The Centre for the Study of Western Tradition at Campion College invites you to a day conference marking the 8th centenary of the issue of the Great Charter of the Liberties of England (more commonly known as the Magna Carta) by King John in 1215.
This event marked a legal and political watershed, and eventually laid the foundations for lawmaking in England, the Commonwealth and the Americas. 800 years after its initial declaration, can the Magna Carta can still be of relevance and provide guidance to socio-political life? Is the Magna Carta a mere artefact of its time, or are there universal principles embodied in the Charter that can be drawn out and made applicable for the 21st century?
Mr. Julian Burnside AO QC
Julian Burnside is a barrister based in Melbourne. He specialises in commercial litigation. He joined the Bar in 1976 and took silk in 1989. He acted for the Ok Tedi natives against BHP, for Alan Bond in fraud trials, for Rose Porteous in numerous actions against Gina Rinehart, and for the Maritime Union of Australia in the 1998 waterfront dispute against Patrick Stevedores. He was Senior Counsel assisting the Australian Broadcasting Authority in the “Cash for Comment” inquiry and was senior counsel for Liberty Victoria in the Tampa litigation. He is a former President of Liberty Victoria, and has acted pro bono in many human rights cases, in particular concerning the treatment of refugees.
He is the author of a book of essays on language and etymology, Wordwatching (Scribe, 2004) and Watching Brief, (Scribe, 2007) a collection of his essays and speeches about the justice system and human rights. He compiled a book of letters written by asylum seekers held in Australia’s detention camps. The book, From Nothing to Zero was published in 2003 by Lonely Planet. In 2009 he was made an Officer of the Order of Australia.
Dr. Augusto Zimmermann is a Law Reform Commissioner with the Law Reform Commission of Western Australia. He is a former Associate Dean and Director of Postgraduate Studies at the School of Law at Murdoch University, where he currently works as a Senior Lecturer and Unit Coordinator for Legal Theory and Constitutional Law. Dr Zimmermann is President of the Western Australian Legal Theory Association; Editor-in-Chief of The Western Australian Jurist law journal, a Vice-President of the Australian Society of Legal Philosophy and a Fellow at the International Academy for the Study of the Jurisprudence of the Family. Dr Zimmermann has been awarded the 2012 Vice Chancellor’s Award for Excellence in Research, and also been awarded two consecutive Murdoch School of Law Dean’s Research Awards, in 2010 and 2011. Dr Zimmermann has received the Law Lecturer of the Year Award 2013 by Murdoch Student Law Society, in recognition for the outstanding level of teaching, ongoing service and personal contribution provided to his students.
Mr. Tim Wilson (Australian Human Rights Commission)
Magna Carta’s Political Legacy
The Magna Carta established many important legal and political principles that have remained contemporary and relevant. The wording of the Great Charter reflects its time. Its contribution is the process in thinking that it started. Thematically it established broad principles in favour of democracy, the rule of law, government by consent and divided power. Its contribution was to knock the first significant domino that has evolved into modern political and legal thinking and continues to be of contemporary relevance. Sadly these principles are increasingly being ignored for precisely the same reason that King John ignored them in 1215: they are an obstruction to those in power.
Magna Carta, Jury Nullification and the Rule of Law
One of Magna Carta’s enduring legacies is the right to trial by jury. Article 39 famously promises that no free man shall be deprived of life, liberty or property except ‘by the lawful judgment of his peers’. According to Lysander Spooner and others, this not only enshrines the right to trial by jury, but implicitly endows juries with the right, and perhaps the duty, to determine the justice or injustice of the laws under which defendants are tried. In contemporary parlance, Magna Carta permits ‘jury nullification’. Yet some critics of jury nullification contend that the practice is incompatible with another enduring legacy of Magna Carta, the ‘rule of law’. If a jury refuses to convict a defendant, despite finding that he or she has indeed acted illegally, it seemingly subverts the rule of law in the most flagrant manner.
In this paper, after briefly examining the historico-legal question of whether Magna Carta does indeed permit jury nullification, I consider various philosophical questions concerning the practice. Is jury nullification defensible? Where juries have the power to nullify, do they also have the right to do so? Is jury nullification truly incompatible with the rule of law? If so, is this necessarily an objection to it?
Contemporary applications of the Magna Carta principle
It is axiomatic that Magna Carta was a watershed moment in our constitutional history. Aided and abetted by the Church and the merchants in the City of London, the Barons held King John to account and insisted that he personally confirm some class rights and liberties that had been respected by his predecessors. The federal executive has succeeded to the prerogatives of the Monarch and has loosely defined power to manage and administer the nation. Does the modern executive ever overstep as did King John? Is it right that boat people should always be sent back where they came from and that Australian citizens can be imprisoned without trial by control orders? What about cabinet regulations which take water rights away from farmers without market compensation? King John was held accountable by his Barons and the House of Representatives now protects workers against avaricious employers. But who holds Cabinet to account in our first past the post political system? The party whips keep the legislature in line and though the High Court is theoretically independent, its judges are always appointed by the Cabinet whose regulations it is supposed to supervise. Is there any better way to appoint our High Court judges? Do we have cause for concern?
Magna Carta Meets Our man in Havana
In the landmark decision of Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court of the United States upheld the right to habeas corpus under the US Constitution. This paper will explore and comment upon some of the sources laid before the court in that case, as well as the richness of argument around the application of Magna Carta in the context of a 21st-century war. From the Curious Case of the Hottentot Venus (1810), to considerations of contemporary battlefield ethics and executive war, the historical and legal trail from 1215 to the present is quite astounding. Beyond Boumediene, the recent failed renewal of the USA PATRIOT Act – which saw the Senate sitting through a Sunday, and a Democratic President arguing strongly for surveillance powers – illustrate an ongoing tug-of-war between executive power and judicial oversight. Magna Carta features prominently at every turn of a debate that has spanned hundreds of years. A better understanding of its role in legal argumentation is necessary for a global age in which Australia must play its part.
0900 – 0930 Registration
0930 – 1030 Keynote Address: Julian Burnside QC
1030 – 1100 Morning Tea
1100 – 1200 Morning Session:
– Mr. Tim Wilson (Aust. Human Rights Commission)
– Magna Carta Meets our Man in Havana: Assoc. Prof. Patrick Quirk (Aust. Catholic Univ.)
1200 – 1330 Lunch
1330 – 1430 Keynote Address: Dr. Augusto Zimmermann (Murdoch Univ.)
1430 – 1445 Coffee Break
1445 – 1545 Afternoon Session:
– Contemporary Applications of the Magna Carta Principle: Dr. Keith Thompson (Univ. Notre Dame Australia)
– Magna Carta, Jury Nullification & the Rule of Law: Dr. Jeremy Bell (Campion College Australia)
1545 – 1600 Afternoon Tea
1600 – 1700 Final Plenary: All Speakers
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