DUE PROCESS OF LAW ACT 1368 42 EDW 3 C 3

The Act deploys a small set of legal-concept terms that shape its scope and operation. The principal concepts in the statutory text are:

• “Put to answer”: a phrase signalling a person being required to respond to an accusation, charge or demand for answer. The Act does not define the phrase; the text treats it as the condition the statute protects against absent prescribed procedural foundations.

• “Presentment before justices”: a historic mode of initiating formal accusation by presentment, typically a local or magisterial body producing a formal charge. The Act lists this as one permitted mode of “putting to answer”.

• “Matter of record”: generally denotes something established and entered on official records, such as an indictment, a court record, or other formal documentary record. The Act treats a matter of record as an alternative procedural foundation.

• “Due process and writ original”: “due process” and “writ original” are paired as another permitted foundation. In context “writ original” references originating writs used to initiate judicial proceedings at common law; “due process” is invoked in its medieval procedural sense rather than as a modern constitutional doctrine in the republished text.

• “Old law of the land”: the Act explicitly situates its requirements “according to the old law of the land”. The phrase imports a reference to historic common-law forms and procedures rather than to explicit modern statutory procedure. The Act does not define which enactments or practices constitute that “old law”.

• Remedy language: the statute declares that any action “done to the contrary” shall be “void in the law, and holden for error.” The operative remedy is invalidity of the contrary act and its characterisation as legal error.

Two republication/construction concepts also matter for use in the ACT. The republished text is presented with editorial annotations that the Parliamentary Counsel’s Office may make under the Legislation Act 2001, part 11.3, and those editorial changes are treated as commencing on the republication date (see the republication preface). The imperial/colonial origin and the continuity steps set out in the endnotes (Seat of Government Acceptance Act 1909, Seat of Government (Administration) Act 1910, Australian Capital Territory (Self-Government) Act 1988 and the Interpretation Act 1967) are part of the statute’s formal pedigree and may affect how courts approach its interpretation in the ACT.

The Act’s textual economy means each of these concepts is potentially open to interpretive debate. The statute sets procedural preconditions and a remedy (void/held for error) but offers no definitions, transitional provisions, or procedural detail about how the enumerated foundations operate in relation to modern criminal, civil or administrative processes.

The statutory text says “No person be put to answer”, so the protection is phrased in universal terms. Practically, that reaches three overlapping classes of actors and decisions within the ACT legal framework as created by the republication history.

• Individuals and entities who might be “put to answer”: any natural person or legal entity in respect of whom an allegation, charge, or demand to answer is made. The Act’s language places procedural limits on how such persons may be required to answer: only upon presentment before justices, matter of record, or due process and writ original.

• Decision-makers who initiate proceedings: justices, magistrates, prosecutors, coroners, administrative decision-makers, registrars and similar officers who bring persons “to answer”. The text requires such actors to ensure one of the prescribed procedural foundations exists before requiring an answer. The republished history shows the Act has been part of the ACT statute book since being carried over from pre-1911 NSW law and converted to an ACT enactment pursuant to federal Acts, so those operating within the ACT’s prosecutorial and administrative systems are directly affected.

• Courts and reviewers: courts, appellate tribunals and judicial review bodies that may be asked to treat contraventions as void and “holden for error”. The remedy language in the Act makes invalidity and error the statutory response to non‑compliance, so judges and tribunals will be the primary enforcers.

The republication notes also affect who must pay attention to administrative aspects. The Parliamentary Counsel’s Office, when preparing authorised republications, can make editorial changes under the Legislation Act 2001; those technical amendments have effect as of the republication date. The notes also list penalty-unit values at the republication date for an offence against this law (individual $100, corporation $500). That indicates that, on the face of the republication record, penalties for contravening provisions were contemplated, even though the substantive provision itself declares invalidity rather than setting out an express criminal offence or sanction regime.

Actors outside the criminal-justice machinery may be affected in border cases: regulatory agencies or professional disciplinary bodies that “put a person to answer” for misconduct should consider whether the proceeding is supported by the forms the Act prescribes, or whether some modern statutory pathway displaces or supersedes the Act. The republication and endnotes draw attention to the Act’s long provenance and conversion into ACT law, which means public bodies operating under ACT law must be aware of its presence on the statute book even though its language is medieval.

The Act imposes a single categorical duty and recognises a single categorical right, expressed in terse, mandatory language.

Duty:

• Public actors and private parties who would “put a person to answer” owe the procedural duty to rely on one of the permitted foundations: a presentment before justices, a matter of record, or due process by writ original. The duty is procedural: do not require an answer without one of those foundations.

Rights:

• Any person has the right not to be put to answer unless the procedural precondition is satisfied. The statute frames that right expansively by addressing “No person”.

Remedy and enforceable legal consequence:

• The Act provides that anything done contrary to the duty “shall be void in the law, and holden for error.” That language creates a remedy of invalidity for acts done in breach of the duty. It places the onus on courts to treat non‑compliant actions as legally defective.

Construction and administrative duties tied to republication:

• The republication notes record that editorial amendments under Legislation Act 2001, part 11.3 have been applied and are intended not to change the effect of the law. Those editorial tools are used by the Parliamentary Counsel’s Office, which therefore has a duty to ensure the authorised text is aligned with current drafting practice; the notes refer to Legislation Act 2001, ss 115 and 117.

Procedural implications for prosecutors and administrative decision-makers:

• Where the Act applies, prosecutors and decision-makers must ensure documentary proof of the prescribed foundation exists before compelling a party to answer. The statute itself does not provide procedural rules for how to obtain or record presentment, matter of record, or writ original; those operational duties will be shaped by other procedural statutes and practice rules, and by judicial interpretation of the Act’s terms.

Limitations in the Act’s own text:

• The Act does not create a schedule of penalties other than noting the voiding remedy, nor does it define the technical terms it uses. The republished front matter, however, lists penalty unit values for offences against the republished law as of the republication date. Practitioners should note that the Act’s remedy is framed as invalidity and error rather than as a specific criminal penalty imposed within the text.

The substantive provision of the Act prescribes invalidity as the primary legal consequence: “if any thing from henceforth be done to the contrary, it shall be void in the law, and holden for error.” That provides the doctrinal enforcement mechanism: a court or competent tribunal, when faced with an act taken in breach of the Act’s procedural precondition, is to treat the act as void and as legal error. The Act does not itself set out a catalogue of criminal sanctions or fines in the operative text.

The republication material supplies practical enforcement detail relevant to contemporary application in the ACT. The front matter records penalty unit values applicable to offences against the republished law at the republication date: for an individual $100; for a corporation $500. Those figures are stated on the republication cover and were current on the republication date (5 July 2002). The republication also notes that the Parliamentary Counsel may make editorial amendments under Legislation Act 2001, part 11.3; those editorial amendments have effect as if they commenced on the republication date (the notes cite Legislation Act 2001, ss 115 and 117). Practically, this means that if an offence provision were keyed to penalty units, the applicable unit value would need to be checked against current regulations or statute for up-to-date conversion.

Enforcement actors:

• Courts and tribunals are the primary enforcement agents because the statutory remedy is invalidity and error. The text suggests a court-centric enforcement pathway rather than an administrative fine regime enacted in the text itself.

Limitations and interpretive enforcement gaps:

• Because the Act’s operative remedy is voiding and because it does not set out a procedural mechanism for raising the claim, enforcement will rely on ordinary judicial procedures: a defendant or respondent may raise the Act as a point of law in proceedings; a reviewing court may set aside an action taken contrary to the Act. The Act does not provide an express private right of action or statutory application procedure; it presumes ordinary court processes for rectification.

Interaction with statutory offence frameworks:

• The republication indicates the Act has been integrated into the ACT statute book via a chain of federal conversion Acts set out in the endnotes. That context means that modern ACT criminal, administrative, or regulatory statutes may provide express procedural mechanisms that either coexist with or supersede the medieval procedural rule. Where a modern statute prescribes a different initiation or charging procedure, a question of legal interaction may arise; the Act itself does not resolve such conflicts.

Compliance and penalty‑unit care:

• Where the republished text or later amendments tie an offence to penalty units, practitioners must check the current penalty unit value rather than rely on the republication date figures, because the republication shows the conversion values as of 2002. The republished law’s endnotes and front matter serve as a record, not as a definitive statement of current penalty unit amounts.

The republication endnotes supply the explicit legal genealogy by which the medieval statute became part of the ACT statute book; that genealogy shapes how the Act interacts with other laws.

Statutory genealogy and conversion:

• The Act is originally a UK Act of 1368 (42 Edw 3 c 3). The republished text records that it was in force in New South Wales immediately before 1 January 1911 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 that administration Act. The Australian Capital Territory (Self-Government) Act 1988 (Cwlth), s 34(4) converted most former UK laws then in force in the ACT into ACT enactments and the Act was converted into an ACT enactment on 11 May 1989. Further federal-to-territory conversion steps are recorded, including the effect of the Interpretation Act 1967 (repealed), s 65. These conversion steps are the legal mechanism by which the medieval text operates within the modern ACT statutory landscape.

Editorial and amendment framework:

• The republication notes which statutory instruments have altered the Act’s presentation. The Imperial Acts Application Act 1986 amended the text and omitted the preamble and enacting words. The Legislation Act 2001 (part 11.3) authorises the Parliamentary Counsel to make editorial amendments; the republication applied such changes. Those instruments do not change the substantive rule the Act states but change how the Act reads and is published as part of the ACT statute book.

Interaction with modern procedural statutes:

• The Act imposes a requirement that proceedings be founded on one of the three prescribed forms. However, modern criminal procedure and administrative law statutes, rules of procedure and practice directions commonly prescribe initiation and charging processes that differ in form from medieval presentments and writs. The republished text itself does not resolve whether modern procedural statutes impliedly repeal, displace, narrow, or coexist with the Act’s requirements. The legislative history shows that the Act was carried forward into the ACT law‑pack, but it provides no express saving or displacement clauses vis-à-vis later statutes.

Interaction with ordinances and decision‑makers:

• The Seat of Government (Administration) Act 1910 left the Act to have effect in the ACT “as if it were an ACT law (subject to ordinances made under the Seat of Government (Administration) Act 1910)”. That express subordination to ordinances is a historical pointer that certain local ordinances could modify or provide operational detail for the Act’s application. The later conversion into ACT enactments shifts the relationship: once converted under the Self-Government Act and subsequent Interpretation Acts, the Act sits as an ACT enactment for amendment and repeal by the ACT Legislative Assembly.

Practical consequence for conflicting rules:

• Practitioners and decision-makers must check contemporary ACT statutes and procedural rules to determine whether a modern procedure displaces the medieval formality the Act requires. The republished material does not state specific rules on conflict or priority beyond recording the historical process by which the Act was included on the ACT statute book. In application, courts will be required to reconcile the Act with subsequent laws; the republication record identifies the sources a court will consult when tracing legislative intent and continuity.

The republished documentation records a concise amendment and republication history.

Imperial Acts Application Act 1986:

• The principal explicit amendment recorded is the Imperial Acts Application Act 1986 (A1986-93), which, by schedule 3 part 5 and s 5, set out an amended text of the medieval Act and provided for that amended text to apply as the text of the Act in force in the ACT. The republication notes this amending instrument with the details: notified 12 January 1987, s 5 and sch 3 pt 5 commenced 12 January 1987.

Preamble and enacting words:

• The 1986 Act omitted the preamble and enacting words. The amendment history entry records that omission; the republished text therefore contains the substantive clause without the original medieval enacting preface.

Legislation Act 2001 editorial amendments:

• Since the 1986 amendments, there have been no substantive amendments to the Act other than editorial changes made under the Legislation Act 2001. The republication explains that part 11.3 of the Legislation Act authorises Parliamentary Counsel to make editorial and formal amendments when preparing a law for republication, and that those editorial amendments are treated as if made by an Act commencing on the republication date (the republished notes refer to ss 115 and 117 of the Legislation Act 2001). The republication includes any such editorial amendments.

Conversion into ACT enactment:

• The legislation history entry traces the conversion process: the Act was originally a UK Act; it remained in force in NSW prior to 1911 and was continued by the Seat of Government Acceptance Act 1909 (Cwlth), s 6. Under Seat of Government (Administration) Act 1910 (Cwlth), s 4 it had effect in the ACT as if it were an ACT law. The Australian Capital Territory (Self-Government) Act 1988 (Cwlth), s 34(4) converted most former UK laws in the ACT into ACT enactments; this Act was converted on 11 May 1989. The Interpretation Act 1967 (repealed) also formed part of the process by which former UK Acts were treated as ACT laws. Those conversion steps are recorded as part of the amendment and legislation history.

No further substantive amendments:

• The republication expressly states that the Act “has not been amended since the enactment of the 1986 Act, except under the Legislation Act 2001.” The Amendment history table records the name change effected in the republication.

Practical reading:

• The amendment history is primarily a record of textual changes and republication steps rather than substantive redrafting of the operative rule. The only substantive adjustment recorded is the textual amendment effected through the Imperial Acts Application Act 1986; subsequent changes are editorial in nature for alignment with modern drafting practice.

The republished text and its endnotes do not record any cases or litigation history arising under the Due Process of Law Act 1368. The document contains no citation of judicial decisions construing the statute, no reported appeals, and no annotated case notes.

What the republished record does provide is procedural and legislative context which a litigator would use when framing an argument. The endnotes supply the statute’s provenance and conversion into ACT law, which are relevant when establishing standing, continuity and legislative status in any judicial argument. The republication indicates the Act was converted into an ACT enactment and therefore is available to be argued in ACT courts on questions arising from its terms.

Absence of recorded litigation in the republished text points to several practical realities for users:

• The Act’s terse, medieval language may have rarely been invoked or, if invoked, may have been superseded or rendered academic by modern statutory frameworks that now govern procedure. The republication does not say which is the case; it only shows that the republished statute stands on the ACT statute book.

• Any litigant seeking to argue the Act’s protection will need to establish the Act’s contemporary legal relevance and reconcile it with modern statutory and procedural regimes. Because the republished document contains no case law, practitioners must conduct primary case research outside the republication text to identify any judicial treatment, if any exists, of the Act’s terms in the ACT, federal or state courts.

• Where a party intends to rely on the Act in litigation, the absence of recorded judicial interpretation in the republished text increases the interpretive burden. Parties should expect courts to consider the statute’s historic pedigree, conversion history and the relationship with subsequent procedural statutes when deciding whether and how to apply the medieval text.

For readers of the republished law, the litigation history section of this deep dive is therefore necessarily brief: the statute as republished contains no annotated litigation history and the republished material does not name any cases. Any practitioner intending to litigate under or rely on the Act must undertake independent case-law research beyond the republication document.

The Act’s brevity and archaic language produce several specific practical pitfalls and areas of interpretive uncertainty that users must treat as risks rather than as settled rules. The republication material identifies provenance and editing but does not resolve these issues.

Ambiguity of technical terms:

• The terms “presentment before justices”, “matter of record”, “due process and writ original”, and “old law of the land” are not defined in the republished text. These are historical procedural forms. Modern actors will face ambiguity about the precise contemporary equivalents of those forms. For example, is a modern committal, information, or police charge a “presentment before justices” or a “matter of record”? The statute does not say.

Unclear scope of “put to answer”:

• The phrase “put to answer” is broad and could cover criminal charges, civil claims, administrative proceedings, disciplinary hearings, regulatory enforcement actions, or other demands to respond. The Act does not demarcate that scope. That creates a litigation risk when agencies or tribunals rely on modern statutory procedures that do not conform to the medieval forms.

Remedy form is limited and procedural:

• The statutory remedy is invalidity of the contrary act, described as “void in the law, and holden for error.” The provision does not specify ancillary relief (damages, costs, declarations) or a mechanism for vindication. Practitioners should not assume the Act creates an express right to compensation; it provides invalidity and characterisation as error, leaving secondary remedies to general legal principles and judicial discretion.

Potential conflict with modern statutes:

• The republication notes the Act was converted into the ACT statute book and remains as an enactment. That does not resolve whether later ACT statutes that prescribe modern initiation processes implicitly or expressly displace this medieval requirement. Failure to check modern procedural statutes and rules is a practical “gotcha”.

Penalty-unit values and enforcement expectations:

• The cover notes penalty-unit values as of the republication date (2002). Those figures may not be current. Practitioners who rely on the republication cover without checking current penalty-unit legislation or regulations risk miscalculating fines or costs tied to offences.

Editorial changes and text fidelity:

• The Legislation Act 2001 authorises editorial amendments that the Parliamentary Counsel’s Office may make during republication. Those editorial changes are described as not altering the law’s effect, but they can affect wording and presentation. Users should take care when comparing the republished text to historical sources; the republication includes editorial changes that are treated as if they commenced on the republication date.

Operational compliance for non-judicial actors:

• Agencies and regulators that “put persons to answer” in modern administrative contexts must assess whether the Act’s procedural precondition applies or whether their enabling statute provides an alternative authority. Failure to do so could create vulnerability to judicial challenge based on the Act’s voiding clause.

Record-keeping and proof:

• Because the Act emphasises presentment, matter of record, or writ original, actors who initiate proceedings should ensure documentary evidence that a permitted foundation exists. Absent robust record-keeping, defendants may be able to raise the Act to challenge the validity of proceedings.

In sum, the main practical gotchas are interpretive uncertainty about medieval procedural phrases, potential overlaps with modern statutory procedure, reliance on outdated penalty-unit figures, and the lack of express secondary remedies in the text. The republication notes provide genealogical clarity but do not remove these practical uncertainties.

Given the Act’s simple but strict text, compliance for actors within the ACT legal system is a question of ensuring that before a person is required to answer, one of the three prescribed foundations exists and is documented. The following practical steps, grounded in the republished text and its endnotes, are a starting point for compliance risk management.

1. Establish the applicable procedural foundation before requiring answer:

   • Ensure that any initiation of a charge, complaint, or accusation is supported by either a presentment before justices, a matter of record, or due process by writ original, to the extent those concepts apply. Because the statute does not define those terms, identify the modern procedural equivalent in the relevant ACT statute or rule (for example, indictment, information, or formal administrative charge) and document the reasoning why that form satisfies one of the prescribed foundations.

2. Keep contemporaneous, auditable records:

   • The statute expressly references “matter of record”. To reduce litigation risk, create and retain certified records (dockets, filed informations, sworn presentments, originating writs, minutes of an adjudicative hearing) demonstrating the procedural foundation. Where a writ or presentment is relied upon, retain a copy of the originating process and proof of filing or service.

3. Check interaction with enabling statutes and practice rules:

   • Before bringing a proceeding, review the enabling statute, criminal procedure legislation and practice directions to determine whether they provide the initiation mechanism and whether those mechanisms are compatible with the Act. If a modern statute prescribes a different initiation form, evaluate whether it displaces the Act or whether adaptation is necessary. The republished history indicates conversion into ACT law, so modern ACT statutes must be examined for potential inconsistency.

4. When in doubt, obtain judicial guidance:

   • If there is a debate about whether a modern procedure satisfies the Act’s requirement, consider seeking interlocutory judicial guidance or direction rather than proceeding and taking the risk of a later voiding order. Courts are the primary enforcement agents under the statutory remedy.

5. For prosecutors and agencies, adopt drafting and filing controls:

   • Implement templates and workflow checks that require confirmation of the presence and filing of an original writ, presentment, or matter of record before a charge is lodged or an answer is compelled. That reduces the risk that an action will be taken in breach of the statute.

6. Review penalty and sanction frameworks:

   • The republished material lists penalty unit values as of 2002. Check current penalty unit legislation to confirm whether any statutory offence carries monetary sanctions and to calculate any applicable fines accurately.

7. Note the legislative history in pleadings:

   • If a party relies on or responds to the Act in litigation, pleadings should set out the statute’s conversion history as recorded in the republication (Seat of Government Acceptance Act 1909; Seat of Government (Administration) Act 1910; Australian Capital Territory (Self-Government) Act 1988; and the Imperial Acts Application Act 1986), because those items are part of the statutory record and will be relevant to questions of construction and legislative status.

8. Train decision-makers on scope and documentary standards:

   • Provide specific training for magistrates, prosecutors, registrars and administrative decision-makers on the documentary standards and forms that can be relied upon as a “matter of record”, “presentment”, or “writ original” in modern practice. The statute’s reliance on historic forms means modern equivalents should be clearly identified and documented.

9. Preserve argument on secondary remedies:

   • The Act’s remedy is invalidity and error; if facing proceedings that may contravene the Act, preserve arguments on ancillary relief, costs and other equitable remedies under general legal principles. The text does not itself enumerate those remedies.

10. Monitor for statutory change:

• Because the republication notes that the Parliamentary Counsel may make editorial amendments under the Legislation Act 2001 and because the ACT Legislative Assembly can amend or repeal converted enactments, monitor legislative updates and any relevant judicial decisions that interpret the Act’s terms.

These compliance steps follow from the republished text and the republication notes. They are practical ways to operationalise the Act’s single substantive requirement in a modern statutory and procedural environment where the vocabulary and forms of medieval process have contemporary analogues that must be identified and documented.