CRIMINAL AND CIVIL JUSTICE ACT 1351 25 EDW 3 ST 5 C 4

The statute contains a small set of interlocking concepts expressed in historic language. Each concept is stated in the operative text and amplified by the republication endnotes:

• Lawful presentment and indictment as prerequisite to detention or deprivation. The text requires that no person be "taken by petition or suggestion" unless there is "indictment or presentment of good and lawful people of the same neighbourhood" or "process made by writ original at the common law". The statute therefore ties lawful state coercion to either a community-derived accusation in the form of indictment/presentment or to an original writ in the common law process.

• Protection of property and franchises pending process. The text protects "his freehold, nor of his franchises nor free custom", stating a person shall not be "put out of his freehold" or deprived of franchises except by due course of law and being "duly brought into answer". The words connect personal liberty and proprietary or franchise rights to due legal process.

• Prohibition on executive action by suggestion or petition. The text explicitly prohibits acting "upon suggestion" without lawful presentment, so executive or quasi-executive actions taken solely on petition or suggestion are disallowed by the text unless formal legal process exists.

• Redressability and nullity. If anything is done contrary to these standards, "it shall be redressed and holden for none." The provision therefore asserts a remedial or nullifying consequence for actions that fail to meet the prescribed process.

• Imperial-to-ACT conversion mechanics. The endnotes set out that the provision was originally an imperial Act (25 Edw 3 St 5 c 4) and was carried forward through the Seat of Government Acceptance Act 1909 s 6, the Seat of Government (Administration) Act 1910 s 4, and converted into an ACT enactment via the Australian Capital Territory (Self-Government) Act 1988 s 34(4). The Imperial Acts Application Act 1986 (sch 3 pt 3, s 5) provided an amended text which applied in the ACT. These are procedural and constitutional concepts governing the statute’s provenance and continuing force in ACT law.

• Editorial amendment and republication practice. The republication explains that the Parliamentary Counsel may make editorial amendments and that such changes do not alter the law’s effect but take effect as if made by an Act commencing on the republication date (Legislation Act 2001, part 11.3; s 115 and s 117 are cited in the republication notes). The republication also explains how uncommenced or modified provisions are signposted (symbols U and M).

Each of these concepts is expressed in the text or the republication endnotes. The statute does not define contemporary administrative processes, penalties attached to specific breaches, or a modern enforcement machinery. Its concepts therefore operate as a declaratory protection requiring other procedural mechanisms , indictments, presentments, writs, due answer and forejudgement by course of law , to be the lawful bases for detention or deprivation.

The republished provision primarily addresses two sets of actors by its wording and legal effect: persons whose liberty, property or franchises might be at risk, and those who exercise public coercive power.

• Individuals and proprietors. The text protects "none" from being "imprisoned nor put out of his freehold, nor of his franchises nor free custom" except by the prescribed processes. Therefore private persons, tenants, freeholders, holders of franchises or customary rights within the ACT are within the protective ambit of the provision. Practically, anyone who might otherwise be detained, dispossessed of freehold or deprived of a franchise is affected because the statute sets procedural prerequisites for lawful deprivation.

• Officials and bodies that detain or deprive. The prohibition on acting "by petition or suggestion ... unless it be by indictment or presentment" constrains authorities, courts, coroners, administrative decision makers and any officeholders who might act to detain, dispossess or deprive rights on the basis of informal petitions or suggestions. The statute does not list which offices those are; it frames the constraint as a general rule applicable in the law of the land.

• Communities as presentors. The text specifically refers to "good and lawful people of the same neighbourhood" as the proper source for indictments and presentments. That phrase implies that community-sourced accusations or presentments are the recognised local mechanism for initiating the requisite process, and so communities or local juries/trial mechanisms are implicated as the necessary origin of such formal accusations.

• Corporations indirectly. The republication front matter sets penalty unit values for individuals and corporations in the event of offences against the republished law. This signals that corporations could, in principle, be charged under or in relation to the law, though the statute’s operative text concerns personal liberty and freehold. The penalty unit statement is a republication convention establishing monetary values at the republication date (individual $100, corporation $500), not an express corporate-targeted substantive prohibition in the operative clause.

• Legislators and courts through conversion pathway. The endnotes record that the provision now stands as an ACT enactment and may be amended or repealed by the ACT Legislative Assembly because the conversion process (Australian Capital Territory (Self-Government) Act 1988 s 34(4)) authorised that change. That means members of the Legislative Assembly and courts interpreting ACT law are stakeholders in how the provision is applied or evolved.

Because the text is short and declaratory rather than prescriptive about administrative processes, the practical reach depends on how courts and other laws interact with it. The republished law itself does not enumerate modern agencies, adjudicative procedures, or enforcement bodies; it imposes a procedural precondition that affects any actor engaging in deprivation of liberty, freehold or franchises unless and until the necessary indictment/presentment or writ process is followed.

The statute sets out a negative duty,what acts must not be done without a defined legal process,and correlative procedural rights. The central duties and rights, as stated in the operative text and the republication notes, are:

• Right not to be deprived without lawfully instituted process. The clause states that "none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land." That is a right to protection from detention and deprivation of property or franchises except by lawful process.

• Duty on decision makers not to rely on petition or suggestion alone. The text prohibits taking a person "by petition or suggestion made to our Lord the King, or to his Council" unless a formal indictment or presentment by "good and lawful people" of the neighbourhood or an original writ exists. This places a duty on those who might have acted on petitions or suggestions to require formal presentment or an original writ.

• Right to indictment or presentment as the proper initiation of criminal accusation. The statute identifies indictment or presentment by "good and lawful people of the same neighbourhood" in due manner as the authorised mechanism for initiating the deprivation of liberty. That embeds a community-originated procedural right to require that formal accusation prior to detention.

• Right to due process in property deprivation. The clause requires that no person be deprived of freehold or franchises "unless he be duly brought into answer, and forejudged of the same by the course of the law." That is a right to be formally called to answer allegations and to be forejudged through lawful course, implying an adjudicative hearing or process before deprivation.

• Right to redress when process not followed. The text provides that if anything is done contrary to these standards "it shall be redressed and holden for none." That asserts a remedial consequence,invalidity or redress,if the prescribed legal process is not followed.

• Editorial duties for republication and statutory administration. The endnotes describe duties of the Parliamentary Counsel to make editorial amendments under the Legislation Act 2001, part 11.3, and record how uncommenced or modified provisions are signposted (symbols U and M). Those are administrative duties governing the statute's republication, not substantive obligations on members of the public.

The statute does not expressly create specific enforcement mechanisms, penalty schedules tied to the operative clause, or administrative sanctions for officials who act unlawfully. The republication front matter does supply penalty unit values for offences against the republished law at the republication date, but the operative clause itself contains no express quantified fines. Consequently, the immediate duties and rights are procedural and declaratory: the duty not to effect detention or deprivation except by indictment/presentment or original writ, and the right of affected persons to redress for contrary acts.

The operative text of the republished statute does not create a specific penalty provision attached to breach of the clause. It declares procedural requirements and asserts redress for actions taken contrary to those requirements but does not prescribe criminal sanctions, civil remedies or enforcement mechanisms within its own wording. The republication front matter, however, includes general information about penalty unit values applicable at the republication date for "an offence against this republished law": $100 per penalty unit for individuals and $500 per penalty unit for corporations. Those values appear on the republication inside front cover and are stated as being "the value of a penalty unit for an offence against this republished law at the republication date" (the front matter lists the two figures).

Because the operative clause provides that actions done contrary to the standard "shall be redressed and holden for none," the republished text contemplates some form of redress or nullity, but it does not specify whether that redress is civil invalidation of the act, a right to damages, injunctive relief, habeas corpus, or a combination. The text therefore leaves the shape of enforcement and remedial relief to the broader legal system,courts and statutes that provide mechanisms for enforcing unlawful detention or unlawful dispossession.

The republication endnotes and front matter also explain republication conventions that affect enforcement in practice. For example:

• Editorial amendments made under the Legislation Act 2001, part 11.3 have effect as if they had been made by an Act commencing on the republication date (Legislation Act 2001, s 115 and s 117 are cited in the republication notes). That affects interpretation and how the legislature’s drafting conventions are applied to the text.

• The Act’s conversion into an ACT enactment and its continued force in the ACT is recorded through citation to the Seat of Government Acceptance Act 1909 s 6, Seat of Government (Administration) Act 1910 s 4, and Australian Capital Territory (Self-Government) Act 1988 s 34(4). Those conversion steps determine which enforcement bodies and courts have competence to adjudicate disputes involving the provision, because it is part of ACT law.

Practically, enforcement will depend on existing ACT procedural remedies for unlawful detention and unlawful dispossession available under the ACT’s legal framework and the common law. The republished text itself provides a declaratory rule and a statement that contrary acts shall be redressed; it does not create a modern statutory enforcement regime with specified penalties. The penalty unit values recorded in the republication are administrative details for calculating fines if an offence was to be framed under the republished law, but the republished text contains no specific fine amount or criminal offence clause.

The republication endnotes provide a record of the statute’s interactions with a chain of Commonwealth and local legislation, and they identify the mechanisms by which the provision was preserved and converted into ACT law. The key statutory interactions recorded in the republication are:

• Seat of Government Acceptance Act 1909 (Cwlth), s 6. The endnotes state that 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." That provision therefore forms part of the historic pathway by which the imperial Act continued to operate in the territory.

• Seat of Government (Administration) Act 1910 (Cwlth), s 4. The endnotes record that under that Act, the imperial 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)." That means that, as of 1910, the provision operated in the ACT legal order as if enacted locally, albeit with an openness to ordinances made under the administration Act.

• Imperial Acts Application Act 1986 (Cwlth), sch 3 pt 3 and s 5. The republished law's legislation history states that the Imperial Acts Application Act 1986 amended the text and provided for the amended form to apply as the text of the Act in force in the ACT. The amendment history records that this Act (A1986-93, s 5 and sch 3 pt 3) notified on 12 January 1987 and commenced that day. That statute thus supplied an amended text to be treated as the operative version in the Territory.

• Australian Capital Territory (Self-Government) Act 1988 (Cwlth), s 34(4). The endnotes record that s 34(4) converted most former UK laws in force in the ACT into ACT enactments, allowing the ACT Legislative Assembly to amend and repeal those laws. The republished law’s legislation history records the conversion to an ACT enactment on 11 May 1989. That interaction is decisive for which institutions now have legislative control over the provision.

• Interpretation Act 1967 (repealed), s 65. The republication notes that s 65 effected a conversion of former UK Acts in force in the ACT into laws made by the ACT Legislative Assembly, "for all purposes," which completed the process of making former UK Acts fully into ACT laws. That historical interaction explains the consolidation of legal authority.

• Legislation Act 2001, part 11.3. The republication explanatory material repeatedly refers to the Legislation Act 2001 as authorising the Parliamentary Counsel to make editorial amendments and formal changes when preparing a law for republication and explains the legal effect of those editorial amendments (they have effect as if made by an Act commencing on the republication date, citing s 115 and s 117). The republication also notes procedural conventions regarding uncommenced provisions (symbol U) and modifications (symbol M) under the Legislation Act.

These interactions show that the republished text does not sit in isolation; its current legal status is the product of successive Commonwealth statutes and local interpretation statutes. The Act’s substantive requirements about indictment, presentment, writs and course of law therefore have to be read alongside modern ACT statutory processes, criminal procedure law, civil remedies and common law doctrines that provide the machinery for indictments, writs and judicial redress. The republication itself does not elaborate those procedural mechanisms, but it signals where this text sits in the ACT legislative structure and which statutes govern its republication and amendment.

The republication includes a concise amendment history and notes about editorial changes. The key items recorded in the endnote labelled "Amendment history" are:

• Imperial Acts Application Act 1986, A1986-93, s 5 and sch 3 pt 3. The amendment history records that the Imperial Acts Application Act 1986 set out the text of this Act in an amended form and provided for that 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 chronology records notification on 12 January 1987 and commencement of s 5 and sch 3 pt 3 on the same date.

• No substantive amendments after 1986. The amendment history explicitly states that "This Act has not been amended since the enactment of the 1986 Act, except under the Legislation Act 2001." That indicates the substantive text has remained stable since the 1986 conversion, with only editorial changes authorised by the Legislation Act 2001 applied during republication.

• Editorial amendments under the Legislation Act 2001. The republication explanatory notes set out that the Parliamentary Counsel is authorised by Legislation Act 2001, part 11.3 to make editorial amendments and formal changes when preparing a law for republication. Those 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" and the republication includes such amendments (see endnote references to Legislation Act 2001, s 115 and s 117).

• Conversion and continuation history. The legislation history endnote, which overlaps with amendment history, records the process by which the Act moved from a UK Act to an ACT enactment: it was in force in NSW before 1 January 1911, continued in force by Seat of Government Acceptance Act 1909 s 6, applied in the ACT by Seat of Government (Administration) Act 1910 s 4, converted into an ACT enactment under Australian Capital Territory (Self-Government) Act 1988 s 34(4), and finally treated under the Interpretation Act 1967 (repealed) s 65 as a law made by the ACT Legislative Assembly. Those historical steps are recorded in the republication history but do not represent later textual amendments to the clause itself.

The republication therefore records no modern substantive amendment to the clause since the Imperial Acts Application Act 1986 supplied the amended text. Changes made after that point have been editorial in nature under the general powers of the Parliamentary Counsel during republication, as authorised by the Legislation Act 2001. The republished document also flags how uncommenced amendments or modifications would be signalled in the republication (symbols U and M), though no such pending modifications are included in the operative text.

The republished statute and its endnotes do not cite any judicial decisions, cases or litigation history. The text of the law reproduces a medieval clause and the accompanying republication material records procedural and conversion history, amendment history and editorial practices. There are no cases named in the republished law or in its endnotes.

Because the statute stands as a short declaratory provision requiring indictment/presentment or original writ for lawful detention or deprivation, any litigation that would engage this clause would arise under the broader ACT courts and their procedures for habeas corpus, unlawful detention, judicial review, property rights and remedies for unlawful dispossession. The republication does not record any such litigation, and it does not include citations to any decisions interpreting the clause.

For practitioners, that means there is no litigation history supplied in the republished text to show how courts have applied this exact clause in modern contexts within the ACT. Any interpretive or enforcement issues are therefore to be resolved by reference to the clause’s language along with contemporary ACT and Commonwealth procedural and constitutional law, but such authorities are not supplied in the republished material.

The republished law’s short, archaic language and the republication metadata create a number of practical caveats and implementation hazards that follow directly from the text and the endnotes:

• The clause uses medieval terminology without modern definitions. Words and phrases such as "franchises", "free custom", "presentment", "writ original", "brought into answer", and "forejudged by the course of the law" are not defined in the republished text. That invites interpretive uncertainty about their modern scope and application until courts or legislative instruments clarify them in an ACT context.

• No specified enforcement mechanism in the text. While the clause says that acts contrary to it "shall be redressed and holden for none", it does not specify how redress is to be obtained, which remedies are available, or which procedural mechanisms must be used to enforce the protection. The absence of explicit procedural scaffolding means reliance on external statutory or common law remedies.

• Penalty unit figures do not create a specific offence in the clause. The front matter lists penalty unit values for offences against the republished law but the clause itself contains no express offence or fine. That can mislead a reader into expecting a modern sanctioning regime; penalty unit values are republication convenience details rather than an indication that the clause creates particular monetary penalties.

• Interaction with modern criminal procedure and civil remedies is not articulated. The clause requires indictment or presentment or an original writ, but it does not address modern charging instruments, prosecutorial discretion, summary proceedings, or modern statutes that may authorise administrative detention or interlocutory remedies. Determining how the clause overlays current practice will require locating contemporary criminal procedure statutes and ACT remedies, none of which are set out in the republished text.

• Editorial amendments may alter drafting but not substance. The republication notes that editorial amendments under the Legislation Act 2001 have been made and are treated as if they commenced on the republication date. That can complicate historical tracing of the precise wording and may affect how one reads marginal or formatting changes versus substantive law, because editorial changes are intended not to change effect but take statutory effect as of the republication date.

• Provenance and continuing validity depend on conversion statutes. The clause’s current status as an ACT law is the product of several conversion steps referenced in the endnotes. Questions about the clause’s relationship to Commonwealth powers, or about whether older imperial meanings continue to apply, will require attention to the conversion statutes (for example, Australian Capital Territory (Self-Government) Act 1988 s 34(4)) and the extent of their interaction with modern ACT law.

• Absence of litigation history in the republished text. Because no cases are cited in the republication, there is no built-in judicial gloss. Practitioners cannot rely on the republished text alone for interpretive guidance.

Each of these "gotchas" follows from reading the operative clause and the republication endnotes together. They point to gaps and ambiguities that require cross-referencing to modern ACT criminal procedure, civil remedy statutes and case law in order to operationalise the clause in contemporary practice.

Compliance in a modern administrative or prosecutorial setting requires aligning arrest, detention and deprivation decisions with the procedural preconditions the republished text prescribes. The republished law itself indicates the minimum procedural preconditions needed to avoid acts that "shall be redressed and holden for none". Workable compliance steps grounded in the republished text are:

• Require formal indictment or presentment or original writ before depriving liberty or property. The clause expressly permits detention or deprivation only "by indictment or presentment of good and lawful people of the same neighbourhood ... or by process made by writ original at the common law." Administrations, prosecuting authorities and officials exercising coercive power should therefore ensure that formal indictment, presentment or judicial writ process is in place prior to effecting imprisonment or dispossession, to align actions with the textual requirement.

• Document provenance of any petition-based action and seek formal process where required. The text forbids acting on mere "petition or suggestion", so agencies that receive petitions, complaints or allegations should have procedures that escalate matters into formal presentment, indictment or judicial process before taking coercive action affecting liberty or freehold. Keep contemporaneous records demonstrating that a formal charging instrument or writ was obtained.

• Treat community presentment mechanisms as the authorised local source of criminal accusation where applicable. The clause specifies indictments or presentments by "good and lawful people of the same neighbourhood". Compliance practice should therefore align with authorised forms of community-sourced accusation as embedded in current ACT criminal procedure and precursor steps to indictment or presentment, ensuring those mechanisms are lawfully invoked.

• Seek judicial authorisation for writs. The clause permits "process made by writ original at the common law". Where common law writs remain a competent mechanism, ensure proper judicial origin and attachment to the writ before taking action. If contemporary statutes replace or supplement writs, ensure statutory procedures are followed and documented.

• If acting under emergency or statutory powers, verify compatibility. The clause does not address statutory powers that authorise administrative detention or dispossession. Before relying on such powers, decision makers should check whether those statutory powers supplant, co-exist with or are constrained by the clause and ensure the statutory text authorises the intended act. Where statutory powers are unclear, obtain independent legal advice or judicial declaration.

• Preserve and prepare for redress claims. Because the clause states that contrary acts "shall be redressed and holden for none", departments and contractors should maintain procedural records, internal approvals and justifications showing compliance with indictment/writ requirements. Where an act has been performed without the required process, be prepared to suspend enforcement, institute remediation, or support judicial review processes.

• Account for republication and editorial changes. The republication notes that editorial changes under the Legislation Act 2001 may have been made. Practitioners should consult the republication endnotes and the Parliamentary Counsel repository to confirm the exact operative wording and any editorial amendments that may affect interpretation.

• Coordinate with prosecutors and courts. Indictments, presentments and writs are instruments that engage prosecutorial and judicial functions. Administrative compliance therefore requires coordination with prosecuting authorities and courts to ensure the formal instruments are timely obtained when deprivation of liberty or property is contemplated.

These compliance steps rely on reading the republished text literally: coercive action must be supported by indictment/presentment or an original writ, and failure to meet those preconditions exposes the act to redress. Because the republished law does not prescribe modern procedural mechanisms or remedies, agencies and practitioners should map the clause onto existing ACT criminal procedure and civil remedy regimes to operationalise compliance.