AustLII Home | Databases | WorldLII | Search | Feedback

Melbourne University Law Review

Melbourne Law School
You are here:  AustLII >> Databases >> Melbourne University Law Review >> 2000 >> [2000] MelbULawRw 34

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Clark, David --- "The Icon of Liberty: The Status and Role of Magna Carta in Australian and New Zealand Law" [2000] MelbULawRw 34; (2000) 24(3) Melbourne University Law Review 866


The Icon of Liberty: The Status and Role of Magna Carta in Australian and New Zealand Law

DAVID CLARK[*]

[This paper considers the survival of Magna Carta and the uses to which it has been put in contemporary Australian and New Zealand cases. Despite its widespread use by both litigants and the courts, the Charter is rarely used to decide modern cases. However, its persistence as an icon of liberty may be explained by the rhetorical value of a document that is often seen as the foundation of certain contemporary rights and as the starting point in arguments about present rights created under modern statutes. In these senses, Magna Carta survives as a useful legacy that supports the key values of a right to due process and of constitutionalism generally.]

INTRODUCTION

An intellectual and legal inheritance is not always apparent on the surface of present concerns. This is especially so with the law since many legal resources may not be in contemporary or frequent use, and thus it may be tempting to suppose that what is not present is either out of date or obsolete. This is sometimes true, of course, but not necessarily so. For example, no one would maintain that due process of law, a concept first specifically referred to in a statute of 1354,[1] is out of date, even though it may have to be refracted through modern eyes and given a modern meaning.[2] Much of the law lies in reserve — to be called forth as the occasion requires — and while old, especially medieval, statutes are seldom called upon, when they are invoked they may first have to be given a modern dress. As much of the law has deep historical roots and as the law is itself a product of history — both in its initial context when an enactment is first passed, and subsequently as successive generations of judges interpret old enactments in the light of contemporary conditions — the error of assuming that what is not in frequent current use is therefore obsolete must be resisted, at least until a careful review of the evidence supports such a conclusion.

Magna Carta[3] is part of the legal and political legacy[4] of Australia and New Zealand. From an early date the document figured in both political argument[5] and in legal submissions in the courts.[6] Yet despite the frequency with which it has been referred to there is a widespread lack of understanding of the Great Charter. In large part this arises not because the document has had a practical impact on legal decision-making, but because its chiefly ‘sentimental value’[7] has inspired both litigants and judges to attribute to it all manner of legal phenomena that are not warranted by the historical evidence.

While it may be tempting to dismiss the Charter as a medieval irrelevance which is rarely referred to any more,[8] the contemporary importance of Magna Carta lies in the fact that it has been cited more often by litigants and judges in the last two decades than at any other time in the history of the common law in Australia and New Zealand. The frequency with which it is cited or referred to demands some explanation and critical assessment. If the document were truly of no contemporary significance, one would have expected it to have disappeared altogether, but the evidence does not support this conclusion. Indeed, some recent cases show that judges are aware of the historical contribution of Magna Carta, together with later Imperial statutes, to the nations’ constitutional development.[9] The more interesting approach then is to consider the uses to which Magna Carta has been put in contemporary legal arguments and to offer an explanation for its remarkable stamina.

Several usages of Magna Carta emerge from the evidence deployed in this paper. One is the widespread use of Magna Carta, especially by unrepresented parties, some of whom have invested the courts so often that they have eventually been declared vexatious litigants.[10] This indicates that in the popular imagination the Charter lives, though it may often be very much misunderstood. Most of the arguments in these cases were doomed to failure because of their extravagant nature. The cases, however, indicate that one reason for the Charter’s persistence is the efforts of litigants who are prepared to invoke it. A second use of the Great Charter has been as a reference for other legal documents in the sense of a foundation charter of rights.[11] In this way the Charter is used symbolically as a foundational document. The third rhetorical use of Magna Carta has been to cite it as the origin of present-day rights, that is, rights that are actually enshrined in local legislation,[12] if they exist in the law at all. The argument here is not that present rights are currently based upon Magna Carta but that these rights, although grounded in a more modern, usually statutory, source, have their origin in Magna Carta. A fourth usage — and one which has widespread support — is to see it as the founding document in a constitutional tradition.[13] In this sense, the point is not that Magna Carta provides the grounds for a specific legal right but that it stands for or, at least, represents the start of a tradition of understandings about how governments should behave vis-à-vis the citizenry.

Aside from these rhetorical uses (which are assessed later in the paper), the practical uses of Magna Carta in legal argument are also considered. The thesis of this paper is that, while Magna Carta is of negligible practical use, since almost no local cases have applied it in a litigant’s favour, it nevertheless has its value in other respects. In particular, this essentially medieval document, which has survived for nearly eight centuries, provides a linkage to the past, constitutes a legitimating myth to support several fundamental legal principles and acts as a foundation document in legal tradition.

II PERSISTENCE AS A STATUTE IN AUSTRALIA AND NEW ZEALAND

A Jurisdictions with Imperial Acts Legislation

When the several jurisdictions to pass local Imperial Acts legislation came to consider which statutes to include as part of the received Imperial statute law of the jurisdiction, they all included Magna Carta. As several of these statutes are relatively recent, and all of them the product of 20th century consideration, they represent a judgment by law-makers that the linkage with Magna Carta should be maintained in contemporary law,[14] even if only for sentimental[15] rather than practical reasons.

In the cases of Victoria, New South Wales, Queensland, the Australian Capital Territory and New Zealand, many of the problems of identifying the relevant chapters of Magna Carta that apply have been solved by local Imperial Acts legislation. In all cases the legislature has not only indicated which version of Magna Carta applies (the 1297 version), but it has also made clear that only chapter 29 of that enactment is part of the statute law of the jurisdiction.[16] Nevertheless, there are some minor differences between these jurisdictions to be noticed, especially in the case of the Australian Capital Territory, where the relevant text of the 1297 statute includes the preamble as well as chapter 29 itself.[17] In New Zealand, while schedule 1 of the Imperial Laws Application Act 1988 (NZ) only refers to chapter 29 of the statute of 1297, the version reprinted for reference in the Reprinted Statutes of New Zealand includes the preamble to Magna Carta 1297.[18] The motive behind the preservation of chapter 29 seems to have been a desire to recognise the constitutional and historical heritage rather than the legal effect of this and like statutes,[19] such as the Petition of Right 1627 (Eng) 3 Car 1, c 1.

It follows from such legislation that no other chapters in the version of 1297, and none of the provisions of any of the earlier versions of Magna Carta, are part of the law of the jurisdictions in which Imperial Acts legislation is in force. This has not, however, prevented consideration of the legal origins of ancient offices, for example, said to be rooted inter alia in Magna Carta. In Subritzky v Circosta[20] Higgins J was called upon to consider the jurisdiction of the office of sheriff. His Honour referred to clause 24 of Magna Carta 1215 to show that the Charter denied to a sheriff the power to hold Pleas of the Crown, namely, a power to decide legal cases as a judicial officer.[21] All of this was invoked not to argue that clause 24 was in force in the Australian Capital Territory, which it is not, but to deal with the background of current legislation regulating the office.

B Jurisdictions with Reception Statutes

In the other jurisdictions — Western Australia, South Australia, the Northern Territory and Tasmania — resort must be had to statutes that provide for the reception of Imperial legislation in force on a specific date. The dates vary with the jurisdiction — Tasmania: 25 July 1828;[22] Western Australia: 1 June 1829;[23] South Australia: 28 December 1836;[24] Northern Territory: 28 December 1836.[25] Thus, if an Imperial statute was in force in England on the date in question then it would be part of the received law of the State or Territory to the extent that the Imperial statute had survived to that date. This means that, in the case of Magna Carta, if the British Parliament had repealed certain provisions before the reception date then only the remaining chapters of Magna Carta were received. It also means that any subsequent repeals made by the British legislature after the reception date have no effect in these jurisdictions, unless (and this does not appear to apply in the case of Magna Carta) the repeal was expressly or by necessary implication intended to apply to a colony. In any case, since 1986 the British Parliament has expressly agreed not to legislate for Australia or New Zealand unless requested to do so by the respective governments.[26]

The difficulty that the reception date approach poses in practice is that one needs to ascertain which parts of the two statutory versions of Magna Carta (1225 and 1297) were in force in England at the relevant date. Up until 1828 both the 1225 and 1297 enactments were fully intact in England, but in 1828 the process of repeal began. Confining our concern to the 1297 statute, which in fact confirmed the 1225 statute and did not alter it, and which has been acknowledged as authoritative in law reform discussions in these jurisdictions,[27] all chapters but chapter 26[28] are in force in Tasmania, Western Australia, South Australia,[29] and the Northern Territory. As a practical matter, most contemporary references are to the famous chapter 29, but in principle any other chapter, other than chapter 26, could be cited as part of the inherited Imperial statute law of these jurisdictions provided that it passes the test of suitability to local conditions, which, it is suggested, would rarely be the case. Since most of the sections in Magna Carta 1297 are specific to the times, even the English have not shown a desire to maintain it completely, having started the process of repeal in the 19th century. Of the four sections[30] that remain in English law, two of them are clearly designed specifically for English conditions.[31] Chapter 1, which is dedicated to keeping the English church free, clearly has no application in a country which lacks an established church,[32] while chapter 9 is concerned with maintaining the liberties of London — hardly a matter of pressing concern in the Antipodes and not something about which any court or legislature in Australia could do anything.

C Magna Carta as Common Law

One intriguing argument, partly based on Sir Edward Coke’s assertion that Magna Carta ‘was for the most part declaratory of the principal grounds of the fundamental laws of England’,[33] is that the principles in Magna Carta are common law principles. If accepted, this would mean that these principles arrived with the British settlers who were deemed to have brought the common law with them.[34] The basis for this argument is twofold. The first ground is that Magna Carta merely restated the common law principles that preceded it. The difficulty with this argument in the cases is that it is linked, amongst other things, to the claim of a common law right to a speedy trial,[35] which, as we shall see, has been rejected in Australia and New Zealand. Nevertheless, the argument that certain rights in Magna Carta were ‘founded on the old common law of England, as confirmed and secured to us all by the ... 29th section of the Charter of Henry III’[36] is reinforced by a second argument that medieval statutes, such as Magna Carta, should not be scrutinised too closely and that they have ‘become largely merged in the common law’.[37]

It should be noted that if Magna Carta is part of the common law then in the jurisdictions that have passed Imperial laws enactments, the common law in the rest of the Charter (other than chapter 29) has been repealed by necessary implication. In the jurisdictions where the reception date system applies the courts are free to change the common law and the highest courts are in a position to declare the common law for the country. It follows from this that even on the basis that Magna Carta is an expression of the common law,[38] the High Court of Australia, for example, was free in Jago v District Court of New South Wales[39] to declare that in Australia there is no common law right to a speedy trial.[40] It also follows that if Magna Carta is part of the common law of Australia it is uniform throughout the country.[41]

The great difficulty with the common law argument is that it flies in the face of a considerable body of statutory material and, especially, Imperial Acts legislation which operates on the basis that chapter 29 of Magna Carta 1297 is a statute for local purposes.[42] Given the statutory status of chapter 29, it is difficult to maintain either that the rest of the 1297 statute, which is not included in the Imperial Acts legislation, is nevertheless part of the common law of the jurisdiction, or that chapter 29 is merely an expression of the common law. In the light of these statutes, the better view is that Magna Carta is a statute and not merely an expression of the common law. It would follow from this that a modern Australian or New Zealand court is unlikely to ignore the terms of local Imperial Acts legislation and conclude that unenacted parts of Magna Carta 1297 are also part of the current law of the jurisdiction.

III ATTITUDES TOWARDS MAGNA CARTA

The paradox is that while Magna Carta has been revered by generations of judges and has had its praises sung by historians, as a practical document it has almost never been applied in an Australian or New Zealand case. Its survival has depended upon sentiment and a desire to keep alive a link with the long centuries of constitutional development.[43] Thus, it has been variously described as part of the ‘Bible of the English constitution’,[44] the ‘good root title of the British constitution’,[45] and also as ‘the coping stone of the constitution’.[46] While the Charter is regarded as part of the birthright of every citizen,[47] contemporary references suggest veneration[48] but also a marked reluctance to apply the Charter in actual cases (as will be seen below). Politicians have also sung its praises, though during wartime they were also quick to put the safety of the country above ‘empty talk about the Habeas Corpus, or the Bill of Rights, or Magna Charta’.[49]

IV USE IN THE AUSTRALIAN AND NEW ZEALAND COURTS

While there are many miscellaneous references to Magna Carta, the bulk of the cases have concentrated on the main issues set out below in Part V. Yet the range of matters in which Magna Carta has been referred to is testament to the continuing high regard in which the Great Charter is held, rather than to its merely being a set of practical legal principles capable of being applied in modern situations. Thus, the Charter has been invoked on the question of whether a non-lawyer might be appointed as Attorney-General,[50] on the principles of sentencing,[51] on the right to a trial according to law,[52] on the prohibition of arbitrary detention,[53] on the rights of foreign merchants,[54] on the initial basis for the separation of the powers of the judiciary from those of the other branches of government,[55] as one basis for lawful taxation of citizens,[56] on the rights of a shoplifter detained in a department store by private persons,[57] and as the foundation for the prohibition of cruel or unusual punishments.[58] While many of the propositions, such as the last,[59] are nonsense in historical terms, the key point is that many judges have viewed Magna Carta as a foundational document in the history of many contemporary common law institutions and doctrines. This continued recurrence of the image of the Charter as a founding document has done much to keep it alive in legal discourse.

V PRACTICAL USES OF MAGNA CARTA IN CONTEMPORARY
LEGAL ARGUMENT

A The Invalidity of Local Statutes Argument

Numerous attempts have been made by litigants, many of them representing themselves, to argue that local legislation that conflicts with or which seems to override Magna Carta is invalid. This argument seems to be based on the premise that the fundamental constitutional character of Magna Carta operates as if it were a constitutionally entrenched provision to which all local enactments are obliged to conform.

Some of these arguments have involved extravagant claims to say the least. Litigants have asserted that because of the fundamental nature of Magna Carta subsequent legislation that permitted magistrates or judges to make a costs order amounted to selling justice contrary to chapter 29 of Magna Carta and was for that reason invalid.[60] In a variant on this argument, a frequent user of the Charter asserted that the Commonwealth of Australia was not competent to pass legislation to create the present system of currency (specifically banknotes) since the legislation that authorised this was contrary to Magna Carta (which allows for gold and silver coins only).[61] It followed from this that any costs order in present currency was also invalid. In another case from Queensland, a litigant asserted that a judge could not find him in contempt of court, even though he had accused the judge of bias and partiality and had refused to apologise, because a contempt finding was not preceded by a hearing as promised by Magna Carta.[62] The fallacy that a local legislature is not competent to pass legislation that contradicts or is inconsistent with Magna Carta has also produced the argument that Commonwealth electoral legislation, which requires candidates for Parliament to lodge a minimum deposit or fee with the electoral commission, is illegal because it is not permitted by Magna Carta.[63] In the same case, and for the same reason, it was further argued that rival candidates who paid their deposits in banknote form were not proper candidates and should not be regarded as valid candidates.[64] Lastly, the courts rejected the breathtaking argument that the entire system of income taxation authorised by the Income Tax Assessment Act 1936 (Cth) is invalid on the grounds that it involves the seizure of property contrary to Magna Carta.[65]

The reasons for the rejection of these arguments are not hard to find. As the courts have repeatedly pointed out from an early date,[66] Magna Carta, as a British statute is still a statute and under the doctrine of parliamentary sovereignty the local legislatures are perfectly competent to either displace or override it with local legislation.[67] Magna Carta does not have the status of a supreme law in the sense of limiting the parliamentary sovereignty of Australian or New Zealand parliaments.[68] In other words, Magna Carta applies, along with other British statutes, to the extent that local legislatures have not changed it. It follows from this that if local parliaments have passed enactments inconsistent with Magna Carta, then the Charter is, to the extent of the inconsistency, no longer law.[69] Whether they pass such enactments is a political matter that sometimes arises. In a debate in 1963, for example, on a proposed Bill of Rights for New Zealand, concern was expressed that the proposed Bill might breach Magna Carta. Although the Bill was not passed, it illustrates how conservative opposition to a Bill of Rights has sometimes been articulated in terms of the need to preserve Magna Carta.[70] These extrajudicial arguments may be bad in law since Parliament is competent to override the Charter, but the fact that they are often invoked suggests that this misunderstanding retains a powerful hold on the legislative and political imagination.

What is rarely explained in the cases is why Magna Carta does not impose a constraint on local legislatures. At least three arguments may be advanced in support of this position. The first is that as each parliament is sovereign and as no parliament can bind a later parliament, except to the extent that manner and form requirements on the earlier legislation bind the later parliament, it is clear that a local legislature is competent to pass legislation displacing Magna Carta or any other Imperial legislation.[71] The passage of Imperial Acts legislation in New South Wales, Victoria, Queensland, the Australian Capital Territory and New Zealand is proof of this since these statutes effectively reduced the 1297 version of Magna Carta to a single chapter. This local sovereignty point is underlined by the existence of the statutes in which the British Parliament forswore the power to legislate for Australia and New Zealand without their consent.[72] The legal foundation for the power to pass legislation at odds with Magna Carta was recently considered in Carnes v Essenberg[73] by Chesterman J, who made it clear that both the Australian Courts Act 1828 (UK) 9 Geo 4, c 83, s 24 and the Australia Act 1986 (Cth) s 3(2) made local legislatures competent to pass legislation inconsistent with Magna Carta. One basis for the conclusion in Carnes v Essenberg was acceptance of the argument, advanced by Dawson J in Kable v DPP (NSW),[74] on the fundamental importance of the supremacy of local parliaments, subject to the Australian Constitution.

A second argument is that since most of the promises made in Magna Carta were on the part of the King, that is, the executive, these do not prevent a legislature from passing legislation to the contrary. This is not a very strong argument and in any case is merely a variation on the first argument.

Thirdly, it can be argued that more specific local legislation displaces prior general statutory pronouncements whether in Magna Carta 1297 or in any other inherited Imperial enactment.[75] Thus it is clear that local jury legislation, for example, displaces anything thought to be said about jury trials in Magna Carta;[76] that local taxation statutes displace Magna Carta on taxation matters;[77] that local drug legislation may be passed even though it infringes on ‘property’ in a natural plant, such as cannabis, said to be protected by Magna Carta;[78] that immigration legislation may be passed, foreclosing any argument that Magna Carta forbids sending people into exile;[79] and that Magna Carta does not prevent the passage of later legislation on dispute resolution.[80]

The one dissent from this position seems to have arisen in a number of judgments in the New Zealand Court of Appeal where it has been suggested, but not held, that parliament might not be competent to take away fundamental common law rights guaranteed, amongst other things, by Magna Carta.[81] To date no court has endorsed this argument which seems to run contrary to the doctrine of parliamentary supremacy. In any case, the New Zealand Court of Appeal has held, in the one case to entertain the argument that Magna Carta is a source of fundamental common law rights, that Magna Carta does not embody any unalterable common law rights.[82] In Creser v The Queen the Court of Appeal rejected the argument that a right to natural plants, in this case cannabis, was a right that ran so deep that the New Zealand Parliament could not override it by the Misuse of Drugs Act 1975 (NZ).[83] The point has not arisen in a comparable Australian decision, but there are several cases where the High Court of Australia has expressed its disapproval of the general argument that Parliament is not competent to take away certain fundamental common law rights.[84]

B The Speedy Trial Argument[85]

Chapter 29 of Magna Carta 1297 promises inter alia that ‘to no one will we deny or delay right to justice’, a provision based originally on chapter 40 of Magna Carta 1215.[86] This provision became the basis of a sustained argument in the 1980s between those who argued that there was a common law right to a speedy criminal trial and that the basis for this right lay in chapter 29, and those who rejected either the right itself or the Magna Carta as the basis for that right. The proponents of the view that there existed a right to a speedy trial, and in particular McHugh JA in the New South Wales Court of Appeal (though he did not originate the argument),[87] for a time proved to be very influential.[88] But eventually it was decided that there was no right to a speedy trial and certainly no such right grounded in Magna Carta, although there is a right to a fair trial, and delay should be dealt with by means of the inherent jurisdiction of a superior court to prevent an abuse of the process of the court.[89] In certain circumstances, delay might amount to an abuse of process. One reason for the change of attitude was that it was thought that the foundation in Magna Carta (or even earlier in the Assize of Clarendon 1166 (Eng) 13 Hen 2, ss 4 and 6) of such a common law right was not soundly based and that a critical reading of the history of Magna Carta would show that this was so.[90] Magna Carta does not use the expression ‘a right to a speedy trial’ and it was held in Jago that there was no textual support in Magna Carta for such a right.[91]

In New Zealand the terms of the argument were affected by the New Zealand Bill of Rights Act 1990 (NZ), where s 25(b) confers a right to be tried without undue delay. In this statutory context there is strictly no need to found the right on Magna Carta, given the terms of the 1990 Act, but the courts have nevertheless reached back to argue that the right originates in the words of chapter 29 of Magna Carta 1297.[92] In fact, in cases decided before the coming into force of the New Zealand Bill of Rights Act 1990 (NZ), the New Zealand courts resorted to chapter 40 of Magna Carta 1215 and chapter 29 of Magna Carta 1297 to read the words of those chapters as part of the history of constitutional development guaranteeing a fair hearing within a reasonable time.[93] But this argument, while acknowledging the Magna Carta origins of the proposition that a person may not be kept in custody until such time as the Crown sees fit to proceed, did not succeed in establishing a present legal right to a speedy trial or a trial within a specific time. In Police v PCF the District Court in Auckland was urged to distinguish Jago on the basis that in New Zealand, in contrast to Australia, there was a statutory right to a speedy trial because of the terms of chapter 29.[94] In the event no decision on the apparent conflict between Jago and other New Zealand decisions was made. In any case, after the New Zealand Bill of Rights Act 1990 (NZ) came into force on 25 September 1990, the terms of the argument changed. Section 25(b) of that Act now provides the current statutory basis for the right to a trial without undue delay.[95] It has not been necessary, therefore, to inspect the claim that such a right is based on chapter 29 of Magna Carta too closely, as was the case in the Jago decision.

C The Right to Trial by Jury

The word ‘jury’ does not appear in Magna Carta 1215 and it seems that trial by one’s peers could not have meant trial by jury in 1215 since such a system did not exist.[96] The jury at that time was a device to assist the parties by making findings after a view of the locus of a dispute.[97] In short, jurors were witnesses rather than judges of fact.[98] But in 1581 William Lambarde began the process by which trial by one’s peers began to be interpreted as trial by a jury of one’s peers.[99] By the 19th century, Australian courts routinely assumed that the origin of the right to a trial by jury was rooted in Magna Carta, as numerous references show.[100] That this was historically inaccurate was acknowledged by Deane J in Kingswell v The Queen,[101] where he discussed the ambit of s 80 of the Australian Constitution which deals with a right to a trial by jury in indictable matters. The main point for contemporary purposes was that, notwithstanding Deane J’s judgment in Kingswell v The Queen, the myth had attained substance, and that trial by jury was both established and seen to be an essential element of the liberty of subjects under the rule of law.

However, even where the courts have accepted the linkage between a jury trial and Magna Carta, they have modernised the terminology of chapter 29, for trial by one’s peers[102] means, in a modern context, trial by one’s fellow citizens irrespective of their ethnicity. This approach was adopted in R v Walker,[103] where an Aboriginal accused argued that the right in chapter 29 meant a trial by a jury of his fellow Aboriginal peers and that his trial before a mixed race jury was therefore invalid. The court rejected this submission and McPherson J held that a peer probably meant an ‘equal’, since it could not literally mean a ‘peer of the realm’ (as it once did). The Court held that in contemporary Australia all individuals are formally equal before the law and that the jury was composed of the equals of the accused in this case.[104] It followed from this that the attempt to argue, via Magna Carta, for an all-Aboriginal jury in a trial involving Aboriginal defendants failed.

Where persons have attempted to argue for the right to a trial by jury by invoking Magna Carta, they have often been met with the argument that subsequent local legislation provides a code covering the situations when such a trial is available.[105] In the lower courts, of course, such trials are always by a Magistrate or (as in New Zealand) District Court judge sitting alone. Such trials are lawful, even though there is no right to a jury, because the statutes that created these courts were products of a sovereign legislature and thus override Magna Carta to the extent that they conflict with the Charter.[106] Similarly, the argument of a right to trial by jury in a defamation action in the Federal Court of Australia was met by the argument that the statute constituting the Court does not provide for jury trials in these cases, notwithstanding the fact that the trial was to take place in Victoria and that Magna Carta is part of the inherited law in that State.[107]

One court has pointed out that the promise of a trial in Magna Carta was in the disjunctive, that is, it promises that a man will not be convicted unless by the ‘lawful judgment of his Peers’ or ‘by the Law of the Land’.[108] This distinction has been used to justify lawful proceedings where no jury is involved, such as a sentencing decision,[109] and it follows that even under the Charter, a trial by jury was not always in contemplation.

D Due Process of Law

The famous phrase ‘due process of law’ was first used in a statute in 1354,[110] but several commentators have wrongly assumed that the phrase ‘per legum terrae’ (‘by the law of the land’) in chapter 29 of Magna Carta and ‘due process of law’ mean the same thing.[111] To be historically accurate, one should say that it was only in the 14th century that statutes made the explicit connection between due process of law and Magna Carta.[112] The realisation that this was so was made clear in Adler v District Court of New South Wales, the leading case on the phrase.[113] In a careful and scholarly judgment Priestley JA traces these post-13th century statutory developments and shows that the statutes of 1354 and 1368, which confirmed Magna Carta, are also in force in New South Wales by virtue of the Imperial Acts Application Act 1969 (NSW).[114] One consequence of these statutes is that they demonstrate that the meaning of Magna Carta has not stood still, and that therefore it is not necessary for lawyers and others to attempt to argue that due process was already present in Magna Carta. Another point to be noted is that the concept of due process means an entitlement to the due process of the time and place at which the hearing is to be held. This injects a necessary element of flexibility into the term for it seems clear that what constitutes due process has changed over time. The evidence shows that the process due in the 13th or 14th centuries was rather different from that now required.[115] This argument in effect ensures that even where medieval phrases are still in use they will be interpreted in modern, not medieval, ways. As a matter of policy this makes sense since it would be a very odd thing to freeze in time notions of due process, especially since the processes of the law in the 13th century involved trial by ordeal and the widespread use of judicial torture.[116] The partisans of ‘original’ meaning are often noticeably selective in which parts of the original meaning they wish to deploy.

E Habeas Corpus

Habeas corpus preceded Magna Carta[117] and was not, therefore, created by it, though some 19th century commentators seemed to think that it was.[118] In fact for many centuries after 1215 there seemed to be no connection between the two. It wasn’t until Darnel’s Case[119] in 1627 that counsel for the Five Knights, John Selden, created a linkage between Magna Carta and habeas corpus. The following year in the Petition of Right, enacted in order to reverse the judgment in Darnel’s Case, the linkage was made even clearer in s 3, which reaffirmed chapter 29 of the 1225 version of Magna Carta, and in s 4, which reaffirmed the due process provision of the statute of 1354.[120] In the debates on the Petition of Right Sir Edward Coke, then a member of the House of Commons, made it clear that there was a linkage between habeas corpus and Magna Carta by noting that one form of habeas corpus, a writ called de homine replegiando, was grounded in Magna Carta.[121] The Petition of Right is in force in all jurisdictions and in the various jurisdictions that have passed Imperial Acts legislation.[122] But while habeas corpus was not created by Magna Carta, it seems to have been regarded as part of the same constitutional tradition and chapter 29 is often cited as a basis for the presumption in favour of liberty.[123] This acceptance of a joint role in a common tradition, underlined by later English statutory developments also adopted in Australia and New Zealand, allows for a more nuanced acceptance and survival of Magna Carta. It both avoids the perpetuation of egregious historical errors and elevates the Charter above the specific provisions of the 13th century text. It is also a recognition that Magna Carta was not static before British settlement and that, therefore, it is not always necessary or historically accurate to refer to the 13th century to reach an understanding of the Charter.

F The Property Cases[124]

Magna Carta is also sometimes relied upon to argue that the government or even a private corporation cannot take a person’s property. The Charter is seen as either an absolute barrier to the taking of property, or as imposing a procedural requirement of a trial of one’s equals before doing so.[125] There are two variants to this argument. The first, usually unsuccessful, variant amounts to a claim that Magna Carta represents an absolute barrier to the taking of a home, for example, in consequence of a failure to meet the obligations of a mortgage.[126] Rarely in these cases do the litigants specify which version of Magna Carta they are relying upon, let alone indicate which chapter they have in mind. Sometimes even the judges refer in passing to Magna Carta to deal with real property points, such as the rules of public policy governing the devolution of real property held in a joint tenancy situation where one of the tenants has died.[127]

The second, typically more successful, argument is that Magna Carta is the first step in a claim that the government may not take property without just compensation, relying ultimately, in the Australian case, on section 51(xxxi) of the Australian Constitution. A variation on this argument is that the Crown has no power under the prerogative to dissolve or unincorporate bodies corporate or to forfeit their assets or to deprive subjects of their contractual or proprietary rights. Such action would be contrary to Magna Carta 1215 and the subsequent versions of 1225 and 1297.[128]

G The Fishery Cases[129]

While, as we have seen, only chapter 29 of Magna Carta 1297 enjoys the status of a statute in New Zealand, the Australian Capital Territory, Victoria, New South Wales and Queensland, the Charter itself is still referred to in cases concerning fisheries. In the case of Western Australia, Tasmania, the Northern Territory and South Australia, the provisions of Magna Carta 1225 and 1297 on fisheries are still part of the inherited Imperial statute law unless a court were to decide that the provision was not appropriate to the conditions of these jurisdictions. Where disputes have arisen concerning the right to fish, Magna Carta has been invoked to protect such a public right, though it has also been made clear that this right may be abrogated or regulated by a competent legislature.[130] Magna Carta 1215 promised that the Crown would preserve the public’s right to fish in tidal waters.[131] Where persons have sought to invoke this right they have normally been met with the argument that later legislation governing fishing may regulate the right by implementing a system of licences.[132]

In every case the issue is whether the later legislation has actually in terms or by necessary implication abrogated the public right to fish. In a recent decision of the Federal Court of Australia Mansfield J held, in a rare example of a successful use of Magna Carta in a specific case, that the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and the Fisheries Act 1988 (NT) had not abrogated the public right to fish in waters by making a grant to Aboriginals under the 1976 Act.[133] In coming to this decision Mansfield J[134] followed the High Court decision in Harper v Minister of Sea Fisheries where Brennan J had founded the right to fish on Magna Carta.[135] Mansfield J left no doubt that, since Magna Carta, the right to fish in tidal waters, streams and estuaries below the high water mark could be removed by later legislation, but that this had to be clear from the terms of the legislation itself.[136]

The issue of the impact of Magna Carta has also arisen in cases where indigenous persons in both Australia and New Zealand have sought to establish a claim to fish outside the scope of existing fisheries legislation.[137] While there is no doubt that the legislature is competent to legislate away indigenous rights in this area, in the absence of abrogating legislation and where native title can be established either by a continuous link with the land as in Australia, or by virtue of the Treaty of Waitangi 1840 as in New Zealand, the Magna Carta argument may not be decisive. However, it may have value as the first step in the argument by the claimants[138] and in this sense continues to play a foundational role in contemporary legal argumentation.

VI SYMBOLIC USES

While Magna Carta has been rarely applied in modern cases, it is so frequently invoked that the possible symbolic uses of it require some explanation. While the submissions of parties and the arguments of judges are generally directed at the efficacy of arguments in arriving at a particular rule of law and deciding whether and how that rule of law applies to the facts of a particular case, judges and litigants also refer to general principles in support of their arguments. Of the several such uses of Magna Carta in Australia and New Zealand, the most striking has been to invoke the Great Charter as a symbol of a system of rights. Thus, it may be said that the emergence and persistence of Magna Carta through the nearly eight centuries since 1215 has been the story of the transformation of a feudal document into a tradition that was once called civil liberty and is now called human rights.[139] This is so even though rights language only emerged in the 17th century and the acceptance of this argument necessarily involves acknowledging the changes that have been made to the Charter, both in the 14th and 17th centuries especially, and as a consequence of modern judicial interpretation in Australia and New Zealand.

The view of Magna Carta as part of an ensemble of doctrines and institutions constitutive of a modern common law legal order has manifested itself in a number of ways and on a number of occasions. In 1943 a judge in New South Wales noticed the systemic features of this ensemble when he referred to ‘all civil liberties, rights, and remedies, ... [and] ... the system of Constitutional government that has been built up from the time of Magna Charta.’[140] Though said by some commentators to have been supplanted in contemporary legal argument by references to international human rights instruments,[141] Magna Carta has not entirely disappeared from the universe of rights discourse in legal argument. Some observers have noted the continuity between Magna Carta and the Universal Declaration of Human Rights of 1948,[142] and have referred to that instrument as a ‘Magna Carta for mankind’.[143]

Another modern function of Magna Carta has been to stand for certain underlying principles of the legal order, such as a presumption in favour of liberty and the notion that the state cannot deprive a person of their liberty unless there is a proper and recognised legal justification for doing so.[144] In New Zealand the courts have even discerned a connection between the Treaty of Waitangi 1840 and the Charter on the basis that the Treaty promised in the third article that ‘Her Majesty extends to the Natives of New Zealand Her royal protection and imparts to them all of the Rights and Privileges of British subjects.’[145] Since the Charter was part of the law of New Zealand and since any rights within it, such as those enumerated in chapter 29, are part of the rights referred to in the treaty, the Maori of New Zealand are as entitled to these rights as any other inhabitants of the country.

Even if some of these claims are ‘bad history’, because they are based on assertions of historical continuity that the evidence does not support, the rewriting of legal doctrine to fit modern circumstances, in order to provide a rationale for modern judicial reasoning, is as old as the law itself. The function of this mode of reasoning is both to establish a link with the past[146] and to acknowledge that ancient legal instruments, such as Magna Carta, even if not a direct source of modern legal rules, have contributed to the contemporary law as a source of present understandings about the legal order as a whole. In this sense, Magna Carta, along with several other Imperial legal inheritances such as habeas corpus, due process and the Bill of Rights 1688 (Eng) 1 Wm & M Sess 2, c 2, is an emotional presence in the legal system even if it is rarely successfully invoked though referred to often.[147] A purely utilitarian view of the law would miss this usage and overlook the nature of much judicial rhetoric. It is not the point, then, to argue that because this rewriting of legal history is in some sense false, because it is based on claims that cannot be supported by the historical or legal record, Magna Carta is therefore a myth. What matters in these references to Magna Carta is not their historical accuracy but their present legal use as a legitimating device to provide support for a system of rights and principles.

VII CONCLUSION: AN ENDURING SYMBOLIC ROLE

The survival and surprisingly frequent use of Magna Carta over the last two decades is attributable to the retention of the 1297 version in local statutes, the willingness of litigants to rely upon it (even if they usually meet with disappointment), the capacity of judges to adapt it to local circumstances to deal with modern problems, and its function in representing key values in the legal system. In a sense then, the myth[148] of Magna Carta has proved legally, and above all, constitutionally, useful to subsequent generations. While, as we have seen, it is of little practical use in actual cases, it remains an animating idea and one important basis upon which judges continue to found the legitimacy of the rule of law and constitutionalism generally. In June 2015, when there will no doubt be celebrations in Australia and New Zealand of the 800th anniversary of Magna Carta, it is likely that the survival of the document as an icon of liberty in Australia and New Zealand, two countries unknown in Europe when the Charter was drawn up, will be counted as our enduring contribution to the fortunes of the Charter in the Antipodes.


[*] BA (Hons), LLB (Otago), D Phil (Oxon); Barrister and Solicitor of the High Court of New Zealand; Public Prosecutor, Fiji; Professor of Law, School of Law, Flinders University of South Australia.

Thanks are due to Gerard McCoy QC of Christchurch for his assistance and advice in locating the unreported New Zealand cases used in this study, and in commenting upon the text and argument. All errors of fact and interpretation remain the sole responsibility of the author.

[1] Statute of 1354 (Eng) 28 Edw 3, c 3. Also used in Statute of 1368 (Eng) 42 Edw 3, c 3.

[2] For the leading discussion of the term ‘due process of law’, see Adler v District Court of New South Wales (1990) 19 NSWLR 317 (‘Adler’).

[3] There were five versions of Magna Carta in the 13th century: 1215, 1216, 1217, 1225 and 1297. Of these, the first is most often referred to (see R v Walker [1989] 2 Qd R 79, 84), but only the versions of 1225 and 1297 were actual enactments: Magna Charta 1225 (Eng) 9 Hen 3, c 30 and The Great Charter of the Liberties of England and of the Liberties of the Forest 1297 (Eng) 25 Edw 1 (‘Magna Carta 1297’). In this paper, unless otherwise specified, Magna Carta will be taken to refer to the statutory version of 1297. For the text of earlier versions, see Harry Rothwell (ed), English Historical Documents 1189–1327 (1975) 317, 327, 332. For the full text of Magna Carta 1297 in the original Latin together with an English translation, see Magna Carta 1297 (Eng) 25 Edw 1, reproduced in Statutes of the Realm (first published 1810, reprinted 1963) vol 1, 117. For a collation of the various chapters and their re-numbering in the different versions of Magna Carta, see Michael Evans and R Ian Jack (eds), Sources of English Legal and Constitutional History (1984) 55–60. Note that in 1952 the Commonwealth National Library acquired one of the few manuscript versions of Magna Carta 1297. This was housed in the Commonwealth Parliament until 1968, when it was removed and placed in the National Library of Australia. Following cabinet intervention in 1968, it was returned to the Commonwealth Parliament: see Sir Harold White, ‘The Great Charter Revisited — Sir Harold White Replies to Mr Whitlam’ (1986) 15 Australian Library News 6; Commonwealth, Parliamentary Debates, House of Representatives, 20 August 1968, 353–5 (Clyde Cameron). There is little local writing on Magna Carta. In addition to other works cited elsewhere in this paper, readers should note:

K L Sandford, ‘Magna Carta — Is It Still Law?’ (1938) 14 New Zealand Law Journal 252;

A R Perry, ‘An Historical Interpretation of Magna Carta’ (1939) 15 New Zealand Law Journal 213; G G Watson, ‘The Preservation of Liberty’ (1943) 19 New Zealand Law Journal 165.

[4] And, one might add, part of the political landscape. In 1997 the Commonwealth Parliament approved a decision of the National Capital Authority to build a ‘Magna Carta memorial’ at the newly created Magna Carta Place. The memorial is expected to be dedicated later in 2001: Commonwealth, Parliamentary Debates, Senate, 2 October 1997, 7436 (Warwick Parer, Minister for Resources and Energy); Commonwealth, Parliamentary Debates, House of Representatives, 2 October 1997, 9026 (Warwick Smith). See also National Capital Authority, Annual Report 1999–2000 (2000) 37.

[5] In 1803 Jeremy Bentham argued that the legal system of New South Wales was defective in part because it was in breach of Magna Carta: ‘Extracts from a Plea for a Constitution by Jeremy Bentham, 1803’ in Library Committee of the Commonwealth Parliament, Historical Records of Australia Series IV (1922) vol 1, 896–7. A similar argument was put during a parliamentary debate on the deportation of enemy aliens in July 1920, when a Member of Parliament criticised legislation designed to expel alleged enemy aliens without a trial of their peers as being contrary to Magna Carta: Commonwealth, Parliamentary Debates, House of Representatives, 15 July 1920, 2791 (Thomas Ryan).

[6] See, eg, Macdonald v Levy (1833) 1 Legge 39, 48–9; R v O’Connell (1839) 1 Legge 117; Crawford v Lecren [1868] 1 NZCA 117, 121. In none of these cases did the court accept the Magna Carta argument and the issues before the court were decided on other grounds.

[7] A phrase used to describe c 29 of Magna Carta in New South Wales Law Reform Commission, Report of the Law Reform Commission on the Application of Imperial Acts, Report No 4 (1967) 62. See also Law Reform Commission of the Australian Capital Territory, Report on Imperial Acts in Force in the Australian Capital Territory and Supplementary Report, Report No 63 (1972) 7, where the phrase is quoted.

[8] George Williams, Human Rights under the Australian Constitution (1999) 2–3.

[9] See, eg, Carnes v Essenberg [1999] QCA 339 (Unreported, McMurdo P, McPherson JA and Chesterman J, 23 August 1999) <http://www.austlii.edu.au/au/cases/qld/QCA/1999/339.html> , where Chesterman J says of both Magna Carta and the Bill of Rights Act 1688 (Eng) 1 Wm & M Sess 2, c 2: ‘The historical importance and the influence on the constitutional development in the English-speaking countries of those two enactments are profound.’ All websites cited in this article are correct as at 31 December 2000. Copies of all unreported decisions are on file with the author.

[10] For two Queensland residents who made frequent resort to the High Court and who often referred to Magna Carta, see: Jones v Cusack [1992] HCA 40; (1992) 109 ALR 313; Re A-G (Cth); Ex parte Skyring [1996] HCA 4; (1996) 135 ALR 29; Skyring v Ramsey [2000] FCA 774 (Unreported, Ryan, O’Connor and Weinberg JJ, 9 June 2000) <http://www.austlii.edu.au/au/cases/cth/federal_ct/2000/

774.html>; Morrison v Land [2000] QCA 147 (Unreported, McMurdo P, Davies JA and Mackenzie J, 27 April 2000) <http://www.austlii.edu.au/au/cases/qld/QCA/2000/147.html> .

[11] See, eg, Nigel Jamieson, ‘The Maori Magna Carta’ [1992] New Zealand Law Journal 101 (reviewing Paul McHugh, The Maori Magna Carta (1991)), where he compares the provisions of Magna Carta to those of the Treaty of Waitangi 1840; D J Round, ‘Restoring Liberties’ [1979] New Zealand Law Journal 187, where Magna Carta 1235 [sic] is compared with a text drawn from an Egyptian papyrus. See also Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191, 220, where Brennan J quotes from A W Deller, Deller’s Walker on Patents (2nd ed, 1964) vol 1, 35, where the Statute of Monopolies 1623 (Eng) 21 Jac 1, c 3 is described as the ‘magna charta of the patent system’; Trethowan v Peden [1930] NSWStRp 90; (1930) 31 SR (NSW) 183, 200, where Street CJ cites a comment by Professor Keith that the Colonial Laws Validity Act 1865 (UK) 28 & 29 Vict, c 63 was ‘for long the Magna Charta of colonial autonomy’.

[12] Thus, the rejection of arbitrary detention in the New Zealand Bill of Rights Act 1990 (NZ) s 22 is said also to be supported by Magna Carta: P v Superintendent, Rimutaka Prison (Unreported, High Court of New Zealand, Durie J, 5 November 1999) 3. And for a similar argument, see Poon v Commissioner of Police [2000] NZAR 70, 79.

[13] See, eg, W J V Windeyer, Lectures on Legal History (2nd ed, 1957) 79.

[14] Michael Blakeney, ‘The Reception of Magna Carta in New South Wales’ (1979) 65 Journal of the Royal Australian Historical Society 128, 136. See also Victoria, Parliamentary Debates, Legislative Assembly, 8 May 1980, 9565–6 (N M McInnes).

[15] See above n 7 and below n 19 and accompanying text.

[16] In NSW, see Imperial Acts Application Act 1969 (NSW) s 6 and sch 2 pt 1; R v McConnell (1985) 2 NSWLR 269, 272 (Moore DCJ); Galea v New South Wales Egg Corporation (Unreported, New South Wales Court of Appeal, Kirby P, Samuels and Meagher JJA, 21 November 1989) [10] (Kirby P); Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 78 (Gaudron J) (‘Jago’); Adler (1990) 19 NSWLR 317, 320 (Kirby ACJ), 346 (Priestley JA); Egan v Willis [1998] HCA 71; (1998) 195 CLR 424, 444. In Victoria, see Imperial Acts Application Act 1980 (Vic) s 8 div 3; R v Vollmer [1996] VicRp 9; [1996] 1 VR 95, 176. In Queensland, see Imperial Acts Application Act 1984 (Qld) s 5 and sch 1. In the ACT, see Imperial Acts Application Ordinance 1986 (ACT) sch 3 pt 2; Ryan v Registrar of Motor Vehicles (1997) 129 ACTR 4, 10. In New Zealand, see Imperial Laws Application Act 1988 (NZ) s 3(1) and sch 1; Police v PCF [1990] 1 NZBORR 347, 356–7; Watson v Clarke [1990] 1 NZLR 715, 722; Re Shaw [1997] NZHC 482; [1997] 3 NZLR 611, 613; Shaw v Commissioner of Inland Revenue [1999] 3 NZLR 154, 157; Westco Lagan Ltd v A-G (NZ) (Unreported, High Court of New Zealand, McGechan J, 15 August 2000) 13; West v Martin (Unreported, New Zealand Court of Appeal, Richardson P, Heron and Goddard JJ, 30 August 2000) <http://www.brookers.co.nz/legal/judgments/Default.asp?doc=2000/ca045z.htm> [11].

[17] Imperial Acts Application Ordinance 1986 (ACT) sch 3.

[18] (1996) 30 Reprinted Statutes of New Zealand 25–6.

[19] See, eg, New Zealand, Parliamentary Debates, 9 October 1981, 3977 (James McLay, Minister of Justice) (introducing the Imperial Laws Application Bill 1981); New Zealand, Parliamentary Debates, 21 October 1986, 5071 (Geoffrey Palmer, Minister of Justice) (introducing the Imperial Laws Application Bill 1986); New Zealand, Parliamentary Debates, 14 July 1988, 5112 (Geoffrey Palmer, Minister of Justice) (Second Reading of the Imperial Laws Application Bill 1988).

[20] (1996) 91 A Crim R 27.

[21] Ibid 31.

[22] Australian Courts Act 1828 (Imp) 9 Geo 4, c 83, s 39. The Act came into force in New South Wales and Van Diemen’s Land (as Tasmania was then known) on 1 March 1829 (s 39), but s 24 provides that the date for the reception of Imperial Statutes is the date of the passing of the Act, ie, 25 July 1828. This statute covered both New South Wales and Van Diemen’s Land as well as the parts of New South Wales that later become the colonies of Victoria and Queensland. For authoritative judicial discussions of the tests to be applied in determining whether an Imperial Statute applies under s 24, see: R v Maloney (1836) 1 Legge 74, 77; Quan Yick v Hinds [1905] HCA 10; (1905) 2 CLR 345; Mitchell v Scales [1907] HCA 66; (1907) 5 CLR 405. The best academic account remains Alex Castles, ‘The Reception and Status of English Law in Australia’ [1963] AdelLawRw 1; (1963) 2 Adelaide Law Review 1.

[23] Interpretation Act 1984 (WA) s 73. Cf Vincent v Ah Yeng [1906] WALawRp 33; (1906) 8 WALR 145, 146, where Parker CJ stated: ‘This may be repugnant to Magna Charta, but that great Statute has not been extended to this State either by express words or necessary intendment.’ Even if a true statement of the position in 1906, it would appear not to state the current law which dates from 1918: Interpretation Act 1918 (WA) s 43 (note that this statute was repealed by s 77 of the Interpretation Act 1984 (WA), but continues to apply to Acts passed before the entry into force of the 1984 Act).

[24] Acts Interpretation Act 1915 (SA) s 48.

[25] Sources of Law Act 1985 (NT) s 3.

[26] Given the Australian legislative precedent of 1985–86, consent must be given by both State and Commonwealth Parliaments. See Australia (Request and Consent) Act 1985 (Cth) s 3.

[27] See South Australian Law Reform Committee, Relating to the Inherited Imperial Law and Constitutional Statutes, Report No 96 (1985) 3, where both the Latin and English versions of c 29 of Magna Carta 1225 are set out.

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

[29] In fact both the versions of 1225 and 1297 are in force in South Australia: Clayton v Ralphs (1987) 45 SASR 347, 384 (Legoe J). As the texts of c 29 are the same in both versions, this has little practical significance. It does mean, however, that the entire versions of 1225 and 1297 are in force (except c 26), despite extensive repeal of Magna Carta 1225 and Magna Carta 1297 in England since 1836.

[30] For the text of cc 1, 9, 29 and 37, see Butterworths, Halsbury’s Statutes of England and Wales (4th ed, 1985) vol 10, 14–17.

[31] As noted by Sir Leo Cussen: Joint Select Committee of the Legislative Council and Legislative Assembly, Report from the Joint Select Committee of the Legislative Council and Legislative Assembly on the Imperial Acts Application Bill; Together with Minutes of the Evidence (1922) 15, which also appears in Victoria, Votes and Proceedings of the Legislative Assembly, Legislative Assembly, 11 August 1922, 791 (Sir Leo Cussen).

[32] Though one Australian judge thought that it could be interpreted as a basis for freedom of religion generally: Re Lebanese Moslem Association (Unreported, Federal Court of Australia, Pincus J, 25 July 1986) [66].

[33] Sir Edward Coke, The Second Part of the Institutes of the Lawes of England (first published 1642, 1979 ed) proeme. See also Sir Edward Coke, The First Part of the Institutes of the Laws of England, or, A Commentary upon Littleton: Not the Name of the Author Only, But of the Law Itself (first published 1628, 1832 ed) vol 1, [115b], [81a] (the latter paragraph cited by Rogers J in Kintominas v A-G (NSW) (1987) 24 A Crim R 456, 459); William Hearn, The Government of England (2nd ed, 1886) 5; Commonwealth, Parliamentary Debates, Senate, 31 August 1915, 6317 (John Keating).

[34] See Sir William Blackstone, Commentaries on the Laws of England (first published 1765–69, 1978 ed) vol 1, 108; Delohery v Permanent Trustee Co of NSW [1904] HCA 10; (1904) 1 CLR 283, 313 (Griffith CJ); Mabo v Queensland [No 2] (1992) 175 CLR 1, 34–8 (Brennan J), 79–80 (Deane and Gaudron JJ) (‘Mabo’) for an account of the status of the common law in Australia; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 562–7. As the Mabo decision shows, the High Court may change the common law and authoritatively declare it for all of Australia. For a leading authority on New Zealand’s reception of the common law, see Falkner v Gisborne District Council [1995] 3 NZLR 622, 625–6, referring to the Imperial Laws Application Act 1988 (NZ) s 5, which provides that ‘the common law of England ... so far as it was part of the laws of New Zealand immediately before the commencement of this Act, shall continue to be part of the laws of New Zealand.’ The Falkner case deals with the four tests for deciding whether the English common law applies: (1) the law was existing in England on 14 January 1840; (2) it was applicable to the circumstances of New Zealand; (3) it was in force in New Zealand prior to the commencement of the English Laws Act 1908 (NZ); (4) it was part of the laws of New Zealand prior to the commencement of the 1988 Act.

[35] Aboud v A-G (NSW) (1987) 10 NSWLR 671, 691 (McHugh JA).

[36] R v Valentine (1871) 10 SCR (NSW) 113, 130. This passage refers to the right to a trial by jury, a right which is critically assessed below as not being based upon Magna Carta at all: see below Part V(C). For a strong statement of the notion that Magna Carta restates the common law, see: A-G (Canada) v A-G (Quebec) [1921] 1 AC 413, 422–3. For an account of the role of charters as a source of common law in the 13th century, see Paul Hyams, ‘The Charter as a Source for the Early Common Law’ (1991) 12 Journal of Legal History 173.

[37] R v Wright; Ex parte Klar (1971) 1 SASR 103, 108 (Bray CJ). Also commented upon by Alex Castles, ‘Australian Meditations on Magna Carta’ (1989) 63 Australian Law Journal 122, 125. For earlier discussion, see Blakeney, above n 14, 135.

[38] Relied upon in Kintominas v A-G (NSW) (1987) 24 A Crim R 456, 459, where Rogers J held that there was a common law right to a speedy trial and added: ‘The statement in Magna Carta is merely an affirmation of this entitlement, not its origin.’ Later on the same page he comments: ‘Magna Carta was for the most part declaratory of the fundamental laws of England. Again, the Imperial Acts Application Act 1969 (NSW) by maintaining Magna Carta in force in New South Wales merely preserves an express statement of the common law position.’ See also Carnes v Essenberg [1999] QCA 339 (Unreported, McMurdo P, McPherson JA and Chesterman J, 23 August 1999) <http://www.austlii.edu.au/au/cases/qld/QCA/1999/339.html> in relation to Magna Carta, where McPherson JA cites Booth v Booth [1935] HCA 15; (1935) 53 CLR 1, 32 (Starke J) in support of this proposition: at [19]. In any case, as McPherson JA explains, as received common law, Magna Carta may nevertheless be altered by local legislation: ibid.

[39] [1989] HCA 46; (1989) 168 CLR 23 (‘Jago’).

[40] In any case the common law means the common law of Australia which may be and often is different from the common law of England: Justice Toohey, ‘Towards an Australian Common Law’ (1990) 6 Australian Bar Review 185. See also Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 563.

[41] Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51, 112–13 (McHugh J); Lipohar v The Queen; Winfield v The Queen [1999] HCA 65; (1999) 168 ALR 8, 14–15 (Gleeson CJ), 18–22 (Gaudron, Gummow and Hayne JJ), 60–1 (Kirby J dissenting on another ground), cf 73 (Callinan J, who dissented on this point).

[42] See, eg, Imperial Laws Application Act 1988 (NZ); Imperial Laws Application Act 1984 (Qld); Imperial Acts Application Act 1969 (NSW); Imperial Acts Application Act 1980 (Vic); Imperial Acts Application Act 1986 (ACT).

[43] See, eg, Blakeney, above n 14, 136; Victoria, Parliamentary Debates, Legislative Assembly, 8 May 1980, 9565–6 (N M McInnes).

[44] A phrase used by the Earl of Chatham: see T C Hansard (ed), The Parliamentary History of England, From the Earliest Period to the Year 1803 (1813) vol 16, 748 — a widely cited but seldom referenced sentiment. See especially the reference to this phrase by the first Dean of the Faculty of Law at the University of Melbourne: Hearn, above n 33, 7; and Philip Joseph, Constitutional and Administrative Law in New Zealand (1993) 171.

[45] Windeyer, above n 13, 79.

[46] Watson, above n 3, 165.

[47] Ex parte Nichols (1839) 1 Legge 123, 132 (Willis J). See also New Zealand, Parliamentary Debates, 12 July 1856, 276 (William Fox), where Mr Fox criticised a proposed Native Offenders Bill on the grounds that: ‘It was virtually a Bill to repeal the British Constitution, to nullify Magna Charta, to sweep away every right and privilege that was dear to the heart of an Englishman.’

[48] See, eg, Rio Beverages Ltd v New Zealand Apple & Pear Marketing Board (Unreported, High Court of New Zealand, Thomas J, 25 November 1994) 7, where Thomas J refers to the Magna Carta as ‘[t]hat most venerated document, Magna Carta’; a sentiment repeated in Willis v GKline Ltd (1995) 8 PRNZ 546, 549 and Gray v Thom (1997) 10 PRNZ 373, 380. See also Kohu v Police [1989] NZHC 449; (1989) 5 CRNZ 52, 54, where Anderson J says: ‘The crowning glories of the Magna Carta, arts 39 and 40, are still tenets of our law’. See also above n 9.

[49] Commonwealth, Parliamentary Debates, House of Representatives, 9 September 1915, 6872 (William Hughes, Attorney-General).

[50] R v Connor and Wilson (Unreported, Supreme Court of South Australia, Boucaut ACJ, Bundey J and Russell AJ, 1 June 1897). This important case is not reported in the South Australian Reports because at the time their publication was in abeyance due to a dispute. In this author’s opinion, this case deserves to be reported.

[51] Trenerry v Bradley [1997] NTSC 82; (1997) 6 NTLR 175, 187.

[52] Ryan v Registrar of Motor Vehicles (1997) 129 ACTR 4, 10.

[53] P v Superintendent, Rimutaka Prison (Unreported, High Court of New Zealand, Durie J, 5 November 1999) 3.

[54] Zachariassen v Commonwealth [1917] HCA 77; (1917) 24 CLR 166, 181; W & A McArthur Ltd v Queensland [1920] HCA 77; (1920) 28 CLR 530, 550; Mudginberri Station Pty Ltd v Langhorne [1985] FCA 478; (1985) 7 FCR 482, 490.

[55] R v Adams [1993] 1 NZLR 443, 448, citing Military Audit Project v Bush, 418 F Supp 876, 878 (DC Cir, 1976).

[56] Waitakere City Council v Lovelock [1997] 2 NZLR 385, 417.

[57] R v N [No 2] (1999) 5 HRNZ 72, 81.

[58] R v Preston (1992) 58 A Crim R 328, 335.

[59] The phrase ‘cruel and unusual punishment’ originated in the Bill of Rights 1688 (Eng) 1 Wm & M Sess 2, c 2, art 10. The best studies of the history of the expression show that it was not used before 1688 and it does not appear in Magna Carta, though several 16th century statutes did express concern at the form of punishments meted out by the courts: see Anthony Granucci, ‘“Nor Cruel and Unusual Punishments Inflicted”: The Original Meaning’ (1969) 57 California Law Review 839, 844.

[60] Skyring v ANZ Banking Group Ltd (Unreported, Supreme Court of Queensland, Court of Appeal, Macrossan CJ, McPherson and Pincus JJA, 12 May 1994); Re Skyring (1994) 68 ALJR 618 (Dawson J); Stanbridge v The Premier of Queensland [1995] QSC 201 (Unreported, Mackenzie J, 25 August 1995); Brooks v Krosch [1997] QSC 171 (Unreported, White J, 17 September 1997); Skyring v Ramsey [2000] FCA 774 (Unreported, Ryan, O’Connor and Weinberg JJ, 9 June 2000) <http://www.austlii.edu.au/cases/cth/federal_ct/2000/774.html> Morrison v Land [2000] QCA 147 (Unreported, McMurdo P, Davies JA and Mackenzie J, 27 April 2000) <http://www.austlii.edu.au/au/cases/qld/QCA/2000/147.html> .

[61] Re Skyring [1995] QSC 55 (Unreported, White J, 5 April 1995); Skyring v Federal Commissioner of Taxation (1991) 23 ATR 84, 86–7; Re Skyring [No 2] (1985) 58 ALR 629 (Deane J). Mr Skyring ran this argument so often that in a 1999 decision Spender J described that argument as ‘almost a mantra really’: Skyring v Sweeney [1999] FCA 61 (Unreported, Spender J, 4 February 1999) <http://www.austlii.edu.au/au/cases/cth/federal_ct/1999/61.html> [3]. Another frequent user of this argument is Mr Cusack: see Re Cusack (1985) 66 ALR 93, 95 (Wilson J); Jones v Cusack [1992] HCA 40; (1992) 109 ALR 313 (Toohey J), where Mr Cusack made an unsuccessful attempt to issue proceedings challenging the Reserve Bank Act 1959 (Cth), Commonwealth Bank Act 1959 (Cth), Banking Act 1959 (Cth) and the Currency Act 1965 (Cth).

[62] Stanbridge v DPP [1997] QCA 131 (Unreported, Fitzgerald P, McPherson JA and Moynihan J, 27 May 1997).

[63] See Re A-G (Cth); Ex parte Skyring [1996] HCA 4; (1996) 135 ALR 29, 31.

[64] Ibid.

[65] Skyring v Federal Commissioner of Taxation (1991) 23 ATR 84, 86. See also Bishop v Australian Taxation Department (1996) 32 ATR 644, 645 where it was argued that capital gains tax is an ‘unjust exaction forbidden by Magna Carta.’

[66] See Fenton v Hampton [1858] EngR 321; (1858) 11 Moo PC 347, 352; [1858] EngR 321; 14 ER 727, 729, where the Judicial Committee of the Privy Council rejected an argument that the Van Diemen’s Land legislature was incompetent to detract from Magna Carta, and thereby upheld Valentine CJ in the court below, where he noted and rejected the Magna Carta argument of the plaintiff. The Privy Council upheld the right of the legislature to find the appellant in contempt and ruled that no Imperial legislation was required to effect this. The implication seems to be that Magna Carta could be altered by local legislation. See also the remarks to the same effect in Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51, 72–4 (Dawson J). Parliament has also understood for a long time that it has the power to override Magna Carta: Commonwealth, Parliamentary Debates, House of Representatives, 8 September 1939, 231 (Maurice McCrae Blackburn).

[67] See Chia Gee v Martin [1905] HCA 70; (1905) 3 CLR 649, 653 (Griffith CJ): ‘The contention that a law of the Commonwealth is invalid because it is not in conformity with Magna Carta is not one for serious refutation.’ In Re Cusack and Australian Electoral Commissioner (Unreported, Federal Court of Australia, Spender J, 6 November 1984) [10] Spender J noted that: ‘the primary submission by Mr Cusack that Magna Carta is in some sense a guarantee that no legislation can be enacted in conflict with it is a fallacious one’. This was upheld on appeal to the High Court in Re Cusack (1985) 66 ALR 93, 95. See also Pavlomanolakos v National Australia Bank Ltd (Unreported, Federal Court of Australia, Gummow, Hill and Cooper JJ, 11 May 1993) [6], citing Re Cusack in the High Court. Griffith CJ’s remark in Chia Gee v Martin was cited as authority in Skyring v ANZ Banking Group Ltd (Unreported, Supreme Court of Queensland, Court of Appeal, Macrossan CJ, McPherson and Pincus JJA, 12 May 1994) [4]; Re Skyring (1994) 68 ALJR 618, 619. In Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) [2000] FCA 165; (2000) 170 ALR 1, 21 Mansfield J implicitly accepted the point. See also Vincent v Ah Yeng [1906] WALawRp 33; (1906) 8 WALR 145, 146 (Parker CJ): ‘I need only say that in my opinion the colonists have power to repeal the laws which they brought with them from the mother country’; La Trobe University v Robinson [1972] VicRp 104; [1972] VR 883, 891, where McInerney J rejected the argument that rules of court regulating a writ of attachment for contempt of court were invalid because they conflicted with Magna Carta. Cf R v Lloyd; Ex parte Wallach [1915] ArgusLawRp 72; [1915] VLR 476, 496, where Madden CJ questioned provisions of the War Precautions Act 1914 (Cth) on the basis that they were contrary to Magna Carta, amongst other statutes. He did not deny the ability of Parliament to override Magna Carta but felt the intention to do so should be made explicit. On appeal, the High Court reversed the decision of the Victorian Full Court: Lloyd v Wallach [1915] HCA 60; (1915) 20 CLR 299. See also Brown v Lizars [1905] HCA 24; (1905) 2 CLR 837, 867, where O’Connor J accepted that deviations from Magna Carta may be necessary, and rejected a submission by counsel for the respondent that a commission of inquiry was contrary to the principles of Magna Carta; and Clough v Leahy [1904] HCA 38; (1904) 2 CLR 139, 151, where Griffith CJ rejected a submission that commissions of inquiry usurped the powers of a court contrary to Magna Carta. In Eastgate v Rizzoli (1990) 20 NSWLR 188, 191 the point was raised by counsel for the appellant but not referred to by the Court. In Essenberg v The Queen (2000) 13 Leg Rep C3 McHugh J refused to grant the applicant leave to appeal, at the same time rejecting the contention that Magna Carta is binding on Australian legislatures.

[68] R v Waetford [1999] NZCA 285 (Unreported, Richardson P, Gault and Tipping JJ, 2 December 1999) <http://www.austlii.edu.au/nz/cases/NZCA/1999/285.html> [7]. See also Abram v Bank of New Zealand (1993) 15 ATPR 41-218, 41,018, where a submission claiming that Magna Carta was the foundation of the Australian Constitution was described by Einfeld J as ‘magnanimous’.

[69] Transcript of Proceedings, Application by Owen (High Court of Australia, McHugh J, 18 June 1996) <http://www.austlii.edu.au/au/other/hca/transcripts/1995/B101/1.html> Transcript of Proceedings, Wilson v Prothonotary (High Court of Australia, Gaudron and Callinan JJ, 16 April 1999) <http://www.austlii.edu.au/au/other/hca/transcripts/1998/S127/1.html> Galea v New South Wales Egg Corporation (Unreported, New South Wales Court of Appeal, Kirby P, Samuels and Meagher JJA, 21 November 1989) [11]; Adler (1990) 19 NSWLR 317, 332; Prothonotary v Wilson [1998] NSWSC 26 (Unreported, Hidden J, 16 March 1998) <http://www

.austlii.edu.au/au/cases/nsw/supreme_ct/1998/26.html>.

[70] New Zealand, Parliamentary Debates, 15 August 1963, 1187 (Henry Mason). This was also an argument against legal change in the 19th century: see, eg, New Zealand, Parliamentary Debates, 9 August 1879, 556 (William Stewart), where the argument was raised to oppose special legislation to detain and try Maori prisoners.

[71] For an application of this argument in relation to Magna Carta, see Shaw v Commissioner of Inland Revenue [1999] 3 NZLR 154, 157–8.

[72] See Constitution Act 1986 (NZ) s 15(2); Australia Act 1986 (Cth) s 1 and Australia Act 1986 (UK) s 1.

[73] [1999] QCA 339 (Unreported, McMurdo P, McPherson JA and Chesterman J, 23 August 1999) <http://www.austlii.edu.au/au/cases/qld/QSC/1999/339.html> .

[74] [1996] HCA 24; (1996) 189 CLR 51, 72–3.

[75] Such as the Bill of Rights Act 1688 (Eng) 1 Wm & M Sess 2, c 2. For an argument in these terms applied to this Act, see the judgments in Cobb & Co Ltd v Kropp [1965] Qd R 285, 298 (Gibbs J), 301 (Hart J).

[76] R v Walker [1989] 2 Qd R 79, 85. See also Transcript of Proceedings, Wilson v Prothonotary (High Court of Australia, Gaudron and Callinan JJ, 16 April 1999) <http://www.austlii.edu.au/

au/other/hca/transcripts/1998/S127/1.html>, where special leave to appeal was refused and by implication the Court rejected the submission by the appellant that trial by jury was guaranteed by Magna Carta because a jury trial does not apply to a contempt of court matter.

[77] Kaihau v Inland Revenue Department [1990] 3 NZLR 344, 346; Skyring v Federal Commissioner of Taxation (1991) 23 ATR 84, 86–7; Bishop v Australian Taxation Department (1996) 32 ATR 644, 646; Shaw v Commissioner of Inland Revenue [1999] 3 NZLR 154, 157.

[78] Van Resseghem v Police (Unreported, New Zealand Court of Appeal, McMullin, Somers and Casey JJ, 17 June 1986); Creser v The Queen (Unreported, New Zealand Court of Appeal, Blanchard, Robertson and Goddard JJ, 17 December 1998). This seems to be a popular argument amongst the accused in New Zealand courts: see, eg, ‘Drugs Accused Invokes Magna Carta’, The Press (Christchurch, New Zealand), 28 October 1998, 12, where a man caught growing cannabis proposed to rely upon Magna Carta though he admitted that he could not find a lawyer willing to run what he called the ‘Magna Carta defence’.

[79] Murphy v Gardiner [1951] NZGazLawRp 16; [1951] NZLR 549, 553, where Hutchinson J also explains that in any case deporting a seaman back to his own country does not conflict with the exile provision in c 29. Following the decision in Schier v Removal Review Authority [1999] 1 NZLR 703 (upholding the removal of two German nationals), an abortive attempt was made to invoke Magna Carta and the exile provision to prevent their removal: see Anna Dunbar, ‘Charter Call for Schiers’, The Press (Christchurch, New Zealand), 25 June 1999, 6 and ‘Last-Minute Plea for Schiers Fails’, The Press (Christchurch, New Zealand), 26 June 1999, 3.

[80] McGrath v Minister of Justice (Unreported, High Court of New Zealand, Williamson J, 14 December 1992) 6, where it was held that Magna Carta does not invalidate the Disputes Tribunals Act 1988 (NZ).

[81] New Zealand Drivers’ Association v New Zealand Road Carriers [1982] 1 NZLR 374, 390 (Cooke, McMullin and Ongley JJ). For other New Zealand cases where this argument has been raised, see: Taylor v New Zealand Poultry Board [1984] 1 NZLR 394, 398; L v M [1979] NZCA 59; [1979] 2 NZLR 519, 527. In Cooper v A-G (NZ) [1996] 3 NZLR 480, 484 Baragwanath J noted the prior cases but left the point open.

[82] Creser v The Queen (Unreported, New Zealand Court of Appeal, Blanchard, Robertson and Goddard JJ, 17 December 1998) 2–3.

[83] Ibid 3, following Van Resseghem v Police (Unreported, New Zealand Court of Appeal, McMullin, Somer and Casey JJ, 17 June 1986), where doubts raised concerning the capacity of the Parliament to pass the Misuse of Drugs Act 1975 (NZ) were disposed of.

[84] For Australian citations of this viewpoint which the courts have rejected, see, eg, Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51, 72–4 (Dawson J); Building Construction Employees and Builders’ Labourers Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372, 385–7 (Street CJ), 401–5 (Kirby P). The point was deliberately left open in Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1, 10.

[85] This section considers criminal cases only, but it should be noted that the argument has also arisen in civil cases such as Patsalidies v Magoulias (1984) 29 NTR 1, 7 and McLean v Workcover Corporation/NZI (WB and S Doser Pty Ltd) [1997] SAWCT 27 (Unreported, Gilchrist DP, 9 September 1997); Paramasivam v Flynn [1998] SCACT 10 (Unreported, Gallop J, 2 March 1998) <http://www.austlii.edu.au/au/cases/act/ACTSC/1998/10.html> .

[86] As the 1215 version of Magna Carta does not have the status of a statute it does not appear in any book of the statutes, but there are several modern texts that set out both the Latin and English translations of the first Magna Carta. The best reference for these purposes is J C Holt, Magna Carta (2nd ed, 1992) 448–73.

[87] The point seems to have emerged for the first time in the judgment of Kelly J in R v Bishop (1981) 41 ACTR 43, 45–6 and in New South Wales in the judgment of Moore DCJ in R v McConnell (1985) 2 NSWLR 269, 272–3, where he refers to the right to a prompt trial. At 272 Moore DCJ cites c 29 of Magna Carta 1297 and its ancestor, c 40 of Magna Carta 1215, as the basis for this right. See also R v Climo; R v Bentley (1986) 7 NSWLR 579, 583 (Herron DCJ); Moore v Jack Brabham Holdings Pty Ltd (1986) 7 NSWLR 470, 477, where Hunt J traces the right back to Magna Carta citing the leading case on the sixth amendment to the Constitution of the United States of America: Klopfer v North Carolina, [1967] USSC 55; 386 US 213, 223–6 (1967). Klopfer was also cited by Kelly J as the basis for the right in R v Bishop (1981) 41 ACTR 43, 45–6, and was referred to in Kintominas v A-G (NSW) (1987) 24 A Crim R 456, 460 (Rogers J).

[88] For the authorities in favour of a right to a speedy trial and where Magna Carta 1215 c 40 was invoked as the basis for this right, see: Herron v McGregor; Gill v McGregor (1986) 6 NSWLR 246, 252–3 (McHugh JA); Aboud v A-G (NSW) (1987) 10 NSWLR 671. In Aboud Kirby P denies that c 40 of Magna Carta 1215 provides for a sui generis right to a speedy trial, but allows that there is a right to protection from an unfair trial: at 681. McHugh JA explains his position on the right to a speedy trial at 691–2 but at 692 he appears to base the right on s 6 of the Habeas Corpus Act 1679 (Eng) 31 Car 2, c 2. The views of the Court of Appeal were followed in the lower courts in Whitbread v Cooke; Purcell v Cooke [No 2] (1987) 5 ACLC 305, 315; McDougall v Doyle (Unreported, Supreme Court of New South Wales, McInerney J, 30 November 1987) [5]; and in other jurisdictions: Clayton v Ralphs (1987) 45 SASR 347,

384–5 (Legoe J) relying in particular on Herron v McGregor; Gill v McGregor (1986) 6 NSWLR 246, as did the Administrative Appeals Tribunal (NSW) in Case U175 (1987) 87 ATC 1007, 1008–9. See also Fraser v President, Anti-Discrimination Board [2000] NSWSC 1083 (Unreported, Adams J, 28 November 2000) <http://www.austlii.edu.au/au/cases/nsw/

supreme_ct/2000/1083.html> [5].

[89] The tide turned in 1988 when it was held that there was no common law right to a speedy trial in Australia: Jago (1988) 12 NSWLR 558, 568, 570 (Kirby P), cf 583, where McHugh JA dissents on this point and asserts a right to a speedy trial. The Court of Appeal majority position was affirmed on appeal in Jago [1989] HCA 46; (1989) 168 CLR 23, 41 (Brennan J accepted Samuels JA’s argument in the court below, as did Toohey J at 63), and followed in Adler (1990) 19 NSWLR 317, 323–4 (Kirby ACJ), 345 (Priestley JA). The disapproval of Coke’s distortions in Jago in relation to a speedy trial right were also referred to in R v Vollmer [1996] VicRp 9; [1996] 1 VR 95, 178 but distinguished on other grounds in that case. McHugh J has continued to maintain that there is a right to a speedy hearing and has stated that this right is acknowledged in Magna Carta itself: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 552.

[90] Jago (1988) 12 NSWLR 558, 572–5 (Samuels JA). After reviewing the evidence, Samuels JA states at 575: ‘I know of no judicial decision or textual reference which recognises such a right (or such a source) or which grants relief for a breach of it.’ In the same case McHugh JA rejects the claim that Coke was wrong to interpret Magna Carta as he did on the basis that his errors have changed the face of the common law and should be accepted: at 584.

[91] [1989] HCA 46; (1989) 168 CLR 23.

[92] Martin v Tauranga District Court [1995] 2 NZLR 419, 429 (Casey J) reversing Martin v Tauranga District Court [1995] 1 NZLR 491, where there is no reference to Magna Carta. See also the earlier High Court of New Zealand decision in Watson v Clarke [1990] 1 NZLR 715 (decided 12 October 1988) which, despite following the pre-Jago NSW cases, also refers to Magna Carta as a basis for the right to a speedy trial: at 722. For other references to Magna Carta as the origin of the right not to have justice delayed, many in connection with s 25(b) of the New Zealand Bill of Rights Act 1990 (NZ), see: Police v ACT (1991) 8 CRNZ 304, 316; Rio Beverages Ltd v New Zealand Apple & Pear Board (Unreported, High Court of New Zealand, Thomas J, 25 November 1994) 7; Willis v G Kline Ltd (1995) 8 PRNZ 546, 549; Gray v Thom (1997) 10 PRNZ 373, 380; Poon v Commissioner of Police [2000] NZAR 70, 79. Cf R v ETE (1990) 6 CRNZ 176, 182, where Holland J followed the Australian High Court decision in Jago and held that there was no common law right to a speedy trial in New Zealand.

[93] Re Arnold [1977] 1 NZLR 327, 334 (Somers J); Police v PCF (1990) 1 NZBORR 347, 356–7.

[94] (1990) 1 NZBORR 347.

[95] Section 25 reads: ‘Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights: ... (b) The right to be tried without undue delay’.

[96] At least not in criminal trials: see Leonard Levy, Origins of the Bill of Rights (1999) 212.

[97] See Roger Groot, ‘The Early-Thirteenth-Century Criminal Jury’ in J S Cockburn and Thomas Green (eds), Twelve Good Men and True: The Criminal Trial Jury in England 1200–1800 (1988) 3, 7 and, more generally, 3–15; Thomas Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury 1200–1800 (1985) 165.

[98] See Munday v Gill [1930] HCA 20; (1930) 44 CLR 38, 52.

[99] William Lambarde, Eirenarcha or the Office of Justices of the Peace (first published 1581, 1972 ed) 436.

[100] Eg ‘R v Magistrates of Sydney’, Australian (Sydney), 21 October 1824; ‘R v Davison’, Australian (Sydney), 22 August 1827; R v Valentine (1871) 10 SCR (NSW) 113, 131. Litigants also made this claim: see, eg, Bishop v Australian Taxation Department (1996) 32 ATR 644, 645; as did critics of judicial decisions: see, eg, W L Rees, ‘Correspondence — To the Editor’ (1877) 2 The New Zealand Jurist 132, 132–3, where he cites the judgment by Holt CJ in R v Whistler [1738] EngR 819; (1702) Holt KB 15; 90 ER 1018 who invoked the right to jury trial, given by Magna Carta, in criticising the absence of a jury trial in Re Duke [1877] NZJurRp 154; (1877) 2 NZ Jur (NS) 181.

[101] [1985] HCA 72; (1985) 159 CLR 264, 299 (citing c 39, not c 29). See also the comments of Isaacs CJ (dissenting on other grounds) in Munday v Gill [1930] HCA 20; (1930) 44 CLR 38, 52, who notes that an accused person had, by Magna Charta, immunity from punishment unless convicted by the verdict of his peers. For assertions in Parliament that the concept of trial by jury goes back to Magna Carta 1215, see Commonwealth, Parliamentary Debates, House of Representatives, 8 December 1987, 2979 (Peter Reith, Shadow Attorney-General). Windeyer, above n 13, 81 states categorically that c 39 of Magna Carta 1215 did not provide for trial by jury; as does Perry, above n 3, 213.

[102] An oft-cited provision: see, eg, R v Farrell (1831) 1 Legge 5, 8.

[103] [1989] 2 Qd R 79, 85. See also R v Cornelius [1994] 2 NZLR 74, 81–2; In the Marriage of Schorel and Elms [2000] FamCA 272; (2000) 26 Fam LR 88, 94.

[104] R v Walker [1989] 2 Qd R 79, 85. In three other cases the word ‘peers’ is actually defined as ‘equals’. See ‘R v Davison,’ Australian (Sydney), 22 August 1827; R v O’Connell (1839) 1 Legge 117. In Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 659 Kirby J sets out art 52 of Magna Carta 1215 as: ‘To any man whom we have deprived, or disposed of lands, castles, liberties or rights, without the lawful judgment of his equals, we will at once restore these.’ Note that the word ‘jury’ does not appear in this article as he cites it. Holt above n 86, 464–5 provides both a Latin and English version of this article and uses the word ‘peers’ in the English translation and the word ‘parium’ (‘of one’s equals’) in the Latin original. This article did not appear in either statutory version of Magna Carta.

[105] See, eg, Dreliozis v Wellington District Court [1994] 2 NZLR 198, where it was held that s 66 of the Summary Proceedings Act 1957 (NZ) together with s 43 of the Summary Offences Act 1981 (NZ) provide a code governing situations where trial by jury is to be allowed in New Zealand. See also R v Cornelius [1994] 2 NZLR 74, where Magna Carta was mentioned in the context of an appeal against irregularities in the jury list. The court resolved the matter with reference to the Juries Act 1981 (NZ) s 33. See also Prothonotary v Wilson [1998] NSWSC 26 (Unreported, Hidden J, 16 March 1998) <http://www.austlii.edu.au/au/cases/nsw/supreme_ct/1998/26.html> , where Magna Carta was invoked by the defendant but Hidden J held that the right to a jury is excluded by the Supreme Court Act 1970 (NSW) and Supreme Court Rules 1970 (NSW) with respect to contempt matters. The High Court refused to grant special leave to appeal and, by implication, rejected the submission by the appellant that trial by jury was guaranteed by Magna Carta on the grounds that jury trials are excluded in matters of contempt of court: Transcript of Proceedings, Wilson v Prothonotary (High Court of Australia, Gaudron and Callinan JJ, 16 April 1999) <http://www.austlii.edu.au/au/other/hca/transcripts/1998/S127/1.html> .

[106] See Carnes v Essenberg [1999] QCA 339 (Unreported, McMurdo P, McPherson JA and Chesterman J, 23 August 1999) <http://www.austlii.edu.au/au/cases/qld/QCA/1999/339.html> , where the applicant unsuccessfully challenged his conviction for a firearms charge on the ground that the summary proceeding before a Magistrate was in breach of the guarantee to trial by jury said to be contained in Magna Carta.

[107] Insurance Commissioner v Australian Associated Motor Insurers Ltd [1939] ArgusLawRp 47; (1982) 65 FLR 172, 183–4 (Northrop J).

[108] See R v Cheung [1999] NSWCCA 421 (Unreported, Newman, Simpson and Hidden JJ, 17 December 1999) <http://www.austlii.edu.au/au/cases/nsw/NSWCCA/1999/421.html> [67].

[109] Ibid.

[110] Statute of 1354 (Eng) 28 Edw 3, c 3. See also Statute of 1368 (Eng) 42 Edw 3, c 3, where the phrase also appears.

[111] Charles McIlwain, ‘Due Process of Law in Magna Carta’ (1914) 14 Columbia Law Review 27, 28 notes the prevalence of the identical nature of c 29 and due process of law, but suggests that ‘[s]ome centuries of decisions have thoroughly established this traditional interpretation as a matter of law, and have given it a legal validity entirely independent of its origin in 1215’. See also Hugh Willis, ‘Due Process of Law under the United States Constitution(1926) 74 University of Pennsylvania Law Review 331, 332–4; W J Brocklebank, ‘The Role of Due Process in American Constitutional Law’ (1954) 39 Cornell Law Quarterly 561, 564 who, after reviewing the evidence presented by modern historians, concludes that: ‘In any case the traditional view of the equation of the lex terrae of Magna Carta with the modern due process of our constitutional law has been completely discredited.’

[112] Joseph, above n 44, 172. For other accounts that date the phrase from 1354, see: Ivan Rand, ‘Except by Due Process of Law’ (1961) 2 Osgoode Hall Law Journal 171, 177; Charles Miller, ‘The Forest of Due Process of Law: The American Constitutional Tradition’ in J Roland Pennock and John Chapman (eds), Due Process (1977) 3, 4–6; D J Galligan, Due Process and Fair Procedures (1996) 171–6. Leading American cases have also recognised this alteration in meaning and have rightly followed Coke’s view that this shift emerged after the 13th century: see, eg, Hurtado v State of California, [1884] USSC 84; 110 US 516, 547 (1884), a case cited on this point in R v Duffield; R v Dellapatrona (1992) 28 NSWLR 638, 650 (Kirby P).

[113] (1990) 19 NSWLR 317 (‘Adler’). See the earlier recognition of this linkage in La Trobe University v Robinson [1972] VicRp 104; [1972] VR 883, 891 (McInerney J). Note that the claimed linkage between due process of law and Magna Carta (from which it was said to have been derived) was mentioned in Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, 501, where Deane and Gaudron JJ noted counsel’s reference to this linkage but did not pursue it, disposing of the case on other grounds. In R v Mackellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461, 483, Murphy J (dissenting) seems to have accepted that natural justice as an aspect of due process was traceable at least back to Magna Carta. This, in the light of Priestley JA’s judgment in Adler and the historical evidence, is wrong, though Murphy J, on the same page, also notes that the linkage was made clear in the Statute of 1354 (Eng) 28 Edw 3, c 3.

[114] Adler (1990) 19 NSWLR 317, 345–6, referring also to David Mummery, ‘Due Process and Inquisitions’ (1981) 97 Law Quarterly Review 287. It should be added that these statutes are also in force in Victoria (Imperial Acts Application Act 1980 (Vic) s 8 and div 3); Queensland (Imperial Acts Application Act 1984 (Qld) s 5 and sch 1); the ACT (Imperial Acts Application Ordinance 1986 (ACT) s 5 and sch 2); and New Zealand (Imperial Laws Application Act 1988 (NZ) s 3(1) and sch 1). See also Watson v Clarke [1990] 1 NZLR 715, 722–3 (Robertson J); West v Martin (Unreported, New Zealand Court of Appeal, Richardson P, Heron and Goddard JJ, 30 August 2000) [6]. Note that in the Imperial Acts legislation of New Zealand and the ACT, reference is also made to the Statute of 1351 (Eng) 25 Edw 3, St 5, c 4, where similar language appears.

[115] See Keith Jurow, ‘Untimely Thoughts: A Reconsideration of the Origins of Due Process of Law’ (1975) 19 American Journal of Legal History 265, a paper cited by Priestley JA in Adler (1990) 19 NSWLR 317, 349.

[116] See, eg, W S Holdsworth, A History of English Law (5th ed, 1926) vol 1, 310–11; J H Baker, An Introduction to English Legal History (3rd ed, 1990) 578–80.

[117] See Baldwin Tyrell’s Case (1214) in F W Maitland (ed), Select Pleas of the Crown (1888) vol 1, 67. See also the comment to this effect by Young CJ in a farewell speech reported in [1992] VR xlv, xlvi and the similar statement by the court in Levinge v A-G (NSW) (Unreported, New South Wales Court of Appeal, Samuels, Mahoney and Clarke JJA, 9 June 1988) [4].

[118] See, eg, Rollin Hurd, A Treatise on the Right of Personal Liberty and on the Writ of Habeas Corpus (2nd ed, 1876) 70 citing Henry Hallam, View of the State of Europe During the Middle Ages (1841) vol 2, 110. It should be noted that Hallam’s book was included by the Chief Justice of New Zealand in his list of required reading for the examination of barristers seeking admission published in: ‘The Chief Justice’s New Examination Papers’ [1875] Colonial Law Journal 34, 35. More recently, a Member of Parliament made the same mistake in relation to habeas corpus: see Commonwealth, Parliamentary Debates, House of Representatives, 22 October 1987, 1281 (Peter Reith, Shadow Attorney-General). The persistence of this myth has come in for recent extra-curial judicial criticism: Lord Justice Simon Brown, ‘Habeas Corpus — A New Chapter’ [2000] Public Law 31, 34.

[119] (1627) 3 St Tr 1, 38–41. Also known as the Case of the Five Knights. For a discussion of the arguments in their context, see Mark Kishlansky, ‘Tyranny Denied: Charles I, Attorney General Heath, and the Five Knights’ Case’ (1999) 42 Historical Journal 53 and for other accounts, see: J A Guy, ‘The Origins of the Petition of Right Reconsidered’ (1982) 25 Historical Journal 289; Paul Christianson, ‘John Selden, the Five Knights’ Case, and Discretionary Imprisonment in Early Stuart England’ (1985) 6 Criminal Justice History 65; Paul Christianson, Discourse on History, Law, and Governance in the Public Career of John Selden, 1610–1635 (1996) 112–23; L J Reeve, ‘The Legal Status of the Petition of Right’ (1986) 29 Historical Journal 257; John Reeve, ‘The Arguments in King’s Bench in 1629 Concerning the Imprisonment of John Selden and Other Members of the House of Commons’ (1986) 25 Journal of British Studies 264.

[120] Petition of Right 1627 (Eng) 3 Car 1, c 1.

[121] See Robert Johnson and Maija Jansson Cole (eds), Commons Debates 1628, Volume II: 17 March – 19 April 1628 (1977) 45. In fact the writ de homine replegiando was not a form of habeas corpus at all: R J Sharpe, The Law of Habeas Corpus (2nd ed, 1989) 3; Maxwell Cohen, ‘Some Considerations on the Origins of Habeas Corpus’ (1938) 16 Canadian Bar Review 92. See also the comments by Isaacs J in Ex parte Walsh; In Re Yates [1925] HCA 53; (1925) 37 CLR 36, 76–7 that habeas corpus ‘evolved’ from the writ de homine replegiando.

[122] The Petition of Right 1627 (Eng) 3 Car 1, c 1 is part of the inherited statute law of all jurisdictions. In the case of the jurisdictions with Imperial Acts legislation, see: Imperial Acts Application Act 1969 (NSW) sch 2 pt 1; Imperial Acts Application Act 1980 (Vic) s 8 and div 3; Imperial Acts Application Act 1984 (Qld) sch 1; Imperial Acts Application Ordinance 1986 (ACT) sch 2; Imperial Laws Application Act 1988 (NZ) sch 1. For cases that discuss the Petition of Right 1627, see Adler (1990) 19 NSWLR 317, 349–51; Prisoners A–XX Inclusive v New South Wales (1995) 38 NSWLR 622, 634–5; Subritzsky v Circosta (1996) 127 ACTR 1, 8.

[123] Schoenmakers v DPP (1991) 30 FCR 70, 75 (citing c 29 as art 39); Re Stanbridge’s Application (1996) 70 ALJR 640, 642 (Kirby J).

[124] For a 19th century account of the chapters relevant to property in Magna Carta, see: Kenelm Digby, An Introduction to the History of the Law of Real Property (5th ed, 1897) 120–34.

[125] See the submission of counsel in R v O’Connell (1839) 1 Legge 117, which seems to refer to either c 39 of Magna Carta 1215 or c 29 of Magna Carta 1297, though no reference is given in either the Legge version of this case nor the Sydney Morning Herald text upon which it is based (Sydney Morning Herald (Sydney), 14 October 1839, 2), both of which are rather sparse. In Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 659 Kirby J cites to art 52 of Magna Carta 1215 as the basis for this proposition: see above n 104.

[126] See, eg, Fisher v Westpac Banking Corporation (Unreported, Federal Court of Australia, French J, 18 August 1992) [14], where French J indicated that neither Magna Carta nor the Bible, which was also cited by the unrepresented litigants, disclosed a ‘legally tenable cause of action’: at [21]; Arnold v State Bank of SA (1992) 38 FCR 484, 484, where Magna Carta was unsuccessfully invoked, along with the Bible, against the right of the respondents to take the appellant’s matrimonial home; Grey v Australia and New Zealand Banking Group Ltd (Unreported, Federal Court of Australia, Neaves J, 28 September 1992) [14]. See also Napier v National Australia Bank Ltd (Unreported, Federal Court of Australia, Spender J, 16 April 1992) [21], where Magna Carta was unsuccessfully invoked in a security of debt matter; and Fyffe v Victoria [1999] VSCA 196 (Unreported, Charles, Batt and Chernov JJA, 18 November 1999) <http://www.austlii.edu.au/au/cases/vic/VSCA/1999/196.html> [18], where Magna Carta was held to be irrelevant in a case where the appellant argued that he had seceded from the State to prevent his land being purchased by the State at a mortgagee’s auction.

[127] Re Thorp and the Real Property Act 1900 [1962] NSWR 889, 893; Public Trustee v Hayles (1993) 33 NSWLR 154, 160. See also the unsuccessful reference to Magna Carta in Re Chase [1988] NZCA 181; [1989] 1 NZLR 325, 342.

[128] Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 230–1 (Williams J). Williams J makes no reference to the version or the chapter of the Charter, but his reference at 231 to Butterworths, Halsbury’s Laws of England, vol 6 (2nd ed, 1931–42) 450, indicates an awareness of the various versions of Magna Carta. See also Mabo v Queensland (1988) 166 CLR 186, 226, where Deane J refers to ‘long-established notions of justice that can be traced back at least to the guarantee of Magna Carta [1297] against the arbitrary disseisin of freehold’; Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 659, where Kirby J refers to art 52 of Magna Carta 1215 as the basis for the prohibition against arbitrary deprivation of property. This latter passage was considered in R v Land Use Planning Review Panel (1998) 103 LGRA 38, 67. A litigant also referred to this principle as grounded in Magna Carta in Re Every and Secretary, Department of Social Security [1993] AATA 45; (1993) 29 ALD 604, 608 but the Administrative Appeals Tribunal did not comment upon the submission, upholding the applicant’s claim on other grounds. For another case where this sentiment has been expressed, see Russell v Minister of Lands [1898] NZGazLawRp 6; (1898) 17 NZLR 241, 250.

[129] For a paper that demonstrates the continuing use of Magna Carta in similar cases in Canada, especially in relation to aboriginal claims to fishing rights, see: Mark Walters, ‘Aboriginal Rights, Magna Carta and Exclusive Rights to Fisheries in the Waters of Upper Canada’ (1998) 23 Queen’s Law Journal 301.

[130] Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314, 329–30 (Brennan J); Minister for Primary Industry and Energy v Davey; Minister for Primary Industry and Energy v Fitti; Davey v Minister for Primary Industry and Energy (1993) 47 FCR 151, 168 (Burchett J); Mason v Tritton (Unreported, New South Wales Supreme Court, Young J, 25 October 1993) 9; Stockdale v Alesios [1999] VSCA 128; [1999] 3 VR 169, 175 (Phillips JA). The Court in Harper v Minister for Sea Fisheries relied upon two previous decisions for these propositions: Malcomson v O’Dea [1863] EngR 867; (1863) 10 HL Cas 593; 11 ER 1155 and A-G (British Columbia) v A-G (Canada) [1914] AC 153, 170. For a brief New Zealand reference to the pre-Magna Carta common law right to fish, see Waipapakura v Hempton [1914] NZGazLawRp 141; (1914) 33 NZLR 1065, 1071–2 (but this case on whether or not there was a separate Maori right to fish was not followed in Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680). See also the detailed historical discussion in Neill v Duke of Devonshire (1882) 8 App Cas 135, 179–80 (Lord Blackburn); Stephens v Snell [1939] 3 All ER 622; Anderson v Alnwick District Council [1993] 1 WLR 1156; Adair v National Trust [1998] 4 LRC 83, 91.

[131] New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337, 489 (Jacobs J) (‘Seas and Submerged Lands Case’).

[132] See, eg, Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314, 330; Stockdale v Alesios [1999] VSCA 128; [1999] 3 VR 169, 175, where the Court held that the cancellation of a fisheries licence was not a prerogative acquisition of property that required compensation since the relevant legislation provided for this matter and thus displaced the common law argument.

[133] Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) [2000] FCA 165; (2000) 170 ALR 1.

[134] Ibid 14.

[135] [1989] HCA 47; (1989) 168 CLR 314, 329–30 (Brennan J).

[136] Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) [2000] FCA 165; (2000) 170 ALR 1, 14.

[137] For an Australian authority, see ibid 14–17 (Mansfield J). For an early New Zealand decision, from 1870, see Kauwaeranga Judgment reproduced in Alex Frame, ‘Kauwaeranga Judgment’ (1984) 14 Victoria University of Wellington Law Review 229, 241. See also the later case of Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680. Subsequently, special legislation was passed to deal with Maori fisheries claims: Maori Fisheries Act 1989 (NZ); Treaty of Waitingi (Fisheries Claims) Settlement Act 1992 (NZ). Both Acts are discussed in Te Runanga o Muriwhenua v Te Runanganui o Te Upoko o Te Ika Association Inc [1996] 3 NZLR 10.

[138] Mason v Tritton (1993) 70 A Crim R 28, 33 (Young J); Yarmirr v Northern Territory [No 2] [1998] FCA 771; (1998) 82 FCR 533, 593 (Olney J); Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426, 541.

[139] Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation [1982] HCA 31; (1982) 152 CLR 25, 109, where Murphy J (dissenting) cites Magna Carta as one of the ‘great principles of human rights’.

[140] Ex parte Reid; Re Lynch; Ex parte Burgess; Re Lynch [1943] NSWStRp 14; (1943) 43 SR (NSW) 207, 223 (Halse Rogers J). See also Dreliozis v Wellington District Court [1994] 2 NZLR 198, 199, where Barker ACJ notes the submission of counsel for the plaintiff in referring ‘to the system of justice ... in common law countries, starting from Magna Carta’; and Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518, 569, where Brennan and Toohey JJ refer to Magna Carta as part of a system of civil rights, as did Williams J in R v Adams [1993] 1 NZLR 443, 448, citing Gesell J’s opinion in Military Audit Project v Bush, 418 F Supp 876, 878 (DC Cir, 1976), where that judge refers to ‘our whole jurisprudence since the Magna Carta.’ This view has a respectable provenance in the legislatures of Australia and New Zealand: see New Zealand, Parliamentary Debates, 30 July 1860, 232, where Magna Carta is listed along with habeas corpus and the doctrine of the separation of powers as the basis for civil liberties. For several expressions by Australian parliamentarians that the Charter was the basis for the rule of law and the tradition of civil liberties, see: Commonwealth, Parliamentary Debates, House of Representatives, 1 May 1996, 197 (Robert McClelland); Commonwealth, Parliamentary Debates, House of Representatives, 9 September 1915, 6863 (William Fyfe Finlayson); Commonwealth, Parliamentary Debates, House of Representatives, 19 August 1952, 381–2 (Robert Menzies, Prime Minister). See also the assertion, in 1952, of the President of the Senate that ‘[t]he Australian Constitution, embodying, as it does, the principles of British liberty and representative government, is in that sense a true lineal descendant of the Great Charter’: Commonwealth, Parliamentary Debates, Senate, 11 September 1952, 1280 (Edward Mattner, President of the Senate).

[141] See, eg, Williams, above n 8, 2–3. In fact in New Zealand it is common for Magna Carta to be cited along with the New Zealand Bill of Rights Act 1990 (NZ) and various international human rights conventions. See, eg, R v Cornelius [1994] 2 NZLR 74, 81; R v N [No 2] (1999) 5 HRNZ 72.

[142] GA Res 217A, 3 UN GAOR (183rd plen mtg), UN Doc A/Res/217A (1948).

[143] See, eg, Maya Catsanis and H P Lee, ‘A Magna Carta for Mankind’, Sydney Morning Herald (Sydney), 20 April 1998, 17.

[144] Magna Carta is said to be a foundation for this argument: Ex parte Walsh; In re Yates [1925] HCA 53; (1925) 37 CLR 36, 79 (Isaacs J); Re Stanbridge’s Application (1996) 70 ALJR 640, 642 (Kirby J); P v Superintendent, Rimutaka Prison (Unreported, High Court of New Zealand, Durie J, 5 November 1999) 3; Poon v Commissioner of Police [2000] NZAR 70, 79.

[145] Kohu v Police [1989] NZHC 449; (1989) 5 CRNZ 52, 54 (Anderson J).

[146] For example, referring to c 29 of Magna Carta, a Victorian Parliamentary Committee said: ‘While the practical application of this provision might now be in doubt, it remains a clear reminder of Parliament’s historic concern with the liberties of the subject’: Legal and Constitutional Committee, A Report to Parliament on the Desirability or Otherwise of Legislation Defining and Protecting Human Rights, Report No 20 (1987) 25.

[147] Jeremy Finn, ‘The Imperial Laws Application Act 1988’ [1989] CanterLawRw 7; (1989) 4 Canterbury Law Review 93, 97. Of course the Bill of Rights Act 1688 (Eng) 1 Wm & M Sess 2, c 2 has been successfully invoked in New Zealand and Australia, most notably in Fitzgerald v Muldoon [1976] 2 NZLR 615, where Wild CJ issued a declaration that the New Zealand Prime Minister could not by a press release suspend an Act of Parliament. This case was cited with approval in Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527, 531 (Mason P, Sheller and Beazley JJA agreeing).

[148] Judges have recognised the ‘considerable mythology’ of Magna Carta: see, eg, Westco Lagan Ltd v A-G (NZ) (Unreported, High Court of New Zealand, McGechan J, 15 August 2000) 15.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/MelbULawRw/2000/34.html