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We ignore  Magna Carta at our peril

Fairfax Media   |     12 June 2015

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  As members and senators gather in the Parliament today, they should all make their way to the public gallery where an issue of Magna Carta dating from 1297 is on display and ponder its significance as the foundation document of our form of democracy.  They might reflect,  as Human Rights Commissioner Gillian Triggs observed, that the great principle of Magna Carta  “supremacy of the law over the sovereign – or in today’s parlance, executive – government is under threat in our democracy.”   But the 800th anniversary of the Magna Carta sounds a warning: Parliament cannot ride rough-shod over the basic rights of citizens, writes Geoffrey Robertson.  It’s not just bleeding heart lefties who are concerned: I would never have believed I could agree with senator Cory Bernardi on anything but I couldn’t agree more that plans to empower the immigration minister to strip suspected Australian terrorists of their citizenship is “absolutely wrong” and “dangerous power creep”.

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Magna Carta

As an affirmation that authority should be subject to law arising from the community itself, Magna Carta is a foundation stone of constitutional and parliamentary government.

Exactly 800 years ago on Monday 15 June, bad King John slid through the mud of Runnymede island in the Thames to affix his seal to a document drawn up by the feudal barons with whom he had been feuding.  By that act, this hitherto absolute ruler (or sovereign) conceded that his power was limited by the law – the legal rights set out in Magna Carta, the great charter.

He ripped it up just eight weeks later, but it was reissued by later kings of England and copies were sent around the country to reassure their subjects.  Few copies survived, although one was controversially purchased by the Australian government in 1951 for £12,500 (it is now worth at least $25 million) and is displayed in Parliament House Canberra.  What does it mean for Australia today?

Magna Carta stands for the proposition that sovereign power (which now resides in our elected government) is limited: that government is not above the law.  Nor can Parliament, however democratically elected, ride rough-shod over certain basic rights that belong to citizens.  Popular majorities (Adolf Hitler, after all, was democratically elected) cannot trash certain rights that are implied from our Constitution.  Those rights, in Magna Carta’s felicitous phrases, include that of fair trial, (“to no man will we sell, to no man will we deny or delay justice or right”), habeas corpus i.e. the right to challenge the lawfulness of detention and jury trial (“No free man shall be imprisoned … except by the lawful judgment of his peers”).

Back in 1215, these “rights” were mainly for the barons. But Magna Carta was reinterpreted and reimagined in the 17th century, in the course of Parliament’s heroic struggle against the Stuart kings who believed themselves anointed by God as absolute rulers. A great chief justice, Edward Coke, sacked by the king for ruling against his interests, wrote a book which convinced generations of lawyers that Magna Carta was part of the common law, and guaranteed the independence of the judiciary as guardians of the limits of the king’s power.

Then “Freeborn John” Lilburne, leader of the “Levellers”, popularised the charter as the mainstay of the rights of common people.  When Parliament finally won the Civil War, the first act of its great generals, Oliver Cromwell and Colonel Fairfax, was to proclaim Magna Carta. Of course, some years later, when Cromwell himself developed dictatorial powers, his affection for the great charter was not so great: “Your Magna Farta cannot control actions taken for the safety of the Commonwealth” he snapped at lawyers using it to free opponents from prison.

Magna Carta became law in Australia on January 26, 1788, when Governor Arthur Phillip, by raising the Union Jack on the foreshores of Sydney Harbour, thereby (under imperialist legal theory) imported into the whole country as much of British common law as was capable of application to its conditions.  Not all its principles were applicable to a penal colony – it would take many years and many disputes before trial by jury could be established. But its establishment in Governor Maquarie’s time was the result of the “Magna Carta demand” by the emancipists (freed convicts) against the wealthy “free settlers”.

America’s founding fathers venerated Magna Carta and included its principles in their bill of rights.  But come federation, our founding fathers were men who thought like Pauline Hanson and feared that “rights” might be claimed by what they termed “coloured peoples” and by Aborigines (whom they did not regard as people).  The only express Magna Carta right is in Section 80 of the Constitution: “The trial on indictment of any offence against a law of the Commonwealth shall be by jury”.  Although Chief Justice Garfield Barwick once degraded S.80 as “a mere procedural provision”, today’s more rights-minded judges would be likely to rediscover it as a constitutional guarantee.

The enduring importance of Magna Carta principles is that any government ignores them at its peril.  “To no man will we deny justice” has inspired access to the courts through legal aid schemes, judicial review of administrative actions and so on. “Justice delayed is justice denied” remains a potent forensic aphorism against lazy or unfair prosecutions.  The High Court has developed a doctrine that rights fundamental to democracy may be drawn by implication from the Constitution.  Magna Carta expresses some of these rights: its whole point is to enable citizens to live under the rule of laws that curb the power of the sovereign to abuse them, notwithstanding that the “sovereign” is not bad King John but an elected government with its parliamentary majority.

So for the Australian Parliament, the 800th anniversary of the Magna Carta, a copy of which hangs in its Great Hall, should be both a source of pride and a note of warning.  Pride, because the Great Charter was the banner under which courageous MPs overthrew absolutist kings and first established a form of representative government, way back in the 17th century.

But a warning, too, in a country where Parliament is now the sovereign, that any attempt to pass laws that deny to the people the rights which “Freeborn John” extrapolated from the Great Charter – to jury trial, access to justice, free speech and to call government to account – will be struck down by the High Court because they are rights which may now be implied from the Australian Constitution.

You cannot have a true democracy without Magna Carta’s guarantee of the rule of law.

See

As Canberra celebrates the Magna Carta, in some quarters piously, the government would do well to meditate upon particular sections within it. Unlike other hopelessly antiquated injunctions, these seem as if they were written yesterday. They speak directly to Triggs’s concerns about swollen executive power.

An Australian Desperado Manifesto for This Year, 2015.

We have plumbed new depths, and not just within the context of our own political history. The UN condemns us. Our allies shake their heads in embarrassment. Nazi nutters see us as a shining light. Amanda Vanstone and Corey Bernadi are voices of reason. Everyone is yelling.

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