Anti-Terrorist Laws and the Magna Carta: Public Lecture to Celebrate Anniversary

With the advent of the 800th year of the Magna Carta in 2015, it seems an excellent time to discuss its history as well as its resonance for lawyers, democracy and civil rights, especially in relationship to anti-terrorism laws.

Thanks to Sydney University and the Rule of Law Institute, a public lecture and discussion panel was presented on the evening of 4 June 2015, with the notable Brett Walker SC, Dr Emily Crawford and Professor Colin Wright as the panel guests. What follows is an account and discussion of issues discussed at this public lecture.

History of the Magna Carta

The Magna Carta, meaning ‘Great Charter’, is one of the most famous documents in the world. Originally issued by King John of England as a practical solution to the political crisis he faced in 1215, the Magna Carta established for the first time the principle that everybody, including the sovereign, was subject to the law. Although nearly a third of the text was deleted or substantially rewritten within ten years, and almost all the clauses have been repealed in modern times, the Magna Carta is a foundation stone of constitutional and parliamentary government for Britain and Commonwealth countries globally.

Most of the 63 clauses granted by King John dealt with specific grievances relating to his rule. However, buried within them were a number of fundamental values including Clauses 39, 40 and 42 which form the basis of democracy and the rule of law.

These clauses are detailed as follows:

• Clause 39 - "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."
• Clause 40 - "To no one will we sell, to no one deny or delay right or justice."
• Clause 42 - "In future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear, by land or water, preserving his allegiance to us, except in time of war, for some short period, for the common benefit of the realm. People that have been imprisoned or outlawed in accordance with the law of the land, people from a country that is at war with us, and merchants - who shall be dealt with as stated above - are excepted from this provision."

The Magna Carta and Anti-Terrorism Laws

Clauses 39, 40 and 42 formed the basis for the panel discussion of the introduction of the proposed new Commonwealth anti-terrorism laws to strip dual citizens of their Australian citizenship when involved in a terrorist action in Australia and abroad. Most controversially, there have been discussions that these laws may allow Australians to be made stateless for committing acts of terrorism, despite having no other current citizenship of any other country.

Brett Walker SC

An Australian barrister and appointed as the National Security Legislation Monitor, Brett Walker SC focused his discussion on the resonance of the Magna Carta in Australian Law despite its age.

He made the point that Australia has the singular honour of being the country with the most anti-terrorism laws in the world and advocated for discretion in stripping citizenship and not a ministerial determination, which is what is currently being proposed.

He also mentioned an interesting link with the determination of citizenship stripping by a Minister without the recourse to the Courts. Especially in light of Chapter III of the Commonwealth Constitution, where a court is the only body in Australian law holding the power to apply enacted law to facts, this proposal reverses the judicial check and balance on executive power.

Dr Emily Crawford

Dr Emily Crawford is a lecturer and Co-Director of the Sydney Centre for International Law. Her research interests lie in international law, with a particular focus on human rights and international criminal law.

Dr Crawford made the point that the Magna Carta was the first document to state that Sovereign Rights and Executive Power should not be unfettered. She stated that this remains a powerful and pervasive idea in all law, especially in international law.

This was easily seen with Dr Crawford's example of the Universal Declaration of Human Rights, where the fundamental principles of the Magna Carta are embodied as Articles in the Declaration.

Her focus was on the proposed legislation rendering international citizens stateless, as not only is there a lack of due process (in direct contravention of the Universal Declaration of Human Rights) but there is also a violation of Australia's international law obligations as no citizen can be rendered without a home or a nationality.

An interesting point made by Dr Crawford also revolved around Australia's obligations under the UN Security Council Resolution 278 regarding counter-terrorism laws. She made the point that this particular resolution means that nation states are obliged to take responsibility for their citizens when committing terrorist acts and suggested that there were many questions as to whether the proposed anti-terrorist laws would still remain functional in this aspect.

Professor Colin Wright

The final speaker on the night was Professor Colin Wright, professor of international relations. His presentation revolved around the significance of the Magna Carta as not only a document of historical and legal significance but also a document outlining the principles about how a human being ought to live.

He pointed out that the Magna Carta represented the first attempt to codify the relationship between sovereign power, the law and civil rights and freedoms. However, this had an obvious flaw - that which is sovereign is not just the guarantor of the law but is also the source of the law.

Professor Wright then discussed the differing reactions of many European countries to the problem of terrorism, illustrating that it is a balancing act between guaranteeing the safety of their citizens while not destroying the structure and nature of the society in the process.

A particularly pertinent quote seems to be that from the German Justice Minister:

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800 years of the Magna Carta - APH Article

Event Held by Sydney University and Rule of Law Institute: "Anti-Terrorist Laws and the Magna Carta" - 4 June 2015

Rule of Law Institute