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LAWS20058 Australian Commercial Law

Added on - 24 Feb 2020

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Running Head: Law1Law
Law2Part AAs per the proposal given by the legal philosopher Herbert Hart, there are almost threetypes of secondary rules which are required by under legal system to enforce the rules of law:Rule of recognition- this rule is developed for the purpose of preventing the uncertaintyrelated to meaning of law. In other words, these rules provide certain meaning of the law. Theserules also state the procedure how other rules get the authority, which means it determine thevalidity of other rules. This can be understood through example, enactment by Parliament orjudicial precedent or customary practice.Therefore, it becomes necessary for tribe to develop rules of recognition for the purposeof providing the clear view of the laws stated in the constitution, and it also help the other 20families to understand the certain meaning of the law.Rules of Change- for the purpose of amending the static nature of primary rules, itbecomes necessary for legal system to develop the rules of change. These rules state the methodrelated to make changes in the primary rules, which means how these rules can be replaced,added or deleted. It must be noted that rules of recognition can also state the procedure formaking the changes. Therefore, while introducing and enforcing the rules, tribe must state theprovisions related to the rules of change for the purpose of ensuring that primary rules are notabsolute in nature and it can be changed as per the circumstances and need. These rules are alsonecessary for prepare the followers to adopt the changes.Rules of Adjudication- there rules are considered as most important rules by Hartbecause these rules are developed for the purpose of providing remedy in case of inefficiency on
Law3the part of the social pressure. These rules gives power to the authorities for the purpose ofdetermining whether primary rules have been broken, and it also provides procedure for seekingadjudication if these rules are broken. For enforcing the primary rules and ensuring that primaryrules are followed, it is necessary that rules of Adjudication are followed and recognized at bothindividual and official level. Therefore, for enforcing the laws it is necessary to consider rules ofadjudication.After considered above stated rules, tribes ensured that these laws can be easilyintroduced and enforced among these 20 new families.Part BAccording to Hart, constitution of the Australia states the secondary rules. In Australia,conventions are also applied because legal system of the Australia is completely based on theEnglish System.Australian legal system mainly included two features that are adversarial andInquisitorial. These features are stated below (Hot Topics, 207):The most important feature of Australian legal system is that it is adversarial in nature,which means any issue between two parties related to any case are put forward by the legalrepresentative for the purpose of getting decision by independent decision maker that is Court orTribunal. The main aim of this decision maker is to hear the argument of both side parties andthen apply the law. Decision maker does not conduct any investigation, and this feature of theAustralian legal system is adopted from theBritish common law system.On the other hand, inquisitorial system is completely different from the adversarialsystem, and this system is operated in some other countries also such as in European Countries.
Law4Under this system decision maker play very important and broader role. This can be understoodthrough example, such as decision maker has power to questioning the witnesses, they havepower to determine the type and admissibility of the evidence, and they have power to conductthe investigation also. However, from last 30 years concept of this system is adopted by theAustralian legal system also, especially in the area of antidiscrimination law because in this areamatter is investigated by the independent body before bringing the parties to the dispute together.It must be noted that, at both state and territory level tribunal is the body which is considered asthe decision-making body for issues related to the discrimination. Investigation conducted bydecision making body is relevant before the presentation made by the party (Law Teacher, n.d.).Under Australian Legal system, Court applied common law for the purpose of solving thedispute between the parties, unless common law does not conflict with the statutory law.Statutory law is the law which is made by the parliament, and this can be Federal parliament orthe parliament of a State or Territory. Laws made by parliament are introduced as bills and thesebills are passed by the two houses of the parliament. These two houses approved the bills thensuch it becomes the Acts. These Acts are signed by the Governor-General on behalf of our Headof the State, the Queen.The other type of law is common law which is applied by the Court for solving the issues.Common law in Australia is based on the British Common law. This law is developed by theCourt on the base of precedents.It must be noted that, statutory law always prevail common law. In other words, if any actwas passed by the parliament which contradicts the common law then in such case common law
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