Lex neminem cogit ad impossibilia — the law compels no man to the impossible. It does, however, compel institutions to identify the authority by which they act.
See also previous article of a few months ago, Magna Carta (April 2026).
Magna Carta 1297 in Australian law: what it established and what it still provides
Source and reception
Magna Carta was first sealed in 1215. It was reissued several times, with the 1225 version issued by Henry III becoming the definitive text. In 1297, King Edward I confirmed the 1225 version and declared it part of the common law. That 1297 version — formally cited as 25 Edw I c 29 — is the version that was received into Australian law through the common law inheritance from England. One of only four surviving original copies of the 1297 Inspeximus edition is held at Parliament House, Canberra.
The Parliament of Australia’s own educational publication, APH Infosheet 23 (Basic Legal Expressions), published by the House of Representatives, states: “Magna Carta is a foundation document of English, and therefore Australian, constitutional law.” That formulation is precise: the document is part of Australian constitutional law because it is part of the English common law and statutory inheritance received by Australia on colonisation.
Statutory status in Australian jurisdictions
In Australian jurisdictions, the operative provision is Chapter 29 of Magna Carta 1297. The 1297 Chapter 29 combines what were originally clauses 39 and 40 of the 1215 text into a single provision. In Victoria, New South Wales, Queensland, and the Australian Capital Territory, Imperial Acts Application legislation expressly preserves Chapter 29 of the 1297 version as part of local statute law. In Western Australia, South Australia, Tasmania, and the Northern Territory, the position rests on reception of Imperial statute law in force in England at the relevant reception date, with Chapter 29 being the provision of operative significance. Across all Australian jurisdictions, Chapter 29 is the provision that remains in force and is the basis for any reliance on Magna Carta in contemporary legal proceedings.
The text of Chapter 29
The authorised text of Chapter 29 of Magna Carta 1297, as set out in the Imperial Acts Application Act 1969 (NSW) and corresponding legislation, reads:
No free man 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.
The foundations established by Chapter 29
Chapter 29 establishes four principles.
First, liberty is the presumptive state of a free man or woman. No taking, imprisonment, dispossession, outlawry, exile, or destruction of standing can precede lawful process. The burden of establishing lawful authority lies on the institution that would exercise compulsion, not on the man or woman subject to it.
Second, condemnation requires either the lawful judgment of peers or the law of the land. This means that adverse action affecting a man or woman’s liberty, property, or standing must proceed through established lawful process. It cannot proceed by administrative assertion or institutional will alone.
Third, justice shall not be sold. The second sentence of Chapter 29 is addressed to the Crown and to all who exercise authority derived from the Crown. Justice is not a commodity and cannot be made a condition of payment or used as an instrument of revenue.
Fourth, justice shall not be denied or deferred. This is a positive obligation, not merely a prohibition. Access to justice cannot be withheld, delayed as a tactic, or defeated by institutional silence.
The due process statutes
Chapter 29 did not stand alone. Two subsequent statutes, both unrepealed and both cited expressly by the Parliament of Australia in APH Infosheet 23, operationalised the due process requirement at the procedural level. The Liberty of Subject Act 1354 (28 Edw III c 3) provides that none shall be condemned without due process of law. The Observance of Due Process of Law Act 1368 (42 Edw III c 3) provides that none shall be put to answer without due process of law. The 1368 Act is significant because it extends the protection to an earlier stage: the compulsion to answer is itself subject to the due process requirement, not only the final condemnation. Both statutes are listed in Schedule 1 of the Imperial Acts Application Act 1984 (Qld) and equivalent legislation in other jurisdictions, confirming their continuing statutory status in Australia.
The Petition of Right 1628
The Petition of Right 1628 (3 Charles I c 1) is part of the constitutional chain that follows directly from Magna Carta. It is in force in New South Wales via Schedule 2 of the Imperial Acts Application Act 1969 (NSW) and in Queensland via Schedule 1 of the Imperial Acts Application Act 1984 (Qld).
The Petition declared two protections of direct relevance. First, that no man shall be compelled to make or yield any gift, loan, benevolence, tax, or other like charge without common consent by Act of Parliament. This is the Parliamentary authority requirement for financial imposition on a man or woman — no money can be taken without Parliament having authorised it by law. Second, that no free man shall be imprisoned or detained without cause shown. This directly restated and extended the Chapter 29 liberty guarantee, requiring that the ground of detention be identified and disclosed, not merely asserted.
The Petition also confirmed that commissions or instructions to officers authorising them to proceed against men and women contrary to the laws and statutes of the realm were void and of no effect. This is the earliest clear statutory statement in the English legal tradition that an officer’s instructions do not override the law. That principle remains fundamental to administrative law in Australia today.
The habeas corpus acts
The liberty guarantee in Chapter 29 of Magna Carta 1297 is a statement of right. The Habeas Corpus Acts provide the procedural mechanism by which that right is enforced in practice. Two Acts are in force in Australian jurisdictions.
The Habeas Corpus Act 1640 (16 Charles I c 10) is in force in New South Wales and Queensland via Imperial Acts Application legislation. It was enacted in direct response to the abuse of detention without cause shown, confirming that any man or woman detained had the right to have the lawfulness of that detention examined by a court, and that officers who refused to comply with a writ of habeas corpus were personally liable.
The Habeas Corpus Act 1679 (31 Charles II c 2) is the more practically significant instrument. It is in force in New South Wales and Queensland via Imperial Acts Application legislation, and its provisions are reflected in equivalent legislation across all Australian jurisdictions. It requires that any man or woman detained be brought before a court promptly so that the court can examine whether the detention is lawful. It imposes penalties on officers and gaolers who obstruct or delay compliance. It sets time limits within which the detained man or woman must be brought to court. It prohibits re-imprisonment for the same cause after a court has ordered release.
The significance of these Acts in the context of this article is that they complete the practical operation of Chapter 29. Magna Carta established that no free man or woman shall be imprisoned except by lawful judgment of peers or by the law of the land. The Petition of Right 1628 confirmed that the cause of detention must be shown. The Habeas Corpus Acts provided the court-enforceable mechanism for testing whether the cause shown is lawful. Together they form a continuous and coherent body of received law in Australia, each instrument building on and reinforcing the foundation established by the one before it.
The rule of law
Underlying Chapter 29 and due process statutes is the principle that a nation is governed by law and that all individuals — including government officers and law-makers — are equally subject to and accountable before the law. APH Infosheet 23 confirms this expressly. The Parliament of Australia has recorded that Magna Carta “is the whole basis of the rule of law” and that it is because of the development of the rule of law that a free democracy is maintained.
Accrued rights and the Acts Interpretation Act 1901 (Cth)
At the Commonwealth level, an additional statutory protection applies. Section 7(2)(c) of the Acts Interpretation Act 1901 (Cth) provides that the repeal or amendment of an Act does not affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act before the repeal or amendment takes effect. The effect, in the context of Magna Carta as received law, is that any right that accrued to a man or woman under Chapter 29 while it was in force is preserved against subsequent Commonwealth legislative change. The right does not evaporate because a later legislature modifies the instrument under which it arose.
Two qualifications apply. First, s 7(2)(c) preserves both rights and obligations without discrimination. If a liability also accrued under the prior law, it survives on the same basis. Second, for State and Territory matters, the equivalent provisions are the State Interpretation Acts and Imperial Acts Application legislation of each jurisdiction, not the Commonwealth AIA. The AIA 1901 governs Commonwealth laws and matters.
The High Court confirmed in Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 that the common law presumption against extinguishment of accrued rights operates independently of the AIA 1901 as a principle of statutory construction, providing a parallel guarantee at common law.
The principle of legality
The article has noted that Chapter 29 does not hold constitutional immunity from parliamentary override in Australian State and Territory jurisdictions. The mechanism that provides practical protection against legislative erosion of the foundations Chapter 29 established is the principle of legality.
The principle of legality is a rule of statutory construction applied by Australian courts, stated in its modern form as a strong clear statement rule. It holds that Parliament is presumed not to abrogate or curtail fundamental rights and freedoms by general or ambiguous words. To displace a fundamental right or freedom, Parliament must do so expressly, using language that makes the intention irresistibly clear. General words will not suffice.
The principle was first stated in Australian law in Potter v Minahan (1908) 7 CLR 277, where O’Connor J held that it was improbable Parliament would intend to overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing that intention with irresistible clearness. The principle has been consistently affirmed since, including by Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, who stated that the principle “is an aspect of the rule of law.” That connection to the rule of law links the principle of legality directly to the foundations Magna Carta established.
The practical consequence is that even where Parliament has the legislative power to displace Chapter 29’s foundations in a particular jurisdiction, courts will not read it as having done so unless the legislative intent is expressed unambiguously and specifically. The foundations are not immune from override; they are, however, protected from accidental or incidental erosion by a strong interpretive presumption that operates at every level of the court system.
The honest position
Chapter 29 of Magna Carta 1297 is part of Australian law. In most jurisdictions its statutory status is confirmed by Imperial Acts Application legislation. It is subject to modification or displacement by State and Territory parliaments, provided the legislative intention is sufficiently clear. It does not hold the status of a constitutional provision immune from parliamentary override in the way that, for example, Chapter III of the Constitution of the Commonwealth of Australia protects the separation of judicial power at the federal level.
What Chapter 29 provides, and has always provided, is the foundational statement of the standard against which institutional conduct must be measured: that liberty is the presumptive state; that condemnation requires lawful process; that justice is not for sale; and that justice cannot be denied or deferred. The principle of legality ensures those foundations are not quietly eroded. The AIA 1901 s 7(2)(c) and the common law presumption against extinguishment of accrued rights ensure that what has already accrued under those foundations is not retroactively stripped away.
The Parliament of Australia has not displaced these foundations. They remain in force.
Update – June 2026: The Bill of Rights 1688 in a South Australian Court of Appeal
The Bill of Rights 1688 is one of the foundational instruments in the constitutional chain that runs from Magna Carta to the present. It confirmed that the rights and liberties of the subject are a birthright, that excessive fines and cruel and unusual punishment are prohibited, and that no taxes may be levied without Parliamentary authority. It is received into Australian law and listed in Schedule 1 of the Imperial Acts Application Act 1984 (Qld) and equivalent legislation in other jurisdictions. It is cited in APH Infosheet 23 as part of Australia’s constitutional inheritance.
In June 2026, the South Australian Supreme Court Court of Appeal delivered a decision confirming that the Bill of Rights 1688 remains operative Australian law with real and practical consequences — and that it had been systematically misapplied by State governments across Australia for over a decade.
The case was brought by Rex Patrick, former Senator for South Australia, and argued pro bono by Chad Jacobi KC with Daniel Lorbeer, instructed by HWL Ebsworth Lawyers. The issue was this: State governments had been refusing FOI access to ministerial briefing documents — documents prepared by officials to assist ministers at parliamentary Estimates hearings — on the basis that releasing them would infringe parliamentary privilege under Article 9 of the Bill of Rights 1688.
Article 9 provides that freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. That provision was enacted in 1688 as a protection for parliamentarians against the Crown prosecuting them for what they said inside Parliament. It was the legislative settlement that followed the execution of King Charles I in 1649, the English Civil War, and the Glorious Revolution — the Crown acknowledging that its power derived from the legislature, not from the divine right of kings.
State governments had inverted that protection entirely. They were using a provision enacted to protect the people from the Crown, to protect the Crown from the people. Releasing a document to a member of the public under FOI does not impeach or question any proceeding in a court. It is disclosure of a document. The privilege was being applied to achieve the opposite of its historical and constitutional purpose.
How the wrong position became settled State law is itself instructive. A 2015 NSW Civil and Administrative Tribunal case involving a self-represented man, Mr Tebbutt, was decided without a proper contradictor to the government’s case. Mr Tebbutt lost. That poorly argued, uncontradicted decision was then cited repeatedly across State jurisdictions, crossing State borders until the inverted position became what courts treated as settled State law — in direct contrast to the position taken in the federal jurisdiction, where Senate Estimates briefs are routinely released under FOI.
The SA Court of Appeal corrected that position. To reach its decision the court traced the history of parliamentary privilege from 1512, through the 1641 Grand Remonstrance, the English Civil War, the execution of King Charles I, the Glorious Revolution, and the enactment of the Bill of Rights in 1688. The decision opens State governments to FOI access to equivalent ministerial briefing documents.
The SA Government may appeal to the High Court. If it does, the Solicitors-General of other States may intervene, making the contest potentially eight parties against one. Whether the High Court ultimately confirms the decision or reverses it, the case has already demonstrated three things directly relevant to the matters this article series addresses.
First, the foundational instruments of English and Australian constitutional law — Magna Carta, the Bill of Rights 1688, and the due process statutes — remain operative, enforceable, and capable of correcting institutional practice that has drifted from their original purpose.
Second, settled law is not necessarily correct law. An uncontradicted, poorly argued decision can become embedded as authority across multiple jurisdictions for over a decade and still be wrong. The fact that a position has been treated as settled does not make it right. The SA Court of Appeal confirmed that by going back to primary sources — the text of the Bill of Rights, its history, and its purpose — and finding that what governments had been doing was a straightforward inversion of what the law actually provides.
Third, the mechanism by which wrong positions become entrenched — institutional repetition of an unanswered precedent, without a properly argued contradictor — is the same mechanism that operates in every area where foundational rights are eroded by administrative convenience. The remedy, as this case demonstrates, is to place the correct argument on the record, properly put, and pursue it.
Fiat justitia ruat caelum — let justice be done though the heavens fall.
This article is for informational purposes only and does not constitute legal advice. Men and women seeking to rely on any of the principles discussed should obtain independent advice from a qualified professional.
Last Updated 3 months ago
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