BILL OF RIGHTS 1688 1 WILL AND MARY SESS 2 C 2 (ACT)

The Bill of Rights 1688 (ACT) is a domesticated territorial statute that establishes the constitutional supremacy of the legislature over the executive branch of government. Originally enacted by the Parliament of England as 1 Will and Mary sess 2 c 2, the instrument was received into New South Wales and subsequently inherited by the Australian Capital Territory. Through a series of historical and legislative transformations, the ACT Legislative Assembly converted this foundational Imperial text into an ordinary territorial enactment. Physically, the Act restricts the scope of the executive prerogative by declaring specific unilateral actions of the Crown to be unlawful.

Mechanically, the statute strips the executive of the power to bypass, suspend, or dispense with laws enacted by the legislature unless such a power is expressly authorised by an Act of Parliament. It prohibits the levying of money, taxes, or charges by pretence of the royal prerogative without a specific legislative grant. Additionally, the instrument protects the internal proceedings of the legislature from judicial or executive scrutiny, establishes the right of subjects to petition the Crown without fear of prosecution, limits the executive's capacity to maintain a standing army during peacetime, and imposes fundamental procedural constraints on the administration of justice. These legal constraints include prohibitions against excessive bail, excessive fines, and cruel and unusual punishments.

While the original 1688 text served to resolve a deep dynastic and religious struggle in seventeenth-century England, its modern manifestation in the Australian Capital Territory operates as a statutory curb on administrative overreach. It ensures that the ACT Executive cannot govern by decree or suspend the operation of territory statutes without legislative consent. By formalising these limitations, the Act secures the structural distribution of power within the territory, placing the Legislative Assembly at the apex of lawmaking authority. It serves as an auxiliary statutory shield that reinforces the rule of law, operating underneath the broader constitutional framework of the Commonwealth.

Australian Capital Territory Bill of Rights 1688 1 Will and Mary sess 2 c 2 Republication No 1 Republication date: 5 July 2002 Authorised by the ACT Parliamentary Counsel

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au About this republication The republished law This is a republication of the Bill of Rights 1688 1 Will and Mary Sess 2 c 2 as in force on 5 July 2002. It includes any commencement, repeal or expiry affecting the republished law and any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes). The legislation history and amendment history of the republished law are set out in endnotes 3 and 4. Kinds of republications The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at www.legislation.act.gov.au):  authorised republications to which the Legislation Act 2001 applies  unauthorised republications. The status of this republication appears on the bottom of each page. Editorial changes The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice. This republication includes amendments made under part 11.3 (see endnote 1). Uncommenced provisions and amendments If a provision of the republished law has not commenced or is affected by an uncommenced amendment, the symbol U appears immediately before the provision heading. The text of the uncommenced provision or amendment appears only in the last endnote. Modifications If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see Legislation Act 2001, section 95. Penalties The value of a penalty unit for an offence against this republished law at the republication date is— (a) if the person charged is an individual—$100; or (b) if the person charged is a corporation—$500.

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory ory Bill of Rights 1688 1 Will and Mary sess 2 c 2 Contents Page 1 Suspending power 5 2 Late dispensing power 5 3 Ecclesiastical courts illegal 5 4 Levying money 5 5 Right to petition 5 6 Standing army 5 7 Subjects’ arms 5 8 Freedom of election 6 9 Freedom of speech 6 10 Excessive bail 6 11 Juries 6 12 Grants of forfeiture 6 13 Frequent Parliaments 6 I Undoubted rights and liberties 6

Contents Page contents 2 Bill of Rights 1688 1 Will and Mary sess 2 c 2 R1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au II Tender of crown 7 III New oaths of allegiance 7 IV Acceptance of crown 8 V Two houses to sit 8 VI Subjects’ liberties to be allowed 9 VII William and Mary declared King and Queen 9 VIII Limitation of crown 11 IX Papists debarred the crown 11 X All Kings etc to take the declaration 12 XI King assent 13 XII Non obstantes made void 13 Endnotes 1 About the endnotes 14 2 Abbreviation key 14 3 Legislation history 15 4 Amendment history 15

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Bill of Rights 1688 1 Will and Mary sess 2 c 2 An Act declaring the rights and liberties of the subject and settling the succession of the Crown

Preamble page 2 Bill of Rights 1688 1 Will and Mary sess 2 c 2 R1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Whereas the lords spiritual and temporal and commons assembled at Westminster lawfully fully and freely representing all the estates of the people of this realm did upon the thirteenth day of February in the year of our Lord one thousand six hundred and eighty-eight present unto their Majesties then called and known by the names and style of William and Mary Prince and Princess of Orange being present in their proper persons a certain declaration in writing made by the said lords and commons in the words following: Whereas the late King James the Second by the assistance of divers evil councillors, judges and ministers employed by him did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom. 1 By assuming and exercising a power of dispensing with and suspending of laws and execution of laws without consent of Parliament. 2 By committing and prosecuting divers worthy prelates for humbly petitioning to be excused from concurring to the said assumed power. 3 By issuing and causing to be executed a commission under the great seal for erecting a court called the court of commissioners for ecclesiastical causes. 4 By levying money for and to the use of the Crown by pretence of prerogative for other time and in other manner than the same was granted by Parliament. 5 By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament and quartering soldiers contrary to law. 6 By causing several good subjects being protestants to be disarmed at the same time when papists were both armed and employed contrary to law. 7 By violating the freedom of election of members to serve in Parliament.

Preamble R1 Bill of Rights 1688 1 Will and Mary sess 2 c 2 page 3 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 8 By prosecutions in the Court of King’s Bench for matters and causes cognizable only in Parliament and by divers other arbitrary and illegal courses. 9 And whereas of late years partial, corrupt and unqualified persons have been returned and served on juries in trials and particularly divers jurors in trials for high treason which were not freeholders. 10 And excessive bail has been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects. 11 And excessive fines have been imposed; and illegal and cruel punishments inflicted. 12 And several grants and promises made of fines and forfeitures before any conviction or judgment against the persons upon whom the same were to be levied. All which are utterly and directly contrary to the known laws and statutes and freedom of this realm: And whereas the said late King James the Second having abdicated, the government and the throne being thereby vacant, his Highness the Prince of Orange (whom it has pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did (by the advice of the lords spiritual and temporal and divers principal persons of the commons) cause letters to be written to the lords spiritual and temporal being protestants and other letters to the several counties, cities, universities, boroughs and cinque ports for the choosing of such persons to represent them as were of right to be sent to Parliament to meet and sit at Westminster upon the two and twentieth day of January in this year one thousand six hundred and eighty-eight in order to such an establishment as that their religion, laws and liberties might not again be in danger of being subverted, upon which letters, elections having been accordingly made: And thereupon the said lords spiritual and temporal and commons pursuant to their respective letters and elections being now assembled in a full and

Preamble page 4 Bill of Rights 1688 1 Will and Mary sess 2 c 2 R1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au free representative of this nation taking into their most serious consideration the best means for attaining the ends aforesaid do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties, declare:

Section 1 R1 Bill of Rights 1688 1 Will and Mary sess 2 c 2 page 5 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 1 Suspending power That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal. 2 Late dispensing power That the pretended power of dispensing with laws or the execution of laws by regal authority as it has been assumed and exercised of late is illegal. 3 Ecclesiastical courts illegal That the commission for erecting the late court of commissioners for ecclesiastical causes and all other commissions and courts of like nature are illegal and pernicious. 4 Levying money That levying money for or to the use of the Crown by pretence of prerogative without grant of Parliament for longer time or in other manner than the same is or shall be granted is illegal. 5 Right to petition That it is the right of the subjects to petition the King and all commitments and prosecutions for such petitioning are illegal. 6 Standing army That the raising or keeping a standing army within the kingdom in time of peace unless it be with consent of Parliament is against law. 7 Subjects’ arms That the subjects which are protestants may have arms for their defence suitable to their conditions and as allowed by law.

Section 8 page 6 Bill of Rights 1688 1 Will and Mary sess 2 c 2 R1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 8 Freedom of election That election of members of Parliament ought to be free. 9 Freedom of speech That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. 10 Excessive bail That excessive bail ought not to be required nor excessive fines imposed nor cruel and unusual punishments inflicted. 11 Juries That jurors ought to be duly empannelled and returned. 12 Grants of forfeiture That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void. 13 Frequent Parliaments And that for redress of all grievances and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently. I Undoubted rights and liberties And they do claim, demand and insist upon all and singular the premises as their undoubted rights and liberties and that no declarations, judgments, doings or proceedings to the prejudice of the people in any of the said premises ought in any wise to be drawn hereafter into consequence or example. To which demand of their rights they are particularly encouraged by the declaration of his Highness the Prince of

Section II R1 Bill of Rights 1688 1 Will and Mary sess 2 c 2 page 7 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Orange as being the only means for obtaining a full redress and remedy therein. Having therefore an entire confidence that his said Highness the Prince of Orange will perfect the deliverance so far advanced by him and will still preserve them from the violation of their rights which they have here asserted and from all other attempts upon their religion, rights and liberties. II Tender of crown The said lords spiritual and temporal and commons assembled at Westminister do resolve that William and Mary Prince and Princess of Orange be and be declared King and Queen of England, France and Ireland and the dominions thereunto belonging to hold the crown and royal dignity of the said kingdoms and dominions to them the said prince and princess during their lives and the life of the survivor of them. And that the sole and full exercise of the regal power be only in and executed by the said Prince of Orange in the names of the said prince and princess during their joint lives and after their deceases the said crown and royal dignity of the said kingdoms and dominions to be to the heirs of the body of the said princess and for default of such issue to the Princess Anne of Denmark and the heirs of her body and for default of such issue to the heirs of the body of the said Prince of Orange. And the lords spiritual and temporal and commons do pray the said prince and princess to accept the same accordingly. III New oaths of allegiance And that the oaths hereafter mentioned be taken by all persons to whom the oaths of allegiance and supremacy might be required by law instead of them and that the said oaths of allegiance and supremacy be abrogated.

Section IV page 8 Bill of Rights 1688 1 Will and Mary sess 2 c 2 R1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au I, A B, do sincerely promise and swear that I will be faithful and bear true allegiance to their Majesties King William and Queen Mary. So help me God. I, A B, do swear that I do from my heart abhor, detest and abjure as impious and heretical this damnable doctrine and position that princes excommunicated or deprived by the Pope or any authority of the see of Rome may be deposed or murdered by their subjects or any other whatsoever. And I do declare that no foreign prince, person, prelate, state or potentate has or ought to have any jurisdiction, power, superiority, pre-eminence or authority, ecclesiastical or spiritual, within this realm. So help me God. IV Acceptance of crown Upon which their said Majesties did accept the crown and royal dignities of the kingdoms of England, France and Ireland and the dominions thereunto belonging according to the resolution and desire of the said lords and commons contained in the said declaration. V Two houses to sit And thereupon their Majesties were pleased that the said lords spiritual and temporal and commons being the two Houses of Parliament should continue to sit and with their Majesties’ royal concurrence make effectual provision for the settlement of the religion, laws and liberties of this kingdom so that the same for the future might not be in danger again of being subverted, to which the said lords spiritual and temporal and commons did agree and proceed to act accordingly.

Section VI R1 Bill of Rights 1688 1 Will and Mary sess 2 c 2 page 9 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au VI Subjects’ liberties to be allowed Now in pursuance of the premises the said lords spiritual and temporal and commons in Parliament assembled for the ratifying, confirming and establishing the said declaration and the articles, clauses, matters and things therein contained by the force of a law made in due form by authority of Parliament do pray that it may be declared and enacted that all and singular the rights and liberties asserted and claimed in the said declaration are the true, ancient and indubitable rights and liberties of the people of this kingdom and so shall be esteemed, allowed, adjudged, deemed and taken to be and that all and every the particulars aforesaid shall be firmly and strictly holden and observed as they are expressed in the said declaration. And all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all times to come. VII William and Mary declared King and Queen And the said lords spiritual and temporal and commons seriously considering how it hath pleased Almighty God in his marvellous providence and merciful goodness to this nation to provide and preserve their said Majesties’ royal persons most happily to reign over us upon the throne of their ancestors for which they render unto him from the bottom of their hearts their humblest thanks and praises do truly, firmly, assuredly and in the sincerity of their hearts think and do hereby recognise, acknowledge and declare that King James the Second having abdicated the government and their Majesties having accepted the crown and royal dignity as aforesaid their said Majesties did become, were, are and of right ought to be by the laws of this realm our sovereign liege lord and lady King and Queen of England, France and Ireland and the dominions thereunto belonging in and to whose princely persons the royal state crown and dignity of the said realms with all honours, styles, titles, regularities, prerogatives, powers, jurisdictions and

Section VIII page 10 Bill of Rights 1688 1 Will and Mary sess 2 c 2 R1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au authorities to the same belonging and appertaining are most fully and rightfully and entirely invested and incorporated, united and annexed.

Section VIII R1 Bill of Rights 1688 1 Will and Mary sess 2 c 2 page 11 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au VIII Limitation of crown And for preventing all questions and divisions in this realm by reason of any pretended titles to the crown and for preserving a certainty in the succession thereof in and upon which the unity, peace, tranquillity and safety of this nation doth under God wholly consist and depend the said lords spiritual and temporal and commons do beseech their Majesties that it may be enacted, established and declared that the crown and regal government of the said kingdoms and dominions with all and singular the premises thereunto belonging and appertaining shall be and continue to their said Majesties and the survivor of them during their lives and the life of the survivor of them and that the entire, perfect and full exercise of the regal power and government be only in and executed by his Majesty in the names of both their Majesties during their joint lives and after their deceases the said crown and premises shall be and remain to the heirs of the body of her Majesty and for default of such issue to her royal Highness the Princess Anne of Denmark and the heirs of her body and for default of such issue to the heirs of the body of his said Majesty. And thereunto the said lords spiritual and temporal and commons do in the name of all the people aforesaid most humbly and faithfully submit themselves, their heirs and posterities for ever and do faithfully promise that they will stand to maintain and defend their said Majesties and also the limitation and succession of the crown herein specified and contained to the utmost of their powers with their lives and estates against all persons whatsoever that shall attempt any thing to the contrary. IX Papists debarred the crown And whereas it has been found by experience that it is inconsistent with the safety and welfare of this protestant kingdom to be governed by a popish prince or by any King or Queen marrying a papist the said lords spiritual and temporal

Section X page 12 Bill of Rights 1688 1 Will and Mary sess 2 c 2 R1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au and commons do further pray that it may be enacted that all and every person and persons that is, are or shall be reconciled to or shall hold communion with the see or church of Rome and shall profess the popish religion or shall marry a papist shall be excluded and be for ever incapable to inherit, possess or enjoy the crown and government of this realm and Ireland and the dominions thereunto belonging or any part of the same or to have, use or exercise any regal power, authority or jurisdiction within the same. And in all and every such case or cases the people of these realms shall be and are hereby absolved of their allegiance and the said crown and government shall from time to time descend to and be enjoyed by such person or persons being protestants as should have inherited and enjoyed the same in case the said person or persons so reconciled, holding communion or professing or marrying as aforesaid were naturally dead. X All Kings etc to take the declaration And that every King and Queen of this realm who at any time hereafter shall come to and succeed in the imperial crown of this kingdom shall on the first day of the meeting of the first Parliament next after his or her coming to the crown sitting in his or her throne in the House of Peers in the presence of the lords and commons therein assembled or at his or her coronation before such person or persons who shall administer the coronation oath to him or her at the time of his or her taking the said oath (which shall first happen) make, subscribe and audibly repeat the declaration required by law. But if it shall happen that such King or Queen upon his or her succession to the crown of this realm shall be under the age of twelve years then every such King or Queen shall make, subscribe and audibly repeat the said declaration at his or her coronation or the first day of the meeting of the first Parliament as aforesaid which shall first happen after such King or Queen shall have attained the said age of twelve years.

Section XI R1 Bill of Rights 1688 1 Will and Mary sess 2 c 2 page 13 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au XI King assent All which their Majesties are contented and pleased shall be declared, enacted and established by authority of this present Parliament and shall stand, remain and be the law of this realm for ever. And the same are by their said Majesties by and with the advice and consent of the lords spiritual and temporal and commons in Parliament assembled and by the authority of the same declared, enacted and established accordingly. XII Non obstantes made void No dispensation by non obstante of or to any statute or any part thereof shall be allowed but the same shall be held void and of no effect except a dispensation be allowed of in such statute.

Endnotes 1 About the endnotes page 14 Bill of Rights 1688 1 Will and Mary sess 2 c 2 R1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Endnotes 1 About the endnotes Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes. Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office. Uncommenced amending laws and expiries are listed in the legislation history and the amendment history. These details are underlined. Uncommenced provisions and amendments are not included in the republished law but are set out in the last endnote. If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering. The endnotes also include a table of earlier republications. If the republished law includes penalties, current information about penalty unit values appears on the republication inside front cover. 2 Abbreviation key am = amended ord = ordinance amdt = amendment orig = original ch = chapter p = page cl = clause par = paragraph def = definition pres = present dict = dictionary prev = previous disallowed = disallowed by the Legislative (prev...) = previously Assembly prov = provision div = division pt = part exp = expires/expired r = rule/subrule Gaz = Gazette reg = regulation/subregulation hdg = heading renum = renumbered IA = Interpretation Act 1967 reloc = relocated ins = inserted/added R[X] = Republication No LA = Legislation Act 2001 s = section/subsection LR = legislation register sch = schedule LRA = Legislation (Republication) Act 1996 sdiv = subdivision mod = modified / modification sub = substituted No = number SL = Subordinate Law num = numbered underlining = whole or part not commenced o = order or to be expired om = omitted/repealed

Endnotes Legislation history 3 R1 Bill of Rights 1688 1 Will and Mary sess 2 c 2 page 15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 3 Legislation history This Act was originally a UK Act—The Bill of Rights 1688 1 Will and Mary sess 2 c 2 (UK). The Act was renamed as the Bill of Rights 1688 when it was first republished under the Legislation Act 2001. The Act was in force in NSW immediately before 1 January 1911 (the date of establishment of the ACT) and was continued in force by the Seat of Government Acceptance Act 1909 (Cwlth), s 6. Under the Seat of Government (Administration) Act 1910 (Cwlth), s 4 the Act had effect in the ACT as if it were an ACT law (subject to ordinances made under the Seat of Government (Administration) Act 1910). The Australian Capital Territory (Self-Government) Act 1988 (Cwlth), s 34 (4) converted most former UK laws in force in the ACT into ACT enactments. This allowed the ACT Legislative Assembly to amend and repeal the laws. This Act was converted into an ACT enactment on 11 May 1989 (self-government day). Under the Interpretation Act 1967 (repealed), s 65 all former UK Acts in force in the ACT immediately before 10 November 1999 (including this Act) became, for all purposes, laws made by the ACT Legislative Assembly. This completed the process of making former UK Acts fully into ACT laws. Bill of Rights 1688 1 Will and Mary sess 2 c 2 as amended by Imperial Acts Application Act 1986 A1986-93 s 5 and sch 3 pt 11 notified 12 January 1987 (Cwlth Gaz 1986 No S1) s 5 and sch 3 pt 11 commenced 12 January 1987 ( s 2 (1)) 4 Amendment history The Imperial Acts Application Act 1986 (the 1986 Act), sch 3, pt 11 set out the text of this Act in an amended form and provided for the amended form to apply as the text of the Act in force in the ACT (see 1986 Act, s 5 (1), (4) and (5)). The division of this Act into numbered paragraphs is in accordance with the text in Statutes at Large. Section 11 was impliedly amended by 9 Geo 4 c 50, section 62 which repealed the parts of section 11 declaring that jurors who pass on men in trials for high treason ought to be freeholders. The text of section 11 was amended accordingly by the 1986 Act.

Endnotes 4 Amendment history page 16 Bill of Rights 1688 1 Will and Mary sess 2 c 2 R1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Section X required the declaration mentioned in it be taken in accordance with 30 Chas 2 St 2 c 1. That Act was repealed in the UK by 29 and 30 Vic c 19. The declaration to be taken by the Sovereign is now prescribed by the Accession Declaration Act 1910 (UK). Section X was amended by the 1986 Act to reflect these changes in the law of the United Kingdom. The parts of section XII whose operation was exhausted before 25 July 1828 were omitted by the 1986 Act. Section XIII was omitted by the 1986 Act because its operation was exhausted before 25 July 1828. This Act has not been amended since the enactment of the 1986 Act, except under the Legislation Act 2001. Name of Act am R1 LA

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au © Australian Capital Territory 2002

Australian Capital Territory Bill of Rights 1688 1 Will and Mary sess 2 c 2 Republication No 1 Republication date: 5 July 2002 Authorised by the ACT Parliamentary Counsel

The primary legal concept underpinning the Bill of Rights 1688 is the absolute supremacy of the legislature over the executive power of the state. This is primarily expressed through the invalidation of the suspending and dispensing powers. The suspending power refers to the executive's asserted authority to declare a law inoperative or to pause its execution generally. The dispensing power refers to the executive's asserted authority to grant an exemption to a specific individual or class from the operation of a valid law. By declaring both powers illegal, the Act establishes that the executive is entirely subordinate to the laws enacted by parliament and possesses no inherent authority to alter, ignore, or waive statutory obligations.

A second core concept is the absolute autonomy of parliamentary proceedings, commonly referred to as parliamentary privilege. Section 1 Article 9 states that the freedom of speech, debates, or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament. This concept establishes a jurisdictional boundary between the legislature and the judiciary. It ensures that members of the legislature can debate, investigate, and vote without fear of civil or criminal liability, and prevents the courts from reviewing the internal procedures or speech of the legislature. This immunity is designed to preserve the independence of the democratic process from judicial or executive interference.

A third concept is the restriction of the executive's fiscal prerogative. Under Section 1 Article 4, the levying of money for the use of the Crown by pretence of prerogative, without a grant of parliament, is declared illegal. This concept establishes that all public revenue collection must have a clear, statutory basis. The executive cannot invent administrative fees, charges, or levies that functionally operate as taxes without explicit legislative authorisation.

Finally, the Act introduces the concept of protection against judicial and penal excess. It mandates that bail must not be excessive, fines must not be disproportionate, and punishments must not be cruel and unusual. These concepts serve as a structural constraint on the judicial branch, preventing the state from using its punitive machinery to crush political opponents or enforce arbitrary executive wills through oppressive legal processes.

The Bill of Rights 1688 directly affects the ACT Executive, including ministers, public servants, and statutory authorities. By stripping the executive of any inherent power to suspend or dispense with laws, the Act restricts the administrative flexibility of the bureaucracy. Public servants cannot informally waive statutory requirements or decline to enforce legislated duties unless the enabling Act explicitly provides for such discretion. Any attempt by an administrative agency to create de facto exemptions or to suspend the enforcement of a statutory scheme without clear legislative backing is vulnerable to being declared unlawful under the principles preserved by this Act.

The instrument also directly affects the members and officers of the ACT Legislative Assembly. It provides them with absolute privilege regarding statements made and actions taken during parliamentary proceedings. This protection extends to witnesses giving evidence before parliamentary committees, ensuring they cannot be sued for defamation or subjected to adverse legal consequences in court based on their testimony. Conversely, this privilege restricts the rights of private litigants, who are prevented from using parliamentary speeches or committee reports as a basis for civil claims or using them in court to impeach the credibility of witnesses.

Judges, magistrates, and the legal profession are also affected by the statute. The prohibitions on excessive bail and cruel and unusual punishments serve as guiding principles in criminal proceedings. Judicial officers must calibrate bail conditions and criminal sentences to avoid violating these statutory prohibitions, which inform the interpretation of modern bail and sentencing legislation in the territory.

Finally, the Act affects private citizens, albeit in an asymmetrical and historically dated manner. While it purports to protect the right of subjects to petition the sovereign and, historically, allowed Protestant subjects to carry arms for their defence suitable to their conditions and as allowed by law, these rights are heavily qualified. The practical utility of these rights for modern citizens is limited by subsequent statutory interventions, particularly modern firearms legislation, which almost entirely overrides the historical right to bear arms.

The Bill of Rights 1688 establishes a series of negative duties on the executive and corresponding rights for the legislature and the public. The primary duty imposed on the executive is the obligation to execute the laws as enacted by the legislature. Ministers and departments are legally barred from suspending the operation of any statute or dispensing with its application to individuals without parliamentary approval. Additionally, the executive is under a strict duty not to levy any form of taxation, fee, or charge under the guise of administrative prerogative unless specifically empowered by an Act of parliament.

The legislature enjoys the right of absolute freedom of speech and debate. This right is absolute and cannot be curtailed by the executive, the courts, or private citizens. It includes the right of the Legislative Assembly to control its own internal proceedings and to publish reports without fear of civil action. Associated with this is the constitutional right to hold frequent parliaments, although the specific clause regarding frequent parliaments was omitted in the 1986 ACT consolidation because its historical purpose was deemed exhausted by modern statutory frameworks governing parliamentary sittings.

For private individuals, the Act explicitly recognises the right to petition the government without fear of prosecution or commitment. This historic right ensures that citizens can lobby, protest, and present grievances to their elected representatives and the executive without facing criminal charges for doing so.

The Act also contains a qualified right for Protestant subjects to possess arms for their defence. However, this right is explicitly limited by two internal conditions: it must be "suitable to their conditions" and "as allowed by law." In the modern ACT legal landscape, this right has been thoroughly hollowed out by restrictive firearms legislation. Because the right is explicitly contingent on what is "allowed by law," the Legislative Assembly retains the absolute power to regulate, restrict, or prohibit the possession of weapons, rendering the historical right practically inert.

Unlike modern regulatory statutes, the Bill of Rights 1688 does not contain a structured schedule of administrative offences, compliance notices, or criminal penalties. It is primarily a constitutional document that defines the boundaries of lawful authority. The enforcement of the Act occurs not through prosecutorial action initiated by regulatory agencies, but through judicial review, constitutional litigation, and collateral challenges in civil and criminal proceedings.

If the executive attempts to exercise a suspending or dispensing power, or tries to levy a charge without statutory authority, the remedy is an application to the Supreme Court of the Australian Capital Territory for judicial review. Litigators can seek declarations that the executive's actions are ultra vires, illegal, and void. For example, if an administrative agency attempts to impose an unauthorised fee, a court will declare the fee invalid and order the restitution of any monies collected under the void prerogative claim.

Similarly, under Section 1 Article 12, all grants and promises of fines and forfeitures of particular persons before conviction are declared illegal and void. This is enforced by criminal defendants who can challenge pre-conviction asset seizures or executive promises of forfeiture that bypass the judicial process.

The republication note on the inside cover of the 2002 ACT republication mentions a penalty unit value: $100 for individuals and $500 for corporations. This is a standard administrative inclusion required by the Legislation Act 2001 for all republished territory laws that contain offences. However, because the substantive text of the Bill of Rights 1688 itself does not contain modern penal provisions or create explicit offences carrying penalty units, these statutory values are of no practical relevance to the enforcement of the substantive constitutional clauses of the Act. Enforcement remains entirely within the realm of public law remedies, such as injunctions, declarations, and writs of prohibition.

The Bill of Rights 1688 occupies a unique place in the statutory hierarchy of the Australian Capital Territory. Because the ACT is a self-governing territory, its legislature operates under the Australian Capital Territory (Self-Government) Act 1988 (Cth), which is a Commonwealth statute. The Bill of Rights 1688 was converted into an ordinary ACT enactment on 11 May 1989 pursuant to section 34(4) of that Commonwealth Act, and later consolidated by the Interpretation Act 1967. Consequently, the Bill of Rights 1688 does not possess constitutional entrenchment in the ACT. It has the status of an ordinary Act of the Legislative Assembly and can be amended, overridden, or repealed by any subsequent inconsistent ACT statute, provided the assembly uses clear and unambiguous language.

The Act interacts closely with the Human Rights Act 2004 (ACT). The Human Rights Act is a modern, positive charter of rights that protects a broad range of civil and political rights, including the right to a fair trial, freedom of expression, and protection from torture or cruel, inhuman, or degrading treatment. The Bill of Rights 1688 operates in parallel with this modern charter. For instance, the prohibition on cruel and unusual punishments in Article 10 of the 1688 Act overlaps with section 10 of the Human Rights Act 2004. Where inconsistencies or interpretive questions arise, modern courts will generally look to the Human Rights Act 2004 as the primary statutory vehicle, but the 1688 Act remains a vital source of historical common law principles.

The Act also interacts with modern firearms legislation, specifically the Firearms Act 1996 (ACT). Article 7 of the Bill of Rights 1688, which refers to the right of Protestants to have arms, is completely subordinated to the modern firearms licensing regime. Because the 1688 Act itself qualifies the right as being "as allowed by law," there is no conflict. The modern licensing requirements and prohibitions are fully consistent with the historical text, as they constitute the "law" that defines and limits the right.

The legislative history of the Bill of Rights 1688 in the ACT is characterized by its transition from an English imperial statute to a received law of New South Wales, and finally to a domesticated territory enactment. The Act was originally passed by the English Parliament in 1689 as 1 Will and Mary sess 2 c 2. Upon the colonization of Australia, the English law was received into New South Wales pursuant to the Australian Courts Act 1828 (UK).

When the Australian Capital Territory was established on 1 January 1911, the Seat of Government Acceptance Act 1909 (Cth) s 6 continued in force all New South Wales laws that were active immediately prior to the transfer. This included the received Imperial statutes. Under the Seat of Government (Administration) Act 1910 (Cth) s 4, these received laws were given effect as if they were ACT laws, subject to any local ordinances.

The first major consolidation occurred via the Imperial Acts Application Act 1986 (ACT) s 5 and Schedule 3 Part 11. The 1986 Act set out the text of the Bill of Rights 1688 in an amended, modernized form, stripping out redundant or spent provisions. For example, Section 11 of the original Act, which required that jurors in high treason trials be freeholders, was amended to reflect the repeal of that requirement by historical UK statutes.

Furthermore, Section XIII of the original Act, which mandated frequent Parliaments, was omitted in the 1986 consolidation because its constitutional work had been exhausted. Section X was also amended to update the references to the Coronation Oath and the declarations required of the Sovereign, reflecting changes introduced by the Accession Declaration Act 1910 (UK).

On self-government day, 11 May 1989, the Australian Capital Territory (Self-Government) Act 1988 (Cth) s 34(4) converted the Bill of Rights 1688 into an ACT enactment, allowing the local Legislative Assembly to amend or repeal it. Finally, the process was completed by the Interpretation Act 1967 s 65, which transformed all former UK Acts in force in the territory into laws made by the ACT Legislative Assembly. The 2002 republication represents the text as refined by these historical consolidations.

The litigation history of the Bill of Rights 1688 in Australia focuses heavily on Article 9, which protects the freedom of speech and proceedings in Parliament. This clause is frequently invoked in defamation actions, royal commissions, and criminal trials where litigants seek to introduce evidence of statements made within the legislature or before parliamentary committees.

Australian courts have consistently interpreted Article 9 broadly to protect the integrity of the legislative process. In cases involving defamation, courts have held that statements made by members of parliament within the chamber are absolutely privileged and cannot form the basis of a civil action. Furthermore, the courts have strictly enforced the prohibition against "impeaching or questioning" such proceedings in any place outside of parliament. This means that parties to litigation cannot cross-examine a witness or a politician in court using their parliamentary speeches to prove they lied, are inconsistent, or acted in bad faith. The sole venue for holding a member accountable for their parliamentary speech is the parliament itself.

Article 10, which prohibits excessive bail, excessive fines, and cruel and unusual punishments, has also been litigated, though with less dramatic impact than its equivalent in the United States Constitution (the Eighth Amendment). In the Australian context, courts have treated Article 10 as an interpretive principle rather than a hard constitutional barrier to mandatory sentencing laws or strict bail conditions.

Because the ACT Legislative Assembly is not constitutionally restricted by the Bill of Rights 1688, courts have routinely held that subsequent, unambiguous territorial legislation can override the protections of Article 10. Consequently, while litigators frequently raise Article 10 to challenge harsh sentencing laws or restrictive bail provisions, courts generally look to the terms of the specific modern statute, applying a strong presumption against cruel or unusual outcomes unless the legislature has explicitly mandated them.

The most significant legal trap, or gotcha, in the Bill of Rights 1688 (ACT) is the illusion of robust, enforceable human rights. Because of its famous name, non-specialists often assume that the Act serves as a supreme constitutional charter of rights similar to the United States Bill of Rights. In reality, because the Act is an ordinary territorial enactment, it offers no constitutional protection against subsequent legislation. The ACT Legislative Assembly can override any right contained in the 1688 Act simply by passing a new law with clear, inconsistent terms.

A second major trap lies in the sectarian and highly outdated language that remains on the face of the statute. Sections IX and X contain explicitly discriminatory provisions that bar Catholics (referred to as "papists") from inheriting or possessing the Crown, marrying a Catholic, or exercising any regal power, and absolve the people of their allegiance in such events.

In a modern, multicultural, and anti-discriminatory legal system, the retention of this sectarian language in an active republication is anachronistic. While these provisions are functionally inert in the ACT due to the operation of Commonwealth laws, anti-discrimination statutes, and the broader constitutional separation of Australia from British domestic religious settlements, their continued presence in the ACT statute book can confuse researchers and litigants who are unaware of how these clauses are legally overridden or rendered obsolete.

Another gotcha is the narrow scope of the freedom of speech protected by Article 9. This right does not protect the general freedom of speech of citizens. It is strictly limited to "proceedings in Parliament." Private citizens who believe the Act guarantees them a broad right to express opinions or petition without consequence in their workplaces or public spaces will find no legal remedy under this statute.

Additionally, the right to bear arms in Article 7 is a legal dead end. The inclusion of the phrases "suitable to their conditions" and "as allowed by law" means that any modern gun control law passed by the ACT is automatically valid under the terms of the Bill of Rights itself, making any appeal to this historical right useless in court.

Compliance with the Bill of Rights 1688 in the ACT is primarily an issue for government agencies, parliamentary drafters, and judicial officers rather than private corporations or individual citizens.

To ensure compliance, the ACT Executive and the public service must avoid any action that resembles the suspending or dispensing of laws. When administering statutory schemes, public servants must strictly adhere to the terms of the legislation. If an Act requires a license, a public servant cannot informally exempt a favoured business from that requirement unless the Act itself contains an explicit power to do so. Administrative policies and guidelines must be carefully drafted so they do not inadvertently suspend the operation of a mandatory statutory provision, as this would constitute an illegal exercise of the suspending power.

Drafters of administrative fees and charges must also exercise caution to comply with Article 4. Any new fee, levy, or charge imposed by a government department must have a clear statutory basis. The executive cannot rely on general, inherent administrative powers to generate revenue. To ensure compliance, any proposed regulation that introduces a fee must be mapped back to an enabling provision in a primary Act that clearly authorises the collection of that specific type of levy.

For judicial officers and prosecutors, compliance with Article 10 requires a careful calibration of bail and sentencing options. When opposing bail, prosecutors must ensure they do not demand financial sureties or conditions that are so onerous they effectively amount to a de facto denial of bail, as this would violate the prohibition against excessive bail.

Finally, members of the legal profession must respect parliamentary privilege when advising clients who are involved in disputes with politicians or who wish to use parliamentary material in court. Litigators must ensure that their statement of claim and evidence do not rely on statements made in the Legislative Assembly, as any attempt to bring such proceedings before a court will result in the action being struck out or dismissed for breaching Article 9.

BILL OF RIGHTS 1688 1 WILL AND MARY SESS 2 C 2

Plain English Summary

Deep Dive

What it does

Current sections

BILL OF RIGHTS 1688 1 WILL AND MARY SESS 2 C 2

Source text: opening excerpt

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply