Magna Carta and Bill of Rights


The Magna Carta 

OPCA theorists in Australia insist that Article 61 of the Magna Carta grants them the right to “lawful rebellion” if the charter is breached. If they are seeking some sort of judicial permission to rebel, unfortunately the law does not recognise this point.

Historic record shows that Clause 61 of the 1215 Magna Carta was repealed within months of it’s establishment, and therefore not included into subsequent charters. This was of course, a long time before Australia was even thought about. Australian law had at it’s foundation Common law of England, which was based on the later 1297 charter, not the outdated 1215 charter.

However, the spirit of Article 61 of the Magna Carta is alive and well, and has long since evolved through the principle of Responsible Government. Through the age of enlightenment with the further extrapolations of numerous philosophers and legal minds, to the US Declaration of Independence, with the incorporated ability to “alter or abolish” the form of government, and notions highlighting the consent of the governed. The spirit of Article 61 of the Magna Carta is now a ceremony that occurs every few years at election time, as the people gather to “alter or abolish” the current form of government if the majority so wishes.

Like most other articles of the Magna Carta, the intention and effect had been addressed by later statutes, by convention, or other constitutional enactments. The provisions of the 1297 Magna Carta are mostly outdated, and would seem quite absurd in modern times. Here are a few such examples relating to women: 1

Article 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.”

Article 54: “No one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband.”

The Magna Carta and its relevance to contemporary Australia.

“The Magna Carta received into Australia upon settlement in 1788 was the 1297 Charter, as it provided for fundamental liberties which extended to the English colonisers. However, the Magna Carta’s role as a statute in Australia differs between jurisdictions. For New South Wales, Victoria, Queensland and the Australian Capital Territory, local Imperial Acts legislation has determined which version and provisions of the Magna Carta apply. In these jurisdictions, the 1297 version of the Magna Carta applies, and of that version, only Chapter 29 remains a part of their statutory law. In Western Australia, South Australia, Tasmania and the Northern Territory, the applicability of the Magna Carta depends upon the jurisdiction’s reception of Imperial legislation on a certain date. The result of such Acts is that if British Parliament repealed chapters of the Magna Carta prior to the reception date, then only the remaining chapters were received in the jurisdiction. The effect of such legislation is that many of the chapters of the Magna Carta have been repealed in Australian jurisdictions, and the New South Wales Law Commission went so far as to say that any inclusion of the Magna Carta in New South Wales law was ‘chiefly sentimental.’ However, much of the Magna Carta’s relevance is grounded in the famous Chapter 29 which has not been repealed, and is the document’s ‘enduring symbolic role.”

Click to access magna-carta.pdf

Only chapter 29 of the Magna Carta remains unrepealed in Australian law.

The ability to repeal Imperial Acts comes from the Statute of Westminster 1931, (adopted by Australia in 1942, retroactive from 1939) made even more explicit by section 5 of the Australia Act 1986, both of which removed, first the Commonwealth, and then the States, obligations to the Colonial Laws Validity Act 1865 (Imp).

“No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion.”

In recent decades most of the States have passed an Imperial Acts Application Act, and was careful to say, that the preserved Acts were only preserved with “the same force and effect (if any)” as they had before the commencement of the Application Acts. For example, 6(b) of the Imperial Acts Application Act 1969 (NSW) declares c 29 to have remained in force in NSW “except so far as affected by any State Acts from time to time in force in New South Wales”. Chapter 29 of the Magna Carta does not hold the status of a constitutional provision of NSW, rather it is open to “affectation and modification” by ordinary legislation enacted by the State Parliament. (See Galea v NSW Egg Corporation Court of Appeal, 21 November 1989, Unreported, at 6, Adler v District Court of NSW (1990) 19 NSWLR 317 3 at 332; see also Chester v Bateson (1920) 1 KB 829 per Darling J). 4

As consistent with the Imperial Acts Application Acts of other states, only Clause 29 of the Magna Carta is in force in Western Australia, despite the other chapters remaining: 5 Extract from page 21 of the Law Reform Commission of Western Australia – United Kingdom Statutes in Force

“Its preservation does not ensure that these rights are inalienable because statutes of the Parliament of Western Australia which are repugnant to Magna Carta are not for that reason invalid. Indeed, to the extent of any repugnancy, these statutes operate to repeal Magna Carta. Chapter 29 is one of the historical provisions which should be declared to remain in force. The other chapters should be repealed.”

Click to access magna-carta-wa.pdf

New Zealand has the exact same situation as here in Australia, only chapter 29 remains valid. Extract from In a Constitutional State – Magna Carta in New Zealand 1840-2015 by David Clark) 6

“Given that the British Parliament repealed most of Magna Carta 1297 between 1863 and 1969 because its terms were either obsolete as they dealt with medieval circumstances that had passed into history, or because some of the problems had been addressed in later statutes, the problem for New Zealand was whether the wholesale adoption approach remained useful. A Law Commission report in 1987 recommended a special statute that identified particular Imperial enactments for retention and also identified the provisions of those acts that would remain part of New Zealand law. The result was the Imperial Laws Application Act 1988 (NZ), which, by s 3(1) and the First Schedule, retained only chapter 29 of 1297 as part of the law of New Zealand.”

Click to access magna-carta-nz.pdf

This point has been upheld by the courts:

In Ledger Acquisitions Australia MB Pty Ltd v Kiefer [2014] FCCA 2216 7 the respondent relied on Clause 29 of the Magna Carta in asserting a right to trial by jury in a bankruptcy matter, to which the court delivered the following detailed summary:

“The Immigration Restriction Act 1901 (Cth) was challenged in Chia Gee & Ors v Martin (1905) 3 CLR 649 8 as “unconstitutional, because its provisions were contrary to the provisions of Magna Charta and the Statutes which had since confirmed it”. Sir Samuel Griffith, the first Chief Justice of the High Court of Australia, and arguably the principal drafter of what became the Commonwealth Constitution, brooked no argument on this contention, dismissing it in a single sentence:

The contention that a law of the Commonwealth is invalid because it is not in conformity with Magna Charta is not one for serious refutation.

The other two initial Justices of the High Court of Australia, Justices Barton and O’Connor, contented themselves with concurring with the Chief Justice. Justice Barton, who was the first Prime Minister of the Commonwealth, and Justice O’Connor, were both involved in the Constitutional conventions which led to the drafting of the Commonwealth Constitution, Barton extensively so. Such was the authority of the first three Justices of the High Court of Australia that no more needed to be said.

In Ex parte Walsh and Johnson; in re Yates (1925) 37 CLR 36 9 also a case concerning the Immigration Restriction Act 1901, Justice Isaacs discussed the Constitutional significance of Magna Carta in an Australian context. Referring to Clause 29 of Magna Carta, Justice Isaacs said:

“The chapter, … recognises three basic principles, namely, (1) primarily every free man has an inherent individual right to his life, liberty, property and citizenship; (2) his individual rights must always yield to the necessities of the general welfare at the will of the State; (3) the law of the land is the only mode by which the State can so declare its will.”

Justice Isaacs recognised that personal liberty and property give way to a declaration by the State (in this case the Commonwealth) of the law of the land:

“These principles taken together form one united conception for the necessary adjustment of the individual and social rights and duties of the members of the State.”

In Skyring v Federal Commissioner of Taxation (1991) 23 ATR 84 10 the High Court of Australia held that the power conferred on the Commonwealth Parliament by the taxation power in s.51(ii) of the Commonwealth Constitution, to legislate with respect to taxation, extends to the imposition of taxation and its collection, even though it has the effect of requiring the person on which taxation is levied to pay the tax out of property which he owns. 

In Arnold & Anor v State Bank of South Australia & Ors (1992) 38 FCR 484 11 the appellants sought to attack a mortgage on the basis that the debt secured by the mortgage involved the creation by the respondent bank of a book entry credit at no cost to itself. Magna Carta was invoked as guaranteeing the rights of the appellants to their matrimonial home and livelihood. Challenges were also made on the basis of passages from the Bible, and in particular those striking at usury. The Full Court of the Federal Court of Australia, in dismissing the appellants’ appeal, did not specifically refer to Magna Carta in its reasoning, but approved what had been said in two recent cases before single Judges of the Federal Court, including in Fisher & Anor v Westpac Banking Corporation & Ors.

In Fisher v Westpac Banking Corporation [1992] FCA 390 12 the plaintiffs sought to set aside a claim made by a bank under a mortgage to their matrimonial home on the basis that the matrimonial home was guaranteed not to be abrogated from or interfered with by anyone by reason of authority derived ultimately from Magna Carta. Similar pleas were also made by reference to biblical authority. In the Federal Court of Australia, Justice French (as the current Chief Justice of the High Court of Australia then was), like the first Chief Justice of the High Court of Australia in Chia Gee, dismissed the plea by reference to Magna Carta in a single sentence, as follows:

“In relation to the remaining pleas based on the Magna Carta and the Bible, it is sufficient to say they disclose no legally tenable cause of action.”

It follows from the foregoing that Commonwealth statutes dealing with a particular matter operate to repeal any contrary or limiting provision of Magna Carta. In this case, the relevant provisions of the Bankruptcy Act 1966, the FCCA Act and the FCC (Bankruptcy) Rules displace and prevail over any effect that Magna Carta might otherwise have had in the field of bankruptcy law, and Magna Carta did not, therefore, preclude the issuance of, or render invalid, the sequestration order made on 3 February 2014 by the Registrar against the estate of Mr Kiefer.”

Click to access ledger-acquisitions-australia-mb-pty-ltd-v-kiefer-2014-fcca-2216.pdf

In Re Cusack (1985) 60 ALJR 302, 13 Wilson J. said:

“The validity of laws enacted by the Commonwealth Parliament falls to be determined by reference to the proper construction of the Australian Constitution. It is not open to base an argument for validity by reference to alleged inconsistencies between laws of the Commonwealth and either Magna carta or the Bill of Rights.”

Carnes v Essenberg [1999] QCA 339: 14

“The supremacy of Parliament to make laws contrary to what had been the Common Law is expressly recognised by the Courts. It is enough to refer to the decision of the High Court in Kable v. The Director of Public Prosecutions, 189, Commonwealth Law Reports 51 at pages 73 to 74 in the judgment of Justice Dawson. His Honour pointed out that that champion of the Common Law, Chief Justice Coke, had in his Institute of the Laws of England in the early 17th century accepted that Magna Carta could be altered by English Parliament. Indeed he referred to Bills of Attainder which allowed for trial contrary to Magna Carta as being lawful enactments.

In Essenberg v The Queen [2000] HCATrans 297: 15  McHugh J. said:

“Magna Carta and the Bill of Rights are not documents binding on Australian legislatures in the way that the Constitution is binding on them. Any legislature acting within the powers allotted to it by the Constitution can legislate in disregard of Magna Carta and the Bill of Rights. At the highest, those two documents express a political ideal, but they do not legally bind the legislatures of this country or, for that matter, the United Kingdom. Nor do they limit the powers of the legislatures of Australia or the United Kingdom. “

“We are ruled by law and law is the law of Parliament; it is called legal positivism. It is the law laid down. This Court makes decisions and, unless they are constitutional decisions, the Parliament can overrule them and often does. We lay down a law, Parliament can change it. It is the democratic right of the people to do it through their parliamentary representatives. So, what you are faced with is the Queensland Parliament enacting this legislation, which you obviously think is a bad piece of legislation and infringement with your rights and which other members of the community think is a good thing, that is something to be debated at the ballot box, but it is not a constitutional matter…“

“I understand that and persons who have not had full legal training often think of Magna Carta and the Bill of Rights as fundamental documents which control governments, but they do not. After all, Magna Carta was the result of an agreement between the barons and King John and the barons themselves had their own courts, had their own armies, they, in effect, levied what we would call taxes today and they were concerned to protect themselves against the growth of the central power of the royal government, the central government, and that is how Magna Carta came into existence, but modern Parliament did not arise until late in the 17th century and the early struggle was between the King and the barons.

We are dealing now with the question of the legislature. I mean, Parliament established its authority over the monarch after the struggles which led to the execution of Charles I and the flight from the kingdom of James II in 1688. But Parliament – some people would regard it as regrettable – can, in effect, do what it likes. As it is said, some authorities could legislate to have every blue-eyed baby killed if it wanted to.”

Click to access essenberg-v-the-queen-2000-hcatrans-297.pdf

Gargan v Director of Public Prosecutions and anor [2004] NSWSC 10: 16

“(i) the appeal to scripture, that is to a moral principle higher than parliamentary sovereignty, is “out of line with the mainstream of current constitutional theory as applied in our courts” ( BLF v Minister for Industrial Relations (1986) 7 NSWLR 372 at 384 per Kirby P). The same principle was applied by Lord Reid in British Railway Board v Pickin (1974) AC 765 in which he said: “In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded insofar as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete” (at 782) To a like effect is the decision of the Privy Council in Liyanage v The Queen (1967) AC 259 in which it was held that an Act of the Parliament of Ceylon could not be challenged on the basis that it was contrary to the fundamental principles of justice.”

The Bill of Rights 1688

“All grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void.”

Section 12 17 is perceived by OPCA theorists to imply that ALL “fines and forfeitures” (even a parking fine) issued before a court-adjudicated conviction, (with a full jury too!) are all unlawful and invalid. Since it was written several centuries ago, “grants and promises” requires a bit of an explanation, though cherry-picking the word “fines” seems to satisfy those without knowledge of the historical context.

In short, King James (and King Charles before him) had a habit of “granting or promising” to his mates the wealth of people he didn’t like BEFORE they were convicted of treason. To stop this, the Bill of Rights insisted that the Crown can’t grant or promise a person’s wealth or property to anyone until AFTER the person is convicted.
Prior to 1870 a convicted felon forfeited his assets to the Crown.

Indeed, the legal definition of a felon is a person whose  property has been forfeited to the crown. Because such grants and promises were later made illegal by the Forfeiture Act of 1870, it hardly matters now what the Bill of Rights 18 did about narrowing the scope of such grants and promises back in 1688.

The Queen of Australia has not granted or promised any fine or forfeiture to anyone – and experts predict she is unlikely to do so during the remainder of her reign. If she ever does it to you though, you should rely on this section of the Bill of Rights to prevent your home or cattle being seized by the Crown and gifted to some Earle or Duke without giving you an opportunity to a fair trial.

The Bill of Rights was discussed in Living Word Outreach Inc v Deputy Sheriff of Victoria [2014] VSC 454 (from 48): 19

“In Port of Portland Pty Ltd v State of Victoria (2010) 242 CLR 348, 20 the High Court considered the force of the principles enunciated in the Imperial Acts Application Act 1980.  That Act, which is an act of the Victorian parliament, transcribes several Imperial acts, including the Bill of Rights 1688.  Section 3 provides that the transcribed enactments ‘shall continue to have in Victoria … such force and effect, if any, as [it] had at the commencement of this Act’. Considering the interpretation of the Imperial Acts Application Act 1980, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said (at 13) that “…the preferable view is that these provisions in the Victorian statute at best serve only to reinforce what are settled constitutional principles”.

Click to access port-of-portland-pty-ltd-v-state-of-victoria-2010-242-clr-348.pdf

In Antunovic v Dawson (2010) 30 VR 355 21 Bell J considered the relevance of the Bill of Rights 1688 in a contemporary context. His Honour said (at 50):

“The rights and liberties in the Bill of Rights restricted the powers of the sovereign, specified and confirmed the responsibilities of Parliament and declared certain fundamental freedoms of the people.  The focus of these rights and liberties is mainly on the relationship between the sovereign, the Parliament and the people, rather than on the rights of the people as such. The rights are mainly civil and political in character.”

It follows from what was said in the above cases that the provisions of the Imperial Acts Application Act 1980 are not to be understood as being capable of striking down provisions in other statutes.  Rather, the principles there enshrined lay the groundwork of the constitutional framework and find expression in more specific principles.”

Click to access antunovic-v-dawson-2010-30-vr-355.pdf

This is a republication of the Bill of Rights 1688 1 Will and Mary Sess 2 c 2 as in force on 5 July 2002 in the Australian Capital Territory. It includes any commencement, repeal or expiry affecting the republished law and any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes). The legislation history and amendment history of the republished law are set out in endnotes 3 and 4. 22

Click to access bill-of-rights.pdf

18 years ago a group of 25 Barons invoked Clause 61 of the Magna Carta 23 against the Queen to stop closer integration with Europe. A lot of good that done, considering the UK subsequently joined the European Union. The authority to act upon such a demand had long since passed out of her hands and into the hands of the parliament, partly as a result of the very document they relied upon, the Magna Carta. The only thing that had the ability to undo this move was the voice of the people, expressed in the Brexit referendum. Amazingly, some adherents have since pledged an oath of allegiance to Lord Craigmyle of Invernesshire, one of the British peers who urged the Queen in 2001 to block the U.K.’s signing of the Treaty of Nice. In 2020 24 a Canadian judge barred one such adherent, who claimed the Magna Carta puts her outside court’s authority, in AVI v MHVB, 2020 ABQB 489 and on the same basis in AVI v MHVB, 2020 ABQB 790 25 As the court noted regarding her assertions of lawful rebellion under Article 61 of the Magna Carta:

“Article 61 of the 1215 Magna Carta has nothing to do with the rights of individual persons, but instead only granted a counsel of 25 barons the authority to seize King John’s castles, lands, and possessions in the event of a dispute between the barons and the king. Worse, when King John died in 1216, so did the provision of the 1215 Magna Carta that MCLR adherents claim creates their extraordinary status. These modern Magna Carta rebels have therefore mustered over 800 years too late.”

Click to access avi-v-mhvb-2020-abqb-489-memorandum-of-decision.pdf