Fearing that King Charles II’s successor might disregard their liberties, the English parliament passed the Habeas Corpus Act in 1679.

Whilst the Magna Carta stated that no one could be imprisoned unlawfully, by 1679, the writ Habeas Corpus gave a person who is imprisoned the opportunity to go before a court and challenge the legality of their imprisonment. Habeas Corpus means ‘bring out the body’ ie an order compelling the jailer/king/State to bring the prisoner to court to explain why they are held captive and if no legal reason is found, they must be released.

The Act remains in effect and has been included as a fundamental right in many common law countries.

After authoritarian King James II fled to France in 1688, Parliament required the next King, future King William III (and wife Mary), assent to the Bill of Rights before they could take the Crown.

The Bill of Rights was presented to the parliament as ‘the second Magna Charta’ to preserve the ancient rights and liberties of the nation.  It listed the wrong doings of King James II and echoed the Magna Carta with its insistence on due process, no taxation without agreement, and freedom from government interference. It also established the principle of frequent parliaments, free elections, and free speech within parliament.  The main principles are still in force today and is considered a Constitutional document of England. The Bill of Rights became a model for the US Bill of Rights and UN Declaration of Human Rights.

The drafters of the US Declaration of Independence, Constitution and Bill of Rights wanted to recognise the same rights as they had in England and strived for protection from oppressive rule through checks on government power.  They drew inspiration from the English legacy of Sir Edward Coke’s Petition of Right and the Magna Carta. It declared Governments are instituted among Men, deriving their just powers from the consent of the governed. The 5th Amendment to the Constitution (part of the Bill of Rights) is derived from Magna Carta ‘no person shall… be deprived of life, liberty, or property, without due process of law.’

The legacy of the Magna Carta, instilled in English law, came as part of the ‘invisible cargo’ with the First Fleet on settlement in Sydney Cove in 1788. The Magna Carta formed the basis of the vision that all Australians would be treated consistently and fairly under the law.

With the First Charter of Justice came the start of the rule of law and Courts that provided, in a limited way, the birthrights and liberties that were inspired by the Magna Carta.

The Australian Constitution came into effect in 1901 and was based upon the rule of law, with the separation of powers to provide a check on government power and protect the rights of the people.

As stated by Hon Susan Crennan AC QC, former Justice of the High Court of Australia in her speech ‘Magna Carta, Common Law Values and the Constitution’:

“The Australian Constitution, a law of the Imperial Parliament, was not drafted in the context of any rupture, war or revolt against the supremacy of Westminster. It contains no Bill of Rights which prevents the legislature from passing laws that infringe such rights. It is readily distinguishable from the American Constitution, not least because it contains nothing equivalent to the guarantees of due process to be found in the Fifth and Fourteenth Amendments. The distinct features of the Australian Constitution blend three aspects of political and constitutional theory: responsible government derived from the British constitutional tradition; the separation of powers derived from the American Constitution; and our own local, colonial understandings of democratic theory and principles. It was obvious from the start that, although the Constitution contains no specific provisions for judicial review ensuring the constitutional validity of laws, the framers plainly intended that the High Court should, as Alfred Deakin put it, decide “the orbit and boundary of every power.”

The UNDHR is a treaty that preserves peoples’ peace and freedom and is considered the Magna Carta of our age. It was the first declaration that recognised the fundamental rights and values of all people, everywhere. Drafted by Eleanor Roosevelt, Chair of the UN Commission on Human Rights, the UNDHR recognises its origins: ‘The international Magna Carta is for all men everywhere.’

The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) provide a detailed description of the rights presented in the UDHR, for modern times. The legacy of the Magna Carta can be seen in many of the clauses.

For example Article 9 of the ICCPR aligns with clause 40 of the Magna Carta and due process:

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judical power and shall be entitled to trial within a reasonable time or to release.

Article 2 of the ICESCR relates to the Magna Carta and the rule of law generally:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.