The Magna Carta in Australia today

How can we see the impact of the agreement sealed by King John of England in Australia today?

Sealed in 1215, the Magna Carta is a document that bound King John to the laws of the land and in doing so, established the fundamental concept of the rule of law, that no one is above the law.

Join King John as he takes us on a tour of Sydney, Australia showing us the local landmarks that echo the legacy of the Magna Carta today.

All quotes from the Magna Carta in this resource come from the original 1215 edition of Magna Carta that was originally written in Latin and translated into modern day English by the British Library. https://www.bl.uk/magna-carta/articles/magna-carta-english-translation.

Supplementary quotes are taken from lectures and papers given in 2015 to celebrate the ongoing legacy of the Magna Carta in Australia. The Rule of Law has put together all these papers into a book titled “The Magna Carta in Australia: Celebrating the 800th Anniversary of the granting of the Magna Carta’ which can be purchased at the Rule of Law Bookstore.

The Magna Carta Enters Australia

In 1788 when the English established the penal colony of New South Wales, it was governed in accordance with English Law. As written in the Commentaries on the Laws of England by Sir William Blackstone; ‘those who were sent to settled colonies carried English law with them as a birthright…’ The First Charter of Justice, together with the Second Commission of Arthur Phillip provided a justice system based upon English Laws which had developed over many centuries. These English laws contained principles from the Magna Carta, in particular the rule of law, where no-one is above the law and mechanisms to ensure the law is applied equally and fairly. In 1901, the Commonwealth of Australia Constitution Act 1901 (Cth) came into effect. The Constitution is built upon English legal tradition and principles but does not expressly reference the Magna Carta. The rule of law is an ‘underlying assumption’ in the Constitution which echoes the Magna Carta and “a clear rejection of arbitrary or untrammelled royal power and an acceptance on certain lawful limits on power… There are palpable echoes of Magna Carta in our Constitution and our system of government which it establishes. The echoes are also to be found in common law values informing the Australian criminal justice system.” – Magna Carta, Common Law Values and the Constitution, Hon Susan Crennan AC KC

Pictured above is King John at the Sydney Botantical Gardens Governor Arthur Philip Memorial

Additional Resources:

Pictured above is King John and the Lost Parcel Storybook about the first Civil Case in NSW

The First Civil Case in New South Wales

In July 1788, two convicts, Henry and Susannah Kable successfully sued the Ship’s Master for a parcel of belongings lost on the First Fleet. It was Australia’s first civil case and it proved that equality before the law was part of this country’s heritage based on the Magna Carta, from the very beginning of the new colony. “The colonists, convicts included, thought of themselves as possessing rights and liberties .. The rule of law more or less operated in New South Wales. Everyone charged before a court was innocent until proved guilty.. a society where convicts could own property and defend it at law and could not be punished except by order of a court.” – British Rights and Liberties in Australia, Dr John Hirst

Additional Resources:

The Church

(1) FIRST, THAT WE HAVE GRANTED TO GOD, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired The first clause of the Magna Carta gives freedom to the English Church and guarantees its rights and liberties. “The Charter was an injunction on a King who regarded the Church as the ultimate subject to his rule. This was a revolutionary notion.. It was a masterful legally written declaration of the Christian Church’s historical rights and liberties – without stating them, but requiring recognition and respect of them by the King.” -The Magna Carta and Christian Religious Freedom, Robin Speed.

Pictured above is King John at St Mary’s Cathedral, Sydney

Pictured above is King John at the historic New South Wales Police and Justice Museum

Rule of Law Principle:

People can only be punished in accordance with the law

Punishment only under the Law

(39) 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

Without being proven guilty in a court of law, any form of punishment must not be without a legitimate reason.

“This clause envisages an end to the unlimited and uncontrolled use of violence and force by the king against property and persons of any of his English subjects, except where this was justified as being part of legal process or as authorised by the proper judgement of a duly constituted court.”
– Magna Carta and the Development of Common Law, Professor Paul Brand FBA

“In other words the absolute supremacy or predominance of the law as opposed to the influence of arbitrary power. We are ruled by the law and the law alone. We can be punished for a breach of the law by nothing else.”
– Freedom of Speech and the Rule of Law, Malcolm Stewart

Due Process and Fair and Prompt Trials

(40) To no one will we sell, to no one deny or delay right or justice.

The Magna Carta included provisions for a judicial system for the administration of justice. These clauses highlighted that all men were entitled to due process of law and the law was to be applied without improper external influence or corruption.

“This spawned our concepts of, first, judicial impartiality and incorruptibility, secondly, the right of everyone to justice according to the law, and, thirdly, the more controversial, right to that justice without delay. We take for grated that justice is not for sale.”

– Why Magna Carta Still Matters, The Hon Steven Rares

Pictured above is King John at the Downing Centre

Rule of Law Principle:

Pictured above is King John outside the New South Wales Supreme Court Building

Rule of Law Principle:

Qualified and Independent Judiciary

(45) We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well. “Instead of individuals, or government officials or bodies, taking the law into their own hands, they accept that there is an impartial governmental institution, being the Courts, that can decide who is guilty or innocent, what punishment to impose, or who has or does not have an enforceable civil claim or right in repect of a matter of dispute between citizens or persons present in the jurisdiction.” – Why Magna Carta Still Matters, The Hon Steven Rares “The only real redress we have if a legal wrong has been done to us is to approach the judiciary. Whether or not that may result in success, we will have confidence in this process if there is a fair hearing with an independent properly qualified judge.” – Freedom of Speech and the Rule of Law, Malcolm Stewart

The Separation of Powers

(61) SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security:

The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter.

Parliament did not exist in England in 1215. However, it can be said that the Magna Carta is the basis of the Westminster-style of parliamentary democracy. Clause 61 provided for 25 barons to be elected “to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter,” introducing the concept of a body of elected individuals as a “recognised custodian and guarantor of these collective and individual rights spelled out in Magna Carta”
– Magna Carta and Parliament, Professor Peter Boyce AO

The genius of the Magna Carta is it contained a detailed system of checks and balances that put limits on the King’s power. For more details, read our page on the Magna Carta and Checks and Balances.

Pictured above is King John at Parliament House, New South Wales

Rule of Law Principle:

Pictured above is King John studying the Australian Taxation Act.

Rule of Law Principle:

No Taxation Without Representation

(14) To obtain the general consent of the realm for the assessment of an ‘aid’ – except in the three cases specified above – or a ‘scutage’, we will cause the archbishops, bishops, abbots, earls, and greater barons to be summoned individually by letter. Magna Carta was a rebellion against King John who tried to overtax his subjects. Forty of the sixty three chapters of the Magna Carta relate to the collection of taxes and payments to the King. “The express provision in the 1215 text, requiring the consent of the realm for a form of taxation including precise deatil as to how the ‘realm’ would be summoned to give consent, was deleted in all subsequent issues and confirmations.. No doubt it was inserted by the more radical of the rebel barons of 1215. The necessity to consult before imposing taxes was not stated expressly. However, that was the very process that led to the charters, particularly the reissues and confirmations.” – Magna Carta and the Executive, Hon James Spigelman AC KC

Women

(8) No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without the consent of whatever other lord she may hold them of.

“Although John’s grant is said at the beginning to be made to all the free men of his kingdom at the end of the grant is said to be made to the ‘men in our kingdom’… and it should [not] be added, was the charter something only for men. The term ‘men’ in the charter was clearly intended to cover, and the charter to benefit, women as well as men. This becomes particularily clear in those chapters which applied, and could only have applied, to women.”

– Magna Carta and the Development of Common Law, Professor Paul Brand FBA