Emeritus Professor Gillian Triggs
President, Australian Human Rights Commission
The Charter of Liberties, or Magna Carta as it later became known, was drafted by Stephen Langton, the Archbishop Canterbury, in an effort to avoid civil war between the King and his rebel barons. It was 4,000 words long and filled a whole skin of parchment. Notably, King John was probably illiterate and did not sign the document. Rather he attached his seal to it. Both the King and his Barons then swore oaths before a crowd of hundreds, the King to abide by the terms of Magna Carta and the Barons to give fealty to the King.
Within nine weeks of the sealing of the Magna Carta it was annulled by Pope Innocent III. The fragile peace soon broke down and by the following year, the King was dead.
- How was it that this Latin inscribed sheepskin parchment became anything more than a minor foot note in English history?
- Why is Magna Carta today recognized as the foundational document of English constitutional law and the symbol of liberty and freedom throughout the English-speaking world?
Magna Carta was not written by idealists or constitutional theorists. It was a practical document to solve daily problems of inheritance, wardship and marriage and to stop King John’s arbitrary money grabbing.
I believe Magna Carta has such potency today because of two seminal ideas that underlie Magna Carta. The first is that the sovereign, or in today’s parlance, ‘executive government’, is subject to the law. It was the written articulation of the idea that the King was, like his Barons, also bound by the law of the land, that explains the enduring power of Magna Carta.
The second important idea was the provision in the 1215 document in which the King agreed in order to raise taxes:
To obtain the common counsel of the kingdom we will cause to be summoned the archbishops, bishops, abbots, earls and greater barons… and all those holding us in chief- for a fixed date, namely after the expiry of 40 days and to a fixed place,… when the summons has been made, the business shall proceed.
Within days a committee of 25 was set up to oversee compliance with the Charter. The clause was later struck out, but the damage was done.
In short, Magna Carta was a revolution: it was described in the earliest contemporary account in the chronicle of Melrose Abbey as follows:
A new state of things [has] begun in England; such a strange affair as had never before heard; for the body wished to rule its head, the people desired to be masters over the king.
While parliament as we know it took many centuries to evolve, the idea of a common council to advise the king was sown.
It is about the vital role our parliaments play in protecting our ancient democratic liberties and rights that I would like to focus on in this blog. Over the last three years as President of the Australian Human Rights Commission, I have become increasingly concerned about the decline in the effectiveness of Parliament and diminution of the role of the judiciary and the corresponding increase in executive discretion that is all too often exercised without independent scrutiny.
While we rightly celebrate Magna Carta, the reality is that our freedoms are constantly under threat 800 years later. Under our constitutional system, any government that controls parliament can assume significant unchecked power. My view of democracy is that the majority should be constrained from abusing the rights of minorities. Power should be exercised according to the rule of law. Indeed, the danger of unchecked power is that governments are increasingly likely to assume that they are the law, paying lip-service only to the wider idea of the rule of law. The maxim remains true that ‘the price of liberty is eternal vigilance.’
Magna Carta has been used and abused by lawyers, politicians, and activists ever since to support every side of an argument. As our Chief Justice, Robert French, has observed,
“Magna Carta has given many a plaintiff false hope in litigation before the courts.” (2015)
But it is also true that, after the historical revisionists have done their worst, Magna Carta means much more than it says. It has become a universal acknowledgement of principles that remain fundamental to modern democracies: the sovereign or executive government is not above the law and parliament itself is sovereign. Other legacies of Magna Carta include:
- The right to a fair trial and access to justice
- The idea that ‘punishment should fit the crime’
- That laws should be written and made public
- That widows should have their inheritance on the death of their husbands and not be forced to remarry
- That the measure of a glass of wine or ale or a piece of cloth should meet an agreed standard.
It is not the technical provisions of Magna Carta that are most important today. The detail may be wrong, for Magna Carta did not establish trial by jury or the writ of habeas corpus. Rather it is Magna Carta’s iconic protection of the fundamental freedoms of life, liberty and property that informs my concern that the supremacy of the law over the executive is under threat in Australia’s contemporary democracy.
One example of the failure by modern parliaments to protect our ancient liberties includes that over recent years parliaments have granted to the executive excessive and unsupervised power to detain a person indefinitely without charge or trial. Two of the most enduring clauses of the Magna Carta are the promises by King John that:
No freeman shall be taken or imprisoned or stripped of his rights or possessions, or exiled, or deprived of his standing in any way, …except by the lawful judgment of his equals or by the law of the land. (Clause 39)
To no one will we sell, to no one deny or delay, right or justice.(Clause 40)
These words are the defining statements of the rule of law, setting limits on the arbitrary power of the state. They ring through the centuries and remain the bedrock for principles of justice we struggle to protect in the 21st century.
Another example is that Parliament has given ministers the power to detain indefinitely various classes of individuals, including refugees and asylum seekers, those with infectious diseases, those subject to mandatory admission to drug and alcohol rehabilitation facilities and the mentally ill. Some state parliaments have passed laws for “preventative detention” of certain “high risk violent or sexual offenders. Few have meaningful access to judicial review.
Detention powers of the Executive have also been expanded to detain asylum seekers and refugees indefinitely, powers that were found to be valid by the High Court in Al Kateb in 2007.
These are just a few examples of executive overreach, accepted by parliaments. And there are several more in the pipeline including counter-terrorism laws, restrictions on freedom of speech and association, invasions of privacy and punitive sanctions for those receiving welfare support.
Parliamentary restraint is especially important in Australia where we have an ‘exceptionalist’ approach to the protection of human rights. While Australia has played an active role in negotiating the human rights treaties they have typically not been introduced into Australian law by Parliament. Key treaties such as International Convention on Civil and Political Rights and Convention on the Rights of the Rights of the Child are not directly applicable by our courts, so that the Magna Carta probation on arbitrary detention is not part of our law.
Our Constitution protects the freedom of religion, the right to compensation for the acquisition of property and the right to vote, and implies a right of political communication…but very little more. As is well known, unlike every other common law country in the world, Australia has no Bill of Rights. We have very little human rights legislation other than the laws prohibiting discrimination on the basis of race, sex, disability and age.
But, it might be thought, as a last resort we can rely on the courts to protect our common law rights. Laws passed by parliament are not to be construed as abrogating fundamental common law rights, privileges and immunities in the absence of clear words. Our courts have, where possible, employed the principle of ‘legality’ to adopt a restrictive interpretation of legislation to protect common law freedoms. But in practice this has not proved to be as effective a protection as one might have hoped as many laws today are drafted with such precision or are constantly amended, so that ambiguities are increasingly hard to find.
In the Malaysian case, for example, the High Court found that under the Migration Act the Minister could not send asylum seekers to Malaysia as that nation had not ratified the Refugees Convention. The Government returned to Parliament to delete the offending clause.
Over the last 800 years, judges have continued to assert the rule of law against the executive. Time and again the High Court has limited executive discretion by reference to the principle of legality. Time and again the Government has been successful in asking Parliament to tighten up legislation to permit what was hitherto illegal.
We must ask ourselves ‘what then is to be done to protect democratic rights and freedoms in Australia?’
Celebrations of Magna Carta this year could reignite calls for some form of legislated Bill of Rights. Had we such an articulation of rights it would give greater scope for the courts to assess the validity of legislation against human rights benchmarks. Another option is to strengthen scrutiny by the Joint Parliamentary Committee on Human Rights.
I suggest that the most effective, if long term, solution is to improve our education of young Australians so they better understand and value the Constitutional protections for democracy and the rule of law. It is for this reason that Australian Human Rights Commission places a strong emphasis on education and has developed educational resources to explain the importance of the Magna Carta on its 800th anniversary. The resources include a short video, an interactive infographic and teacher resources (available at https://www.humanrights.gov.au/magnacarta/).
Our liberties depend upon an informed and committed community. The idea of a ‘fair go’ is understood by most Australians and, indeed, is probably as close to a bill of rights as we are likely to get. I place my trust in the Australian people to ensure that this quintessentially Australian idea is guaranteed to all of us.