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2015 Magna Carta Lecture: speech, Canberra

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24 June 2015



Often, it is in retrospect that particular events assume their greatest importance.

When the English barons gathered at Runnymede to parley with King John, they weren’t thinking of history; they were thinking of themselves.

They weren’t conscious of universal rights; they were conscious of their own grievances.

For the most part, the Magna Carta reads like a log of claims against the king.

Merely to make such claims, though, reveals a clear understanding that the king can’t do what he likes, and that a subject has rights even against a sovereign.

Even in the 13th century, this was not a novel concept.

Even then, the king’s coronation oath typically included a promise to govern according to law.

It wasn’t long, though, before the Magna Carta came to be seen as a constitutional watershed binding all future kings.

So, tonight, we remember the events 800 years ago that have so shaped the way we think about government.

And we celebrate the rule of law without which freedom cannot exist and without which might is the only right.

It is paradoxical that this event, so associated with the rule of law, was the product of a barons’ mutiny.

As Winston Churchill once observed, the English-speaking world “owes more to the vices of King John” than it does to the labours of many virtuous sovereigns.

This birth certificate of democracy owed almost nothing to abstract analysis and everything to a practical bargain between discontented nobles and their grasping king.


It became a landmark in our constitutional evolution because it formulated that growing sense that the exercise of power and the imposition of taxes should not be arbitrary.

That first Magna Carta lasted just ten weeks, but another was issued in 1216, and another in 1217.

Henry the Third re-issued it again in 1225 after more contention with the barons over tax.

In 1258, the Provisions of Oxford further developed the notion that the king governed by consent.

Edward the First inspected and confirmed Henry the Third’s version in 1297 and directed judges to administer it as part of the common law of England.

It would take centuries of further argument to put beyond doubt the principles of Westminster democracy: that taxing and spending requires the consent of parliament; that the monarch governs through ministers; that the executive is subject to the parliament; and that the parliament should be elected through universal suffrage.

Even so, at key moments in our constitutional history, people have looked to the Magna Carta for inspiration and guidance: in the struggle between the king and parliament leading to the Civil War; at the time of the Glorious Revolution and the English bill of rights; and in the build-up to the American War of Independence which the colonists saw as an assertion of the traditional rights of Englishmen against a distant despot.

It’s not so much what Magna Carta said or did as much as what it has come to represent: people’s freedom to live the life they choose; and political authority chosen by the people and constrained by law.

Thus, Magna Carta has come to be seen, in the words of the famed British jurist Lord Denning, as ‘the greatest constitutional document of all time, the foundation of the freedom of the individual against the arbitrary authority of the despot’.

Our longest serving prime minister, Sir Robert Menzies, appreciated the historical significance to Australia of the Magna Carta.

When an impoverished school in the English West Country put up for sale one of just four surviving originals of the 1297 Magna Carta, Sir Robert decided that it should come here.

So while the British Museum refused to budge from its bid of £2000, Australia offered the full £12,500 asking price.

Of course, in 1951, £12,500 was thought an exorbitant amount for a “piece of old parchment”; you could say it was Bob Menzies’ Blue Poles moment.

But he has been well and truly vindicated and this priceless manuscript now resides in this building - the focus of our democracy.

In 1948, when the United Nations General Assembly adopted the Universal Declaration of Human Rights, Eleanor Roosevelt declared that it would become ‘the international Magna Carta for all men everywhere’.

In pluralist democracies such as ours, it’s tempting to think that democracy and the rule of law represent the universal aspirations of mankind.

Given the option of selecting your rulers, or having them imposed; of submitting to law, or to arbitrary diktat, people’s preferences would indeed seem self-evident.


But things are rarely so clear-cut in the real world.

If Nazi Germany had won World War Two, or if Soviet Russia had dominated the subsequent peace, would the United Nations even exist, let alone the Universal Declaration of Human Rights?

The Nazis and the Soviets paid lip service to legality but in practice Nazi law and Soviet law was whatever the government wanted it to be.

The only check on power was power.

How should a democracy deal with those who would destroy it; how should the rule of law handle those convinced that might is right; and what rights should be accorded to those who don’t themselves respect rights?

It seems that in every generation, liberal democracies must find contemporary answers to these perennial questions.

Freedom can’t be sacrificed in order to be preserved; yet plainly a man with a gun preparing to shoot can hardly be dealt with by a court order.

The citizens of liberal democracies must never be as ruthless or as unprincipled with terrorists as terrorists would be with them.

Still, we have every right to defend ourselves effectively against those who would do us harm.

The rule of law serves just as much to protect us from criminals as it does to protect us from tyrants.

At least in the English-speaking tradition, the executive government has far more often been a protector of people than a persecutor.

The law of the land should be as concerned to protect people from violent criminals as it is to protect them from the excesses of government especially if it’s government “of the people, by the people, for the people”.

Democratic governments can be incompetent and heavy-handed but they are rarely vengeful or ill-intentioned in the way that individuals sometimes can be, even in an easy-going country like Australia.

In New York on September 11 2001, in Bali in 2002 and again in 2005, in London and in Jakarta, Australians were the victims of al Qaeda-inspired terrorism.

This was not political violence over a local grievance.

This was terrorism with global ambitions.

Islamist terrorism boasts that it is coming for everyone.

Especially since the spin-off of Daesh from al Qaeda and the declaration of a caliphate, Islamist terrorism confronts the world with a chilling choice: submit or die.

The only difference between medieval barbarism and Daesh rule is that the beheadings, crucifixions, mass executions and sexual slavery are now recorded for social media.

Daesh currently dominates an area about the size of Italy with eight million people.


Its affiliates are active in large parts of Libya and Nigeria and it is seeking to establish a “far province” in Southeast Asia.

At least 120 Australians are now fighting with terrorist armies in Syria and Iraq among about 20,000 foreign fighters, including nearly 4000 westerners.

At least 160 Australians here are actively supporting them with financing and recruitment.

ASIO is currently pursuing more than 400 high-priority counter-terrorist investigations.

There have already been two Daesh-inspired terrorist incidents here in Australia: the attack on two policemen in Melbourne last September and the Martin Place siege in Sydney before Christmas.

Police and security agencies have disrupted six imminent terrorist attacks.

Daesh social media routinely urges sympathisers to mount attacks in Australia, sometimes observing that all you need is a knife, a flag, a camera-phone and a victim.

Australians should never abandon our freedoms in order to defend them; but defend them we must.

Arguably, the greatest freedom of all is the freedom to live without fear and dread; particularly the fear, and the morbid fascination with evil, that’s at the heart of this darkness.

Along with our allies, Australia is mounting air strikes against Daesh forces in Iraq and training and assisting the Iraqi army to retake their own country.

Working with local community leaders, and with families, we’re trying to ensure that impressionable young people do not succumb to the lure of this death cult.

We’re trying to prevent people from leaving our country to become terrorists; we’re trying to prevent hardened terrorists from coming back; and we’re striving to lock up any that we can’t keep out.

We have a clear message to young people thinking of joining terrorist armies overseas: don’t leave because you’re likely to be killed; but if you do leave, don’t come back, because Australians won’t have terrorists loose on our streets.

We now have counter-terrorist units at all international airports, have questioned hundreds of travellers to the Middle East, and we’ve cancelled at least a 120 hundred passports.

Still, as things stand, putting Australian foreign fighters in gaol is easier said than done, despite new laws making it an offence merely to be present in designated terrorist-controlled areas.

We can’t readily put informers on the witness stand or always make available intelligence without risk to sources and it wouldn’t usually be possible (nor desirable) in such cases to bring witnesses from the Middle East to testify.

On the standard rules of evidence, without a confession, securing a conviction is hardly straight-forward, let alone for crimes committed offshore in ungoverned space.

Bringing foreign fighters back to face trial in Australia risks leaving them free on our streets rather than in our gaols.

That’s why the government has introduced legislation to strip citizenship from terrorists who are dual nationals.


Since 1948, section 35 of the Citizenship Act has provided that dual nationals who serve in the army of a country at war with Australia automatically lose their citizenship.

This section provides for renunciation by conduct.

An Australian who fights against Australia has automatically forfeited the right to be one of us - provided forfeiture doesn’t make someone stateless.

The government is modernising this section by providing that a person participating in terrorism against Australia, likewise, automatically forfeits citizenship.

Stripping citizenship from terrorists who are dual nationals could mean that up to fifty per cent of those who have gone to the Middle East to fight can’t come back.

I stress that this legislation is directed at terrorists, not dual nationals.

Most dual nationals, in fact, are migrants who have become first-class Australian citizens.

Migrants, after all, have voted with their feet for Australia; hence their massive enthusiasm for our country.

To help demonstrate that this is a national security measure (rather than a dual citizenship issue), as part of the citizenship consultation now taking place, the government will consider further measures to stop Australian foreign fighters with no other citizenship from readily returning here.

Fighting for a terrorist group at war with Australia is the modern form of treason - and those who have left our country to fight against us may require a modern form of banishment.

Foreign fighters and home-grown terrorists present the biggest security challenge we have faced for many years.

They must be dealt with in accordance with the principles of a just and decent society; but they must be dealt with.

The first duty of government is the protection of the community; or as Cicero put it 1200 years before Magna Carta: ‘Salus populi suprema lex’, the safety of the people is the supreme law.

The administration of justice according to law is only possible in a peaceful and orderly society.

So, if you leave Australia to fight for terrorist armies in the Middle East, we don’t want you back - and if you’re a dual citizen, we certainly won’t let you back.

On the 800th anniversary of Magna Carta, we shouldn’t just celebrate the rule of law; we must defend it.

This means ensuring that people trying to kill us, for who we are and for what we believe, should not be at liberty to do us harm.

The Daesh death cult has abundantly demonstrated that the first people it’s coming for are the vast numbers of Muslims who don’t agree with it.

Here in Australia, the right to speak your mind is taken from granted.

“Death to the infidel” has never had any currency here in Australia.


We have become appalled at the very idea of killing in the name of God.

An Australian, for instance, could freely echo President al Sisi of Egypt’s warning that Islam needs a religious revolution, without fear of official persecution or need of police protection.

In Australia, and other western countries, along with everyone else, Muslims are entirely free to proselytise for their beliefs.

In parts of the Muslim world, however, the wrong proselytism is punishable by death.

If Islam is to further develop an appreciation of pluralism, it may need Muslims protected by the rule of law and the other principles of liberal democracy that Magna Carta so potently represents.

Australians could help to encourage the easy-going versions of Islam that the world so hopes for.

Security under the law is what our tradition has given people; it’s what the Magna Carta represents.

It’s hard to imagine any human progress without it.