Magna carta, common law values and the constitution



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48, limitations on the powers of State legislatures were identified by reference to the establishment in the Constitution of an integrated Australian court system, which contemplates the exercise of federal jurisdiction by State courts and has, at its apex, the High Court exercising the judicial power of the Commonwealth. Thus, there is a limit on the powers of State legislatures, derived from Ch III of the Constitution. Some might say that development has occurred because there is no federal Bill of Rights in Australia.

Let me conclude with a cautious "Yes" in answer to my initial question. Thinking about Magna Carta brings to mind an observation made by Sir Robert Menzies and repeated in this Court on more than one occasion. He said that constitutional law combines history, statutory interpretation and political philosophy, to which can be added political reality. There are palpable echoes of Magna Carta in our Constitution and in the system of government which it establishes. The echoes are also to be found in common law values informing the Australian criminal justice system; in the imperfectly attained notion that access to justice is an important aspect of the rule of law, in the spirit (or principle) of legality as it affects both judicial review and statutory interpretation, and in the constitutional developments concerning Ch III, the federal judiciary and judicial power.



The resolution of any tension between civil order and good government on the one hand, and individual freedoms on the other, for which Magna Carta has become a symbol, depends for us on the methods of determining the constitutionality of legislation, both Commonwealth and State, and the limits on government action and power. These methods are to be found in, or derived from, the Constitution. They arise from the system of government established by the Constitution and the rule of law, being an aspect of good government assumed when the Constitution was framed.

1 Lord Sumption, "The Limits of Law", Twenty-Seventh Sultan Azlan Shah Lecture, 20 November 2013 at 3.

2 Churchill, A History of the English-Speaking Peoples, (1956), vol 1 at 199.

3 Captured by Lord Rodger of Earlsferry in Secretary of State for the Home Department v AF [2010] 2 AC 269 at 366 [98]: "Argentoratum locutum, iudicium finitum — Strasbourg has spoken, the case is closed."

4 See Lord Judge, "Magna Carta: Some Reflections", Sir Robert Rede's Lecture, 10 February 2014 at 3.

5 A v Secretary of State for the Home Department [2005] 2 AC 68.

6 A v Secretary of State for the Home Department [2005] 2 AC 68 at 107 [36].

7 See A v Secretary of State for the Home Department [2005] 2 AC 68 at 107 [36] per Lord Bingham of Cornhill, citing Kurt v Turkey (1998) 27 EHRR 373 at [122].

8 Lord Judge, "Magna Carta: Some Reflections", Sir Robert Rede's Lecture, 10 February 2014 at 3.

9 See Lord Irvine of Lairg, "The Spirit of Magna Carta Continues to Resonate in Modern Law", (2003) 119 Law Quarterly Review 227. See also Clark, "The Icon of Liberty: The Status and Role of Magna Carta in Australian and New Zealand Law", (2000) 24 Melbourne University Law Review 866; Bingham, The Rule of Law, (2010) at 10-33.

10 Holt, Magna Carta, 2nd ed (1992) at 18.

11 Holt, Magna Carta, 2nd ed (1992) at 18.

12 Holt, Magna Carta, 2nd ed (1992) at 19.

13 See Goldsworthy, The Sovereignty of Parliament, (1999), ch 7.

14 See Dixon, "The Law and the Constitution", (1935) 24 Law Quarterly Review 590 at 592.

15 See Dicey, An Introduction to the Study of the Law of the Constitution, 9th ed (1945) at 188.

16 Bingham, The Rule of Law, (2010) at 11-13.

17 For example, King Henry I's Charter of Liberties and the extant Coronation Oath.

18 Gleeson, "Legality — Spirit and Principle", Second Magna Carta Lecture, 20 November 2003.

19 McKechnie, Magna Carta: A Commentary on the Great Charter of King John, 2nd ed (1914) at 4. McKechnie views the signing of Magna Carta as consistent with broader political developments tending to the establishment of a strong monarch with certain limits on power going back to the reign of William I.

20 McKechnie, Magna Carta: A Commentary on the Great Charter of King John, 2nd ed (1914) at 3.

21 Lord Irvine of Lairg, "The Spirit of Magna Carta Continues to Resonate in Modern Law", (2003) 119 Law Quarterly Review 227 at 227.

22 Holt, Magna Carta, 2nd ed (1992) at 4.

23 Holt, Magna Carta, 2nd ed (1992) at 12.

24 Coke, The Second Part of the Institutes of the Laws of England Containing the Exposition of Many Ancient and Other Statutes, (1817), Proeme.

25 Compare the Proeme to Coke's Second Institutes with Selden's argument in the Five Knights' Case (1627) 3 How St Tr 1 at 16-19. See also Pocock, The Ancient Constitution and the Feudal Law, 2nd ed (1987); Tuck, Philosophy and Government 1572-1651, (1993), ch 6; Berman, "The Origins of Historical Jurisprudence: Coke, Selden, Hale", (1994) 103 Yale Law Journal 1651; Christianson, Discourse on History, Law and Governance in the Public Career of John Selden, 1610-1635, (1996); Sommerville, "English and European Political Ideas in the Early Seventeenth Century: Revisionism and the Case of Absolutism", (1996) 35 Journal of British Studies 168.

26 See Evans and Jack, Sources of English Legal and Constitutional History, (1984).

27 Australia, House of Representatives, Parliamentary Debates (Hansard), 18 March 1902 at 10966-10967.

28 (1803) 5 US 137.

29 Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 42.

30 Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 79.

31 Australian Communist Party v The Commonwealth (1951) 83 CLR 1.

32 Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193.

33 Dixon, "The Law and the Constitution", (1935) 24 Law Quarterly Review 590 at 604.

34 See, for example, Jago v District Court of New South Wales (1989) 168 CLR 23.

35 See X7 v Australian Crime Commission (2013) 248 CLR 92 at 113-114 [32] per French CJ and Crennan J.

36 See Hill, Society and Puritanism in Pre-Revolutionary England, (1964) at 405.

37 See Port of Portland Pty Ltd v Victoria (2010) 242 CLR 348 at 358-360 [9]-[13].

38 See Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.

39 See Gleeson, "Legality — Spirit and Principle", Second Magna Carta Lecture, 20 November 2003.

40 See Potter v Minahan (1908) 7 CLR 277.

41 See X7 v Australian Crime Commission (2013) 248 CLR 92 at 108 [21] per French CJ and Crennan J, and the cases cited there.

42 Zheng v Cai (2009) 239 CLR 446 at 455-456 [28]

43 See Lady Arden, "The Changing Judicial Role: Human Rights, Community Law and the Intention of Parliament", Constitutional and Administrative Law Bar Association Annual Lecture, 26 November 2007.

44 See Thomas v Mowbray (2007) 233 CLR 307.

45 See South Australia v Totani (2010) 242 CLR 1 at 155-156 [423] per Crennan and Bell JJ. See also Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248.

46 See, for example, Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 492 [31] per Gleeson CJ, 513 [103] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

47 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 11 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ.

48 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.




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