems. The Hart’s legal system comprises three secondary rules, which includes rules ofrecognition, rules of change and the rule of adjudication. The legal system of Australia is almost similar to the legal system adopted in the UnitedKingdom. This is because the UK legal system uses a three-tier system unlike Australia but therecognition rule of Hart is also applicable in the legal system of the UK significantly2. However,the Australian legal system uses a two-tier system, which is divided between the state legalsystem and the Commonwealth government. Australia has a codified Constitution known as theCommonwealth of Australia, which is very unlikely in the UK. The Constitution stipulates legal1Hart, Herbert Lionel Adolphus. "Positivism and the Separation of Law and Morals." Law and Morality. Routledge,2017. 63-99.2 Kelsen, Hans. General theory of law and state. Routledge, 2017.
3AUSTRALIAN COMMERCIAL LAWprinciples that govern the relationship between the Federal government and the stategovernment. Besides the statutory provisions, the Australian legal framework is also based uponthe principles of common law, which is used to resolve any legal related issues. Nevertheless, inAustralia, in the event of any contradiction between the statutory law and the common law, thecommon law shall prevail over the rules and regulations of the statutory law. Thus, it can be said that the rule of recognition as introduced by Hart is rightly usedwithin the legal framework of the country. This is evident from the fact that the country has aconstitution, which sets out the legal provisions that determine what rules are to receive legalrecognition and what are merely to be perceived as rules3. The Australian Constitution has alsoincorporated legal provisions that regulates the relationship between the Federal and the stategovernment and have precisely distributed the legislative powers between the state and theFederal government in order to formulate laws of the country. This establishes that theConstitution ensures validity with respect to every rule that is prevailing within the legalframework of the country. Further, the rules include a test that determines its validity to becomelaws and such rules purports to mix all the prevailing rules with the new rules within the legalframework of the country. From the above discussion, it can be stated that the three-tier legal system that has beenintroduced by Hart is incorporated into the Australian legal framework as it recognize lawsthrough constitution and its provisions. It further incorporates principles of common law throughincorporation of judicial decisions and customary law. The legal system of Australia can becompared `with that of the legal system of the UK where Hart’s three-tier legal system forms thefoundation of the UK legal system. The only difference between the two legal systems is that3 Cotterrell, Roger. Law, culture and society: Legal ideas in the mirror of social theory. Routledge, 2017.
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