THE LEGACY OF THE MAGNA CARTA

On 15 June 1215, English King John, in the meadow of Runnymede beside the Thames between Windsor and Staines, sealed the document now known as the Magna Carta. It is a document some 3,550 words long written in Latin. Some of its chapters seem of minor importance but there are also chapters which are still  clearly relevant. In the Charter, the king declared that, “To no one will we sell, to no one will we deny or delay, right or justice.” The Magna Carta put forward the rule of law. For the first time, a king was beneath the law, the law the Charter itself was making. He could no longer treat his subjects in an arbitrary fashion. To commemorate the 800^th anniversary of the sealing of the Magna Carta, Hugh Harley, Financial Services Leader at PWC and Magna Carta enthusiast, Anya Poukchanski, a Sydney lawyer, and Human Rights Commissioner Tim Wilson addressed The Sydney Institute on the legacy of the Magna Carta.

 

THE LEGACY OF THE MAGNA CARTA

 

ANYA POUKCHANSKI

 

The Magna Carta is a founding myth, and it’s the founding ones, of course, that make for the best sport. But we also have a duty to view our heritage with a clear eye. Adulation without analysis has never set history on a favourable course.

 

Australians have the right to vote, the right to communicate freely about politics,[1] freedom from discrimination based on their race,[2] sex,[3] or religion,[4] and the right to a presumption of innocence.[5]

 

These are some of the foundational rights of our democracy. The Magna Carta is not the guarantor of these rights. In fact, as we will see, none of the rights and freedoms which we exercise in Australia today arise from, or are protected by, the Magna Carta.

That is not to say that the Magna Carta is not a significant document, a milestone in the development of our system of law, and indeed in our conception of governance. There is, however, a crucial and frequently-neglected distinction between the symbolic importance of the Great Charter, and its true legal effect.

 

Moreover, as a statute, the Magna Carta is not entitled to any special authority. The doctrine of parliamentary sovereignty, another foundational piece of common law, holds that parliament is always competent – a technical term not an adjective here, I assure you – to pass laws which override past legislation. A new law overrides an old law on the same subject to the extent of inconsistency, and a specific law overrides a more general law. Being the oldest and most general statute around, it is no surprise that the Magna Carta has been superseded.

 

All this is reflected by the courts, who treat it with “veneration…but a marked reluctance to apply the Charter in actual cases.”[10] Where the Magna Carta is cited, it is usually in support of a decision which has already been reached by way of the evidence and the state of contemporary law.[11]

 

Yet the Magna Carta is frequently invoked as the source of at least four monumental common law rights: habeas corpus, or the freedom from unlawful imprisonment, trial by jury, the right to a speedy trial, and due process of law. The key source of these riches is chapter 29, which reads:

 

No free man is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgment of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice.

In fact, habeas corpus both pre- and postdates the Magna Carta. Writs with a similar effect were in use from the twelfth century,[12] while the use of the writ of habeas corpus to free a prisoner from unjust detention did not come about until much later.[13] The link between the Magna Carta and habeas corpus was not made until Darnell’s Case in 1627.[14]

 

The authors of the Magna Carta could not possibly have intended it to protect their right to trial by jury, for such a system did not exist in their time. Jurors at the time were something akin to witnesses in a trial, not finders of fact as they are now.[15] “Lawful judgment of his peers” did not mean trial by jury, which anyway did not begin to develop until 1581.[16] But the phrase, like the other killer sound bites of chapter 29, caught on with enough force to make any living spin doctor snap his blackberry with envy. Australian courts from the nineteenth century onwards routinely assumed that the Magna Carta was the source of the common law right to trial by jury.[17] High Court judges have gone out of their way since then to point out that this is historically and legally inaccurate.[18]

The phrase “we will not deny or defer to any man either justice or right” similarly instigated a belief that the Magna Carta guaranteed the right to a speedy trial. The emergence of this line of reasoning demonstrates the dangers of reading too literally into the Magna Carta. Beginning in the 1980s, a series of Australian judicial decisions favoured the view that the Magna Carta protected a right to a speedy trial.[19] The High Court took seven years – a blip in the lifetime of the Great Charter – to squash the argument: not only did the Magna Carta not protect such a right, no such right exists at all.[20]

 

Due process of law, also erroneously attributed to the Magna Carta, was not a legal expression until 1354.[21] The phrase actually used in chapter 29, “by the law of the land”, doesn’t mean the same thing as “due process”, the doctrine we rely upon today, which holds that legal proceedings must be fair and objective. Statutes written in the fourteenth century initiated the transformation from the former meaning to the latter.[22] And a good thing too, because when the words were written, “the law of the land” included trial by ordeal, such as drowning and burning, and widespread use of judicial torture.[23]

 

Of course, the Magna Carta is an important part of the heritage of due process, and the other common law rights I’ve just discussed. It expressed some of the norms and values which coalesced and were developed by later legislators and judges into a substantive system of individual rights and rules of state.

 

Interestingly, it is often the people most inclined to read our Constitution as if its meaning were fixed at the time it was written who tend to find the most contemporary meaning in the Magna Carta, rather than seeing it, too, as a document of its time.

The true value of the Magna Carta, then, is not that it established specific rights or liberties, or even that it effectively tamed the power of the executive – Oliver Cromwell called it the “Magna Farta” and acted accordingly.[24] The true value of the Magna Carta is that it imparted the declaratory tradition of public rights on which we modelled many of the most profound and important legal documents that now make up the structure of our public law.

 

The Magna Carta represented the “first great step towards a new political theory of the state”.[25] That theory, when it eventually developed, was the rule of law. Inherent in that notion is a relationship between state and citizenry in which the state is accountable under the law and the law is fair. Citizens, in such a system, are entitled to know and demand their rights.

 

If we look around, we see that the charters which set down rights and liberties in the Western world, and elsewhere, are inspired by the Magna Carta. They declare and define the rights of citizens which must be respected by the State. The content of the rights has changed. The animating spirit has not.

 

HG Wells, arguing forcefully during the Second World War that human rights must take a central role in Allied aims, wrote that the Magna Carta began a custom of producing, in times of turmoil, declarations of the fundamental organising principles of our society.[26] The Petition of Right in 1628 continued this practice. So too the English Bill of Rights of 1689, the American Declaration of Independence and the French Declaration of the Rights of Man carried on this tradition of stating the people’s will. HG Wells correctly perceived that the turmoil of World War II compelled another such statement. It emerged, two years after the end of the war, entitled the Universal Declaration of Human Rights. Eleanor Roosevelt, chair of the Human Rights Commission which wrote it, said it was a declaration of basic principles to serve as a common standard for all nations and thus “might well become a Magna Carta of all men everywhere”.[27]

 

The Magna Carta was written in a world however, in which the language of “rights” was at least 400 years away.[28] And yet, as a symbol of the rule of law, it has come to stand for the protection of human rights and freedoms. It was, for example, invoked in the in the passing of the United Kingdom’s Human Rights Act[29] even though the drafters of the Charter could not have in their wildest dreams contemplated the human rights therein.

 

Because of its luminosity as symbol, the Magna Carta is invoked often by litigants in the courts in a bid to protect what they believe are their rights. Almost always, these are self-represented litigants, who are drawn to the Magna Carta precisely because it is a symbol, a presence in the popular understanding of law and has – unlike the specific and technical statutes which are extremely difficult for a layperson to penetrate – no fixed meaning. These unfailingly unsuccessful litigants have left us a treasure of legal precedent. And so common law states definitively that:

 

• costs orders against unsuccessful parties do not amount to ‘selling justice’ contrary to chapter 29;[30]
• the Commonwealth of Australia is competent to manufacture bank notes, even though only gold and silver coins were provided for in the Magna Carta;[31] and
• our system of income taxation is legal, and does not involve the seizure of property contrary to the Magna Carta.[32]

 

Unfortunately it’s not just cranks that have come to see the Magna Carta as a supreme document, which has legal effect through the ages, rather than the rudimentary but symbolic document it was. When parliamentarians cite the Magna Carta as the basis of Australia’s system of taxation[33], marshal it in the support of free speech[34] or call it an actual constitutional document that guarantees that admission to parliament shall be free – Mr Maher, member for Lowe in 1983[35] – amongst many other what could be called ambitious and creative interpretations, it becomes easy to see how members of the public could reasonably form the view that the Magna Carta is the effective source of their contemporary rights and freedoms.

But members of parliament are a wilier bunch, at least in this respect: whatever lofty words they may speak about the Magna Carta, they, like judges, adopt the true levers of the law when making their decisions. And so, debating the Wartime Precautions Bill in 1915, Parliament was reminded that, “The safety of the country is infinitely more precious than empty talk about Habeas Corpus, or the Bill of Rights, or Magna Charta.”[36]

 

The Act, by the way, was passed, enormously and permanently widening the powers of the federal government. So the great symbolism of the Magna Carta offers no defence to those vital principles for which, whether by myth or reality, it is said to stand. Rather, the symbol of Magna Carta, incorrectly raised to constitutional status, overburdened with the freedoms and rights which it is said to protect, becomes a stumbling block. Attributing our rule of law and the rights that go with it to the Magna Carta, that ancient document, undersells the complex and sophisticated human rights framework which we enjoy in this country, and the arduous and contentious process by which those rights were won.

 

More dangerously, this conception of the Magna Carta as supreme law contributes to an already complacent attitude that Australians have towards their liberties. The definition and exercise of rights is an ongoing process in a society, and is capable of progress as well as regression. If we believe that the Magna Carta forever trumps other laws as the source of fundamental rights, we see that process, wrongly, as frozen. We are less alert to incursions on rights that we imagine are “guaranteed” by the Magna Carta.

In fact, they are not.  Most if not all the rights made famous by the Magna Carta have been subject to encroachments by parliament. Habeas Corpus is abrogated by various preventative detention laws, such as legislation permitting a person to be detained for up to two weeks without charge in relation to terrorist activity.[37] The indefinite detention of asylum seekers with and without adverse security assessments without meaningful access to legal advice or judicial review offends not only habeas corpus but the Magna Carta’s enjoinder that every person is entitled to judgment under “the law of the land”.[38]

 

Trial by jury has been dispensed with for a whole class of offences, being summary offences.[39] Retrospective legislation, long considered offensive to chapter 29’s requirement that a person be judged according to the “law of the land”, has been passed by parliament and upheld by the courts.[40]

 

Due process of law gets a regular shakedown – most recently, in the proposal that the Immigration Minister should be given the power to revoke the citizenship of Australians he suspects are involved in overseas terrorist activity. If that law fails, and there is a good chance that it will, it will not be by the power of the Magna Carta, but by the features of our Constitution, which separates the judicial power to determine guilt from the executive power to carry out the law.

In our Constitution we can see, refracted, the long history and evolution of the Magna Carta. From it we have inherited a legacy of rights, liberty, and rule of law. The tools that we use in the service of that legacy are modern, as are the problems to which we bring them. The Magna Carta is an idea, now, and its only strength is that of an idea, not a law – to be good enough that we choose to respect it.

 

[1] Nationwide News Pty Ltd v Wills (1 992) 108 ALR 68 1; Australian Capital Television Pty Ltd v The Commonwealth (No 2) (1992) 108 ALR 577, Lange v Australian Broadcasting Corporation [1997] HCA 25.

[2] Racial Discrimination Act 1975

[3] Sex Discrimination Act 1984

[4] Commonwealth Constitution s 116, Human Rights & Equal Opportunity Commission Act 1986, Racial Discrimination Act 1975.

[5] Criminal Code Act 1995 (Cth) Part 2.6.

[6] Clark, D. (2000) ‘The Icon of Liberty: The Status and Role of Magna Carta in Australian and New Zealand Law’, Melbourne University Law Review, vol. 24, pp.866, 871-872.

[7] Repealed by the Imperial Statute 1828 (UK) 9 Geo 4, c 31, s 1 which came into force on 27 June 1828, before the Australian Courts Act 1828 (Imp) 9 Geo, c 83 on 25 July 1828.

[8] Castles, A C. (1989) ‘Now and Then: Meditations on Magna Carta’, The Australian Law Journal, vol. 63, pp.122, 124.

[9] Castles, A C. (1989) ‘Now and Then: Meditations on Magna Carta’, The Australian Law Journal, vol. 63, pp.122, 124.

[10] Clark, D. (2000) ‘The Icon of Liberty: The Status and Role of Magna Carta in Australian and New Zealand Law’, Melbourne University Law Review, vol. 24, pp.866, 874.

[11] Lord Lairg, I. (2002) ‘The Spirit of Magna Carta Continues to Resonate in Modern Law’ Papers on Parliament No. 39.

[12] Miller, A and Shepherd, R E. (1974-1975) ‘New Looks at an Ancient Writ: Habeas Corpus Re-examined’, University of Richmond Law Review, pp. 49, 50.

[13] Miller, A and Shepherd, R E. (1974-1975) ‘New Looks at an Ancient Writ: Habeas Corpus Re-examined’, University of Richmond Law Review, pp. 49, 51.

[14] Clark, D. (2000) ‘The Icon of Liberty: The Status and Role of Magna Carta in Australian and New Zealand Law’, Melbourne University Law Review, vol. 24, pp.866, 886.

[15] Munday v Gill (1930) 44 CLR 38, 52.

[16] Lambarde, W. (1581) Eirenarcha or the Office of the Justices of the Peace (1972 ed), 436.

[17]  See for example: R v Magistrates of Sydney, Australian (Sydney) 21 October 1824, R v Davidson Australian (Sydney 22 August 1827, R v Valentine (1871) 10 SCR (NSW) 113, 131.

[18] Kingswell v The Queen (1985) 159 CLR 264, 299 (Deane J); Munday v Gill (1930) 44 CLR 38, 52 (Issacs CJ), Windeyer, W J V (1957) Lectures on Legal History (2^nd ed) 79.

[19]  Originating with: R v Bishop (1981) 41 ACTR 43, 45-6 (Kelly J), R v McConnell (1985) 2 NSWLR 269, 272-3 (Moore DCJ). Further, see for example: Herron v McGregor, Gill v McGregor (1986) 6 NSWLR 246, 252-3 (McHugh JA), Aboud v AG (NSW) (1987) 10 NSWLR 671.

[20] Jago v District Court (1989) 168 CLR 23.

[21] Statute of 1354 (Eng) 28 Edw 3, c 3.

[22] Adler c District Court of new South Wales (1990) 19 NSWLR 317.

[23] Holdsworth, W S. (1926) A History of English Law (5^th ed), vol 1, 310-11.

[24] Blick, A. (2015) Beyond Magna Carta: A Constitution for the United Kingdom, 74.

[25] Lord Lairg, I. (2002) ‘The Spirit of Magna Carta Continues to Resonate in Modern Law’ Papers on Parliament No. 39.

[26] Wells, H G. (1940) The Rights of Man—Or what are we fighting for? 28-29.

[27] Roosevelt, E. (1948) ‘On the Adoption of the Universal Declaration of Human Rights’, Address to the UN General Assembly, 9 December.

[28] Clark, D. (2000) ‘The Icon of Liberty: The Status and Role of Magna Carta in Australian and New Zealand Law’, Melbourne University Law Review, vol. 24, pp. 866, 889.

[29] See for example Rathbone, M (2014) ‘The Human Rights Act: A Magna Carta for the 21^st Century?’, Political Studies Association [online] http://magnacarta800th.com/wp-content/uploads/2014/05/Rathbone-Essay-Human-Rights-Act-and-Magna-Carta1.pdf, Kirby, T (2009) ‘The Human Rights Act: 800 years in the making’ The Guardian, 3 July.

[30] Skyring v ANZ Banking Group Ltd (Unreported, QLDSCA, 12 May 1994), Stanbridge v Premier of Queensland [1995] QSC 171, Brooks v Krosch [1997] QSC 171.

[31] Re Skyring [1995] QCA 55.

[32] Skyring v Federal Commissioner of Taxation (1991) 23 ATR 84, 86, Bishop v Australian Taxation Department (1996) 32 ATR 644, 645.

[33] Henry Bandidt, Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 26 November 1960,

[online] http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22hansard80%2Fhansardr80%2F1960-10-26%2F0112%22

[34] James Killen, Commonwealth, House of Representatives, Parliamentary Debates (Hansard) 27 October 1960 [online] http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22hansard80%2Fhansardr80%2F1960-10-27%2F0145%22

[35] Michael Maher, Commonwealth, House of Representatives, Parliamentary Debates (Hansard) 12 May 1983 [online] http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F1983-05-12%2F0127%22

[36] William Hughes, Commonwealth, House of Representatives Parliamentary Debates (Hansard) 9 September 1915.

[37] Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT) s 21(3)(b); Terrorism (Police Powers) Act 2002 (NSW) s 26K(2); Terrorism (Emergency Powers) Act 2003 (NT) s 21K; Terrorism (Preventative Detention) Act 2005 (Qld) s 12(2); Terrorism (Preventative Detention) Act 2005 (SA) s 10(5)(b); Terrorism (Preventative Detention) Act 2005 (Tas) s 9(2); Terrorism (Community Protection) (Amendment) Act 2006 (Vic) s 5, inserting Terrorism (Community Protection) Act 2003 (Vic) s 21I(2)(b); Terrorism (Preventative Detention) Act 2005 (WA) s 15(4).

[38] Triggs, G (2015) Human Rights Dinner Speech, 5 June.

[39] Fricke, G (1996-7) Research Paper 11, Law and Bills Digest Group, Parliamentary Library.

[40] R v Kidman (1915) 20 CLR 425, Polyukhovich v Commonwealth (1991) 172 CLR 501, Millner v Raith (1942) 66 CLR 1.