Laws20058 Australian Commercial Law PDF

LAWS20058
AUSTRALIAN
COMMERCIAL LAW
TERM 1, 2018: ASSIGNMENT - I
Student Name
[Pick the date]

PART A
Question 1(b)
The UK legal system has been selected for this task. The various aspects of the system are
discussed below in relation to Hart’s 3 part legal system.
 Rule of recognition
There needs to be recognizable sources from which law is derived so that no arbitrary authority
can become as the underlying source of law. In case of UK, in the absence of a written
constitution, there are three main sources of law which are highlighted below1.
1) Statute Law – This would refer to the laws that are formed by the Parliament through the
passing of the various legislations.
2) Common Law – This essentially refers to various principles that have been highlighted in
the historical cases and form basis of modern day judgements
3) EU Law – The UK legal system in the recent times has been influenced by the EU
(European Union) legal regulations owing to UK being recently a part of the EU which
led to the need to implement EU laws.
Thus, based on the above discussion, it is apparent that defined authorities tend to act as law
sources in UK thus complying with rule of recognition.
A comparable system is also in place in Australia in relation to the rules of recognition. There is
a high degree of overlap between the sources of law in the two countries, however a major
difference is with regards to the constitution acting as a critical law source in Australia which is
not the case in UK considering that it does not have a written constitution2. As a result, the
dependence on conventions and legislation is more in the UK context. Nevertheless, they both
comply with the Hart’s description of legal system.
 Rule of Change
1 SOAS, Source of UK Law, (n.d) https://www.soas.ac.uk/library/subjects/law/research/file70249.pdf
2 Andy Gibson, Douglas Fraser, Business Law (Pearson Publications., 8th e, 2014)
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There are defined procedures for the change in laws including the repealing of old laws. In this
regards, a noticeable aspect is the participation of people in this process through the petitions
which can lead to deliberations on change of law. Additionally, the supreme authority of change
in the UK legal system is the Parliament. Since, a written constitution does not exist, hence
theoretically Parliament has unlimited power to change various laws without any elaborate
process unlike that required in countries with written constitution3.
The above case is comparable with Australia to some extent since the Parliament in Australia
also acts at the main body responsible for changing laws along with repealing of old laws.
However, this capacity of being about change is subjected to the restriction posed by the written
constitution. In particular, the mechanism to bring about amendment in the Constitution is
comparatively more difficult.
 Rule of Adjudication
If there are laws, then in order to adjudicate on the arising disputes, there needs to be a defined
system comprising of judiciary. This is the case in UK since an elaborate system of courts does
exist. However, before the changes made in 2005, judicial power were also concentrated in the
executive and legislative which was a concern since it reflected poorly on the independence of
judiciary. But, after the Supreme Court has been set up, the adjudication powers have largely
been concentrated in the judiciary which is largely independent4.
The system in Australia is also comparable with one major difference being that separation of
powers is more pronounced in Australia and hence the adjudication functions are mostly
concentrated in the judiciary only.
Part B
Question 2
Issue
3 Suzanne Rab, Legal systems in UK (England and Wales): overview, (n.d.) https://uk.practicallaw.thomsonreuters.com/5-636-
2498?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1
4 Ibid. 2
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