New Zealand Law Society - Rt Hon Sir Geoffrey Palmer KCMG, AC, QC

Rt Hon Sir Geoffrey Palmer KCMG, AC, QC

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New Zealand lawyers do not apply Magna Carta to their problems on a daily basis, although one provision of Magna Carta forms part of New Zealand law. What is its legacy for us?

The original 1215 text was drafted in Latin. Translations are available and the original was a long document with 63 provisions. The political context lay in the egregious misdeeds of King John and the need to control royal power.

This was a highly specific document, so many of the issues have long passed into the depths of mediaeval history. Magna Carta reads like a contract. Devoid of statements of principle it comprised a list of remedies against the abuse of power including:

  • relief from abuses that had crept into the feudal land tenure system, such as scutage and wardship;
  • controls on the levying of charges by the King;
  • the rights of widows;
  • the enforcement of debts;
  • honouring the customs of the City of London;
  • protection against forced service;
  • requiring the royal courts to sit at a fixed place, and the holding of assizes in each county four times a year;
  • limiting fines;
  • placing limits upon the provision of military services;
  • limiting the taking of property and wood without a person’s consent;
  • putting limits on the taking of a felon’s land;
  • obliging the King to follow the law of the land and respect liberty and custom;
  • ensuring freedom of travel for men and merchants in and out of England;
  • a requirement that public officials know the law of the realm;
  • protections for abbeys and the church;
  • investigations into forests, warrens and river banks;
  • the removal from public office of named people;
  • no dispossession of lands, castles, liberties or rights without lawful judgment;
  • the return of fines exacted unjustly and protections for Wales and the Welsh;
  • the appointment of 25 barons to see that the terms of Magna Carta were followed; and
  • pardons for people hurt and who held grudges that had arisen since the beginning of the dispute that led to Magna Carta.

The details are perhaps less important than the symbol Magna Carta later became in the hands of lawyers like Sir Edward Coke and Sir William Blackstone. It marked the beginning of constitutionalism.

The exorbitant demands of the Crown could and should be limited by law. The Crown had systematically abused its feudal prerogatives. Grievances had to be redressed and a system of checks and balances instituted.

In the next hundred years Magna Carta was reissued 38 times. Indeed the original version may have been law for only nine weeks. Nevertheless it stands as a clear example of a remedy against the abuse of royal power.

The Imperial Laws Application Act 1988 s 3 declares those portions of Imperial enactments and subordinate legislation that are part of the laws of New Zealand.

The Act provides that clause 29 of the 1297 version of Magna Carta is law here. It provides:

Imprisonment, etc contrary to law. Administration of justice — NO freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.

It would be an error to think this provision could have no practical application in New Zealand now.

The Great Charter stands as a symbol for the foundation of liberty according to law. In 1957 the American Bar Association erected a monument at Runnymede. This was because of the classical statement contained in clause 29 of the right of the subject to a trial by due process of the law.

Magna Carta will be eight hundred years old this year, a powerful symbol of government under the law.

Sir Geoffrey was admitted in 1965 and practised with Wellington firm O’Flynn and Christie before becoming Professor at the University of Iowa and the University of Virginia. He was Professor of Law at Victoria University from 1974 to 1979 before entering Parliament as MP for Christchurch Central on 18 August 1979. Among his ministerial appointments he was Attorney-General and Minister of Justice from 1984 to 1989, and he was Prime Minister from 1989 to 1990. On leaving Parliament Sir Geoffrey was co-founder of the public law firm Chen Palmer. He was appointed Queen’s Counsel on 1 October 2008. He has chaired a United Nations Panel of Inquiry and was New Zealand’s Commissioner to the International Whaling Commission. Sir Geoffrey is the author or co-author of 12 books, including Unbridled Power. He is a member of the NZLS Rule of Law Committee.

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