Judicial College of Victoria Journal Photo - Tribute to Magna Carta at Runnymede Attribution - WordLight.com Volume 04 | 2016 Magna Carta Judicial College of Victoria Journal Volume 04 | 2016 Citation: This journal can be cited as (2016) 4 JCVJ. Guest Editor: The Hon Kenneth Hayne AC ISSN: ISSN 2203-675X Published in Melbourne by the Judicial College of Victoria. About the Judicial College of Victoria Journal The Judicial College of Victoria Journal provides practitioners and the wider legal community with a glimpse into materials previously prepared for the Judicial College of Victoria as part of its ongoing role of providing judicial education. Papers published in this journal address issues that include substantive law, judicial skills and the interface between judges and society. This journal highlights common themes in modern judicial education, including the importance of peer learning, judicial independence and interdisciplinary approaches. Submissions and Contributions The Judicial College of Victoria Journal welcomes contributions which are aligned to the journal’s purpose of addressing current legal issues and the contemporary role of judicial education. Manuscripts should be sent electronically to the Judicial College of Victoria in Word format. The Judicial College of Victoria Journal uses the Australian Guide to Legal Citation: http://mulr.law.unimelb.edu.au/go/AGLC3. Disclaimer The views expressed in this journal are those of the authors and do not necessarily reflect the views of the Judicial College of Victoria and the Editor. While all care has been taken to ensure information is accurate, no liability is assumed by the Judicial College of Victoria and the Editor for any errors or omissions, or any consquences arising from the use of information contained in this journal. Contact: Correspondence can be sent to: Judicial College of Victoria T: 03 9032 0555 Level 7, 223 William Street F: 03 9032 0500 Melbourne VIC 3000 E: [email protected] © 2016 Judicial College of Victoria, Level 7, 223 William Street, Melbourne VIC 3000 Copyright of the material appearing in this journal remains vested in the authors unless otherwise indicated. Judicial College of Victoria Journal Volume 04 | 2016 1 Judicial College of Victoria Journal Volume 4 | 2016 2 Editorial The Hon Kenneth Hayne AC 3 Magna Carta - Resonances in the Common Law of Australia The Hon Justice Virginia Bell AC 15 Magna Carta: A Less Pious Perspective The Hon Justice Patrick Keane AC 27 The Legacy of a Villain: King John and the Rule of Law The Hon Chief Justice Marilyn Warren AC 38 The Magna Carta at 800 Professor Sarah Joseph 45 Magna Carta: Utilisation and Understandings (1679 - 1689) Hilary Browning 66 Magna Carta in Canada: Use and Abuse Jandre Ljubicic 83 The Law of the Land Adam Lopez 105 Meeting More’s Challenge: How the Magna Carta Helped Build a Robust Lex Anglicana Matthew Psycharis 129 A Nineteenth Century View of the Magna Carta Phoebe Williams Judicial College of Victoria Journal Volume 04 | 2016 2 Editorial This volume of the Judicial College of Victoria Journal collects a number of papers and speeches delivered in celebration of the 800th anniversary of the first sealing of the Magna Carta in 1215. The anniversary, which included a formal visit by the Queen and the British Prime Minister to the banks of the Thames where the document was sealed, has resonated across the world. Functions and speeches in recognition and celebration of the anniversary have been held in Australia, the United States, Canada, France and South Africa, and elsewhere. Although the common thread of the Magna Carta runs through each of the papers in this volume, they cover topics as varied as the effect of the Magna Carta on the ancient fishing rights of Aboriginal people in Canada, to its echoes in the modern Charter of Human Rights and Responsibilities here in Victoria. The range of themes covered in this collection of papers and the continued celebration of the Magna Carta, centuries after it was first sealed at Runnymede, are a testament to its enduring legacy. Originally a medieval political truce, but later enacted and exported from Britain to the wider common law world, the Magna Carta has long captured popular imagination, and it is often viewed as the foundation of individual liberties and the rule of law in countries of the common law tradition. On the 800 years of the Magna Carta’s history, Lord Neuberger writes: Over the course of … 800 years, the idea of Magna Carta gathered momentum and assumed a greater authority in respect of the central key clauses concerning liberty and justice. These central clauses, usually referred to as 38 and 39, have not only stood the test of time, but have a potency of their own which has seen off hundreds of attempts at annulment, repeal, modification and suspension by successive monarchs and governments.1 This understanding of the Magna Carta, and the differing perspectives reflected in the papers gathered in this volume, show the power and central importance of the ideas that now are seen (probably inaccurately) as reflected in the Magna Carta. But it is the ideas that matter, much more than whether their origin can be traced to the instrument sealed at Runnymede eight centuries ago. The papers in this volume comprise speeches delivered in Melbourne by judges and legal academics, as well as essays prepared by students at Melbourne Law School as part of a special research subject on the Magna Carta. This volume of the Journal provides an opportunity to gather those papers and speeches together and share them with the wider legal community. The Hon Kenneth Hayne AC 1 Lord Neuberger, History of the Magna Carta: 800 Years of Liberty (2015) Magna Carta 800th <http://magnacarta800th.com/history-of-the-magna-carta/>. Judicial College of Victoria Journal Volume 04 | 2016 3 Magna Carta - Resonances in the Common Law of Australia* The Hon Justice Virginia Bell AC† Three months before this year’s celebrations of the anniversary of the sealing of Magna Carta, Lord Sumption, of the Supreme Court of England and Wales, staged a pre-emptive strike in an address to the Friends of the British Library. His Lordship had been asked to speak on the topic ‘Magna Carta then and now’. He observed that it is impossible to say anything new about Magna Carta, unless you say something mad. And indeed, even if you say something mad, he suggested the likelihood is that it will have been said before and probably quite recently.1 Six months later, the task of saying something new about Magna Carta has not become any easier. In Australia we have had learned addresses on the great charter from Professor Brand, a renowned medievalist,2 Jim Spigelman, former Chief Justice of New South Wales, himself no mean historian,3 the Chief Justice of Australia,4 and the former Prime Minister.5 And as I speak, Lord Igor Judge is delivering a public lecture titled ‘Magna Carta: Destiny or Accident’ to the Magna Carta Society in the Federal Court in Sydney.6 Suffice it to say, the octocentenary of Magna Carta has not passed unnoticed in the antipodes. This is fitting given that Magna Carta is widely viewed as the foundation stone of the rule of law in countries that share our common law heritage. The charter sealed at Runnymede on or about 15 June 1215 contained 63 chapters, the great bulk of which are of interest only to the committed medievalist. It is chapters 39 and 40 that are accorded constitutional significance. Within two months of its execution, Pope Innocent III annulled the charter on the ground that King John’s seal had been appended under duress. Nonetheless, after John’s death in 1216, the charter was re-issued, albeit shorn of some of its more radical provisions, * This paper is adapted from a speech delivered at Spring Conversazione (Melbourne, 1 October 2015). † Justice of the High Court of Australia. 1 Lord Sumption, ‘Magna Carta then and now’ (Address to the Friends of the British Library, 9 March 2015). The transcript is available on the Supreme Court website: <https://www.supremecourt.uk/docs/speech-150309.pdf>. 2 Professor Brand, ‘Magna Carta and the Development of the Common Law’ (Speech delivered at the High Court Public Lecture, Canberra, 13 May 2015). The transcript is available on the High Court website: < http://www. hcourt.gov.au/assets/publications/speeches/lecture-series/Brand-Magna-Carta-and-the-Development-of-the- Common-Law-May15.pdf>. 3 James Spigelman, ‘Magna Carta in its Medieval Context’ (Address delivered at the Banco Supreme Court of New South Wales, 22 April 2015). The transcript is available at <http://www.supremecourt.justice.nsw.gov.au/ Documents/spigelman_22042015.pdf>. 4 Chief Justice Robert French, ‘Statutes and the Rule of Law in the 800th Year of Magna Carta’ (Address delivered at the Law Council of Australia Business Law Section Workshop, 27 February 2015). The transcript is available at <https://www.one.lawcouncil.asn.au/BLS/images/Statutes_and_the_Rule_of_Law_in_800th_Yearof_Magna_ Carta.pdf>. 5 Tony Abbott, ‘Magna Carta Lecture’ (Address delivered at Parliament House,Canberra, 24 June 2015). The transcript is available at <https://www.pm.gov.au/media/2015-06-24/magna-carta-lecture-parliament-house- canberra-O>. 6 Lord Judge, ‘Magna Carta: Destiny or Accident?’ (Address delivered to the Magna Carta Society, Federal Court, Sydney, 1 October 2015). Judicial College of Victoria Journal Volume 04 | 2016 4 during the infancy of his son, Henry III. Importantly chs 39 and 40 survived the cull. Successive reissues of the charter during Henry III’s reign culminated in the charter of 1225, in which chs 39 and 40 were amalgamated as ch 29.