New Zealand Law Society - Austin Forbes CNZM, QC

Austin Forbes CNZM, QC

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The mythology of Magna Carta is more important than the reality – what might be described as the magnification of Magna Carta. Hence the view that it is the most important constitutional document in English history.1 Although no clauses in it actually so provided, Magna Carta became a symbolic assurance of equal justice, liberty and individual freedom for all in the realm and the embryonic foundation of parliamentary sovereignty and, indeed, the rule of law in England – a law which the monarch, Parliament and all people were both subject to and protected by.

The constitutional struggle between power and freedom dating from King John’s confrontation with his rebellious barons in the meadow at Runnymede in June 1215 to the present day in New Zealand has been a long and at times fragile one. Nearly 400 years later, in 1603, James VI of Scotland became James I of England. An illuminating recent book about Magna Carta2 describes how, on his journey to London from Scotland, the King at Newark dispensed what was known in Scotland as “Jeddart Justice” by ordering the execution of an (alleged) cutpurse criminal without a trial. Under Jeddart Justice a supposed criminal was apparently liable to be hanged first and then tried later. Sir John Harrington, who was Elizabeth I’s godson philosopher and, indeed, also said to be the inventor of the flush toilet, is reported to have commented on this affront to English principle and practice “Why may not a man be tried before he hath offended?” In 1610 King James addressed Parliament on the divine power of Kings, saying that they were “the supremest thing on earth” who could “make of their subjects like men at chess”.

So we have certainly come a long way since then. Magna Carta was the reinvigorated banner by which the challenge of James I to the position of Parliament and the courts was confronted, led initially by Sir Edward Coke.3

So the Great Charter was no mere baronial pact. It bears repetition that it has come to be regarded as the foundation bedrock of the rule of law and the rights and liberties which we now almost take for granted today, 800 years later. The reach of its lineage extends not only to many of the countries of the former British Empire and the present Commonwealth, including New Zealand,4 but also to the French Declaration of the Rights of Man and the Citizen 1789, the State and Federal constitutions (including the Bill of Rights) of the United States and the well-known ensuing amendments and, in more recent times in the aftermath of World War II, the Universal Declaration of Human Rights adopted by the United Nations in 1948 and the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The lineage can also be said to include, at least indirectly, the New Zealand Bill of Rights Act 1990.

That said, the Court of Appeal has held that “Whilst the Magna Carta is indeed part of the law of New Zealand … it cannot override the clearly expressed will of Parliament”.5 Nevertheless, while Magna Carta, as a foundation declaration of the rule of law and its application to the law of New Zealand today, are subject to the doctrine of parliamentary sovereignty, it has rightly been described as “… an irrepealable ‘fundamental statute’. Nothing could remove its imprint from our law and culture”.6

While it may not be an everyday topic of discussion, the symbolic ethos of Magna Carta continues to resonate in our law 800 years later.

  1. That said, the constitutional significance of the English Petition of Right 1627 and the Bill of Rights 1688 is certainly not to be underestimated. Together they are a triumvirate of great constitutional documents.
  2. Magna Carta Uncovered Anthony Arlidge & Igor Judge (Hart Publishing, 2014). Igor Judge was the Lord Chief Justice of England from 2008 – 2013.
  3. Coke was then the Chief Justice of the Court of Common Pleas.
  4. The Imperial Laws Application Act in 1988 s3 declares that 1297 25 Edw I (Magna Carta) c.29 to be part of the laws of New Zealand. This is the only provision of this version of Magna Carta that is specifically in force in New Zealand. It conferred the fundamental right of “due process” now enforceable by the Habeas Corpus Act 1991.
  5. West v Martin [2001] NZAR 49 (CA) at [56]-[57].
  6. See Constitutional and Administrative Law in New Zealand Philip Joseph (4th ed, Brookers Ltd, 2014) at [15.4.5(2)]

Mr Forbes was admitted in February 1970 and joined Christchurch law firm Duncan Cotterill, where he worked as a litigation partner until 1990. He was President of the Canterbury District Law Society in 1988 and began to practise as a barrister sole in 1990. From 1994 to 1997 he was President of the New Zealand Law Society. Mr Forbes was appointed Queen’s Counsel on 27 May 1996 and was awarded the CNZM in 1997. He has been convenor of the New Zealand Law Society’s Rule of Law Committee since 2007.

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