Australia's legal system: parliament, courts & customary law

Australian law comes from two main sources: statutory law, made by parliaments passing legislation (Acts), and common law, developed by courts through judicial decisions and precedent (following earlier similar rulings). The law itself is broadly divided into criminal law (offences against the state or public, like theft or assault, prosecuted by the state) and civil law (disputes between individuals or organisations, like contract or property disputes, resolved through compensation rather than punishment). Alongside these introduced legal systems, First Nations Australian customary law — traditional systems of law, obligation and dispute resolution developed and practised by Aboriginal and Torres Strait Islander peoples over tens of thousands of years — continues to hold significance within many communities, existing alongside the introduced Australian legal system.

Key terms

Statutory law:

Law made by parliament passing legislation.

Common law:

Law developed by courts through judicial decisions and precedent.

Questions

1. 1. Statutory law is:

   • Law made by parliament passing legislation
   • Only law made by courts
   • Law with no formal process at all
   • A type of customary law exclusively

2. 2. Common law is developed through:

   • Court decisions and precedent
   • Only parliament voting
   • Random selection
   • A process with no connection to courts

3. 3. Criminal law deals with:

   • Offences against the state or public
   • Only disputes between two individuals
   • Nothing related to offences
   • Only civil compensation

4. 4. Civil law typically resolves disputes through:

   • Compensation rather than punishment
   • Only imprisonment
   • No resolution process at all
   • Only criminal prosecution

5. 5. First Nations customary law was developed over:

   • Tens of thousands of years
   • Only the last few decades
   • A single year
   • No development process at all

6. 6. Customary law continues to:

   • Hold significance within many First Nations communities
   • Have no relevance to anyone today
   • Only exist in history books
   • Replace all of Australian statutory law

7. 7. A contract dispute between two businesses would typically be resolved under:

   • Civil law
   • Criminal law
   • No legal system at all
   • Only customary law

8. 8. Why might a new law being passed by parliament (statutory law) differ in process from a legal principle established by a court ruling (common law)?

   • Statutory law is created through a formal legislative vote, while common law develops gradually through judicial interpretation of cases over time
   • Statutory law and common law are created through an identical process
   • Courts and parliament have no distinct roles in creating Australian law
   • Common law is created exclusively through parliamentary votes

9. 9. Why is theft prosecuted as a criminal matter rather than resolved purely through civil compensation?

   • It is considered an offence against public order and safety, not just a private dispute between individuals
   • Theft is always treated exactly the same as a private contract dispute
   • Criminal and civil law have no meaningful distinction in Australia
   • All legal disputes in Australia are automatically classified as civil matters

10. 10. Why might precedent (following earlier similar court rulings) be an important principle in how common law develops?

    • It provides consistency and predictability, so similar cases are treated in a similar way over time
    • Precedent has no influence on how courts decide cases
    • Every court case is decided with no reference to any past ruling
    • Following precedent always prevents the law from ever developing further

11. 11. Why does First Nations customary law existing "alongside" the introduced Australian legal system matter for understanding Australia's legal landscape?

    • It reflects that multiple distinct legal traditions continue to hold meaning and function within Australian society, not just a single introduced system
    • Only one single legal system has ever existed or operated in Australia
    • Customary law has no ongoing role or relevance in modern Australia
    • The introduced Australian legal system has fully replaced all other legal traditions

12. 12. Why might a civil case (like a property dispute) result in compensation rather than a criminal penalty like imprisonment?

    • Civil law aims to resolve disputes and address harm between parties, rather than punish an offence against the broader public
    • Civil and criminal law always use exactly the same penalties and processes
    • Compensation is never used to resolve any type of Australian legal dispute
    • Property disputes are always automatically treated as serious criminal matters

13. 13. Why might understanding both statutory and common law be necessary to fully understand how a specific area of Australian law actually works in practice?

    • Legislation sets out rules, while court interpretation and precedent often shape exactly how those rules are applied in real situations
    • Only statutory law has any real influence on legal outcomes in Australia
    • Common law and statutory law never interact or influence each other
    • Understanding just one of these two law-making sources is always fully sufficient

14. 14. Why might recognising First Nations customary law be an important step toward a more complete and respectful understanding of law in Australia?

    • It acknowledges a legal tradition that predates and continues alongside the introduced system, reflecting the diversity of law and culture in Australia
    • Only the introduced Australian legal system deserves any recognition or study
    • First Nations customary law has no connection to broader Australian legal understanding
    • Recognising multiple legal traditions makes understanding Australian law less accurate

15. 15. Why might a court sometimes need to interpret how an existing statutory law applies to a completely new, previously unforeseen situation?

    • Legislation can't anticipate every possible future scenario, so courts often need to apply and interpret its intent to new circumstances
    • Statutory laws are always written to cover absolutely every possible future situation
    • Courts have no role in interpreting how existing legislation applies to new cases
    • New or unforeseen situations never require any legal interpretation

16. 16. Why might tension sometimes arise between applying a single, uniform national statutory law and respecting the specific practices of customary law within certain communities?

    • Balancing a consistent national legal framework with recognition of distinct cultural and legal traditions can raise genuine, complex questions
    • No tension or complexity has ever existed between these two legal systems
    • Statutory law and customary law have always aligned perfectly with no need for balancing
    • This question has no real relevance to how Australian law actually operates

17. 17. Why might common law's reliance on precedent sometimes make legal change slower than statutory law passed directly by parliament?

    • Common law typically evolves gradually through accumulated case rulings, while parliament can enact significant statutory change more quickly through legislation
    • Common law and statutory law always change at exactly the same speed
    • Precedent has no influence on the pace of legal change in common law
    • Parliament has no ability to pass legislation more quickly than courts can rule on cases

18. 18. Why might understanding the distinction between criminal and civil law help someone correctly interpret a news report about a legal case?

    • It clarifies whether a case involves state prosecution and potential punishment, or a private dispute seeking compensation — which shapes what outcome is actually possible
    • Criminal and civil law always produce identical possible outcomes for any legal case
    • This distinction has no bearing on understanding any legal news report
    • Every legal case reported in the news is automatically a criminal matter

19. 19. Why might the ongoing practice of First Nations customary law today be considered an example of a living, not purely historical, legal tradition?

    • It continues to be actively practised and holds real significance in guiding relationships and obligations within many communities today
    • Customary law existed only in the past and has no connection to modern First Nations communities
    • A "living" legal tradition can only ever refer to the introduced Australian legal system
    • Customary law has had no ongoing practice or significance since colonisation

20. 20. A court case establishes a new legal precedent about online privacy that parliament had not yet addressed through legislation. Why does this illustrate the distinct, complementary roles of courts and parliament in Australian law?

    • It shows courts can develop the common law to address new situations legislation hasn't yet covered, while parliament can later choose to codify or adjust that principle through statute
    • Courts and parliament always perform identical functions with no meaningful distinction
    • Only parliament can ever establish new legal principles in Australia
    • This scenario shows courts overstepping into a role that belongs exclusively to parliament

21. 21. Understanding Australia's legal system mainly helps you to:

    • Recognise how statutory law, common law and customary law each shape and contribute to law in Australia
    • Assume Australia has only ever had a single, uniform legal system
    • Ignore the distinction between criminal and civil law
    • Treat customary law as having no connection to modern Australian society