Imperial Acts Application Acts - Differences between States and Entrenchment
How does the IAAA protect the Imperial Acts?
NSW: some Imperial Acts were repealed and then re-enacted through the IAAA scheme.
Others remain in original form.
First Schedule Acts: repealed and substituted. By s 5.
Second Schedule Acts: is not repealed. All the HC Acts are in this schedule. By s 6.
Third Schedule Acts: is not affected. By s 7.
VIC: s 3 sets out that any Acts mentioned in the Schedule will continue to have effect. The
Schedule includes all 3 HC Acts.
ACT*: different categories for Acts.
Acts listed in s 4: repealed by the IAAA.
Sch 2 col 1 Acts: amended by the IAAA to the extent necessary to remain in force. By
s 5.
Sch 1 col 1 and other Acts specified by the Seat of Government Acceptance Act 1909
s 6: not affected, continues to have effect. By s 6.
*The 1986 Act now repealed since 1999?
What part of the Habeas Corpus Acts are incorporated?
NSW: only s 6 from 1640 Act, whereas Victoria it is not limited in the Second Schedule.
Omitted ss 9 (HC may be granted by courts of Chancery) and 20 (HC not available for pettry
treason or felony or accessory thereof) from 1679 Act, whereas they are transcribed in Part II
of Victoria's IAAA.
VIC: entire 1640 Act. 1679 Act ss 1-9, 11-13, 15-20. 1816 Act entire 6 sections. However
IRC considered its removal as of only historical and symbolic significance, without
constitutional significance (as the writ is rarely used, and is available at common law, citing
Halsbury's:
https://www.parliament.wa.gov.au/parliament/commit.nsf/($lookupRelatedDocsByID)/78480
A99B1BE725D48257E670030F98B/$file/Report+on+The+Imperial+Acts+Application+Act
+1922.pdf p 32).
ACT: LRC recommended removal of HC acts (this is in 1975). Following, HC Acts omitted
but s 5 of the Petition of Right (Sch 3, Pt 10) remains for habeas corpus.
Are the IAAA doubly entrenched?
No, no provision within the IAAA provide for entrenchment of the provisions, except that the
schedules determining which Acts are incorporated are to be altered by the Governor.
For example, IAAA (Vic) s 6 (which allows the Governor to include a new act in the
schedule), and IAAA (NSW) s 11 (which allows the Governor, PLUS sets out the procedure,
to revive an imperial statute repealed by the Act). However, these sections are not doubly
entrenched.
Further, there cannot be a double entrenchment of habeas corpus (let alone the various civil
subject matters in the IAAA) because it is not with respect to the 'constitution, powers or
procedure' of Parliament, and so cannot be supported by the Australia Acts.