Imperial Acts Application Act 1969

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.

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.

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.

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.

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.

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.

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.

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.