The Legacy of the Magna Carta – 800 Years On
Human Rights Commissioner
Australian Human Rights Commission
The Sydney Institute
9 June 2015
It is a great pleasure to be here at the Sydney Institute to speak on the enduring relevance of Magna Carta.
Magna Carta’s legacy
While seemingly idiosyncratic the signing of Magna Carta, or Great Charter, of 1215 was an immensely important political event.
Magna Carta established a number of very important political principles that framed and informed our discussions about human rights in the centuries that followed, notably:
Government by consent: First and foremost, Magna Carta was a tax revolt. Through Magna Carta the Barons secured a common counsel that would give voice to the taxed on taxation matters.
The rule of law: While not formally mentioned until the 1297 edition which is on display in our Federal Parliament, Magna Carta commenced the evolution that all, including the King, were bound by the rule of law and its equal application.
- Justice: Magna Carta confirmed a justice system where people could not be arbitrarily detained without charge. The follow-through was the codification of Habeas Corpus so that the accused could have their case heard in a court.
I was going to make some cursory remarks that Magna Carta was not just a legal and political document, but an economic one as well. And then I read Hugh Harley’s excellent essay in The Australian Financial Review and think he’s covered the subject.
Instead I will focus on the thematic contribution of Magna Carta to the development of our democracy, constraints on power and the preservation of freedom of the individual.
Government by consent
The first clause in Magna Carta was that ‘The English church shall be free, and shall have its rights undiminished and its liberties unimpaired’.
While an underlying factor of the inclusion of this clause related to religious freedom, it was about who had the opportunity to enjoy the revenues of the Church.
As Danny Danziger and John Gillingham wrote in 1215: The Year of Magna Carta, the Church’s annual income was estimated at around £80,000; and that was in 1215 pounds.
As a King desperate for taxes, John regularly sought to pillage the revenues of the Church. John did so by requiring that positions within the Church be selected from his candidates (and there was normally only one) and then denying them a candidate.
While positions within the Church sat vacant the ‘Crown collected a church’s revenues during the period of the vacancy. Not surprisingly there was a tendency for vacancies to be prolonged’.
Starving the Church of funds was deeply unpopular within the Church, but also directly threatened its autonomy.
It’s for this reason that the Church strongly supported the Barons who shared similar concerns. The Barons were tired of taxes being imposed by the King to finance failed wars.
Clause 12 of Magna Carta read ‘No scutage or aid is to be levied in our realm except by the common counsel’.
The essential principle was that taxes could not be levied without consent. The action by the Barons was a demonstration of a confident society.
In practice the common counsel was the forerunner for the foundation of modern democracy because once a body could decide the legitimacy of tax, they were also deciding the legitimacy of its purpose.
This relatively simple contribution of Magna Carta lives on, but is currently being compromised.
It is certainly true that we are taxed by consent today. Parliaments, at least in principle, represent contemporary will.
But the problem is that the Federal Parliament is not just imposing taxes today.
By continuing to run up year-on-year deficits and ever accumulating debt the principle of taxation by consent is being broken.
Recent governments have consistently spent more than the tax revenue they have raised.
Not all debt is bad. Debts that reflect the long-term cost of infrastructure enjoyed across generations is entirely legitimate. But that is not the nature of debt being accumulated.
Contemporary debt is accumulated to finance the lifestyles of people alive today. Those who benefit from the debt are consenting. But the cost is being passed onto future generations that are bound to repay it.
Intergenerational debt can be taxation without consent.
When one generation inherits burdensome debt without consent, their freedom is curtailed because their fate is bound until it is repaid.
Parliaments that accumulate intergenerational debt without an intergenerational dividend are breaking a foundational principle of Magna Carta by compulsorily acquiring the incomes of future generations without their consent.
The structures of government to preserve our rights
Another enduring legacy of Magna Carta is respect for different institutions of government to fulfil their roles.
Magna Carta strongly recognised:
The role of the King under the law.
The role of a common counsel, which provided the nucleus of future parliaments.
- The role of the courts as arbiters of, what they considered at the time, to be justice.
These bodies enlarged freedom by dividing the concentration of power.
Following on from Magna Carta, both English and American societies continued to develop the idea that rights and freedoms were best preserved by dividing power.
The importance of the separation of powers is greater than institutional independence; it is also about respecting that decisions are coupled with the information of those it affects.
The independence of the modern incarnation of the institutions respected by Magna Carta live on in our modern democracy, where:
The Parliament designs laws and regulations that create the framework to preserve and protect our rights and enlarge our freedom reflecting the public’s will.
The Executive operationalises the day-to-day business of government with a mixture of appropriate knowledge about individuals tempered by society-wide expectations.
- The courts interpret laws and regulations and impose penalties for breaches of the law with appropriate knowledge about individuals and their cases.
When one arm of government starts to involve itself in the other it compromises this institutional structure and its capacity to preserve and defend rights.
These compromises occur when the Parliament seeks to bind the hands of the judiciary by introducing mandatory sentencing, even though they lack the information of individual cases.
So to, compromises also arise when people argue to circumvent Parliamentary sovereignty through Charters of Rights.
The central argument behind a Charter of Rights is that it can be used by the courts to interpret laws mindful of rights.
That assumes that doesn’t already occur. It does through the rights embodied in the common law.
The common law primarily focuses on individual negative rights. And by negative rights I mean rights of the individual against State power that defer to greater liberty of the individual.
Depending on their design, Charters of Rights often include both negative rights and positive rights that focus on expectations from government, such as access to health services.
Yet when judges begin deliberating on matters of rights they go from being interpreters of law to arbiters over public policy. That is particularly true when they consider positive rights.
When a court makes a decision on a positive right it is afforded the power to make decisions on issues without the comparable knowledge or responsibility of their decisions; notably the financial costs it may impose on the State and by extension the taxpayer.
Courts are not the place to fight out issues of legitimate public policy. That rightly sits with the Parliament. When the Parliament develops Charters of Rights and handballs decisions to courts they’re undermining the very institution they serve.
In practice that means taking power not just away from the Parliament, but the people.
If the people do not value human rights it is a failure of education.
To play its part, next Monday, the Commission will be releasing its education resources for schools on the 800th anniversary of Magna Carta and how it started a domino effect through to modern thinking about human rights.
Improving the standing and respect for rights requires improving public understanding about their value and their place in a modern society.
Australians value human rights but not in isolation. We value rights when they are nested with other values such as fairness, justice and responsibility.
Thankfully, Australians have rarely had to struggle for their rights. The traditions that underpin them, and the institutions that preserve them, were inherited.
The preservation of these structures is always under threat.
Defending democracy, rights and freedom from, even well-intended, politicians requires eternal vigilance. Vigilance is particularly important when it involves fighting unpopular causes, including opposition to a media regulator, insufficient safeguards on the two-year retention of data or stripping foreign fighters of their citizenship.
On the latter point, I sympathise with the government’s overall objective about finding ways to tackle the national security threat from foreign fighters.
But I raise reservations about the method. The following questions have not been satisfactorily clarified at this stage:
Why Australian-born citizens, who are dual-nationals, should be stripped of their citizenship?
Why Australian sole-citizens could be stripped of their citizenship and how that could be done without rendering a person Stateless?
- Why Executive government should decide whether a person’s citizenship is removed on the basis of mere suspicion of terrorism, and not the courts?
These issues must be addressed before any proposal is passed through the Parliament.
Current governments do face a real and significant challenge with relation to foreign fighters.
Executive government does have a role to make determinations based on immediacy and in the national interest. Any decision of the government should be temporary to address the immediate threat and must have a higher threshold test than suspicion.
A person’s citizenship is the basis of all other rights. We should treat any attempt to remove a person’s citizenship with extreme caution.
Preserving rights and freedoms is rarely as we would like it to be. We are ordinarily only called to defend them for undesirable people and at undesirable times.
Yet, despite some ‘ups’ and ‘downs’ we have preserved that inheritance by respecting the institutions that underpin our rights and freedom. 800 years on that challenge still faces us.
 H Harley, ‘King John signed the Magna Carta in 1215 and its relevance reverberates today’, The Australian Financial Review, 5 June 2015. At http://www.afr.com/lifestyle/arts-and-entertainment/books/king-john-signed-the-magna-carta-in-1215-and-its-relevance-reverberates-today-20150604-1mvz7b (viewed 5 June 2015).
 D Danziger and J Gillingham, 1215: The Year of Magna Carta, Penguin (2005).
 D Danziger and J Gillingham, 1215: The Year of Magna Carta, Penguin (2005), chapter 8.