Magna Carta Public Lectures
University of Auckland
Monday 6 July 2015
Magna Carta and the Kiwi Constitution
This session looks back upon the roles of Magna Carta
in New Zealand’s constitutional traditions and
examines its present roles, both in law and in the
constitutional imagination.
Video 5 – Q&Ai
Stephen Winter: Usually at this stage it would be my privilege to abuse you with my reflections and
so on. I think we'll move straight on to the questions. Can we get the microphones going Edward and
Ting? Alright, do we have any questions? I think down here, thank you.
Questions: I was just wondering to what extent, both socially and legally, you consider the Magna
Carta to be a formative document in linking the rule of law with rights and liberties in a more general
sense?
Stephen Winter: That sounds like a good question for the Chief Justice.
Judith Collins: Very good question for the Chief Justice?
Sian Elias: Well, I think it was interesting that Eleanor Roosevelt when the Universal declaration of
Human Rights was being settled said she hoped it would be a Magna Carta for the world. So I
certainly think that rights talk comes out of the ideas that we can see in Magna Carta. That's not to
say they were necessarily imminent in it. But certainly it's interesting that Magna Carta's look to for
legitimacy for that development. But it is all about curbing arbitrary power. Yes, did you want to say
something?
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Judith Collins: No, I just thought really if you look at so much of the work that's being done in
particularly in the 20th century over the concept of rights or even human rights being an ideal as
well as something that people are striving for, they always reference back to the Magna Carta. And I
think one of the things the Magna Carta is it's very much about rights, not only about obligations.
And that's probably quite new at that time. I don't know the history, maybe it would say otherwise.
But it's certainly something where it's a manifestation of a concept that people actually had rights.
Lindsey Diggelmann: I was just going to add to that I think.
Stephen Winter: Sorry, we're short on time.
Lindsey Diggelmann: Oh, sorry. Carry on.
Stephen Winter: Can we get a mic to Leo please? So Leo's managing the social media here. And we're
picking up a question here.
Question: Thank you very much. So I've received three questions from viewers of the live stream in
Canterbury. And I'll start with the first for Dr Lindsey Diggelmann: Why do the United States still hold
the Magna Carta dear today after their independence?
Lindsey Diggelmann: Why do the United States still hold the Magna Carta dear today? Good
question because a lot of people have suggested that it's more important to the American political
legal imagination than it is to the British and Commonwealth. It's important to both but someone
said it's more important in America. The track that the ideas of Magna Carta followed was a long
one. And in the 17th century British parliamentarians took up the cause of Magna Carta in their fight
against the Stuart Kings. Now in that time many British people immigrated to what would later
become the United States of America. So there was a long tradition of protest against arbitrary rule
in the colonies. And when, in the 1770s, they were fighting against their British overlords the sorts of
freedoms that they saw as having been in Magna Carta were still very relevant. Now, I mentioned
the Declaration of Independence. Jefferson and his colleagues looked back, not so much to Magna
Carta itself, but to the 17th century British version of what Magna Carta was all about. And they took
inspiration from that. So it's been absolutely central to the Declaration of Independence, to the US
Bill of Rights and to the Constitution. And it remains quoted reasonably frequently I believe in
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Supreme Court and other court decisions. So it's very important still to their way of thinking about
politics and legal tradition.
Stephen Winter: Probably have time for two more questions. Do we have one in here? This
gentleman here in the middle.
Question: I can probably speak from here. Dr Digglemann you, well all the speakers have mentioned
mentioned how it was the 17th century change in the thinking about the Magna Carta. Interested to
know what kind of drove that change that myth making change in thinking that came around that.
Lindsey Diggelmann: It was a moment when, from the point of view of those who were part of
political society, a King, firstly James I but especially his son Charles I, were once again trying to rule
without consultation; were trying to rule in an arbitrary fashion. And, therefore, it seemed to be very
useful to recall an earlier time when that had happened in the 13th century under John. And to
recall some of the things that the barons had done back then to try and curb arbitrary rule. So,
there's a couple of things that come out of Magna Carta. It's about the rule of law, it's about putting
curbs on arbitrary rule. Now there's a particular fellow, without going into any great detail, but
Edward Cook who's a great judicial official at the time was a parliamentary opponent of the Stuart
Kings, and he looked back to Magna Carta. But a lot of his version of it that he wrote about was myth
making. But it was extremely influential myth making. But it was extremely influential myth making.
So it takes the origins, but it adds a lot to it that it's relevant in the 17th century. So that's where a
lot of it comes from.
Stephen Winter: Why don't we take one last one, you said you’d got another one from Christchurch,
Leo?
Question: I do, I have two more have two more.
Stephen Winter: Let's get one and we'll see how we go.
Question: Sure. Ok, so for Hon Judith Collins we have the question - as an MP how valuable do you
think the principles of the Magna Carta are as part of the Constitution and should we ever discard it?
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Judith Collins: Well, I think I can say they are very important. I mean the concept of the rule of law
and the doctrine of the rule of law is something which is considered with every bill that goes through
Parliament in terms of our Bill of Rights Act. And it's the principles of the Magna Carta are what I
believe stays with it and are part of our constitution as opposed to the detail about who was getting
rights or whatever. It is actually extremely important. And if you look at all of the common law
jurisdictions this is not unique to New Zealand, although it is very important to our constitutional
arrangements. I look back to the issue that Lindsey dealt with about why it's so important in the US,
for instance. I think it's because they gave the President the same powers of the King at that time.
But it’s still very important to New Zealand.
Stephen Winter: Thank you. Is the next question an short one?
Question: Yes it's another short one. Very succinct.
Stephen Winter: Very succinct
Question: Yes. So we have Chris from Canterbury asking how important is it that we preserve Magna
Carta in New Zealand as part of New Zealand law for the next hundred years? And he says that's to
Chief Justice Elias.
Sian Elias: Well, again, I think it's very important that we preserve the rule of law because I think it is
totally fundamental to the New Zealand Constitution. But whether that is through the actual terms
of Magna Carta being enacted by the New Zealand Parliament - I don't know if that is so essential.
Stephen Winter: I think that'll bring our question period to an end. And so it will end our session. I
would strongly encourage all of you to come to sessions later this week. Tomorrow will be talking to
the theme, what is it now? 'The Treaty of Waitangi - the Maori Magna Carta?’ and themes drawn
from there - where Judge Carrie Wainwright of the Waitangi Tribunal and Isaac Hikaka of
LeeSalmonLong. And the talk will be chaired by Dr Lisa Chant of AUT down here. Unfortunately the
Attorney General Chris Finlayson is going to be missing the panel. But we're very pleased to
announce that his place will be taken on the panel by Simon O’Connor, National Party MP for Tamaki
and a member of our Magna Carta Commemorative Committee. And he was quite kind and keen to
jump in to take that spot. So if you come along that would be wonderful. And, sorry, there's one last
thing I should say before we close. The Human Rights Centre, New Zealand Centre for Human Rights
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and the Law Faculty have put on the reception that you're all invited to come down to. It's going to
be in room 040B which is sort of just out here, down the left. If you follow people in red shirts they'll
help you get there, ok? It's not that far. And so in closing I'd invite you to help me thank the panel.
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Some of the discussion from the original video has not been transcribed.
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