Magna Carta after 800 years: relevance for our legislation on refugees, terrorists, secrecy, and other issues.

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John Hassett. 

magna carta
Magna Carta exhibition British Library, Chris Beckett, flickr cc

The most significant legacy of Magna Carta is its symbolism. We respect it today as a cornerstone of our freedom.

This year is the 800th anniversary of the signing on 15 June 1215 by King John of a document (Carta Libertatum) inscribed in Latin on sheepskin parchment. It arose from a struggle between the barons who were anxious to preserve their assets and income from an extravagant and greedy king. Much of it related to practical matters such as weights and measures. It was annulled by Pope Innocent III two months later and reworked. Its history is authoritatively detailed by Ralph Turner in Magna Carta.

An amended charter came into existence in 1217 after the death of King John, together with a ‘Charter of the Forests’. The new title ‘Magna Carta’ recognised the combination of the two charters. By that time, Henry III, the 9-year-old son of John, held the crown. The definitive text is that in a tidied-up and more succinct version, bearing the seal of the King, which was concluded on 19 (not 15) June 1225.

The final formulation of Magna Carta was in its incorporation into statute law in 1297. That version is displayed at Parliament House in Canberra.

The core of its longevity is the proposition that the sovereign’s authority was limited by a framework of law binding “the community of the whole land”. It asserted one basic and treasured principle, that of the rule of law. At its heart was the curtailing of the power of the Executive in its dealings with citizens.

The other side of that coin is the concept of the separation of powers – that the Parliament and the Judiciary are independent of each other, and that the Executive is subject to the other two limbs. Originally, the King alone had and exercised three powers. In simplified terms, those powers and their modern counterparts were the power to make Laws (now Parliament), the power to exercise Justice (now the Judiciary), and the power to implement the King’s will (now the Executive, the Ministry, and their Departments). To paraphrase a 1905 study of Magna Carta, it contains a “clear enunciation of the principle that the caprice of (the bureaucracy) must bow to the reign of the law”.

Australia’s legislation on terrorism, refugees, and other issues

The proposal (at the time of writing) relating to persons alleged to have fought against Australia’s allies overseas highlights the application of the separation of power and the rule of law. The proposal is that Ministers (the Executive) should be given power to impose a penalty, a power traditionally reserved to the Judiciary. Furthermore, it is suggested that the power be exercisable on the basis of “intelligence” without any trial, since if there were a trial “They might get off”, because their supposed guilt could not be proved.

In ordinary parlance, “the Government” is the term used to refer to the Executive. The Government sometimes finds the operation of the law inconvenient. In such a case, it may seek to have Parliament change the law and if it adopts that course may be sanctioned at the next election. However, that prospective protection disappears when the Government and the Opposition both support the proposed change. That is currently the situation in relation to aspects of the law relating to terrorism, refugees and secrecy.

right to seek asylum
Support the right to seek asylum – Refugee Action protest 27 July 2013 Melbourne, Takver, flickr cc

The case of an Hazara refugee indentified as S297 is an extremely rare example of a Court ordering a Minister to do something rather than merely to perform a function. In that case, the High Court, in a unanimous decision, ordered the Minister grant a permanent protection visa to the Plaintiff. It was the Plaintiff’s second success in the High Court, which a year earlier had ordered (S297 v MIBP [HCA]) the Minister to make a decision on the plaintiff’s application. The Minister refused the application. In the second case, the Court decided that “the Minister should not now be given any further opportunity to identify a reason for refusing the plaintiff’s application”.

Non-refoulment is a key facet of refugee law. It protects refugees from being returned or expelled to places where their lives or freedoms could be threatened. Australia is a party to the relevant international Convention. Section 198 of the Migration Act concerns the determination of refugee applications. For anyone who thinks it inconceivable that Australia would override that obligation, I direct attention to S197(c) of the Migration Act which was inserted on 5 February 2014, and which provides that “For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen”.

In a recent article in Eureka Street, Justin Glynn  made some thought-provoking comments about George Orwell’s 1984, in which the white face of the Ministry of Truth – the Government’s propaganda arm – bears the slogans: WAR IS PEACE, FREEDOM IS SLAVERY, IGNORANCE IS STRENGTH.

As to the first slogan, Oceania being alternately at war with one or other of the remaining powers in order to keep its people obedient and rallied round the flag, is reminiscent of today’s dog whistle.

As to the second, Glynn writes that “both major parties have fallen over themselves to allow interception of electronic data, give ASIO unprecedented peacetime powers, and allow for increased powers to detain people without warrant or court supervision” :

IGNORANCE IS STRENGTH. Here is the core of the problem which aggravates the other issues. Orwell’s dystopic vision was of a totalitarian state where information was so tightly rationed that people could be forced into doublethink… [T]he Government does ‘whatever it takes’, ‘by hook or by crook’ to ‘stop the boats’. Never mind that, if it is indeed true that Australia stopped a boat in international waters and paid its crew to return the asylum seekers on board to potential persecution, Australia would have breached international and domestic law and destroyed its own rationale for its relentless cruelty to refugees.

The reason this argument can run for as long as it has, of course, is that information is practically unavailable. Even the Parliament, a body notionally sovereign according to Australian jurisprudence, is unable to prise from the Executive, which is supposed to be answerable to it, information relating to ‘Operation Sovereign Borders’ .

The 800th anniversary of Magna Carta is a grand year in which to look at today’s society through its lens.

John Hassett was for 18 years a County Court Judge, a foundation member and sometime chair of the Melbourne Catholic Commission for Justice and Peace from 1993 for eight years, and for five years a member of the Australian Catholic Social Justice Council, a peak body of the Australian Catholic Bishops Conference.

 

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