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MAGNA CARTA Myth & Law Part I


In the highly successful 1997 Australian movie, The Castle, Lawrence Hammill (Bud Tingwell) who revealed himself as a retired Queen’s Counsel (QC) and offered to argue the Kerrigan appeal, The thrust of Hammill’s argument was that under section 51(XXXi) of the Australian Constitution the Kerrigans should be paid fair price for their house and that the said house should not be seen just as bricks and mortar but it is a home built with love and full of the Kerrigan’ Family shared memories and precious moments. Needless to say the argument persuaded the Presiding Justice to set aside the Lower Court judgment and find in favour of the Kerrigans. It is worth mentioning that in arguing the case in the Lower Court the Kerrigan’s incompetent lawyer, Dennis Denuto (Tiriel Mora), made reference to the ‘vibes’ all members of the Kerrigan Family felt whilst at home and to Mabo, a decision under which the High Court recognized indigenous title as bestowing good title to ownership of land to no avail.

Section 51 of the Australian Constitution gives Parliament power to make laws for peace, order, and good government of the Commonwealth. Under subsection (xxxi) or (31) that power relates to acquisition of property on just terms from any State or person for any purpose in respect of which Parliament has power…
The purpose of this blog is just to highlight the genesis of power given to Parliaments to make laws in countries really has all stemmed from the works of the original Magna Carta, the Great Charter of the English liberties delivered 19 June 1215 by King John at Runnymede to placate the English Barons. This famous Charter had long been superseded by 20th and 21st century enactments such as Bill of Rights. The American Constitution did not come into official existence till 573 years later in 1787, and the Australian Constitution some 685 years later in July 1900.
The Fifth Amendment to the Constitution of the United States of America: “no person shall be deprived of life, liberty, or property without due process of law” is a phrase derived from the Magna Carta. Likewise the very same Supreme Court of the United States of America referenced direct quote from Sir Edward Coke analysis of the Magna Carta as the pillar of the Sixth Amendment to do with the right to speedy trial of accused persons. Needless to say that Francis Bacon argued that Clause 39 of the Magna Carta was the basis for the sixteenth century introduction of jury system and judicial process. 

Coke used the Magna Carta as political tool and Sir William Blackstone (name familiar to all lawyers) published critical three volume edition of the Magna Carta.
In my next blog I will examine in some details the surviving three Clauses of the Original Magna Carta and the writ of Habeas Corpus.

This post first appeared on Memoirs Of A Barrister, please read the originial post: here

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MAGNA CARTA Myth & Law Part I


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