Our right to transparent government started with Magna Carta

Neville Tiffen

Neville Tiffen is a non-executive director of Transparency International Australia. He is also a specialist consultant in corporate governance, integrity and compliance and a member of the OECD Secretary-General’s high level advisory group on integrity and anti-corruption.

How many documents will still be applied 800 years after their creation? Not many, if any. How many will have the reverence that Magna Carta attracts? Even fewer. For many years after completing Law School, I had a copy of the Magna Carta on my study wall. Quite often when I go to London, I visit the British Library to view one of the originals.

You can argue whether in reality Magna Carta established much in a concrete sense. I believe it did set a foundation that was strongly built on by others in subsequent centuries, especially Chief Justice Coke in Jacobean times and later the Bill of Rights toward the end of the Stuart dynasty. But, whether that is correct or not – the Magna Carta is a very powerful symbol. And, symbols matter.  At times, they are more important than hard facts.

To me, Magna Carta signifies the rule of law, that executive government is not above the law, that any punishment for breach of law is to be imposed by a separate judicial system and that at the core of that judicial system is the jury. It is a demonstration that people can limit corrupt executive power. The Magna Carta did not just benefit the nobles. Many of the principles I have just stated were expressed to be for the benefit of all “free men”.

When I present on integrity and compliance, I always start with “tone at the top”. It’s an old chestnut but it is crucial to setting the culture in an organisation. King John’s tone was not best practice.

What has been the tone at the top in Australian governments over the last few years? Apparently it’s not been very good. A recent poll stated that only 11% of voters have any trust in politicians. Perhaps our politicians should reflect on the words of our former Chief Justice, Brennan CJ: “Power, whether legislative or executive, is reposed in members of the Parliament by the public for exercise in the interests of the public and not primarily for the interests of members or the parties to which they belong. The cry ‘whatever it takes’ is not consistent with the performance of fiduciary duty.” That cry would come from someone that does not support an open and transparent government.

The politicians can address this lack of trust. One clear step would be to establish proper, effective and transparent anti-corruption agencies. As I have written previously, it is almost unbelievable that Australia does not have such an agency at the Federal level. My own state, Victoria, is yet to introduce a proper one. Whilst there have been recent legal technical difficulties with the NSW ICAC, it has been effective at disclosing bad practices that should be known to the public. It is a secondary question as to how many prosecutions have been launched. The main factor is: bad conduct has become known to the public. Transparency!

Another step for our politicians would be to introduce clear rules that require political parties to disclose in a very timely manner on an accessible website the receipt of funding, including the amounts and the true identity of the donor. Voters need to know that governments (and indeed other parties) are making decisions in the interest of the public. Transparency!

Associated with that, the government should disclose (after the award of the contract) all bids for any significant government contract. There are few occasions when commercial secrecy is required at that point. Again, the public should have assurance that decisions have been taken for proper reasons. Transparency!

Whenever a government chips away at the rule of law, public pressure should require it to clearly outline this. A recent study by the IPA found that 262 provisions in current Commonwealth legislation breached one of four legal rights: the presumption of innocence, the right to silence, the privilege against self-incrimination or the principles of natural justice. Perhaps there were good reasons for this to occur but were they clearly expressed by the relevant government? Did MPs really understand that was what they were voting for? King John would have been applauding.

Clearly the news media has a very important part to play in this. The recent “debate” on removing citizenship without any court involvement goes right to the core of protecting the rule of law. Any reduction in the rule of law should be examined very closely before it becomes law. It should only occur rarely and, when it does, be for a stated period and be reviewed before it is renewed.

The Magna Carta set off the long journey to the Australian Constitution. In particular, it helped the common law establish rights for individuals. The common law is flexible and can respond to changing times. The common law and a system of independent judiciary and juries are checks on an executive government that might act excessively or corruptly.

Does Australia require more? Do we need a US style Bill of Rights or a Victorian Charter of Human Rights and Responsibilities? For many years, I would have said no. However, I am swaying on this. My principal concern is that it will entrench “rights” in a way that was never intended. (Perhaps, just as some say, the Magna Carta did.) However, with the apparent tendency of governments to reduce the rule of law, my view is changing rapidly.

Australians should hold the Magna Carta in high regard and be thankful of the rights that can be traced back to it. But we must be on guard against the erosion of those rights. Perhaps our politicians will reflect on Magna Carta and move to an open and transparent government with clear tone at the top about integrity. Then, we can say that King John’s spirit has definitely been buried in Australia.

My copy of the Magna Carta is back on my study wall; it’s a reminder to me that the cry “whatever it takes” should be resisted in our attempts to protect the rule of law and promote a transparent government.

Human Rights, the Magna Carta and Chapter III of the Australian Constitution

Dr Rebecca Ananian-Welsh

In the absence of a national bill or charter of rights, Chapter III of the Constitution has come to be appreciated as a key protection for the rights and liberties of the Australian people. As we reflect on the history and importance of the Magna Carta, it is time to seriously consider whether clearer, stronger protections for civil liberties and fair process are called for.

The spirit of the Magna Carta

As Lord Irvine recognised, ‘In many respects Magna Carta has transcended the distinction between law and politics and its legacy represents a joint commitment by monarchs, parliamentarians and the courts to the rule of law’. As this statement reflects, the Magna Carta’s importance greatly surpasses its legal weight, or even its immediate historical impact (after all, Pope Innocent III declared the 1215 charter null and void well before the year was out). Rather, the Magna Carta endures as a part of the constitutional framework, and in the minds of citizens it is a crucial and emblematic proclamation of the rule of law.

Perhaps the most famous chapters of the Magna Carta (chapters 39 and 40 in the 1215 edition) provide that:

‘No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

‘To no one will we sell, to no one deny or delay right or justice’

These chapters emphasise that any deprivation of liberty shall only occur according to law, and that the law will be administered to all equally. In this way, these chapters embody the core sentiment of the rule of law.

The spirit of the Magna Carta is most clearly reflected in human rights documents. After all, the Magna Carta presents itself unambiguously as a charter of liberties, designed to grant and ensure ‘To all free men … all the liberties written out below’ (chapter 1).

Australia, however, remains the only liberal democratic nation without a national bill or charter of rights. Here we rely on representative and responsible government and the common law to protect liberty from undue incursion by the executive government. But there is another avenue that has evolved to play a vital role in the protection of liberty in Australia: Chapter III of the Constitution.

Judicial independence

Chapter III of the Constitution deals with the judicial branch of government. Over the last century, the High Court has interpreted Chapter III to provide for a robust separation of powers, whereby the independence and institutional integrity of the judiciary is entitled to constitutional protection. These principles are bolstered by robust protections for judicial tenure and remuneration across Australia.

Judicial independence has been described as a ‘pre-requisite to the rule of law’. After all, it is well and good to require that laws be objective, equal and accessible, but that is for nought if those laws are applied by courts that are subjective, arbitrary or inaccessible. Judicial independence preserves courts’ capacities to apply the law equally and objectively, and it is particularly important in ensuring that courts acting as a check and balance on government power – a sentiment at the very core of the Magna Carta.

Chapter III and civil liberties

By placing judicial independence on constitutional footing, Chapter III has been heralded as giving rise to an implied bill of rights and, in particular, an implied fair process principle.

There are a number of cases that support this view. First, in a finding that echoes the Magna Carta, the High Court in Chu Kheng Lim v Minister for Immigration identified punitive detention as lying outside the accepted bounds of executive power. The Court held that this kind of order can only be made by a properly constituted court following a criminal trial.

Secondly, in Al-Kateb v Godwin the Court held that administrative detention of non-citizens could only occur for a legitimate purpose, and thereby ruled-out the prospect of arbitrary detention. Thirdly, in a series of cases the Court has recognised that procedural fairness is a defining and essential characteristic of courts, and therefore cannot be compromised without risking constitutional invalidity. Finally, the Court has interpreted Chapter III to protect a person’s right to seek judicial review of an administrative decision, thereby preserving judicial oversight of the legality of executive action.

It can be seen that Chapter III is indeed fertile ground for basic rule of law protections. But is it truly a ‘guarantee of freedom under the law’? In the absence of a bill or charter of rights, is Chapter III Australia’s answer to the spirit of the Magna Carta. The answer, sadly, is ‘no’.

In recent cases, the High Court has made clear that the focus of Chapter III rests squarely on the courts. Considerations of rights, liberties, fairness to parties, and even proportionate outcomes are not necessarily relevant to Chapter III validity.

Last year, in Kuczborski v Qld, four justices of the High Court said that ‘to demonstrate that a law may lead to harsh outcomes, even disproportionately harsh outcomes, is not, of itself, to demonstrate constitutional invalidity’. This statement aligned with the Court’s findings in earlier cases. For example, in Magaming v R the Court upheld harsh mandatory sentences. In Attorney-General (NT) v Emmerson, the Court upheld provisions that obliged a court to issue a far-reaching asset forfeiture notice, provided merely that the Director of Public Prosecutions could prove that the person had been subject to three drug-related prosecutions in 10-years.

Then, in Kuczborski, the High Court upheld a range of severe ‘anti-bikie’ laws. By way of example, one of these laws created an offence of participants in certain organisations (as identified by the Attorney-General) meeting in a group of three or more in public. It was enough that the person was wearing a logo or had ever sought membership of the organisation to establish they he or she was a ‘participant’. This mere act of meeting in public attracted between six-months and three-years in gaol, coupled with a presumption against bail.

These kinds of laws don’t sit comfortably alongside the Magna Carta’s provisions for proportionate punishment (chapter 20), or the spirit of equality, fairness or limited government embodied by that charter.

A protection for fair process?

The High Court rested these decisions on the fact that orders were imposed in accordance with ‘judicial process’, despite accepting that the impact on liberty was severe and not necessarily proportionate to what the person had done. This seems to align with the spirit of the Magna Carta, requiring that deprivations on liberty are only ordered according to the law of the land.

However, in other cases the Court has upheld laws that undermine basic elements of judicial process. Ex parte proceedings, secret evidence, reversals of the onus of proof, and decisions based on information that may avoid the rules of evidence have all withstood Chapter III challenge – even where the power has resulted in severe incursions on liberty. Decisions of this nature led Heydon J to observe that the due process implications of Chapter III were ‘apparently dormant’.

A need for clearer protections

The High Court has sent a clear message that Chapter III does not give rise to an implied bill or rights or fair process clause. By enshrining judicial independence Chapter III has a crucial role to play in upholding the rule of law in Australia – but it cannot be the whole story. Ultimately, Chapter III has proved to be a weak shield for citizens from unduly harsh incursions on liberty in the absence of procedural fairness.

Against this backdrop it becomes clear something more is needed if citizens expect the spirit of the Magna Carta to thrive in today’s Australia. The separation of powers provided for in Chapter III is simply insufficient to adequately protect fair process, or to ensure that deprivations of liberty are necessary, proportionate, or ‘fit the crime’.

In 1215, and countless times since, certain citizens recognised the need to take a new step and impose clearer constraints on government power. Australia has avoided enacting a bill or charter of rights at the federal level, but experience in the ACT and Victoria demonstrates that more and more Australians are acknowledging the value of these charters. The ACT and Victorian charters of human rights, like the Magna Carta, demonstrate the power that a statement of rule of law values can have: in the minds of the people, as a guide to parliamentary process, in shaping executive power, and in giving the courts a clearly defined weapon in the protection of fair process and the rule of law.

The time has passed for Australians to make do with complex and vague protections implied from Chapter III of the Constitution. The enactment of clear protections for fair process, proportionate punishment, and basic human rights in the states, territories or at federal level, is a necessary and appropriate step in the ongoing evolution of a common law system grounded in the rule of law. Chapter III and the separation of powers are important, but they’re not enough to do justice to the spirit of the Magna Carta that underpins our legal system.



Magna Carta – Is it still relevant to 21st century Australian democracy?

Nicholas Cowdery AM QC

15 June 2015 marked the 800th anniversary of the sealing of the Magna Carta.

Or did it? I’m afraid we are jumping the gun so far as a document by that name is concerned (we are two years early); or a document containing the familiar 37 chapters (we are ten years early); but it’s the thought that counts when dealing with the myths of history. Our myths are very important to us, of course, and the thoughts behind this one certainly do still matter.

All educated persons, especially (but not only) those in places with an English heritage, think they know what the Magna Carta is and why it is important to our lives. But it is helpful from time to time to re-examine objects and events that have passed into history and that over time have acquired significance and value that the originators and participants could never have foreseen.

A common view is that King John made an agreement with the barons in 1215, that the document became “law”, it created rights bestowed by the King, it has been construed and applied ever since and it is the source of much that is good in government and public administration – including parliamentary democracy, the rule of law, the separation of powers, the independence of the judiciary, trial by jury, equality before the law and even habeas corpus.

Well, that is only partly true – and some is just wrong. The real story is much more interesting (although perhaps not as satisfying) and I can tell you some of it here.

A document was sealed by King John on 15 June 1215 at Runnymede on the River Thames. It was a place unnamed until this event and was sometimes an island, sometimes part of the riverbank, west of Staines. It is between Westminster, which was then occupied by the rebel barons and merchants and Windsor Castle, to which the King had been forced to retreat – so it was on neutral ground between the opposing parties. That document was the Charter of Liberties, Carta Libertatum (but not the Magna Carta – we will come to that).

The document contained script that was very much later divided into 63 clauses or, more correctly, chapters. Such documents made at that time were on vellum (untanned calf or sheep skin), in continuous mediaeval Latin script and containing many abbreviations to save valuable space on that expensive writing material. The bean counters were in operation even then.

The first and most important chapter was not for the benefit of the barons, but granted liberties (in truth privileges, or freedom from royal control) to the English Church (being, of course, the Church of Rome at that time). That came about because a drafter and principal mover of the Charter was Stephen Langton, Archbishop of Canterbury. King John had opposed his appointment and had forced him into exile in what we now know as France and when the Pope did appoint him Archbishop in 1207, King John refused to recognise it. The services of the English Church were suspended from 1208 to 1214 and King John helped himself to Church property. (You may remember the A A Milne poem “King John’s Christmas”: “King John was not a good man, he had his wicked ways, and people wouldn’t talk to him for days and days and days…” ) In 1212 the Pope excommunicated England and the Royal Court and plotted to install a French Prince as King. From 1213 Langton and the barons worked together towards the 1215 Charter, Langton’s motivation being the restoration of the liberties of the Church and in that he was successful – at least on vellum.

“Free men” (perhaps up to 40% of the population of England of somewhere up to four million people at that time) then had their liberties declared in subsequent clauses. Some later chapters do speak of all men of the kingdom and the document did refer to women.

King John sealed the charter under duress and there seems little doubt that he had no intention of ever honouring it. Pope Innocent III annulled it on 24 August 1215 and King John repudiated it at the latest on 5 September – so it survived for about 9 weeks.

Perhaps 30 copies of the Charter were made and they were still being copied in July. They were taken to the counties to be read aloud in Latin and French. The whereabouts of only four of the 1215 documents are known and they were exhibited together for the first time in the British Library and House of Lords in February this year. The copy with the King’s seal has been lost.

King John died in October 1216 in Nottinghamshire, the country being at war with France. Prince Louis of France had been proclaimed (although not crowned) King of England in June 1216 at Westminster, but it was not to last. John’s son and heir, Henry III (then only 9 years old but supported by the barons in preference to Louis), reissued the Charter of Liberties in that year (by now down to 40 chapters) and again under his own seal in 1217 (with 43 chapters). Those chapters most onerous to the monarch had been omitted. One of those (not surprisingly) was chapter 61 which gave to a group of 25 barons, to be selected by the barons, the power to enforce the charter even against the King. Why the number 25? It is thought that the Pentateuch, the first five books of the Bible, held great significance and five times that number would be even better.

Because a smaller (but very significant) Charter of the Forests was issued at the same time as the reissue in 1217, that Charter of Liberties became known as the Magna Carta (actually, Magna Carta Libertatum) to distinguish it – the big charter. So it has remained, although centuries later the “magna” rather tendentiously became interpreted as signifying the importance of its contents.

Magna Carta was reissued in 1225 (a fairly definitive version of 37 chapters that we recognise now), 1234, 1237, 1253, 1265, 1297 and 1300. The 1297 text, almost identical to the 1225, is the most commonly quoted version and it became “law” in England. Australia owns one of the originals.

In the 1930s the small and impoverished King’s School in Bruton in Somerset in the English West Country acquired an original 1297 Magna Carta. In 1951 they took it to the British Museum for authentication with a view to sale to raise money. It was formally identified as an original of the 1297 Magna Carta, at that time one of only two known to exist (two others were discovered later). There is uncertainty about how it came into the school’s possession, but the best account seems to be that in the decades before, the school’s solicitor, who had been keeping the document for someone else whose family had probably acquired it from Easebourne Priory in Sussex, put it into the school’s documents box by mistake.

The British Museum was prepared to offer £2,000-2,500. The school had it independently valued at £10,000 (£12,500 with seller’s commission), but the British Museum would not move and the school engaged Sotheby’s. After much manoeuvring (a story in itself, told in a fine booklet published by the Australian Senate, now in its second edition) the Library Committee of the Australian Parliament purchased it in 1952 for £12,500 (15,672 Australian pounds) and the document is now on display in Parliament House, Canberra. An area in Canberra near Old Parliament House has been designated Magna Carta Place.

The United States of America has another original of the 1297 charter, purchased in 1983 by Ross Perot for $US1.5 million from the Brudenell family of Deene Park in Northamptonshire. In 2007 Perot sold it to David Rubenstein, who has since gifted it to the US National Archives. Mr Rubinstein paid $US21.3 million. (It can only be hoped that our government does not discover our document’s true worth.)

So the reality is that the name Magna Carta dates from 1217, not 1215, and the surviving content dates from 1225 and 1297. There are many such documents spanning 85 years of the 13th Century and not all identical. It did not create much that was new but rather declared existing laws and usages which the King had been ignoring and it became “law” of the land in 1297. (Only three chapters are still in force in England and one in NSW, chapter 29 of the 1297 being 39 and 40 of the 1215 – but the whole charter is law in the ACT). Its principal other party was the Church, not the barons. For several centuries after 1300 it was virtually forgotten (although dragged out and reconfirmed by Kings from time to time in gestures of goodwill towards their subjects) until Sir Edward Coke brought it back to prominence in the early 17th Century in his Institutes of the Laws of England as the Magna Charta and divided it into chapters. It received another push along from Sir William Blackstone in the 18th Century.

The significance of the document we call the Magna Carta lies not so much in the text (or any versions of it) but in the principles behind the text – the values and concepts that support it, the idea of Magna Carta itself.

The rule of law is one of those concepts and its modern meaning may conveniently be described in the words of the Secretary-General of the United Nations, Kofi Annan, in 2004:

“For the United Nations, the rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”

The Magna Carta has provided inspiration and support for progressive development in governance worldwide since at least its 17th Century resurrection. It has been invoked in the context of more modern charters of rights as we now understand them – in 1948 in the United Nations Eleanor Roosevelt, the champion of the Universal Declaration of Human Rights, described that instrument as a “declaration that may well become the international Magna Carta for all men everywhere”.

The Americans have possibly taken the old document to their hearts even more strongly than the English, given that Paul Revere engraved the words on the Liberty Bowl in 1768 and that Massachusetts currency at that time had “Magna Carta” on it. In 1606 Coke was Chief Justice of England and he drew up the Royal Charter granted by King James I for the Virginia Company of London, which established the colony in Jamestown, Virginia in that year. This charter declared that “The persons which shall dwell within the colonies shall have all the liberties as if they had been abiding and born within this our realm of England or any other of our dominions.” These “liberties” appeared in one form or another in the founding charters of Massachusetts (1629), Maryland (1632), Maine (1639), Connecticut (1662), Rhode Island (1663) and Georgia (1732). William Penn published the Magna Carta in Philadelphia in 1687, only five years after that city was founded.

From the Virginia charter of 1606 to the Charter of Massachusetts Bay of 1629 to the Constitution, which William Penn wrote for the colony of West New Jersey, and his charters for his own settlement, immigrants were guaranteed that English law back to Magna Carta would follow them to the colonies.

The idea of Magna Carta as it has developed stands for:

  • continuation of basic law – of a framework for order and peace fashioned by and from the people – upon which contemporary laws are made and rest and which is innate and inalienable;
  • the triumph of liberties over tyranny and limits upon sovereign power;
  • the rule of law itself – that no one is above the law, no matter how powerful, even a monarch, and that justice will be done according to laws that are certain and knowable in advance;
  • the value of democratic processes in the government of the people (although it did not create democracy);
  • independence and professional competence of the judiciary;
  • equality before the law and due process without corruption (including the presumption of innocence and burden of proof on the prosecution);
  • “no taxation without representation”, the catchcry of the American independence movement;
  • rights to property and to compensation for its seizure; and
  • freedom from arbitrary punishment and proportionality in sentencing (even back then).

It is also said to have been the origin of the law of trusts and an early example of the protection of women’s rights (in that widows were not to be forced to remarry and would take their portions and inheritances). It also dealt with a multitude of local and temporal regulations that are of less enduring significance but which secured common freedoms that King John had been denying to the people.

It had nothing to do with parliamentary democracy,  habeas corpus, trial by jury, the separation of powers, universal suffrage, freedom of religion or much else that is claimed for it – especially by unrepresented litigants.

Magna Carta, as it has come to be understood and called upon over 800 years (or even 798 or 790 or 718 years), operates as a shield against tyranny, abuse of power and oppression of the governed. It has become the talisman of a society in which the spirits of tolerance and democracy reside. In the English common law system, it is the touchstone of the rule of law and a continuing inspiration to all, well beyond its terms.

Nicholas Cowdery AM QC
Chair, Magna Carta Committee, Rule of Law Institute of Australia; Adjunct Professor of Law; Barrister; Consultant; Former Director of Public Prosecutions, NSW; Former President, International Association of Prosecutors; Inaugural Co-Chair, Human Rights Institute, International Bar Association.