In less than a week we will celebrate the 800th anniversary of the Magna Carta – a 13th century document which is widely recognised as the bedrock of our democracy.
“It was a bunch of barons saying to the king, you can’t just do what you like, there is a rule of law and we would like you to abide by it, and we want it in writing. And it is fundamental to the rule of law that we have in this country today, that is still being debated,” said Libby Stewart, senior historian at the Museum of Australian Democracy.
Last Friday, Gillian Triggs gave a speech to the annual Human Rights Dinner where she spoke about “the vital role our parliaments play, whether State, Territory or Federal, in protecting our ancient democratic liberties and rights.”
She too made reference to the Magna Carta. After sharing anecdotal history that “King John was probably illiterate and did not sign the document, and the Barons forgot to bring their seals and wax to Runnymede on this historic day”, she highlighted two clauses that she describes as “the defining statements of the rule of law and limits on arbitrary power of the state” which “ring through the centuries and remain the bedrock for principles of justice we struggle to protect in the 21st century.”
No freeman shall be taken or imprisoned or stripped of his rights or possessions, or exiled, or deprived of his standing in any way, …except by the lawful judgment of his equals or by the law of the land. (Clause 39)
To no one will we sell, to no one deny or delay, right or justice.(Clause 40)
Ms Triggs continued…
“It has become a universal acknowledgement of the principles that the sovereign is not above the law and of the sovereignty of parliament. Other legacies of Magna Carta include the right to a fair trial and access to justice; habeus corpus; the ideas that ‘punishment should fit the crime’; that courts should sit regularly in one place; that laws should be written and made public; and that widows should have their inheritance.
Magna Carta is recognized as the foundation of modern democracy and of the common law principle that public officials should justify their activities as necessary and proportional, where they interfere with individual freedoms.
It is the symbolic power of Magna Carta that informs my concern that supremacy of the law over the sovereign (or in today’s parlance, executive government), is under threat in Australia’s contemporary democracy.
Respective governments have been remarkably successful in persuading Parliaments to pass laws that are contrary, even explicitly contrary, to common law rights and to the international human rights regime to which Australia is a party.
A growing threat to democracy is the expansion of discretionary, often non-compellable, ministerial powers that may be exercised with limited or no judicial scrutiny.”
Triggs goes on to express her concerns regarding the expansion of the detention powers of the executive, the rapid extension of counter-terrorism laws, the overreach of data retention laws, the inconsistency in having to obtain a warrant to access the metadata of a journalist when no-one else is similarly protected, the imprecise definition of “advocating terrorism” in the Foreign Fighters Act and its restriction on freedom of movement, the immunity of ASIO officers from civil and criminal prosecution while engaged in ‘special intelligence operations”, the chilling effect that new laws have on legitimate public debate about security operations, attacks on freedom of association, the undermining of judicial discretion by mandatory sentencing, the punitive detention of asylum seekers, the deletion of references to the Refugees Convention from the Migration Act, and the “breathtaking inconsistency” of politicians in supporting the rule of law and freedom of speech.
“These examples of the willingness of parliament to consider and pass laws that breach democratic freedoms, taken individually, might be justified on the grounds of necessity and proportionality. Viewed together they are more than the sum of their parts. They suggest an overreach of power by the executive, (or as Senator Cory Bernardi calls it, “power creep”); a declining willingness of parliaments to defend core freedoms; and the exclusion of judges from interpreting laws according to common law principles of legality or and the presumption that parliament intends to comply with international law.
The proliferation of new laws that diminish our liberties and expand executive powers suggests that respective Parliaments have failed to exercise their traditional self-restraint in protecting democratic rights. Rather, the volume of laws that currently infringe freedoms –Professor George Williams estimates over 350 such laws are on the books at present- suggests prioritizing governmental power has become a “routine part of the legislative process”. As he observes, the enactment of anti-democratic laws has become so accepted that they elicit little community or media responses.”
On Monday night on Q&A, a man who obviously gets his news from the Murdoch press, asked the following question:
JIM ANDERSON: The spin coming from the Left media is that “The Government has stepped up the attack on Human Rights Commissioner Gillian Triggs”. I believe it was Triggs who stepped up the attack on the Government through her unfounded allegations made during the week. As an Australian citizen and taxpayer, when will the Government decide enough is enough, that she has ruined the credibility of the Human Rights Commission beyond repair and disband it?…. The damage that’s been happening to our country, our name,that she has caused is just disgraceful.
Jim Anderson, the disgraceful thing is that people like you and our Immigration Minister read a headline in a Murdoch paper and think you are being told the truth. The disgraceful thing is that a filthy rich meglomaniac uses our country as his plaything and people like you suck it up. The disgraceful thing is that a woman like Gillian Triggs is being attacked by ill-informed morons for doing her job.
To Ms Triggs, I would like to express my admiration for your diligence, your integrity, your fortitude, your intelligence, your tenacity, and your unwavering support for the most vulnerable in our society. You do not stand alone. For every Jim Anderson and Peter Dutton, there are thousands of Australians saying thank you for being such a formidable protector of our rights.
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