Abstract
In this chapter, Breach examines the role of Magna Carta in twenty-first century litigation and its treatment by the judiciary in New Zealand case law. The lay litigant, and the occasional lawyer, who refer to Magna Carta in their arguments often include reference to an idea that the instrument is a source of fundamental rights that can be asserted against the state. This survey of cases canvasses arguments somewhat revolutionary and usually doomed from their outset. Yet it reveals that many New Zealanders view Magna Carta through the lens of its strongest mythology: a symbol of liberty and the rule of law. Their views are shared by prominent politicians, judges and jurists. Breach explores whether Magna Carta can be recognized as a source of principles that approach fundamental law.
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References
Appropriation (Parliamentary Expenditure Validation Bill)—Third Reading (17 October 2006) 634 NZPD 5844.
Baragwanath, David. 2010. Judging: A Butterfly view. Canterbury Law Review 16: 243–255.
Beloff, Michael J. 2015. Magna Carta in the Twentieth and Twenty First Centuries. Denning Law Journal 27: 1–44.
Blackstone, William. 1765. Commentaries on the Laws of England, 4 vols. Oxford: Clarendon Press.
Bogdanor, Vernon. 2015. Magna Carta, the Rule of Law and the Reform of the Constitution. In Magna Carta and its Modern Legacy, edited by Robert Hazell and James Melton, 23–41. Cambridge: Cambridge University Press.
Constitution Act 1986. Reprint as at 17 May 2005. Accessed 1 March 2017. http://www.legislation.govt.nz/act/public/1986/0114/latest/DLM94204.html.
Clark, David. 2000. The Icon of Liberty: The Status and Role of Magna Carta in Australian and New Zealand Law. Melbourne University Law Review 24: 866–892.
Coke, Edward. 1680. Magna Charta. London: Printed by the assignees of R. and E. Atkins for T. Simmons.
Criminal Procedure Legislation Bill—First Reading (4 December 2012) 686 NZPD 7074.
Electoral Act 1993. Reprint as at 1 July 2016. Accessed 1 March 2017. http://www.legislation.govt.nz/act/public/1993/0087/latest/DLM307519.html.
Finn, Jeremy. 1989. The Imperial Laws Application Act 1988. Canterbury Law Review 4: 93–102.
Habeas Corpus Act 2001. Reprint as at 18 October 2016. Accessed 1 March 2017. http://www.legislation.govt.nz/act/public/2001/0031/latest/DLM91755.html.
Human Rights Act 1993. Reprint as at 15 June 2016. Accessed 1 March 2017. http://www.legislation.govt.nz/act/public/1993/0082/latest/DLM304212.html.
Imperial Laws Application Act 1988. (1297) 25 Edw 1 (Magna Carta), c 29. Reprint as at 26 March 2015: Schedule 1 Imperial enactments in force in New Zealand. Accessed 1 March 2017. http://www.legislation.govt.nz/act/public/1988/0112/latest/whole.html#DLM135084.
Judicature Modernisation Bill—In Committee (23 August 2016) 716 NZPD 13072.
Joseph, Phillip. 2014. Constitutional and Administrative Law in New Zealand. Wellington: Thomson Reuters. Fourth edition.
Mortimore, Roger. 2015. What Magna Carta means to the British Public. In Magna Carta and its Modern Legacy, edited by Robert Hazell and James Melton, 56–74. Cambridge: Cambridge University Press.
Motions—Magna Carta—800th Anniversary. (16 June 2015) 706 NZPD 4385, 4388, 4397.
New Zealand Bill of Rights Bill—First Reading (10 October 1989) NZPD 13038.
New Zealand Bill of Rights Act 1990. Reprint as at 1 July 2015. Accessed 1 March 2017. http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html.
New Zealand Law Society. 2015. The rule of law is alive and well in New Zealand. Accessed 27 October 2016. https://www.lawsociety.org.nz/news-and-communications/news/the-rule-of-law-is-alive-and-well-in-new-zealand.
New Zealand Bill of Rights (Private Property Rights) Amendment Bill—First Reading (11 May 2005) 625 NZPD 20496.
Orth, John V. 2016. The Past is never Dead: Magna Carta in North Carolina. North Carolina Law Review 9: 1635–1652.
Pollock, Frederick, and Frederic Maitland. 1898. The History of English Law Before the Time of Edward I, 2 vols. Cambridge: Cambridge University Press. Second edition.
Questions—Brian Donnelly (7 November 2007) 643 NZPD 12845.
Rothschild, Mike. 2013. The Legal Gibberish of “Freeman on the Land”. Skeptoid. Accessed 27 February 2016. https://skeptoid.com/blog/2013/10/14/the-legal-gibberish-of-freeman-on-the-land/.
Valedictory speech—Rt Hon. Mike Moore (24 August 1999) 579 NZPD 18734.
Wheen, Nicola R. 2002. Fairness and Indigenous Forests law in New Zealand. Asia Pacific Journal of Environmental Law 7: 7–24.
Acknowledgements
My thanks to my Grandmother‚ Pauline Mary Biggs, for her encouragement to pursue this project. I am grateful to Dr Chris Jones and Professor Jeremy Finn for their support with this essay and other Magna Carta related projects.
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Breach, L. (2017). The Utility of a Medieval Charter in New Zealand Litigation: The Case of the Magna Carta. In: Winter, S., Jones, C. (eds) Magna Carta and New Zealand. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-58439-3_9
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