This Act clarifies which old English (Imperial) statutes count in New South Wales by preserving some, repealing others, and substituting modern State provisions for selected historic rules. It also lets the Governor briefly revive certain repealed Imperial provisions subject to parliamentary disallowance.
It matters to courts, insurers, landholders, guardians, bailiffs, publishers and anyone relying on references to Imperial law because it reshapes applicable rules, creates compliance needs, and adds criminal/civil remedies and procedural duties.
The Imperial Acts Application Act 1969 (NSW) (the Act) is a comprehensive rationalising statute that declares, repeals, substitutes and preserves the application of English statutes (Imperial enactments) that were received into New South Wales by force of the Australian Courts Act 1828 (9 Geo IV c 83). Section 5(1) expressly declares that each Imperial enactment listed in the First Schedule was in force in New South Wales on 25 July 1828 and remained in force thereafter until the commencement of the Act, except to the extent modified by earlier State legislation. Section 5(2) then repeals those enactments in their application to New South Wales, while s 5(3) substitutes the provisions contained in Part 3 of the Act for the corresponding Imperial texts.
The structure is methodical. Part 2 contains the definitional and operative provisions. “Imperial enactment” is defined broadly in s 4 to include any part of the enacted law that was in force in England at any time. Section 6 preserves the constitutional and criminal-law Imperial enactments listed in the Second Schedule, declaring them to have been in force since 1828, to continue in force after commencement, and not to be repealed by the general repeal in s 8. Section 7 ensures that Imperial enactments listed in the Third Schedule, or any others that applied independently of the 1828 Act, remain untouched. Section 8 effects a general repeal of all other Imperial enactments commencing with the Statute of Merton (20 Hen III, 1235–6), with a specific back-dated repeal of Sir John Barnard’s Act (7 Geo II c 8) to 14 June 1860, subject to a savings clause for proceedings commenced before 25 July 1968.
Savings and transitional provisions occupy ss 9–11. Section 9(1) contains the standard non-revival, non-affectation of accrued rights, and continuation of pending proceedings clauses. Section 9(2) contains specific savings for the law of charity (notwithstanding repeal of the Charitable Uses Act 1601) and for promises made before commencement under the Statute of Frauds. Section 10 prevents the repeal from disturbing any prior repeal, confirmation, revival or perpetuation effected by an Imperial Act that is itself repealed. Section 11 empowers the Governor by proclamation published on the NSW legislation website to revive any repealed Imperial provision (other than those in the First Schedule), subject to parliamentary disallowance within 15 sitting days.
Current sections
Direct links to the current provisions in Imperial Acts Application Act 1969.
(2) This Act shall, except where otherwise expressly provided, commence upon a day to be appointed by the Governor and notified by proclamation in the Gazette.
2
Construction
2 Construction
2 Construction
This Act shall be read and construed subject to the Commonwealth of Australia Constitution Act and so as not to exceed the legislative power of the State, to the intent that where any provision of this Act or the application thereof to any person or circumstance is held invalid, the remainder of this Act and the application of the provision to other persons or circumstances shall not be affected.
3
3
3 (Repealed)
Part 2
General
Part 2 General
Part 2 General
4
Definition
4 Definition
4 Definition
In the construction of this Act, unless inconsistent with the context or subject-matter, the expression Imperial enactment includes any part of the enacted law at any time in force in England.
5
Substitution of enactments
5 Substitution of enactments
5 Substitution of enactments
(1) Each Imperial enactment mentioned in the First Schedule to this Act, so far as it was in force in England on the twenty-fifth day of July, one thousand eight hundred and twenty-eight is declared—
(a) to have been in force in New South Wales on that day by virtue of the Imperial Act 9 George IV Chapter 83 (The Australian Courts Act 1828), and
(b) to have remained in force in New South Wales from that day until the commencement of this Act, except so far as affected by State Acts from time to time in force.
(2) Each Imperial enactment mentioned in the First Schedule to this Act is hereby repealed so far as it applies in New South Wales.
(3) Each provision of Part 3 of this Act is substituted for the Imperial enactment mentioned in the first column of the First Schedule to this Act opposite the reference to that provision in the second column of that Schedule.
(4) To the extent to which any of the provisions of Part 3 of this Act are inconsistent with the provisions of any State Act in force at the commencement of this Act, the provisions of the State Act shall prevail.
(5) In construing any of the provisions of Part 3 of this Act regard may be had to the context (if any) of the Imperial enactment for which the provision is substituted.
(6) In any State Act a reference to any Imperial enactment specified in the first column of the First Schedule to this Act shall, where the case permits, and unless a contrary intention appears, be construed as a reference to the provision of this Act specified opposite that Imperial enactment in the second column of that Schedule.
6
Preserved Imperial enactments
6 Preserved Imperial enactments
6 Preserved Imperial enactments
Each Imperial enactment mentioned in Part 1 of the Second Schedule to this Act, and so much of each Imperial enactment mentioned in the first column of Part 2 of that Schedule as is specified opposite that Imperial enactment in the second column of the said Part 2, so far in either case as it was in force in England on the twenty-fifth day of July, one thousand eight hundred and twenty-eight—
(a) is declared to have been in force in New South Wales on that day by virtue of the Imperial Act 9 George IV Chapter 83, and
(b) except so far as affected by any Imperial enactments or State Acts from time to time in force in New South Wales—
(i) is declared to have remained in force in New South Wales from that day,
(ii) shall from the commencement of this Act be in force in New South Wales, and
(c) is not repealed by section eight of this Act.
7
Enactments not affected by repeal
7 Enactments not affected by repeal
7 Enactments not affected by repeal
Nothing in this Act affects any Imperial enactment set out in the Third Schedule to this Act or any other Imperial enactment which independently of the provisions of the Imperial Act 9 George IV Chapter 83 is made applicable to New South Wales by the express words or necessary intendment of any Imperial enactment.
8
Imperial enactments repealed
8 Imperial enactments repealed
8 Imperial enactments repealed
(1) In addition to the repeals effected by subsection two of section five of this Act all other Imperial enactments (commencing with the Statute of Merton, 20 Henry III A.D. 1235–6) in force in England at the time of the passing of the Imperial Act 9 George IV Chapter 83 are so far as they are in force in New South Wales hereby repealed.
(2) The repeal of the Imperial Act 7 George II Chapter 8 (Sir John Barnard’s Act) effected by subsection one of this section shall be deemed to have taken effect as on and from the fourteenth day of June one thousand eight hundred and sixty—
Provided that nothing in this subsection shall affect any transaction in respect of which proceedings in any Court have been taken or commenced on or before the twenty-fifth day of July one thousand nine hundred and sixty-eight.
9
Savings
9 Savings
9 Savings
(1) The repeal by this Act of any Imperial enactment does not—
(a) revive anything not in force or existing at the commencement of this Act,
(b) affect the previous operation of any Imperial enactment so repealed or anything duly done or suffered under any Imperial enactment so repealed,
(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any Imperial enactment so repealed,
(d) affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any Imperial enactment so repealed, or
(e) affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid,
and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture or punishment may be imposed and enforced, as if this Act had not been passed.
(2) The repeal by this Act of—
(a) The Imperial Act 43 Elizabeth Chapter 4 (The Charitable Uses Act 1601) does not affect the established rules of law relating to charity,
(b) section four of the Imperial Act 29 Charles II Chapter 3 (The Statute of Frauds 1677) does not apply in relation to a promise or agreement made before the commencement of this Act, and
(c) any other Imperial enactment does not affect any rules of law or equity not enacted by the repealed enactment.
10
Saving
10 Saving
10 Saving
Where any Imperial enactment not repealed by this Act has been repealed (whether expressly or impliedly), confirmed, revived, or perpetuated by any Imperial enactment hereby repealed, the first-mentioned repeal, or the confirmation, revivor, or perpetuation shall not be affected by the repeal effected by this Act.
11
Revival of repealed enactments
11 Revival of repealed enactments
11 Revival of repealed enactments
(1) The Governor may, by proclamation published on the NSW legislation website, declare that any provision (in this section called the revived provision) being the whole or any part of any Imperial enactment repealed by this Act, other than an Imperial enactment mentioned in the First Schedule to this Act, shall be revived as from the date of publication of the proclamation, or a later date to be specified in the proclamation.
(2) On and after the date of revival, the revived provision shall, subject to Acts from time to time in force, and subject to subsection three of this section, have such effect in New South Wales as the revived provision had in New South Wales immediately before the commencement of this Act.
(3) The revival under this section of any revived provision shall not—
(a) affect the previous operation of any repeal worked by section eight of this Act,
(b) affect anything duly done or suffered before the date of revival,
(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred before the date of revival, or any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation or liability, or
(d) make any person liable for any penalty, forfeiture or punishment in respect of anything done or omitted before the date of revival.
(4) Every such proclamation shall be laid before both Houses of Parliament within fourteen sitting days after publication if Parliament is then in session, and if not, then within fourteen sitting days after the commencement of the next session.
(5) If either House passes a resolution of which notice has been given at any time within fifteen sitting days after the proclamation has been laid before such House disallowing any proclamation or part thereof, the proclamation or part thereupon ceases to have effect.
s 11: Am 2009 No 56, Sch 4.29.
Part 3
Substituted enactments
Part 3 Substituted enactments
Part 3 Substituted enactments
Division 1
Division 1
Division 1
12–15 (Repealed)
pt 3, div 1: Rep 2020 No 24, Sch 1.7.
s 12: Am 2009 No 49, Sch 2.28. Rep 2020 No 24, Sch 1.7.
ss 13–15: Rep 2020 No 24, Sch 1.7.
Division 2
Calendar
Division 2 Calendar
Division 2 Calendar
24 George II c 23—The Calendar (New Style) Act 1750—ss 1, 2 and 3.
16
Provisions relating to calendar
16 Provisions relating to calendar
16 Provisions relating to calendar
(1) The first day of January in every year shall be the first day of the year, and each new year shall accordingly commence and be reckoned from the first day of every month of January and all acts, deeds, writings, notes, and other instruments, of what nature or kind soever, hereafter made, executed, or signed shall bear date according to the said method of reckoning, being the reckoning instituted by the Imperial Act 24 George II c 23, known as The Calendar (New Style) Act 1750.
(2) The several years two thousand one hundred, two thousand two hundred, two thousand three hundred, or any other hundredth year in time to come, except only every fourth hundredth year, of which the year two thousand shall be the first, shall not be leap years, but shall be common years consisting of three hundred and sixty-five days, and no more; and the years two thousand, two thousand four hundred, two thousand eight hundred, and every other fourth hundredth year from the said year two thousand inclusive, and also all other years which by the reckoning in use before the first day of January, one thousand seven hundred and fifty-two (being the date for the commencement of the calendar or reckoning instituted by the said Imperial Act, The Calendar (New Style) Act 1750) would have been leap years, shall in all times to come be leap years, consisting of three hundred and sixty-six days, in the same manner as was before the said first day of January, one thousand seven hundred and fifty-two used with respect to every fourth year.
(3) The months, the enumeration of days in the respective months, and the ordering of the days of the week and Easter Day, shall be determined in accordance with the calendar, table and rules annexed to the said Imperial Act, The Calendar (New Style) Act 1750.
Division 3
Division 3
Division 3
17 (Repealed)
pt 3, div 3 (s 17): Rep 1993 No 10, sec 27.
Division 4
Forcible entries and detainers
Division 4 Forcible entries and detainers
Division 4 Forcible entries and detainers
5 Richard II St 1 c 7—The Forcible Entry Act 1381.
18
Forcible entry
18 Forcible entry
18 Forcible entry
8 Henry VI c 9—The Forcible Entry Act 1429; 31 Elizabeth c 11—The Forcible Entry Act 1588.
No person shall make any entry into any land except where such entry is given by law and, in such case, with no more force than is reasonably necessary.
19
Forcible detainer
19 Forcible detainer
19 Forcible detainer
No person being in actual possession of land for a period of less than three years by himself or his predecessors shall without colour of right hold possession of it in a manner likely to cause a breach of the peace or a reasonable apprehension of a breach of the peace against a person entitled by law to the possession of the land and able and willing to afford reasonable information as to his being so entitled.
20
Penalty
20 Penalty
20 Penalty
Any person who contravenes section eighteen or section nineteen of this Act shall be guilty of an indictable offence and liable to imprisonment for a term of not more than one year or to a fine not exceeding 10 penalty units or to both such imprisonment and fine.
s 20: Am 1993 No 47, Sch 1; 1993 No 108, Sch 2; 1999 No 94, Sch 4.117.
Division 5
Guardians
Division 5 Guardians
Division 5 Guardians
12 Charles II c 24—The Tenures Abolition Act 1660—s 9.
21
Powers of guardian
21 Powers of guardian
21 Powers of guardian
(1) A guardian of a minor appointed by deed or will may take into his custody and management to the use of the minor the real and personal estate of the minor till the age of eighteen years or any lesser time according to the terms of the appointment of the guardian, and may bring such actions in relation to the real and personal estate of the minor as by law a guardian in common socage might have done, or may bring such other proceedings as may be necessary to give effect to all or any of his powers under this section.
(2) In this section minor means a person under the age of eighteen years.
s 21: Am 1970 No 60, First Sch.
Division 6
Insurance—life, fire and other policies
Division 6 Insurance—life, fire and other policies
Division 6 Insurance—life, fire and other policies
14 George III c 48—The Life Assurance Act 1774.
22
Existing insurances not affected by this Division
22 Existing insurances not affected by this Division
22 Existing insurances not affected by this Division
This Division does not apply to insurances made before the commencement of this Act.
23
Insurable interest
23 Insurable interest
23 Insurable interest
(1) No insurance shall be made by any person on the life of any person or on any other event whatsoever wherein the person for whose use or benefit or on whose account the policy is made has no interest, or by way of gaming or wagering; and every assurance made contrary to this subsection shall be void.
(2) It shall not be lawful to make any policy on the life of any person, or on any other event whatsoever, wherein the person effecting the policy has no interest, without inserting in such policy the names of the persons interested therein, or for whose use or benefit or on whose account such policy was made.
(3) In all cases where there is an interest in such life or other event, no greater sum shall be recovered or received from the insurer than the amount or value of the interest.
(4) Nothing in this Division shall extend to insurance made by any person on ships or goods, or to contracts of indemnity against loss by fire or loss by other events whatsoever.
Division 7
Insurance—marine
Division 7 Insurance—marine
Division 7 Insurance—marine
19 George II c 37—The Marine Insurance Act 1745; 28 George III c 56—The Marine Insurance Act 1788.
24
Application of Division
24 Application of Division
24 Application of Division
This Division applies to State marine insurance within the limits of New South Wales.
25
Existing contracts not affected
25 Existing contracts not affected
25 Existing contracts not affected
This Division does not apply to contracts of marine insurance made before the commencement of this Act.
26
Avoidance of wagering or gaming contracts
26 Avoidance of wagering or gaming contracts
26 Avoidance of wagering or gaming contracts
(1) Every contract of marine insurance by way of gaming or wagering is void.
(2) A contract of marine insurance is deemed to be a gaming or wagering contract—
(a) where the assured has not an insurable interest, and the contract is entered into with no expectation of acquiring such an interest, or
(b) where the policy is made “interest or no interest”, or “without further proof of interest than the policy itself”, or “without benefit of salvage to the insurer”, or subject to any other like term—
Provided that, where there is no possibility of salvage, a policy may be effected without benefit of salvage to the insurer.
27
Contracts must be embodied in policy
27 Contracts must be embodied in policy
27 Contracts must be embodied in policy
Subject to the provisions of any Act, a contract of marine insurance is inadmissible in evidence in an action for the recovery of a loss under the contract unless it is embodied in a marine policy in accordance with this Division. The policy may be executed and issued either at the time when the contract is concluded or afterwards.
28
What policy must specify
28 What policy must specify
28 What policy must specify
A marine policy must specify—
(a) the name of the assured, or of some person who effects the insurance on his behalf,
(b) the subject-matter insured and the risk insured against,
(c) the voyage, or period of time, or both as the case may be, covered by the insurance,
(d) the sum or sums insured, and
(e) the name or names of the insurers.
Division 8
Division 8
Division 8
29, 30 (Repealed)
pt 3, div 8: Rep 2002 No 27, sec 16.
s 29: Subst 1975 No 65, sec 13. Rep 2002 No 27, sec 16.
s 30: Rep 1999 No 94, Sch 4.29.
Division 9
Landlord and tenant
Division 9 Landlord and tenant
Division 9 Landlord and tenant
31
31
31 (Repealed)
32
Voluntary waste
32 Voluntary waste
32 Voluntary waste
s 32, hdg: Rep 2001 No 56, Sch 3.2.
(1) A tenant for life or lives or a leasehold tenant shall not commit voluntary waste.
(2) Nothing in subsection one of this section applies to any estate or tenancy without impeachment of waste, or affects any licence or other right to commit waste.
(3) In subsection one of this section leasehold tenant includes a tenant for a term, a tenant under a periodical tenancy, a tenant under a tenancy to which section one hundred and twenty-seven of the Conveyancing Act 1919, as amended by subsequent Acts, applies, and a tenant at will.
(4) A tenant who infringes subsection one of this section is liable in damages to his remainderman or reversioner but this section imposes no criminal liability.
(5) This section does not affect the operation of any event which may determine a tenancy at will.
Division 10
Legal procedure—actions on bonds
Division 10 Legal procedure—actions on bonds
Division 10 Legal procedure—actions on bonds
8 and 9 William III c 11—The Administration of Justice Act 1696—s 8.
33
Assignment of breaches, payment of damages etc
33 Assignment of breaches, payment of damages etc
33 Assignment of breaches, payment of damages etc
4 and 5 Anne c 3 (or c 16)—The Administration of Justice Act 1705—ss 12 and 13.
(1) In any action on any bond or on any penal sum for non-performance of any covenant or agreement, the plaintiff may assign as many breaches as he thinks fit, and may recover not only such damages as have been usually awarded in such cases, but also damages for such of the said breaches so assigned as the plaintiff proves to have occurred.
(2) If interlocutory judgment in any such case is given for the plaintiff by confession or in default of appearance or of pleading, the plaintiff may suggest as many breaches of the covenants and agreements as he thinks fit, and may on proof of such breaches recover damages accordingly.
(3) If the defendant after judgment and before execution pays into the court where the action is brought to the use of the plaintiff such damages together with the costs of the action, or if by reason of any execution the plaintiff is fully paid or satisfied all such damages together with his costs of the action and all reasonable charges and expenses for the said execution, further proceedings on the said judgment shall be stayed. But the judgment shall remain as a further security to answer to the plaintiff such damages as are sustained for further breach of such covenant or agreement, and upon any such breach the plaintiff may summon the defendant to show cause why execution should not be had or awarded upon the said judgment, upon which there shall be the like proceeding or such other proceeding as may be ordered for inquiry as to such breaches and assessing damages thereon; and upon payment or satisfaction in manner as aforesaid of such future damages costs charges and expenses as aforesaid all further proceedings on the said judgment shall to the like extent again be stayed.
34
Action of debt brought on a bond after money paid etc
34 Action of debt brought on a bond after money paid etc
34 Action of debt brought on a bond after money paid etc
(1) Where an action is brought upon any bond which has a condition or defeasance to make void the same upon payment of a lesser sum at a day or place certain, if the obligor has before the action brought paid to the obligee the principal and interest due by the defeasance or condition of such bond, though such payment was not made strictly according to the condition or defeasance, it may nevertheless be pleaded in bar of such action; and shall be as effectual a bar thereof as if the money had been paid at the day and place according to the condition or defeasance and had been so pleaded.
(2) If at any time pending an action upon any such bond with a penalty the defendant brings into court all the principal money and interest due on such bond and also all costs properly chargeable by the plaintiff against the defendant in respect of any proceedings upon such bond, the money so brought in shall be in full satisfaction and discharge of the bond.
Division 11
Libels—blasphemous and seditious libels
Division 11 Libels—blasphemous and seditious libels
Division 11 Libels—blasphemous and seditious libels
60 George III and 1 George IV c 8—The Criminal Libel Act 1819—ss 1, 2 and 8.
35
Seizure of copies of libels
35 Seizure of copies of libels
35 Seizure of copies of libels
(1) In every case in which any verdict or judgment shall be had against any person for composing, printing, or publishing any blasphemous libel, or any seditious libel tending to bring into hatred or contempt the person of Her Majesty, Her heirs or successors, or the government and constitution of the State of New South Wales as by law established, or either House of Parliament, or to excite Her Majesty’s subjects to attempt the alteration of any matter as by law established, otherwise than by lawful means, the judge or the court before whom or in which such verdict shall have been given, or the court in which such judgment shall be had, may make an order for the seizure and carrying away and detaining in safe custody, in such manner as shall be directed in such order, all copies of the libel which shall be in the possession of the person against whom such verdict or judgment shall have been had, or in the possession of any other person named in the order for his use, evidence upon oath having been previously given to the satisfaction of such court or judge, that a copy or copies of the said libel is or are in the possession of such other person for the use of the person against whom such verdict or judgment shall have been had as aforesaid; and in every such case it shall be lawful for any justice of the peace or for any person acting under any such order, or for any person acting with or in aid of any such justice of the peace, or other person, to search for any copies of such libel in any house, building, or other place whatsoever belonging to or occupied by the person against whom any such verdict or judgment shall have been had, or belonging to or occupied by any other person so named, in whose possession any copies of any such libel, belonging to the person against whom any such verdict or judgment shall have been had, shall be; and in case admission shall be refused or not obtained within a reasonable time after it shall have been first demanded, to enter by force by day into any such house, building, or place whatsoever, and to carry away all copies of the libel there found, and to detain the same in safe custody, until the same shall be restored under the provisions of this section, or disposed of according to any further order made in relation thereto.
(2) If in any such case as aforesaid judgment shall be stayed, or if, after judgment shall have been entered, the same shall be reversed, all copies so seized shall be forthwith returned to the person from whom the same shall have been so taken as aforesaid, free of all charge and expense, and without the payment of any fees whatsoever; and in every case in which final judgment shall be entered upon the verdict so found against the person charged with having composed, printed, or published such libel, then all copies so seized shall be disposed of as the court in which such judgment shall be given shall order and direct.
(3) Any proceeding which shall be brought for any thing done in pursuance of this section, shall be commenced within six months next after the thing done; and the defendant in every such proceeding may plead the general issue, and give this section and the special matter in evidence at any trial to be had thereupon; and if proceedings shall be brought or commenced after the time limited for bringing the same, there shall be a verdict for the defendant.
Division 12
Real property
Division 12 Real property
Division 12 Real property
18 Edward I St 1 (Quia Emptores) cc 1 and 3; 34 Edward III c 15
36
Alienation of fee simple
36 Alienation of fee simple
36 Alienation of fee simple
12 Charles II c 24—The Tenures Abolition Act 1660—s 4.
Land held of the Crown in fee simple may be assured in fee simple without licence and without fine and the person taking under the assurance shall hold the land of the Crown in the same manner as the land was held before the assurance took effect.
37
Tenure
37 Tenure
37 Tenure
All tenures created by the Crown by way of the alienation of an estate in fee simple in land after the commencement of this Act shall be taken to be in free and common socage without any incident of tenure for the benefit of the Crown.
s 37: Am 1980 No 196, Sch 1.
Division 13
Recovery of property on determination of a life or lives
Division 13 Recovery of property on determination of a life or lives
Division 13 Recovery of property on determination of a life or lives
18 and 19 Charles II c 11—The Cestui que Vie Act 1666; 6 Anne c 72 (or c 18)—The Cestui que Vie Act 1707.
38
Property—determination of a life or lives
38 Property—determination of a life or lives
38 Property—determination of a life or lives
(1) Every person having any estate or interest in any property determinable upon a life or lives who, after the determination of such life or lives without the express consent of the person next immediately entitled upon or after such determination, holds over or continues in possession of such property estate or interest, or of the rents, profits or income thereof, shall be liable in damages or to an account for such rents and profits, or both, to the person entitled to such property, estate, interest, rents, profits or income after the determination of such life or lives.
(2) Where a reversion remainder or other estate or interest in any property is expectant upon the determination of a life or lives, the reversioner remainderman or other person entitled to such reversion remainder or other estate or interest may in any proceeding claiming relief on the basis that such life or lives has or have determined, adduce evidence of belief that such life or lives has or have been determined and of the grounds of such belief, and thereupon the court may in its discretion order that unless the person or persons on whose life or lives such reversion remainder or other estate or interest is expectant is or are produced in court or is or are otherwise shown to be living, such person or persons shall for the purposes of such proceedings be accounted as dead, and relief may be given accordingly.
(3) If in such proceedings the lastmentioned person is shown to have remained beyond Australia, or otherwise absented himself from the place in which if in Australia he might be expected to be found, for the space of seven years or upwards, such person, if not proved to be living, shall for the purposes of such proceedings be accounted as dead, and relief may be given accordingly.
(4) If in any such proceedings judgment has been given against the plaintiff, and afterwards such plaintiff brings subsequent proceedings upon the basis that such life has determined, the court may make an order staying such proceedings permanently or until further order or for such time as may be thought fit.
(5) If in consequence of the judgment given in any such proceedings, any person having any estate or interest in any property determinable on such life or lives has been evicted from or deprived of any property or any estate or interest therein, and afterwards it appears that such person or persons on whose life or lives such estate or interest depends is or are living or was or were living at the time of such eviction or deprivation, the court may give such relief as is appropriate in the circumstances.
Division 14
Religious worship—disturbance of
Division 14 Religious worship—disturbance of
Division 14 Religious worship—disturbance of
1 William and Mary c 18—The Toleration Act 1688—s 15; 52 George III c 155—The Places of Religious Worship Act 1812—s 12
39
Disturbing religious worship
39 Disturbing religious worship
39 Disturbing religious worship
Any person who wilfully and without lawful justification or excuse, the proof of which lies on him, disquiets or disturbs any meeting of persons lawfully assembled for religious worship, or assaults any person lawfully officiating at any such meeting, or any of the persons there assembled, shall be liable upon summary conviction to a penalty not exceeding 1 penalty unit or to imprisonment for a term not exceeding two months.
s 39: Am 1993 No 47, Sch 1.
Division 15
Bailiff
Division 15 Bailiff
Division 15 Bailiff
pt 3, div 15, hdg: Am 1970 No 52, Second Sch.
32 George II c 28—The Debtors Imprisonment Act 1758—ss 1, 3 and 4.
40
Duties on arrest of civil debtors
40 Duties on arrest of civil debtors
40 Duties on arrest of civil debtors
(1) Where any bailiff or other officer arrests or has in custody upon mesne process any person in the course of a civil proceeding such officer shall not—
(a) convey such person without his free consent to any premises licensed for the sale of intoxicating liquor or any registered club, or to the private house of such officer or any tenant or relative of such officer; nor
(b) charge such person with any sum for, or procure him to call or pay for, any liquor, food, or thing whatsoever, except what he freely asks for; nor
(c) take such person to any gaol within twenty-four hours of his arrest, unless such person fails to name or refuses to be carried to some safe and convenient house of his own nomination, being within a reasonable distance of the place at which he was arrested, and not being the private dwelling-house of such person,
but shall during such twenty-four hours permit such person to send for and to have brought to him at reasonable times in the day and in reasonable quantities any food or liquor from what place he thinks fit, and also to have and use such bedding, linen, and other necessary things as he has occasion for or is supplied with, and shall not require any payment for the use thereof or restrict the use thereof.
(2) Where a bailiff or other officer makes an arrest to which this section applies he shall as promptly as reasonably possible inform the person arrested of the effect of subsection one of this section.
s 40: Am 1970 No 52, Second Sch (am 1972 No 41, Second Sch).
Division 16
Sunday
Division 16 Sunday
Division 16 Sunday
29 Charles II c 7—The Sunday Observance Act 1677—s 6
41
41
41 (Repealed)
Division 17
Witnesses—habeas corpus for prisoners
Division 17 Witnesses—habeas corpus for prisoners
Division 17 Witnesses—habeas corpus for prisoners
44 George III c 102—The Habeas Corpus Act 1804.
42
42
42 (Repealed)
Part 4
Penalties
Part 4 Penalties
Part 4 Penalties
43
Offences—penalties
43 Offences—penalties
43 Offences—penalties
Any person guilty of any offence under any Imperial enactment included in Part 1 of the Second Schedule for which no punishment is otherwise provided is liable to imprisonment for a term of not more than five years or to a fine not exceeding 20 penalty units, or to both such imprisonment and fine.
s 43: Am 1993 No 47, Sch 1.
Schedule 1
Schedule 1
First Schedule
(Section 5)
| Imperial enactment | Substituted provision of this Act | Division of Part 3 |
| (1267) 52 Henry III (Statute of Marlborough) c 23 | s 32 | Division 9 |
| (1289–90) 18 Edward I (st 1) (Quia Emptores) cc 1 and 3. | s 36 | Division 12 |
| (1326–7) 1 Edward III St 2 c 16 | s 29 | Division 8 |
| (1344) 18 Edward III St 2 c 2 | s 29 | Division 8 |
| (1351–2) 25 Edward III St 5 c 5 | s 13 | Division 1 |
| (1357) 31 Edward III St 1 c 11 | s 14 | Division 1 |
| (1360–1) 34 Edward III c 1 (The Justices of the Peace Act 1361) | s 30 | Division 8 |
| (1361) 34 Edward III c 15 | s 36 | Division 12 |
| (1381–2) 5 Richard II St 1 c 7 (The Forcible Entry Act 1381) | s 18 | Division 4 |
| (1429) 8 Henry VI c 9 (The Forcible Entry Act 1429) | s 19 | Division 4 |
| (1588–9) 31 Elizabeth c 11 (The Forcible Entry Act 1588) | s 19 | Division 4 |
| (1660) 12 Charles II c 24 (The Tenures Abolition Act 1660)— | | |
| s 4 | s 37 | Division 12 |
| s 9 | s 21 | Division 5 |
| (1666) 18 and 19 Charles II c 11 (The Cestui que Vie Act 1666) | s 38 | Division 13 |
| (1677) 29 Charles II c 7 (The Sunday Observance Act 1677), s 6 | s 41 | Division 16 |
| (1678) 30 Charles II c 7 | s 15 | Division 1 |
| (1685) 1 James II c 17, s 6 | s 14 | Division 1 |
| (1688) 1 William and Mary c 18 (The Toleration Act 1688), s 15 | s 39 | Division 14 |
| (1692) 4 William and Mary c 24, s 12 | s 15 | Division 1 |
| (1696–7) 8 and 9 William III c 11 (The Administration of Justice Act 1696), s 8 | s 33 | Division 10 |
| (1705) 4 and 5 Anne c 3 (or c 16) (The Administration of Justice Act 1705), ss 12 and 13 | s 34 | Division 10 |
| (1707) 6 Anne c 72 (or c 18) (The Cestui que Vie Act 1707) | s 38 | Division 13 |
| (1737) 11 George II c 19 (The Distress for Rent Act 1737), s 14 | s 31 | Division 9 |
| (1745) 19 George II c 37 (The Marine Insurance Act 1745) | s 26 | Division 7 |
| (1750) 24 George II c 23 (The Calendar (New Style) Act 1750), ss 1, 2 and 3 | s 16 | Division 2 |
| (1758–9) 32 George II c 28 (The Debtors Imprisonment Act 1758), ss 1, 3 and 4 | s 40 | Division 15 |
| (1774) 14 George III c 48 (The Life Assurance Act 1774) | s 23 | Division 6 |
| (1788) 28 George III c 56 (The Marine Insurance Act 1788) | ss 27, 28 | Division 7 |
| (1804) 44 George III c 102 (The Habeas Corpus Act 1804) | s 42 | Division 17 |
| (1812) 52 George III c 101 (The Charities Procedure Act 1812) | s 17 | Division 3 |
| (1812) 52 George III c 155 (The Places of Religious Worship Act 1812), s 12 | s 39 | Division 14 |
| (1819) 60 George III and 1 George IV c 8 (The Criminal Libel Act 1819), ss 1, 2 and 8 | s 35 | Division 11 |
Schedule 2
Schedule 2
Second Schedule
Second Sch: Am 2013 No 53, sec 6 (1) (2).
Note: Ins by Parliamentary Counsel.
Schedule 3
Enactments applying irrespective of 9 George IV c 83
Schedule 3 Enactments applying irrespective of 9 George IV c 83
Third Schedule Enactments applying irrespective of 9 George IV c 83
(A) Criminal law enactments
| (1698–9) | 11 William III c 12 | Crimes by Governors of Colonies. |
| (1772) | 12 George III c 24 | The Dockyards, &c Protection Act 1772. |
| (1802) | 42 George III c 85, s 1 | The Criminal Jurisdiction Act 1802. |
| (1812) | 52 George III c 156 | The Prisoners of War (Escape) Act 1812. |
| (1824) | 5 George IV c 113 | The Slave Trade Act 1824. |
(B) Miscellaneous
| (1813) | 54 George III c 15, s 4 | The New South Wales (Debts) Act 1813. |
| (1821) | 1 and 2 George IV c 121, ss 27–29 | The Commissariat Accounts Act 1821. |
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act and commencement
1 Name of Act and commencement
1 Name of Act and commencement
(1) This Act may be cited as the Imperial Acts Application Act 1969.
(2) This Act shall, except where otherwise expressly provided, commence upon a day to be appointed by the Governor and notified by proclamation in the Gazette.
2 Construction
2 Construction
2 Construction
This Act shall be read and construed subject to the Commonwealth of Australia Constitution Act and so as not to exceed the legislative power of the State, to the intent that where any provision of this Act or the application thereof to any person or circumstance is held invalid, the remainder of this Act and the application of the provision to other persons or circumstances shall not be affected.
3
3 (Repealed)
3
s 3: Am 1970 No 52, Second Sch. Rep 1999 No 31, Sch 5.46.
Part 2 General
Part 2 General
Part 2 General
4 Definition
4 Definition
4 Definition
In the construction of this Act, unless inconsistent with the context or subject-matter, the expression Imperial enactment includes any part of the enacted law at any time in force in England.
5 Substitution of enactments
5 Substitution of enactments
5 Substitution of enactments
(1) Each Imperial enactment mentioned in the First Schedule to this Act, so far as it was in force in England on the twenty-fifth day of July, one thousand eight hundred and twenty-eight is declared—
(a) to have been in force in New South Wales on that day by virtue of the Imperial Act 9 George IV Chapter 83 (The Australian Courts Act 1828), and
(b) to have remained in force in New South Wales from that day until the commencement of this Act, except so far as affected by State Acts from time to time in force.
(2) Each Imperial enactment mentioned in the First Schedule to this Act is hereby repealed so far as it applies in New South Wales.
Part 3, as originally enacted, substituted modernised language for 27 Imperial enactments. Many of those substitutions have themselves been repealed (see the editorial notes to Divisions 1, 3 and 8 and to ss 12–15, 17, 29–31, 41 and 42). The surviving substituted provisions address:
Calendar reform (s 16, substituting the Calendar (New Style) Act 1750), fixing 1 January as the start of the year, rules for leap years, and the ordering of months and Easter.
Forcible entry and detainer (ss 18–20, substituting the Forcible Entry Acts of 1381, 1429 and 1588). Section 18 prohibits entry onto land except where given by law and with no more force than reasonably necessary. Section 19 prohibits a person in possession for less than three years from holding land in a manner likely to cause a breach of the peace against a person legally entitled to possession. Breach is an indictable offence punishable by up to one year’s imprisonment, a fine of 10 penalty units, or both (s 20, as amended).
Guardianship (s 21, substituting s 9 of the Tenures Abolition Act 1660). A guardian appointed by deed or will may take custody and management of a minor’s real and personal estate until age 18 and bring proceedings that a guardian in socage could have brought.
Life insurance (ss 22–23, substituting the Life Assurance Act 1774). Policies taken out without insurable interest are void; the policy must name the interested persons; recovery is limited to the value of the interest. Marine and indemnity insurances are excluded.
Marine insurance (ss 24–28, substituting the Marine Insurance Acts 1745 and 1788, but only for State marine insurance within New South Wales). Wagering contracts are void; contracts must be embodied in a policy that specifies the assured, subject-matter, risk, voyage or period, sum insured and the insurers.
Voluntary waste (s 32, substituting the Statute of Marlborough c 23). Tenants for life or leasehold tenants (including periodic tenants and tenants at will) must not commit voluntary waste; liability is in damages only, with no criminal sanction.
Actions on bonds (ss 33–34, substituting provisions of the Administration of Justice Acts 1696 and 1705). Plaintiffs may assign multiple breaches and recover damages for each proved breach; payment into court or satisfaction stays further proceedings while preserving the judgment as security for future breaches.
Seizure of blasphemous and seditious libels (s 35, substituting the Criminal Libel Act 1819). Following conviction, a court may order seizure of all copies, with forcible entry powers and a six-month limitation period for related proceedings.
Alienation of fee simple and tenure (ss 36–37, substituting Quia Emptores and the Tenures Abolition Act 1660). Land held of the Crown in fee simple may be alienated without licence or fine; all post-commencement Crown grants in fee simple are in free and common socage.
Determination of life estates (s 38, substituting the Cestui que Vie Acts 1666 and 1707). A person holding over after the determining life is liable in damages; courts may presume death on evidence of seven years’ absence beyond Australia.
Disturbance of religious worship (s 39, substituting provisions of the Toleration Act 1688 and the Places of Religious Worship Act 1812). Wilful disturbance without lawful excuse is punishable on summary conviction by a penalty of 1 penalty unit or two months’ imprisonment.
Duties of bailiffs arresting civil debtors (s 40, substituting the Debtors Imprisonment Act 1758). Bailiffs must not convey the debtor to licensed premises or their own house, must allow the debtor to nominate a convenient house, and must inform the debtor of these rights.
Part 4 (s 43) provides a default penalty of five years’ imprisonment or 20 penalty units (or both) for offences under preserved Imperial enactments in Part 1 of the Second Schedule where no other punishment is provided.
The Second Schedule itself is the constitutional heart of the Act. Part 1 lists enduring constitutional instruments including Magna Carta c 29, the Petition of Right, the Bill of Rights, the Act of Settlement and multiple Habeas Corpus Acts. Part 2 preserves defined portions of the Treason Act 1351 (as amended) and various piracy statutes, excluding only the penal provisions. The full texts of these preserved instruments are set out after the Schedules, ensuring they operate as part of NSW law.
In short, the Act performs a once-and-for-all stocktake: it confirms historical reception, excises the obsolete, modernises what is useful, entrenches what is constitutionally fundamental, and supplies default rules for enforcement and revival. Its practical effect today is narrower than at enactment because successive repeals have removed large parts of the substituted code, leaving the constitutional preservation function dominant.
Who it affects
The Act affects three broad classes of persons and entities.
First, it binds the Crown in right of New South Wales and all courts, tribunals and public officials who must apply the preserved Imperial texts. Because Magna Carta c 29, the Bill of Rights, the Habeas Corpus Acts and the Statute of Monopolies are declared to be in force (Second Schedule, Part 1), every exercise of executive or judicial power must conform to the due-process, jury-trial, no-standing-army-in-peacetime and no-monopoly guarantees contained in those instruments. Section 2 expressly subordinates the Act to the Commonwealth Constitution, so the preserved Imperial texts cannot expand State legislative power beyond constitutional limits.
Second, it directly regulates private legal relationships. Landowners and tenants are subject to the voluntary-waste rule in s 32 and the forcible-entry and detainer prohibitions in ss 18 and 19. Insurers and proposers must comply with the insurable-interest requirements in ss 23 and 26; marine policies must meet the formalities in ss 27 and 28. Guardians appointed by deed or will obtain statutory powers under s 21. Bailiffs and sheriffs exercising civil process are constrained by the detailed code in s 40. Any person who disturbs a lawful religious assembly commits a summary offence under s 39.
Third, the Act affects litigants and legal practitioners. Section 33 permits multiple breach assignment in bond actions; s 34 allows late tender to bar an action of debt on a bond. Section 35 supplies a statutory procedure for seizure of libels after conviction. The evidentiary presumptions in s 38(2)–(5) concerning lives in being are available in any proceeding where a reversion or remainder is expectant on a life. Because the preserved Habeas Corpus Acts (Second Schedule, Part 1) are declared to be in force, any person unlawfully detained may invoke the full procedural machinery of the 1679, 1816 and 1640 Acts as part of NSW common law.
The Act does not bind the Commonwealth in respect of Commonwealth functions, nor does it affect Imperial enactments that applied to NSW by paramount force independently of the 1828 Act (s 7). It is therefore of principal relevance to State courts, State instrumentalities, and private parties whose transactions or disputes engage the surviving substituted provisions or the preserved constitutional texts.
Key duties and rights
The Act both creates duties and entrenches rights.
Key duties include:
The duty under s 18 not to enter land except where entry is given by law and then only with no more force than reasonably necessary.
The duty under s 19 not to detain land (if possession has been held for less than three years) in a manner likely to cause a breach of the peace against a person entitled to possession.
The duty on insurers under s 23 not to issue life policies without insurable interest and not to pay more than the value of that interest.
The duty on marine insurers and assured under ss 26–28 to avoid wagering contracts and to embody the contract in a policy containing the prescribed particulars.
The duty on tenants under s 32(1) not to commit voluntary waste (subject to the exception for estates without impeachment of waste).
The duty on bailiffs under s 40(1) to observe the detailed restrictions on conveyance, charging for liquor, and removal to gaol within 24 hours.
The duty not to disturb religious worship (s 39), the onus of proving lawful justification lying on the defendant.
Key rights include:
The constitutional rights contained in the preserved instruments: no imprisonment except by lawful judgment of peers or the law of the land (Magna Carta c 29); no taxation without parliamentary consent (Petition of Right); prohibition on standing armies in peacetime and on cruel or unusual punishments (Bill of Rights); the procedural safeguards of the Habeas Corpus Acts 1640, 1679, 1816; the patentability of new manufactures for 14 years (Statute of Monopolies s 6).
The right of a guardian under s 21 to manage a minor’s estate and bring proceedings.
The right of a reversioner or remainderman under s 38(2) to adduce evidence of belief that a life has determined and to obtain a court order presuming death.
The right to plead payment or tender in bar of an action on a bond (s 34).
The right to assign multiple breaches in an action on a penal bond and to recover damages for each proved breach (s 33).
The right to have copies of a libel returned if judgment is stayed or reversed (s 35(2)).
These rights and duties are not merely declaratory; they are enforceable through the ordinary civil and criminal processes of NSW courts, supplemented by the default penalty in s 43 for preserved Imperial offences that lack their own sanction.
Penalties and enforcement
Enforcement mechanisms are both criminal and civil.
Criminal sanctions are modest by modern standards. Contravention of the forcible-entry or detainer rules is an indictable offence carrying a maximum of one year’s imprisonment, 10 penalty units, or both (s 20, as amended by the Crimes Legislation Amendment (Penalty Notices) Act 1999 and earlier penalty-unit conversions). Disturbance of religious worship is a summary offence punishable by 1 penalty unit or two months’ imprisonment (s 39). The default penalty for offences under preserved Imperial enactments in Part 1 of the Second Schedule, where no other punishment is provided, is five years’ imprisonment or 20 penalty units or both (s 43). The seizure-of-libels procedure in s 35 is backed by a six-month limitation period for any action brought for acts done under the section.
Civil enforcement is the primary vehicle for most of the substituted provisions. Section 32(4) imposes liability in damages for voluntary waste but expressly states that the section creates no criminal liability. Section 38(1) creates liability in damages or for an account of rents and profits where a person holds over after a life estate has determined. The insurance provisions render policies void (s 23(1)) or inadmissible in evidence (s 27) rather than creating freestanding causes of action. Actions on bonds under ss 33 and 34 are regulated as to the measure of recoverable damages and the effect of tender.
The preserved constitutional instruments supply their own enforcement logic. The Habeas Corpus Acts continue to generate the well-known summary jurisdiction to discharge, bail or remand, with contempt sanctions for disobedience. The Bill of Rights and Magna Carta operate as substantive limits on executive and legislative action and can be pleaded in bar or relied upon in collateral attack.
Section 11 provides a unique enforcement-related mechanism: the Governor’s power to revive repealed Imperial provisions by proclamation, subject to parliamentary veto. This is not a penalty power but a legislative safety valve that has, in practice, rarely been used.
How it interacts with other laws
The Act is expressly subject to the Commonwealth Constitution (s 2) and to any inconsistent State Act in force at commencement (s 5(4)). Where a Part 3 provision is inconsistent with a later State Act, the later Act prevails. References in any State Act to an Imperial enactment listed in the First Schedule are, where the case permits, read as references to the corresponding substituted provision (s 5(6)).
The Act sits alongside the Interpretation Act 1987 (NSW), which supplies general rules for the construction of all legislation. Section 5(5) of the Act permits regard to the context of the original Imperial enactment when construing Part 3 provisions. The savings clauses in s 9 preserve accrued rights, pending proceedings and the common-law rules of charity notwithstanding repeal of the Statute of Charitable Uses.
In the property sphere the Act interacts with the Conveyancing Act 1919 (NSW). Section 32(3) expressly includes tenancies to which s 127 of the Conveyancing Act applies within the definition of “leasehold tenant” for waste purposes. The real-property provisions in ss 36 and 37 operate subject to the Torrens title regime; they do not disturb registered interests but govern the underlying doctrine of tenure and the incidents of Crown grants.
In insurance, the Marine Insurance Act 1909 (Cth) covers Commonwealth marine insurance, while the Act’s Division 7 is confined to “State marine insurance within the limits of New South Wales” (s 24). Life insurance is now largely governed by the Life Insurance Act 1995 (Cth) and the Insurance Contracts Act 1984 (Cth), but the insurable-interest rule in s 23 remains the foundational prohibition on wagering contracts.
Constitutionally, the preserved instruments in the Second Schedule form part of the “law of the land” for the purposes of the New South Wales Constitution Act 1902 and interact with the Australia Acts 1986. The continued force of the Bill of Rights and Habeas Corpus Acts supplies a statutory underpinning for common-law rights that courts have occasionally invoked in administrative-law challenges.
The Act also interacts with the Imperial Acts Application Act 1980 (Vic) and cognate statutes in other States. While each jurisdiction rationalised Imperial law independently, the common historical root in the Australian Courts Act 1828 means that comparative jurisprudence remains relevant when construing parallel provisions.
Recent changes and why
The Act has been amended on several occasions, almost all of them repeals or statute-law revision measures.
The Statute Law Revision Act 1970 (No 52) repealed the heading to Division 9 and s 31, and amended ss 21, 40 and the Second Schedule. The Limitation Act 1969 and other 1970s legislation removed obsolete procedural provisions. The Crimes (Amendment) Act 1993 and subsequent penalty-unit conversion statutes (1993 No 47, 1993 No 108, 1999 No 94) updated the monetary penalties in ss 20, 39 and 43 from pounds and dollars to penalty units.
More significantly, the Statute Law (Miscellaneous Provisions) Act (No 2) 2002 repealed Division 8 (ss 29–30) because the subject matter (certain rules on distress for rent and justices of the peace) had been overtaken by the Landlord and Tenant Act 1899 and later legislation. The Law Reform (Miscellaneous Provisions) Act 1993 and the Succession and Probate Legislation Amendment Act 2020 removed the remaining Divisions 1 and 3 (ss 12–15, 17) dealing with obsolete rules on executors, administrators and charitable uses. The Justice Legislation Amendment Act 2009 updated s 11 to refer to the NSW legislation website rather than the Gazette.
These repeals reflect a consistent policy: once the Imperial rule has been fully absorbed into modern NSW statutes or rendered redundant by changing social conditions, the placeholder provision in the 1969 Act is removed. The constitutional core (Second Schedule) has remained untouched, confirming that the Act’s enduring purpose is the entrenchment of fundamental liberties rather than the maintenance of a comprehensive code of medieval and early-modern statute law.
Court challenges and controversies
Because the Act is largely declaratory and repealing, it has generated relatively few reported challenges. The leading authorities concern the scope of the preserved instruments and the interaction between substituted provisions and later legislation.
In Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 the High Court considered whether the preservation of Magna Carta c 29 prevented the State from acquiring land without compensation. The Court held that the 1969 Act’s declaration did not elevate the ancient text above the State’s legislative supremacy; subsequent statutes could validly abrogate the compensation principle. The decision illustrates that the Act’s preservation is subject to ordinary principles of implied repeal.
The forcible-entry provisions in ss 18–20 have been invoked in trespass and possession disputes. Courts have emphasised that “force” in s 18 is not limited to violence against persons but includes breaking locks or doors where no legal right of entry exists (see the construction adopted in McPhail v Persons Unknown [1973] Ch 447, applied in NSW decisions). Section 19’s three-year possession rule has been strictly applied; colour of right must be more than a mere assertion.
The insurable-interest provisions in s 23 have been cited in modern life-insurance litigation to void policies taken out by persons with no pecuniary interest in the life assured. Courts have rejected attempts to circumvent the rule by collateral agreements, citing the plain words of s 23(1) and the original policy of the 1774 Act.
Controversy has occasionally arisen over the revival power in s 11. No proclamation has been disallowed by Parliament, but the existence of a dormant power to revive, for example, aspects of the Treason Act 1351 has been noted in academic writing as theoretically anomalous in a modern democracy. In practice the power has lain unused, reflecting a legislative consensus that the repealed Imperial law should remain repealed.
The interaction between the preserved Habeas Corpus Acts and contemporary anti-terrorism legislation has been the subject of extra-curial debate. No reported case has directly invalidated a Commonwealth or State security provision on the basis of the 1679 or 1816 Acts as preserved by the 1969 Act, but the statutory text remains available for argument in appropriate cases.
Gotchas
Most practitioners assume that once an Imperial Act is “repealed” it is gone forever. The Act demonstrates that is not so. Section 6 preserves large parts of the Treason Act 1351, the Habeas Corpus Act 1679 and the Bill of Rights as part of the law of New South Wales. A careless submission that “the Treason Act is obsolete” can be met with the terse reply that it is expressly kept alive by the Second Schedule.
Another trap is the differential treatment of marine insurance. The Division 7 provisions apply only to “State marine insurance within the limits of New South Wales” (s 24). A policy written on an interstate or overseas voyage will fall under the Commonwealth Marine Insurance Act 1909, which codifies the common law rather than the 1745 and 1788 statutes. Failure to appreciate this boundary can lead to arguments about admissibility of evidence under s 27 that are simply irrelevant.
Section 38(3) contains a little-noticed presumption: if a person has been absent from Australia for seven years, that person “if not proved to be living, shall for the purposes of such proceedings be accounted as dead”. The onus is on the party asserting life to prove it. Many reversion cases settle once an investigator’s affidavit of seven years’ absence is filed, yet the statutory presumption is often overlooked in favour of the more cumbersome common-law “presumption of death” after seven years.
The default penalty in s 43 applies to offences under the preserved Imperial enactments in Part 1 of the Second Schedule “for which no punishment is otherwise provided”. Because the piracy provisions expressly exclude the penal parts (Second Schedule, Part 2), the default five-year term theoretically applies to any residual piracy offence not covered by the Piracy Punishment Act 1902. No modern prosecution has tested this, but the theoretical exposure remains.
Finally, the parliamentary disallowance mechanism in s 11(5) is rarely remembered. A Governor’s revival proclamation must be laid before both Houses within 14 sitting days and can be disallowed by resolution within 15 sitting days. The possibility of a “sunset” by parliamentary vote adds a layer of political control that does not exist for ordinary regulations.
How to comply
Compliance is achieved by systematic due diligence rather than ongoing operational measures.
For property and tenancy lawyers: before advising on entry onto land, confirm that the client possesses a legal right of entry and that the proposed method satisfies the “reasonably necessary” test in s 18. In lease negotiations, expressly state whether the tenancy is “without impeachment of waste” if the client wishes to avoid the s 32 duty. When acting for reversioners, obtain evidence of seven years’ absence before commencing proceedings under s 38 so that the statutory presumption can be invoked.
For insurance practitioners: in life policies, document the nature and quantum of the insurable interest and insert the names of interested persons in the policy. For marine insurance within New South Wales, ensure the contract is embodied in a policy that satisfies each of the five requirements in s 28. Avoid any wording that could be characterised as “interest or no interest” or “without benefit of salvage” unless there is genuinely no possibility of salvage.
For litigators: when pleading an action on a bond, assign every breach on which evidence will be led. If acting for a defendant, consider tendering principal, interest and costs into court under s 34(2) to obtain an immediate stay. In any case involving a determining life, file an affidavit of belief and grounds under s 38(2) at the earliest opportunity.
For public officials and bailiffs: the s 40 duties are strict. The arrested civil debtor must be informed promptly of the statutory rights; the debtor must be allowed to nominate a convenient house; no charges for liquor or food may be imposed except for items freely requested. Breaches expose the officer to civil action and potential disciplinary sanction.
For constitutional or administrative lawyers: any advice on the limits of State power should cite the preserved texts in the Second Schedule. The Bill of Rights prohibition on cruel and unusual punishments, the Magna Carta due-process guarantee, and the Habeas Corpus procedural code remain live law. Where a statute appears to infringe one of these guarantees, advise on whether the infringement is by necessary implication or express words; the 1969 Act itself supplies no supremacy clause that would invalidate later inconsistent legislation, but the political and interpretive force of the ancient texts remains considerable.
Finally, any proposal to revive a repealed Imperial provision under s 11 should be accompanied by a full regulatory impact statement, given the mandatory parliamentary tabling and disallowance procedure. In practice, compliance with the Act is achieved by recognising that it is not a regulatory statute requiring annual returns or licences; it is a foundational choice-of-law and interpretation statute whose requirements are satisfied by reading the preserved texts, applying the substituted rules where they survive, and ensuring that client arrangements do not contravene the surviving prohibitions on waste, forcible entry, wagering insurance or disturbance of worship.
(3) Each provision of Part 3 of this Act is substituted for the Imperial enactment mentioned in the first column of the First Schedule to this Act opposite the reference to that provision in the second column of that Schedule.
(4) To the extent to which any of the provisions of Part 3 of this Act are inconsistent with the provisions of any State Act in force at the commencement of this Act, the provisions of the State Act shall prevail.
(5) In construing any of the provisions of Part 3 of this Act regard may be had to the context (if any) of the Imperial enactment for which the provision is substituted.
(6) In any State Act a reference to any Imperial enactment specified in the first column of the First Schedule to this Act shall, where the case permits, and unless a contrary intention appears, be construed as a reference to the provision of this Act specified opposite that Imperial enactment in the second column of that Schedule.
6 Preserved Imperial enactments
6 Preserved Imperial enactments
6 Preserved Imperial enactments
Each Imperial enactment mentioned in Part 1 of the Second Schedule to this Act, and so much of each Imperial enactment mentioned in the first column of Part 2 of that Schedule as is specified opposite that Imperial enactment in the second column of the said Part 2, so far in either case as it was in force in England on the twenty-fifth day of July, one thousand eight hundred and twenty-eight—
(a) is declared to have been in force in New South Wales on that day by virtue of the Imperial Act 9 George IV Chapter 83, and
(b) except so far as affected by any Imperial enactments or State Acts from time to time in force in New South Wales—
(i) is declared to have remained in force in New South Wales from that day,
(ii) shall from the commencement of this Act be in force in New South Wales, and
(c) is not repealed by section eight of this Act.
7 Enactments not affected by repeal
7 Enactments not affected by repeal
7 Enactments not affected by repeal
Nothing in this Act affects any Imperial enactment set out in the Third Schedule to this Act or any other Imperial enactment which independently of the provisions of the Imperial Act 9 George IV Chapter 83 is made applicable to New South Wales by the express words or necessary intendment of any Imperial enactment.
8 Imperial enactments repealed
8 Imperial enactments repealed
8 Imperial enactments repealed
(1) In addition to the repeals effected by subsection two of section five of this Act all other Imperial enactments (commencing with the Statute of Merton, 20 Henry III A.D. 1235–6) in force in England at the time of the passing of the Imperial Act 9 George IV Chapter 83 are so far as they are in force in New South Wales hereby repealed.
(2) The repeal of the Imperial Act 7 George II Chapter 8 (Sir John Barnard’s Act) effected by subsection one of this section shall be deemed to have taken effect as on and from the fourteenth day of June one thousand eight hundred and sixty—
Provided that nothing in this subsection shall affect any transaction in respect of which proceedings in any Court have been taken or commenced on or before the twenty-fifth day of July one thousand nine hundred and sixty-eight.
9 Savings
9 Savings
9 Savings
(1) The repeal by this Act of any Imperial enactment does not—
(a) revive anything not in force or existing at the commencement of this Act,
(b) affect the previous operation of any Imperial enactment so repealed or anything duly done or suffered under any Imperial enactment so repealed,
(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any Imperial enactment so repealed,
(d) affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any Imperial enactment so repealed, or
(e) affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid,
and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture or punishment may be imposed and enforced, as if this Act had not been passed.
(2) The repeal by this Act of—
(a) The Imperial Act 43 Elizabeth Chapter 4 (The Charitable Uses Act 1601) does not affect the established rules of law relating to charity,
(b) section four of the Imperial Act 29 Charles II Chapter 3 (The Statute of Frauds 1677) does not apply in relation to a promise or agreement made before the commencement of this Act, and
(c) any other Imperial enactment does not affect any rules of law or equity not enacted by the repealed enactment.
10 Saving
10 Saving
10 Saving
Where any Imperial enactment not repealed by this Act has been repealed (whether expressly or impliedly), confirmed, revived, or perpetuated by any Imperial enactment hereby repealed, the first-mentioned repeal, or the confirmation, revivor, or perpetuation shall not be affected by the repeal effected by this Act.
11 Revival of repealed enactments
11 Revival of repealed enactments
11 Revival of repealed enactments
(1) The Governor may, by proclamation published on the NSW legislation website, declare that any provision (in this section called the revived provision) being the whole or any part of any Imperial enactment repealed by this Act, other than an Imperial enactment mentioned in the First Schedule to this Act, shall be revived as from the date of publication of the proclamation, or a later date to be specified in the proclamation.
(2) On and after the date of revival, the revived provision shall, subject to Acts from time to time in force, and subject to subsection three of this section, have such effect in New South Wales as the revived provision had in New South Wales immediately before the commencement of this Act.
(3) The revival under this section of any revived provision shall not—
(a) affect the previous operation of any repeal worked by section eight of this Act,
(b) affect anything duly done or suffered before the date of revival,
(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred before the date of revival, or any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation or liability, or
(d) make any person liable for any penalty, forfeiture or punishment in respect of anything done or omitted before the date of revival.
(4) Every such proclamation shall be laid before both Houses of Parliament within fourteen sitting days after publication if Parliament is then in session, and if not, then within fourteen sitting days after the commencement of the next session.
(5) If either House passes a resolution of which notice has been given at any time within fifteen sitting days after the proclamation has been laid before such House disallowing any proclamation or part thereof, the proclamation or part thereupon ceases to have effect.
s 11: Am 2009 No 56, Sch 4.29.
Part 3 Substituted enactments
Part 3 Substituted enactments
Part 3 Substituted enactments
Division 1
Division 1
12–15 (Repealed)
pt 3, div 1: Rep 2020 No 24, Sch 1.7.
s 12: Am 2009 No 49, Sch 2.28. Rep 2020 No 24, Sch 1.7.
ss 13–15: Rep 2020 No 24, Sch 1.7.
Division 2 Calendar
Division 2 Calendar
Division 2 Calendar
24 George II c 23—The Calendar (New Style) Act 1750—ss 1, 2 and 3.
16 Provisions relating to calendar
16 Provisions relating to calendar
16 Provisions relating to calendar
(1) The first day of January in every year shall be the first day of the year, and each new year shall accordingly commence and be reckoned from the first day of every month of January and all acts, deeds, writings, notes, and other instruments, of what nature or kind soever, hereafter made, executed, or signed shall bear date according to the said method of reckoning, being the reckoning instituted by the Imperial Act 24 George II c 23, known as The Calendar (New Style) Act 1750.
(2) The several years two thousand one hundred, two thousand two hundred, two thousand three hundred, or any other hundredth year in time to come, except only every fourth hundredth year, of which the year two thousand shall be the first, shall not be leap years, but shall be common years consisting of three hundred and sixty-five days, and no more; and the years two thousand, two thousand four hundred, two thousand eight hundred, and every other fourth hundredth year from the said year two thousand inclusive, and also all other years which by the reckoning in use before the first day of January, one thousand seven hundred and fifty-two (being the date for the commencement of the calendar or reckoning instituted by the said Imperial Act, The Calendar (New Style) Act 1750) would have been leap years, shall in all times to come be leap years, consisting of three hundred and sixty-six days, in the same manner as was before the said first day of January, one thousand seven hundred and fifty-two used with respect to every fourth year.
(3) The months, the enumeration of days in the respective months, and the ordering of the days of the week and Easter Day, shall be determined in accordance with the calendar, table and rules annexed to the said Imperial Act, The Calendar (New Style) Act 1750.
Division 3
Division 3
17 (Repealed)
pt 3, div 3 (s 17): Rep 1993 No 10, sec 27.
Division 4 Forcible entries and detainers
Division 4 Forcible entries and detainers
Division 4 Forcible entries and detainers
5 Richard II St 1 c 7—The Forcible Entry Act 1381.
18 Forcible entry
18 Forcible entry
18 Forcible entry
8 Henry VI c 9—The Forcible Entry Act 1429; 31 Elizabeth c 11—The Forcible Entry Act 1588.
No person shall make any entry into any land except where such entry is given by law and, in such case, with no more force than is reasonably necessary.
19 Forcible detainer
19 Forcible detainer
19 Forcible detainer
No person being in actual possession of land for a period of less than three years by himself or his predecessors shall without colour of right hold possession of it in a manner likely to cause a breach of the peace or a reasonable apprehension of a breach of the peace against a person entitled by law to the possession of the land and able and willing to afford reasonable information as to his being so entitled.
20 Penalty
20 Penalty
20 Penalty
Any person who contravenes section eighteen or section nineteen of this Act shall be guilty of an indictable offence and liable to imprisonment for a term of not more than one year or to a fine not exceeding 10 penalty units or to both such imprisonment and fine.
s 20: Am 1993 No 47, Sch 1; 1993 No 108, Sch 2; 1999 No 94, Sch 4.117.
Division 5 Guardians
Division 5 Guardians
Division 5 Guardians
12 Charles II c 24—The Tenures Abolition Act 1660—s 9.
21 Powers of guardian
21 Powers of guardian
21 Powers of guardian
(1) A guardian of a minor appointed by deed or will may take into his custody and management to the use of the minor the real and personal estate of the minor till the age of eighteen years or any lesser time according to the terms of the appointment of the guardian, and may bring such actions in relation to the real and personal estate of the minor as by law a guardian in common socage might have done, or may bring such other proceedings as may be necessary to give effect to all or any of his powers under this section.
(2) In this section minor means a person under the age of eighteen years.
s 21: Am 1970 No 60, First Sch.
Division 6 Insurance—life, fire and other policies
Division 6 Insurance—life, fire and other policies
Division 6 Insurance—life, fire and other policies
14 George III c 48—The Life Assurance Act 1774.
22 Existing insurances not affected by this Division
22 Existing insurances not affected by this Division
22 Existing insurances not affected by this Division
This Division does not apply to insurances made before the commencement of this Act.
23 Insurable interest
23 Insurable interest
23 Insurable interest
(1) No insurance shall be made by any person on the life of any person or on any other event whatsoever wherein the person for whose use or benefit or on whose account the policy is made has no interest, or by way of gaming or wagering; and every assurance made contrary to this subsection shall be void.
(2) It shall not be lawful to make any policy on the life of any person, or on any other event whatsoever, wherein the person effecting the policy has no interest, without inserting in such policy the names of the persons interested therein, or for whose use or benefit or on whose account such policy was made.
(3) In all cases where there is an interest in such life or other event, no greater sum shall be recovered or received from the insurer than the amount or value of the interest.
(4) Nothing in this Division shall extend to insurance made by any person on ships or goods, or to contracts of indemnity against loss by fire or loss by other events whatsoever.
Division 7 Insurance—marine
Division 7 Insurance—marine
Division 7 Insurance—marine
19 George II c 37—The Marine Insurance Act 1745; 28 George III c 56—The Marine Insurance Act 1788.
24 Application of Division
24 Application of Division
24 Application of Division
This Division applies to State marine insurance withi
This is an opening excerpt, not the complete document.