Magna carta, common law values and the constitution



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28.

During the course of argument in the High Court at a time when framers of the Constitution were still alive, Sir Robert Garran, then Solicitor-General of the Commonwealth, submitted that the validity of detention under a law of the Commonwealth depended on the validity of the law itself — that is, determining whether the law was ultra vires29. In his reasons for judgment in the same case, Isaacs J referred to "fundamental principles". He said that, although these could not be found in the express terms of the Constitution, such principles could be traced back to chapter 29 of Magna Carta. This led him to draw what he called "an initial presumption in favour of liberty, so that whoever claims to imprison or deport another has cast upon him the obligation of justifying his claim by reference to the law."




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