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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...............................................................................................................................................21 (a)..............................................................................................................................................2Answer 2..........................................................................................................................................4Answer 3..........................................................................................................................................7Part C.............................................................................................................................................10References......................................................................................................................................14

2AUSTRALIAN COMMERCIAL LAWPart A1 (a)There have been several issues arising from the different dispute settlement approachesadopted by the elder members of the tribe. A new constitution has been proposed to ensure thatsuch issues are resolved. The Constitution aims at assuring that the decision making processinvolves the use of legal reasoning while determining any issue instead of any other ground toresolve such issues. On the facts here, it has been stated that the decisions taken by the decisionmakers of the tribe is often contradicting amongst themselves. In order to address this issue, theconstitution proposes to introduce provisions that will ensure that decisions must be same for allthe issues that are identical and that the decision maker maintains this consistency throughout thedecision-making procedure. The proposed Constitution purports to incorporate provisions thatwill ensure that the issues are determined impartially and with fairness unlike the situation that isdescribed in the scenario where the eldest members are often biased in regards to the familymembers. Further, the new proposed Constitution also purports to incorporate secondary rules todetermine issues arising due to the existing primary rules. An Executive Body shall beestablished as per the Constitutional provisions that shall be empowered to decide whether thedecision taken by the decision makers of the tribe is genuine. The proposed constitutionalprovisions shall permit amendments of rules periodically based on the changing needs andcircumstances of the society. Further, in order to determine the genuineness of the decision takenby the eldest members of the tribe based on the evidences adduced in each case, a judges panel

3AUSTRALIAN COMMERCIAL LAWshall be formed. Thus, the Executive body shall enforce the decisions whereas the judges’ panelshall determine whether the decisions are based on the evidence adduced for each case. The proposed Constitutional provisions demonstrate Professor Hart’s three-tier legaltheory. This is inferred from the fact that the new constitutional provisions has incorporated therule of recognition in terms of secondary rules that aims at determining issues emerging from theprimary rules. The provisions also included the rule of change theory which is evident from theprovisions permitting timely modifications in the existing rules as per the changing requirementof the community1. Additionally, the proposed Constitutional provisions also ensure that suchchanges are in compliance with the Constitutional provisions itself. The establishment of theExecutive body and the panel of judges to enforce the decisions of the decision makers and toensure that they are determining issues impartially epitomize the significance of the Hart’s legaltheory. The incorporation of the rule of recognition and the rule of change implies that thesecondary rules shall recognize the issues emerging from the primary rules and will makenecessary modifications, which shall be enforced by the Executive body and panel of judges toensure its compliance with the Constitutional provisions. This establishes the Hart’s theoryregarding the presence of a close connection between the rule of change and rule of recognitionwithin the legal system of a country. The formation of the panel of judge incorporates theprovisions of adjudication into the proposed constitution that was introduced to the tribemembers. The main purpose to establish a judge panel is to make sure that the eldest members ofthe tribe who are the decision-makers determine the issues based o its evidence and impartiallywithout violating the existing statutory rules. 1 Sachs, Stephen E. "Originalism as a Theory of Legal Change." Harv. JL & Pub. Pol'y 38 (2015): 817.

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