LAWS20058 : Australian Commercial Law
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Added on 2021-06-15
LAWS20058 : Australian Commercial Law
Added on 2021-06-15
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LAWS20058AUSTRALIANCOMMERCIAL LAWASSIGNMENT – IStudent Name[Pick the date]
Part A Question 1(b)United Kingdom has been taken as the selected foreign country whose legal system would beanalysed keeping in mind the three part legal system described by Hart.Rule of recognitionA key condition necessary is that the source of law should be clearly identifiable which isapparent in case of UK where there are three major sources that emerge. The most prominentsource of law in the UK is statute law which refer to those laws which have been legislated bythe Parliament and other authorised bodies. This is without doubt the most significant sourceespecially because the constitution is unwritten for UK> Another key source of law in UK iscommon law and it acts as a source of legal principles which are highly regarded. Another sourceof law relates to the European Union Law which assumes relevance in the backdrop of UK beinga member of EU1In comparison, the law sources relevant for Australia are as outlined follows2.1)Constitution2)Statute Law3)Case Law 4)Common LawA key aspect worth mentioning is that in case of Australia, a significant role is played byConstitution which does not happen for UK considering the vacuum created by the absence of aconstitution and hence emphasis is more on traditions and conventions.Rule of Change1Slapper Gary, Kelly David,The English Legal System(Routledge, 2014) 172Shayne Davenport,Business and Law in Australia(Thomson Reuters, 4thed, 2012)1
The second component of Hart’s legal system is that there has to be mechanism for bringingabout change in law. This would essentially involve formulation of new laws coupled withwithdrawing the old laws. The UK parliament is the single most significant entity which tends tofunction towards this cause. However, it is imperative to note that they do not work in isolationand are constantly influenced by people through various feedback system such as the pensionsystem3.In comparison, Australia also shares similar process with regards to making of law consideringcommon roots in the colonial history for both nations. Further, the law making power of thelegislature at the Federal and State level is dependent on the bifurcation of subjects between thecentre and the state. Also, there is judicial review which ensures that the law changing power iskept under check and the constitutional principles are not breached4.Rule of AdjudicationWhen there are legal regulations, then disputes also logically would arise which would require adedicated adjudication system in place. The key role in this process is played by the judiciary.However. Considering the overlapping powers of the various organs, the judicial powers were inthe past also vested in other organs such as Queen’s Bench and Privy Council. However, changesover the last couple of decades have strengthened the judiciary and they serve as the primaryinstrument of adjudication in UK5.In Australia, the constitutional provisions and doctrine of separation of power ensures that thejudiciary remains independent. Further, there is a hierarchical structure of courts which tend toexist at the state and the Federal level. Owing to administrative law, there are other mechanismsfor adjudication which have become prominent in the last five decades.Part B Question 2 3Partington Martin,Introduction to the English Legal System 2016-2017(Oxford University Press, 2016), 31-334Ibid. 2, 20-225Ibid. 1, 34-392
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