See also, latest article Magna Carta (24 June 2026).
In the 1297 version of Magna Carta, chapters 39 and 40 of the 1215 original were rolled into one and renumbered as chapter 29. Only three clauses remain on the statute books in England and Wales – freedom of the church, the ancient liberties of the City of London, and the due process guarantee in clause 29.
Chapter 29 of the 1297 Magna Carta remains in force in New South Wales, Victoria, Queensland, and the Australian Capital Territory.
This means the honest answer to the question – which other clauses are most beneficial to men and women – is that in Australian law, clause 29 is the primary surviving operative clause. The other clauses of the 1215 original that had genuine practical force for living men and women have either been repealed, superseded by subsequent legislation, or absorbed into the common law and modern statutes. However, the companion instruments that travelled with Magna Carta into the Australian legal framework are where additional protections are found.
The Surviving Protective Framework
Clause 29 of the 1297 Magna Carta itself contains two distinct protections that are sometimes treated as one. The first is the due process guarantee – no Freeman shall be taken, imprisoned, disseised, outlawed, exiled, or destroyed, nor condemned, except by lawful judgment of his peers or by the law of the land. The second is the justice guarantee – We will sell to no man, we will not deny or defer to any man either Justice or Right.
These are the two components of the 1215 original that were clauses 39 and 40 separately. Combined in 1297 they form the single most powerful protective clause in the foundational constitutional inheritance of Australia.
Beyond clause 29 itself, the protective framework for men and women in Australia is built from the instruments that accompanied Magna Carta through history and into Australian law.
The Liberty of Subject Act 1354 – 28 Edward III
This statute, in force in New South Wales via the Imperial Acts Application Act 1969, provides that none shall be taken by petition or suggestion made to the King or his council, unless by indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done, or by process made by writ original at the common law, and that none be put out of his franchise or freehold unless he be duly brought in to answer and forejudged by course of the law.
In plain English: no man or woman shall be taken or condemned except through the proper process of the common law. This supplements clause 29 by specifying the process more precisely.
The Observance of Due Process of Law Act 1368 – 42 Edward III
Also in force in New South Wales via the Imperial Acts Application Act 1969. This provides that no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land.
In plain English: no man or woman shall be required to answer a claim or charge without proper process – a presentment, a matter of record, or a writ – under the established law. This is the strongest statement of the right not to be put to answer without due process.
The Petition of Right 1628 – 3 Charles I
In force in New South Wales via the Imperial Acts Application Act 1969 Schedule 2 item 6. Enacted following the imprisonment of men without cause shown, the Petition of Right declared that no man shall be imprisoned or detained without cause, that forced loans without consent of Parliament are illegal, and that no man shall be compelled to make or yield any gift, loan, benevolence, tax, or such like charge without common consent by Act of Parliament.
In plain English: no man or woman shall be imprisoned without lawful cause shown, and no money shall be taken from a man or woman without Parliamentary authority. This is a direct precursor to the Bill of Rights 1688 and reinforces the protection against arbitrary detention and arbitrary taxation.
The Habeas Corpus Acts 1640 and 1679
Both in force in New South Wales via the Imperial Acts Application Act 1969. Habeas corpus – produce the person – is the writ that requires a man or woman being held in custody to be brought before a court so that the lawfulness of the detention can be examined. The 1679 Act in particular strengthened the writ significantly, preventing the shifting of prisoners between jurisdictions to avoid the writ and imposing penalties on officers who refused to comply.
In plain English: any man or woman who is detained has the right to require that their detention be brought before a court and examined. If the detention is not lawful the court must order release. This is one of the most practically powerful protections available to any man or woman detained by any authority.
The Bill of Rights 1688
Already examined at length in this project. Its most directly relevant provisions for men and women are the prohibition on excessive bail, the prohibition on excessive fines, the prohibition on cruel and unusual punishments, and the declaration that all grants and promises of fines and forfeitures before conviction are illegal and void.
What This Means Practically
The honest picture is this. The original Magna Carta had sixty-three clauses addressing a wide range of specific mediaeval concerns. Most of those clauses addressed feudal relationships, taxation of specific classes, and specific procedural matters that have long since been superseded or absorbed.
What survived into Australian law – the protective framework that has genuine force for men and women today – is the core that was always the most important: the right not to be condemned without due process, the right not to be detained without lawful cause, the right not to be fined or penalised before conviction, and the right that justice shall not be sold, denied, or deferred.
Those rights, taken together and supported by the principle of legality confirmed in Potter v Minahan (1908) 7 CLR 277 and the jurisdictional error doctrine confirmed in Plaintiff S157, form a protective framework of genuine and verified legal force.
The strength of the framework is not in the number of clauses. It is in the precision and consistency with which the surviving protections are understood and applied.
Fiat justitia ruat caelum. Let justice be done though the heavens fall.
Last Updated 3 months ago
Views: 204