In a Constitutional State: Magna Carta in New Zealand 1840-2015
| Author | David Clark |
| Position | Professor of Law, Flinders University, South Australia |
| Pages | 44-59 |
44
IN A CONSTITUTIONAL STATE:
MAGNA CA RTA IN NEW ZEAL AND 1840-2015
D C *
A
Magna Carta has survived 80 0 years because it changed and this paper
considers its legal status in New Zealand and the ways it has been used in legal,
political and educational debate. Formally only one section of Magna Carta
1297 remains part of the law of New Zealand but the document represents key
constitutional values such as the rule of l aw, that the executive must obey that law,
and as an icon of liberty. Politically it was used in the nineteenth century to press
for representative government and was part of the legal and educational culture.
Sometimes it acts as the foundation of a contemporary legal idea; sometimes it
was simply irrelevant; and sometime it was invoked in uniquely New Zealand
ways such as the reference to the Treaty of Waitangi and as Maori Magna Carta.
I. I
e question I shall consider this paper is how is it that a classic English
medieval document written in Latin, more often referred to than actually
read, is now the subject of celebration and remembrance in a country then
unknown in 13th century Europe.1 At rst blush Magna Carta seemed
doomed to have a short career since it was a document that survived a mere
nine weeks before being annulled by the Pope on 24 Aug u s t 1 2152, and in
1 For earlier writi ng on Magna Carta in New Z ealand see: K L Sandford “Mag na Carta- Is it
Still Law?” (1938) 14 NZLJ 252-253; A R Perry “An Historical Inter pretation of Magna Ca rta”
(1939) 15 NZLJ 213-214; G G Watson “e Preservation of Libert y” (1943) 19 NZLJ 165-
166; D J Round “Restoring L iberties” [1979] NZLJ 187-192; David Clark “Icon of Liberty :
Magna Car ta in Austra lian and New Ze aland Law” (20 00) 24 Melbourne Unive rsity Law
Review 866-892; David Ba ragwanath “M agna Carta and t he New Zealand Const itution” 29
June 2008 at ; Philip A Joseph Const itutional and Admi nistrative
Law in New Zea land (4th ed, omson Reuters, Welling ton, 2014) at 552-554.
2 C R Cheney and W H Semple (eds) Selecte d Letters of Pope Innoce nt III concerning Engl and
(1198 -1216 ) (omas Nelson a nd Sons, London, 1953) at 212-219. John apparently had t he
intention of askin g the Pope to annul the Cha rter at the time he a ssented to it: C Warren
Hollister “Ki ng John and the Historia ns” (1961) 1 Journal of British Stu dies 1, 15. It is accepted
that John agree d under pressure and one New Ze aland judge calle d the King’s agreement the
result of extort ion: R v Blazina [1925] NZLR 407, 413(CA)(Ostler J).
* Professor of Law, Flinders University, South Au stralia.
In a Constitutional State: Mag na Carta in New Zealand 1840-2015 45
any case it conned itself to parochial medieval concerns.3 Even William
Blackstone thought that its provisions were of a triing concern by the time
he wrote about them in 17694 and Churchill noted that a person taking up
the Charter for the rst time “will be strangely disappointed”.5 As we shall
see, although the great charter is substantively irrelevant to the modern law,
yet it remains after eight centuries of enormous symbolic importance. It is
also clear that one may exa mine the history of the Charter in its medieval
context, but that is a task I leave to medievalist s. Magna Carta a lso had a
history after 1215 down to our own time including in New Zealand.6 I shall
focus on this history.
e short answer to my question lies not in what was said or done in June
1215, but what was made of the document by subsequent generations. Magna
Carta was not the foundation of democratic government,7 or of human
rights,8 as is sometimes supposed for two rea sons. First, such notions did
not exist in 1215. Neither King John nor his barons knew anything of the
constitutional arrangements we now call the rule of law. ey did not know
of written constitutions, a bill of rights, the separation of powers and judicial
independence, let alone universal surage a nd the secret ballot; elements in
short of a constitutional state.9 ese were all creations of later centuries and
they form part of an inherita nce to which New Zealanders have added.10 is
was realized in Australia in 1952 when the Australian Prime Mini ster Robert
3 e best commenta ries are by W S McKechn ie Magna Carta: A Co mmentary (2nd Ed,
James Maclehose a nd Sons, Glasgow, 1914) and J C Holt Magna Carta (3rd Ed , Cambridge
University Press, C ambridge, 2015).
4 Willia m Blackstone Commenta ries on the Laws of England Vol 4 (Univers ity of Chicago Press,
Chicago, 1769, reprinted 1979) at 416.
5 Winston C hurchill Histor y of the English Speaking P eoples Vol 1 (Cassell a nd Co, London,
1956) at xiv.
6 David C arpenter Magna Ca rta (Penguin Cla ssics, London, 2015) is major new account of
the document in its c ontext by a disting uished historian of the period. For a shor t account
see “Brief Histor y of the Magna Ca rta” (2015) LLN 2015/001, House of Lords Library a t
www.parlia ment.uk and James Spigleman “Ma gna Carta in its medieva l context” (2015) 89
Australian Law Journal 383-396.
e history of the C harter bet ween 1300 and 1629 is covered in Fait h omson Magna
Carta: Its Role in th e Making of the English Constitution 130 0-1629 (University of Minnesota
Press, Minnea polis, 1948). Ralph Turner Magna Carta rou gh e Ages (Routledge, L ondon,
2003) takes the s tory up until the 20th cent ury.
7 Ma rgaret atcher cl aimed as much in her sp eech in Bruges (20 S eptember 1988)
margaretth atcher.org>.
8 us c ounsel made th is claim in Bujak v D istrict Court at C hristchurch an d the Republic of
Poland [2009] NZCA 257[29]. All unrepor ted cases were found at .
9 e term “I n a constitutional St ate” comes from a dispa tch by the Colonial Se cretary, the
Duke of Buckin gham and Chandos to Premier St aord in 1867 as reprinted in the Taranaki
Herald (New Zeala nd, 26 October 1867) at 3. All ne wspaper reference s are to the digita l
collection at the Nat ional Library of New Ze aland: .
10 For example, the Māori R epresentation Ac t 1867, the Electoral Act 1893 s 6 that permitte d
women to vote in parlia mentary elections. But c ompare s 9 that stated that women c ould not
be parliament ary candid ates nor could they be elected to parl iament. at was ch anged by
the Women’s Parliamentar y Rights Act 1919 s 2; the Parliamentary Commissioner(Ombudsman)
Act 1962 ; the New Zealand Bill of Rights A ct 1990; Human Rights Act 1993.
46 Canterbury Law Rev iew [Vol 21, 2015]
Menzies, on the occasion of the arrival of a copy of the 1297 Inspeximus
Magna Carta, explained that “e Barons knew nothing of democracy, and
it is not supposed that they thought that they were establishing some form of
de moc rac y …”.11
Secondly, the claim, often encountered, that Magna Carta laid the
foundations12 for these ideas is nonsense and involves a false analog y. When a
builder lays the foundations of a house they know that these a re foundations
for they know what comes next when they follow the plan to complete a
building, but the Barons did not know what came next a nd certainly did
not envisage our current legal and political arrangements or anything like
them. is sort of talk attributes to the actors of June 1215 either the gift of
prophecy, or involves reading into the past present attitudes.13 Take chapter
1 of the Charter, that promised that the English church shall be free. is
had nothing to do with freedom of religion in the modern sense, but was an
assertion that the choice of bishops should be made by the English church
not by the King.14
It is necessary, therefore, to distinguish b etween myth and substance a nd to
notice that the attitudes of previous generations towards the ag reement struck
in June 1215 veered between adulation, sometimes amounting to outright
fantasy, and dismissive irrelevance.15 One Tasmanian writer described the
Charter as “a wilderness of arid phra seology relating apparently to a variety of
local and temporary mat ters then in dispute between a grasping monarch and
his indignant lords”.16 On the other hand, one New Zealand litiga nt actually
thought that Magna Carta implemented the law of God was supreme law
11 Australia, C ommonwealth, Parliamentary Debates, House of Repre sentatives, 19 Augus t
1952, 381. One New Zealand writer ca lled the link age a fable: e Press (Christchu rch, 20
September 1928) at 8. Litigant s have nevertheless attempted to t race democracy back before
1215 : West v Martin [2001] NZAR 49[5](CA). e British tied the Ch arter to democracy in
its exhibition of Ma gna Carta at the World’s Fair in New York in 1939: Auckland Star (New
Zealand , 10 April 1939) at 7. is was part of a Br itish propagand a exercise to inuence
American opi nion: Nicholas J Cull “Overtu re to an Alliance: Br itish Propaganda at the Ne w
York World’s Fair, 1939-1940” (1997) 36 Journal of Br itish Studies at 325-354. Magna Car ta
was the centre piec e of the British exhibit: at 342 -343.
12 “A Charter of Libe rties” e Evening Po st (New Zeala nd, 4 July 1925) at 6; “Pageant
‘Runnymede’” e New Ze aland Herald (Auckla nd, 7 August 1937) at 13.
13 A bad habit of lawyer s who dabble in histor y: F W Maitland “W hy the History of English
Law is Not Written” Collecte d Papers of Frederic William Maitl and Vol 1 in H A L Fisher (ed)
(Cambridge Universit y Press, Cambridge, 1911) at 490-491; P G McHugh, “e Common
Law Status of Colon ies and Aborigi nal ‘Rights’: How Law yers and Historia ns Treat e
Past”, (1998) 61 Saskatchewan Law Review 393 at 429.
14 W S McK echnie, above n 3, at 191-195; J C Holt, above n 3, at 245.
15 Justice omas referred to it as “that mo st venerated document” in Willis v G K line Ltd (1995 )
8 PRNZ 546, 549(HC).
16 “e Bible of t he Constitution” e Mercury (Hob art, 19 June 1915) at 4.
In a Constitutional State: Mag na Carta in New Zealand 1840-2015 47
overriding provisions in the Family Proceedings Act 1986.17 e survival of
the Charter arises chiey because of its sentimental value and because it has
inspired litigants and sometimes judges to attribute to it all manner of legal
phenomena that are not warranted by the historical evidence.
II. A A D
From the very beginning Magna Carta was not a static document and of
course it came to be transformed in the course of its long history as it was
put to new uses in later centuries, usually to justify changes not thought of
in the 13th century.18 at many of these arguments were strictly fa lse and
involved historical falsicat ion is to miss the point. e history of the Char ter
after 1215 explains its survival and its ability to adapt to new circumstances.
Change became the secret to its survival and was a characteristic of Magna
Carta from the outset. ere were six versions of Magna Carta in the 13th
century. e rst four were charters and the last two were given status as
statutes. Even the name came later in 121819, as did the practice initiated by
Blackstone in 1759 of dividing the document into chapters.20
Magna Carta 1215 only lasted until the Pope annulled it on 24 August
1215.21 It was later reissued in a shortened form after John’s death by his
successor, the nine-year-old Henry III in 1216 and again a year later in 1217.
At the same time a version was created for Ireland.22 e contents of these
charters are dierent and it is possible to trace these dierences thanks to
the work of two Australian scholars in 1984.23 None of these charters had
statutory status until Ma gna Carta was enacted in 1225.24 It was this version
17 Legal Aid Re view Panel Decision No 0 07/07[2006] N ZLAR P 169[22]. e panel rejected
the argument cit ing Phillip Joseph, Constitution al and Administrative Law in New Zea land,
para 14.4.1. As did the ACC Appeal s panel in Carter v Accident Compensation Corporation
[2015] NZACC 202[5] where the applicant a sserted that due process h arked back to “… the
‘biblicall y based common law of England ’ and Magna Cart a”.
18 is wa s a marked feature of legal a nd constitutional argume nt in the seventeenth century:
Maurice Ash ley, Magna Carta in the Seventee nth Century (1965 ).
19 A lbert White “Note on the Name Mag na Carta” (1917) 32 English Historical Review at 554-
555.
20 William Blackstone “ e Great Charter a nd the Charter of t he Forest” (1759) in William
Blackstone, L aw Tr act s, Vol 2 (1762) at xxvi note. Until 1946 the C harter was spelled M agna
Charta: Briti sh Museum Act 1946(UK ) s 1. Early New Zeal and cases adopte d the Charta
spelling: Crawford v Lecren [1868] 1 NZCA 117, 120. Russell v Minister of Lands (1898) 17
NZLR 241, 250(SC); Waipapakura v Hempton (1914) 33 NZLR 1065, 1072(SC). See also
‘Magna Char ta or Carta?’ e Even ing Post (New Zealand , 17 June 1939) at 8.
21 Cheney a nd Semple (eds), above n 2, at 212-219.
22 Magna Carta Hiber niae (12 November 1216) may be found at
23 Michael Eva ns and R Ian Jack (Eds) Sour ces of English Legal and Const itutional History (19 84)
55-6 0.
24 9 Hen III c 1; 1 Statutes of the R ealm 22-25.
48 Canterbury Law Re view [Vol 21, 2015]
that appears in the statute book and in 1297 it appeared there again.25 e
enactment of 1297 is of particular importance for New Zealand as Chapter
29 has been retained, as we sha ll see later, as part of the inherited imperial
law of the country.
Once the Charter was sea led on 15 June 1215 it was then ordered to be
published on 20 June26 and, despite its vicissitudes, it survived in the early
centuries by being enforced 27 as well as being conrmed over 60 times
between 1225 and 1422 by English acts of Parliament.28 It was also extended
in three statutes in the 14th century when the famous phrase “due process of
law” was added to the statute book.29
III. S S N Z
It has been said that Magna C arta followed the ag as the British expa nded
their Imperial reach.30 Blackstone maintained that the law arrived with the
British settlers but, in formal terms, the lega l position was more complex than
that. e New Zeala nd parliament moved early to pass a statute declaring that
all British and Engli sh statutes existing on 14 January 1840 were automatically
part of the law of New Zeala nd “so far as applicable to the circumstances
of New Zealand”.31 is early statute was replaced, but the reception date
principle was rearmed in 1908.32 ere were diculties with this approach.
For one thing, it meant that ancient statutes passed in another country and
to deal with other problems would have to t new circumstances. Given that
the British Parliament repealed most of Magna Carta 1297 between 1863
25 Magna Carta 1297, 25 Edw I c 29; 1 Statute s of the Realm 114-119 or at
For the text of the va rious versions including the a rticles of the Barons t hat preceded 1215 see
Henry Rothwel l (Ed) English Historical Docu ments 1189-1327 (1975) at 310-496.
26 I W Rowlands “e Text and the Distribution of t he Writ for the Publication of Mag na
Carta, 1215” (2009) 124 English Historical Review 1422-14 31.
27 Calendar of Pat ent Rolls, Edward IV, Edward V, Rich ard III, 1476-1485 (1901) 23.
28 Faith ompson “Parliamentar y Conrmation s of the Great Charter ” (1933) 38 American
Historical Review 659-672. Note: Magna C arta is an En glish document a nd Act and does
not apply in Scotland , as the Scotti sh Law Society poi nted out to the House of Commons
in 2007: Memorandum of the S cottish Law Soc iety, Parliament, UK < www.publication s.
parliament.uk>.
29 28 Ed III c 3(1354), 1 Statutes of the Rea lm 345. ese are enactments tha t are still part of
the law of New Zea land: Imperial Laws Applica tion Act 1988 (NZ).
30 Calder v Attor ney General of British Col umbia [1973] SCR 313, 395(SCC). See also Attor ney-
General for Can ada v Attorney-Ge neral for Quebec [1921] 1 AC 413, 422-423(PC).
31 English Law s Act 1858 s 1; King v Johnson (1859) 3 NZ Jurist Report s (NS) SC 95, 95(Johnson
J) For a useful d iscussion see Peter Spiller, Jeremy Finn and R ichard Boast, A New Zealand
Legal History (2nd ed, omson Reuters, Welling ton, 2001) at 76-77. Both the statutor y
versions of Magna Ca rta of 1225 and 1297 were included in lists of Imper ial Acts in force
in New Zeal and: Butterworth’s Annotations of New Zealand Statutes, Vol II(Statutes) 1841-
1928(1929) at Table 2.
32 Eng lish Laws Act 1908 s 2. Falkner v Gisborne District Council [1995] 3 NZLR 622, 625(HC).
In a Constitutional State: Mag na Carta in New Zealand 1840-2015 49
an d 1969 33 because its terms were either obsolete as they dealt with medieval
circumstances that had passed into history, or because some of the problems
had been addressed in later statutes, the problem for New Zealand was
whether the wholesale adoption approach rem ained useful.
A Law Commission report in 1987 recommended a special statute that
identied particular I mperial enactments for retention and also identied the
provisions of those acts that would remain part of New Z ealand law. In the
case of Magna Carta, the Commission noted34 that it was part of a body of
legislation that documented “critical features of our history and contributed
to our political and constitutional principles and systems”. e result was
the Imperial Laws Application Act 1988(NZ), which, by s 3(1) and the First
Schedule, retained chapter 29 of 1297 as part of the law of New Zealand.35
Unlike the Victorian Imperial Acts Application Act 1980(Vic), which also
helpfully set out the text of the retained statutes, the New Zealand Act did
not do this, but the New Zealand Statutes Database on NZLII does include
the text in modern English of chapter 29 of Magna Ca rta 1297 and also the
three 14th century statutes that ex tended it. 36
I V. U C
A. As an irrelevant reference by self-represented litigants.
Litigants have from time to time invoked Magna Ca rta for modern
purposes by attributing to the Char ter notions that were unknown in the
33 Magna Carta 1297, 25 Edw 1 c 9 as amende d, available at ww.bailii .org> (this source
details t he repeal history bet ween 1863 and 1969); Mayor, Commonality & Citiz ens of London
v Samede [2012] 2 All ER 1039, 1049[30](CA). Only three substa ntive provisions remain as
part of Engl ish Law. Chapter 1: that the Eng lish Church sha ll be free, Chapter 13 on t he
liberties of L ondon and the famous Ch apter 29 that combines the l anguage of Ch apters
39 and 40 of Magna Ca rta 1215. e vicissitudes of the legis lation reects t he observation
made of Magna Ca rta in Chester v Bateson [1920] 1 KB 829, 832(KBD) by Darling J in an
allusion to Dan iel 6:15 that “It is not condemned to that immun ity from development or
improvement which was at tributed to the laws of the Medes a nd the Persians”.
34 New Zealand, L aw Commission, Report No 1, Imperial Le gislation in Force in New Zealand
(1987) at 1 [5].
35 Grant v Aplin [200 0] NZCA 256[11]; Drezliozis v Wellington District Court [1994] 2 NZLR
198, 199-20 0(C A); Waitakere City Council v Estate Homes Ltd [2007] 2 NZLR 149, 168[45]
and footnote 20(SC); Chie f Executive of Depa rtment of Labour v Yade gary [2009] 2 NZLR
495, 517[75](CA). For an illuminating d iscussion of the 1988 Act see Jere my Finn “e
Imperial Law s Application Act 1988” (1989) 4(1) Canterbury Law Review 93-102.
36 e provisions of 1297 in force in Ne w Zealand are reprinte d in 30 Revised Statutes of Ne w
Zealand (1994) Part II, 25 -27. Criminal Justice Sta tute 1351(25 Edw 3, St 5, c 4); Civil and
Criminal Ju stice Statute 1354 (28 Edw 33, c 3); Observance of Due Proce ss of Law Statute
1368 (42 Edw 3, c 3). Also listed i n Imperial Laws Application A ct 1988, First Schedule by
regnal yea r only. e concept as it was understood in t he 14th century i s explained by Keith
Jurow “Untimely oughts: A R econsideration of the Origin s of Due Process of Law” (1975)
19 American Jo urnal of Legal History 265 , 265-279.
50 Canterbury Law R eview [Vol 21, 2015]
13th century. One applicant in a habeas corpus matter heard in Hami lton in
2013 claimed that children were taken from their parents in breach of Ma gna
Carta.37 Katz J simply disregarded this argument as irrelevant to the modern
New Zealand law. In another habeas corpus matter in the same year, the
applicant invoked Chapter 29 of Magna Carta 1297 as part of the application
with an equal lack of success.38 Although the linka ge between habeas corpus
and Magna Car ta is often made,39 Magna Carta did not create habeas c orpus,
which is known to exist in 1206 40 and 1 214,41 for the history of t he writ shows
that it really expanded later in the 13th century and in its modern form as a
writ of habeas corpus ad subjiciendum, especially from the 1580s onwards.42
Another instance of the irreleva nce of the Charter despite its frequent
invocation is in relation to the right to a trial by jury. e Court of Appeal
has pointed out its irrelevance in a civil matter, noting that if Chapter 29
referred to jury trial at al l, it only referred to criminal trials.43 e Supreme
Court dismissed a n appeal from this decision and added that, “Any operation
Magna Carta may once have had in relation to civil proceedings has now
been plainly displaced by s 19A”.44
B. As a foundational reference in an argument based on contemporary
New Zealand Law.
One of the problems with a medieval law is that its terms referred to
notions not in existence in New Zeala nd. e courts have responded to this by
adapting the langu age of the Charter to modern New Zealand circum stances.
us the term “peers” in Chapter 29 once referred to barons and, in England,
special rules existed for the trial of peers by other peers until the abolition
of such trials in 1948.45 Of course. New Zeala nd does not have a peerage
and, in 2011, the Court of Appeal endorsed the idea put forward by the Law
Commission that peers means a trial by one’s social equals.46 Despite this
adaption, the case actually turned on the Juries Act 1981, which, of course,
37 PG v Chief Execu tive of the Ministry of Social De velopment [2013] NZHC 3089[22], [28].
38 Rangitaawa [20 13] NZ HC 4 [1].
39 See the debate on the Hab eas Corpus A mendment Bill in 687 New Zealand Parliamentary
Debates (20 February 2013) 8069; 688 New Zealand Parliamentary Debates (27 March 2013)
9002.
40 Tebbaldus de Bilton v Wiltelmun fratem suum, Trin 8 John 1, 4 Curia Regis Rolls 153 r 41 m
8(120 6).
41 Baldwin Tyrell’ s Case (1214) in F W Maitland (ed) Select Pleas of the Crown 1 (B Qua ritch,
London, 1887) at 67.
42 Paul Halliday Habeas Cor pus: From England to Empi re (Harva rd University Press, Bos ton,
2010) at 4-5.
43 Gregory v Golla n (2008) 19 PRNZ 450[22]-24].
44 Gregory v Gollan [20 09] NZSC 29[3] referring to s 19A of the Judicature Act 1908.
45 Crim inal Justice Act 1948(UK ) s 30(2).
46 Ellis v R [2011] 4 LRC 515, 526[34](NZ CA) this proposition was ac cepted on appeal: [2011]
NZSC 60[4].
In a Constitutional State: Mag na Carta in New Zealand 1840-2015 51
supersedes anything said in Magna Carta.47 e court referred to remarks
by Cooke P in an earlier case, where Magna Carta and other statutes were
invoked in a jury question where he wrote: “Important though these certa inly
are … they do not seem to have much bearing on the present case”. 48
A distinctive feature of Mag na Carta in New Zea land has been the frequent
citations of the Charter in property ca ses. us the Charter has been invoked
to resist the imposition of Customs dues and the conscation of illegally
imported motor vehicles.49 e argument raised by the importer that chapter
28 of Magna Carta 1215 provides for compensation for the taking of private
property was rejected by the court.50 Since 1215 was not a statute, chapter 28
is not part of the law of New Zealand. e later 14th century statutes that
extended Magna Car ta and which are part of the inherited law of the country
refer to legal processes according to the law of the land, that is, due process
of l aw.51 Justice Baragwanat h, in rejecting the chapter 28 argument, pointed
out that the constitutional statutes operated in a quite dierent context and,
while they came to be used over time to sta nd for a general constitutional
principle,52 they could not displace valid legal processes in modern statutes.
It is also worth noting that due process means processes now in existence in
New Zealand law, not the processes of the 14th century. Similarly, the law of
the land means the law of this land, that is, New Zealand, not 13th century
England.53
47 Ba rker ACJ pointed out in Drezolis v Wellington District Court [1994] 2 NZLR 198, 200(HC)
that there is no spe cic reference in Ma gna Carta to t he right to trial by jur y. At the time
trials were c onducted by ordeal, compurgation and batt le: R v J(SM) (2013) 117 SASR 535,
541-542[30]-[39](SC). See also Roger Groot “e E arly 13th Centur y Criminal Jur y” in
J S Cockburn a nd omas A Green (eds) Twelve Good Men and True: e Crim inal Jury
Trial in England, 1200 -1800 (Princeton Univers ity Press, New Jerse y, 1988) 3-35 and R C
Van Caenegem “A Note on Chapter 39 of Magna Ca rta” (2014) 20(2) Fundamina 961, 963:
“Chapter 39 says nothi ng about jury trial and ha s nothing to do with it”.
48 Ellis v R [2011] 4 LRC 515, 528 [40](CA) citing R v Corneli us [1994] 2 NZLR 74, 82(CA). See
also Prescott v Auckland Council [2013] NZHC 1799[12] where Woolford J rejected a Mag na
Carta ar gument in favor of a right to a jury t o decide an appeal from a deci sion of the District
Court.
49 Mihos v Attorney-General [2007] NZHC 1802. See also Middl eton v Timaru District Coun cil
[2012] NZHC 3471 where dogs were seized by the Cou ncil and the owner was obl iged to pay
fees to get them bac k. Magna Carta wa s cited but rejected by the court at [10], [12]-[13].
50 Chapter 28 was a lso cited in Waitakere City Cou ncil v Brunel [2008] NZHC 1406[18] where
Baragw anath J noted that t he implicit requirement of compen sation was as old as “t he
repealed Chapt er 28 of the Magna Ca rta”. Chapter 28 of Magna Ca rta 1215 reappeared
as Chapter 19 of 1297 with slight ly dierent wording , but was not incorporated i nto New
Zealand l aw by the Imperial Laws Applic ation Act 1988, which only retained Ch apter 29 of
12 97.
51 Mihos v Attorney-General [2007] NZHC 1802[28]-[36]. See also United State s v Dot Com
[2012] NZHC 2076[76] where a regular legal pro cess was said to be as old a s Magna Carta.
52 At [36] citin g Priestley JA in Adler v Distr ict Court of New South Wales (1990) 48 A Crim R
420, 449(NSW C A). See also West v Martin [2001] NZAR 49(CA) where the a ppellant cited
the due process st atutes of the 14th century along w ith Magna Carta to no ava il.
53 Westpac Banking C orporation & Ors [2001] WASC 365[60](Hasluck J).
52 Canterbur y Law Review [Vol 21, 2015]
Unlike other Bills of Rights, t he New Zealand Bill of Rights Ac t 1990 does
not specically protect property54 and proposed amendments to the Act to
include property were rejected by Parliament.55 As the Supreme Court pointed
out in 2007, despite the reference to taking in Magna Carta, the law does
not prevent the State from taking land for planning purposes, for example.
Normally the law allows for compensation, and, if not, the presumption is
that compensation will be paid,56 subject to exceptions in planning matters
where the denial of development permission may result in reduced land
values. But this has been ta ken to be regulation and not a taking.57 e case,
of course, demonstrates how the law has developed since 1215 as well as the
inuence of a 13th century idea.58 e problem with Magna Carta is that
it did not explain how compensation is to be calculated and this is a matter
dealt with under contemporar y legislation.59 e prohibition on taking means
that normally expropriation of property by the State or its agencies must be
authorized by law and in that sense the insi stence on due legality is in keeping
with the spirit if not the letter of Magna Carta.60 In short, Magna Carta wa s
not, as one judge noted, an early public works compensation scheme.61
C. As a failed argument to invalidate New Zealand Laws.
A surprising number of litigants have sought to advance the a rgument
that Magna Car ta has some elevated constitutional status, such that it may be
employed by a New Zealand court to invalidate a ny New Zealand statute that
conicts with it. us parties have sought to challenge taxation statutes,62
54 Waitakere City Council v Estate Homes Ltd [2007] 2 NZLR 149, 168[45](SC) (allowing the
appeal from [200 6] 2 NZLR 619(CA)); Cooper v Attorney-General [1996] 3 NZLR 480,
484(HC).
55 A propos ed New Zealand Bill of R ights (Private Propert y Rights) Amendment Bil l 2005 did
not make it past the R eport of the Justice and Elec toral Committee in Septemb er 2007.
56 Waitakere City Council v Estate Homes Ltd [2007] 2 NZLR 149, 168 [45]-[46](SC).
57 At 168[47]. For a discussion of th is area of the law see Chye- Ching Huang “e Cons titution
and Takings of Proper ty” (2010) 24(4) NZULR 620-648.
58 In Robertson v Auckland Council [2014] NZHC 765[32] Fogarty J note d that the provision
of compensation for the publ ic taking of private proper ty was well establi shed and that “is
heritage can b e traced to Chapter 29 of the Mag na Carta”.
59 Waitakere City Council v Estates Homes Ltd [2007] 2 NZLR 149,168[45](SC) followed in
Riddiford v Attorney-General [20 09] NZCA 603[26] where the lim itations of Magna Carta
are pointed out by Cham bers J for the court.
60 See Russell v Minister of L ands (1898) 17 NZLR 241, 250 where the court noted that
compensation for la nd taken was gover ned by the Public Works Act 1894 and the cou rt
rejected an ar gument to award a lesser am ount than the act requi red because “To do so would
be to violate the fu ndamental provi sion of Magna Char ta”. See now the Public Works Act
1981 Pt 5.
61 Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40, 52[43](HC).
62 Kaihau v Inland R evenue Departm ent [1990] 3 NZLR 344, 345-346(HC); Shaw v
Commissioner of Inland Revenue [1999] 3 NZLR 154[14](CA).
In a Constitutional State: Mag na Carta in New Zealand 1840-2015 53
pension leg islation,63 crim inal provisions in building leg islation,64 bankruptcy
legislation,65 re service statutes66, a decision in relation to the Christchurch
earthquake recovery67 and legislation on dogs68 by using this argument. In
all cases t he argument has failed a nd the matter was clearly settled by the
Court of Appeal in Shaw v Commissioner of Inland Revenue69 in 1999. In that
case a taxpayer objected to his assessment for a superannuation surcharge,
arguing that it wa s contrary to Magn a Carta and that Magna Car ta over-rode
the Income Tax Act 1976.70 e court unanimously held that, while Magna
Carta, along with other inherited imperial statutes, was par t of the law of
New Zealand, they do not constitute supreme law in the sense of a limit
on the New Zealand Parliament’s sovereignty’.71 Magna Carta along with
other inherited Imperial Acts were described as c onstitutional enactments in
the Imperial Laws Application Act 1988. But such enactments are subject to
section 15 of the Constitution Act 1986 that provides that the Parliament of
New Zealand continues to have full power to make laws, which means that
Magna Carta may be superseded by subsequent New Zealand legislation.72
As a judge pointed out in 1951, Chapter 29 of 1297 only imposes limits
on the executive and “does not purport to deal with what may be done by
parliament”.73
D. As a symbol of values.
e rule of law is a complex made up of values, doctrine and institutional
arra ngement s.74 One of the fundamental notions of the ru le of law is that the
executive is limited by, and must adhere to, the law of the land. is tradition
was said to have begun with Magna Carta,75 though it took many centuries
to accomplish and subsequent measures such as the Bill of R ights 1689 (Eng)
also played a part in this tradition, as Wild CJ made clear in the famous case
63 Malster v Chief E xecutive o the Ministry of Soc ial Development [2014] NZHC 1368[6], [12]-
[13], [34].
64 APD Property Developments Ltd v Papakura District Council [2009] NZHC 1677[3], [11].
65 Shane Wenzel v O cial Assignee [200 8] NZHC 518[9]
66 West v NZ Fire Service Comm ission [2007] N ZHC 1274[25]-[26 ].
67 Minister for Cant erbury Earthquake R ecovery v Ace Developm ents Ltd [2015] NZHC 1027[96].
Osbourne J pointed out th at the argument relyin g on Magna Carta “… cannot prev ail where
Parliament enac ts clear laws.”
68 Middleton v Timar u District Council [2012] NZHC 3471[12[-[13]. See also An Appeal against
a decision of the Be nets Review Committe e [2013] NZSSAA 43[[26].
69 Shaw v Commission er of Inland Revenue [1999] 3 NZLR 154.
70 At 154, 155[5].
71 At 157[14].
72 At 157[14]. is case has bee n followed and applied in later case s. See West v Martin [20 01]
NZAR 49[26](CA); Ellis v R [2011] NZCA 90[70]; Matahaere v Police [2012] NZHC 2436
[13]; Malster v Chief Execu tive of the Ministry of Social D evelopment [2014] NZHC 1368 [36].
73 Murphy v Gardiner [1951] NZLR 549, 551(SC) (Hutchinson J).
74 Waitakere City Council v Lovelock [1997] 2 NZLR 385, 416(CA) (omas J).
75 Marsh v Attorn ey-General [2010] 2 NZLR 683, 695[56].
54 Canterbury Law Re view [Vol 21, 2015]
of Fitzgerald v Muldoon.76 ere was no mention of Magna Carta in that case,
where the Chief Justice held that the Bill of Rig hts 168977 was part of the law
of New Zealand and th at section 1 of the Act prohibited the executive (in this
case the Prime Minister) from suspending superan nuation legislation without
the assent of Parliament. Other major additions to the rule of law have been
the New Zealand Bil l of Rights Act 1990, which, of course, is part of a longer
New Zealand trad ition of rights protection78 and, as such, can be argued to
have been inspired by the Magna Car ta tradition as it emerged in the centuries
after 1215. It is signicant that one of the purposes of the Habea s Corpus Act
2001 was to “rearm the historic and constitutional purpose of the writ of
habeas corpus as a vita l means of safegua rding individual libert y”.79
E. As a value now embodied in contemporary law.
e law’s delay has been the subject of complaint at least since Magna
Ca rt a 1 21580 and, of course, was sati rized by Charles Dickens in Bleak House
in the famous case of Jarndyce v Jarndyce.81 It also remains a problem, despite
legal obligations to guara ntee a trial without undue delay.82 e central
diculty with t his or any other legal standard expressed in very genera l terms
is how to implement it. is was, of course, a feature of Chapter 40 of Magna
Carta 1215 and its statutory successors in Chapter 29 in 1225 and 1297, for
the promise not to delay justice did not explain what delay meant nor did it
indicate how this was to be measured or enforced. New Zealand courts have
referred to the idea and have commented that the right to a trial without
delay is to be found in chapter 29 of Magna Carta 1297.83 Despite this, it is
clear that the court c annot direct when a case must be commenced and the
actual problems of delay are to be dealt with under contemporary statutes
76 Fitzgerald v Muldoon [1976] 2 NZLR 615.
77 e act is dated 1688 in t he Imperial Laws Applic ation Act 1988 but in fact the Bill of R ights
was assented to a s legislation on 16 December 1689: 14 Lords Jou rnal 373(16 December
1689); 10 Commons Journal 310 (16 December 1689).
78 Other exa mples are legion and include the Native R ights Act 1865; Women’s Parliamentar y
Rights Ac t 1919, and the Habeas Corpus Act 2 001.
79 Section 5(a). See als o the statement on the importa nce of preserving liber ty that cited Magna
Carta in Ch ief Executive of De partment of Labou r v Yadegary [2009] 2 NZLR 495, 517[75]
(CA) (Barag wanath J).
80 Magna Carta 1215, Chapter 40 tran slated in J C Holt, above n 3, Appendix 6 at 389; Mag na
Carta 1297, c 9, 25 Edw 1, c 29.
81 at was of cour se a civil case i nvolving a will i mmured in Chance ry for generations, a nd
possibly based on re al cases, one of wh ich was thought to have lasted a stu nning 117 years.
e New Indian Expr ess (India, 24 Februar y 2014) .
82 New Zealand Bi ll of Rights Act 1990 s 25(b), the right to be tried wit hout undue delay. In
R v Harris [2008] NZCA 298[[50] the cour t noted that thi s provision echoed chapter 29.
For a detailed an alysis see Andrew Butle r and Petra Butler e New Zealand Bil l of Rights: A
Commentary (Lex isNexis Butterwort hs, Wellington, 2005) at 809-825.
83 Re Arnold [1977] 1 NZLR 327, 334(HC)(Somers J). Institutional fa ctors such as the lack of
sucient judges may e xplain delay: Marlborough Express (New Ze aland, 5 Februar y 1890) at 2.
In a Constitutional State: Mag na Carta in New Zealand 1840-2015 55
and rules of court. One feature of delay is a delay in t he court or tribunal
making a decision. is is not covered in s 25 of the New Zealand Bill of
Rights Act 1990, but section 27 of that Act does required the observa nce of
the principles of natural justice and this has been held to require decisions
with “reasonable promptitude”.84 is principle was applied to a decision by
the Māori Land Court where the cour t still had not made a decision three
years following a hearing that lasted only one day. Asher J held this to be
entirely unreasonable and thought that six week s would have been sucient.85
Now, while Magna Carta is usua lly cited in delay matters, the court actually
examines contemporary circu mstances in order to make a decision.
In practice, then, while the courts might make the almost obligatory
reference to Magna Carta on delay,86 they have crafted principles on basis
of the test in section 25(b) New Zealand Bill of Rights Act 1990.87 Starting
with the guidance oered by the Supreme Court of Canada in R v Morin,88
the courts have both enunciated the tests for determining if undue delay has
occurred and developed remedies for the same problem.89 In short, the court s
have both acknowledged Magna Ca rta and dealt with its obvious limitations:
the lack of eective remedies90 and its vague la nguage to establish principles
that t contemporary circumstances.
84 Ngunguru Coast al Investments Ltd v Maor i Land Court [2011] NZAR 354[23] (HC) where
chapter 29 of Magna C arta was cited i n this connection. S ee also Vea v Minister of Immig ration
[2002] NZAR 171,182(HC).
85 At [35].
86 Examples include: Watson v Clark e [1988] 1 NZLR 715, 722(HC); Police v PCF [1990] 1
NZBORR 347, 356(DC); R v Adams [1993] 1 NZLR 443, 448(HC); Gray v om (1997) 10
PRNZ 373, 380(HC).
87 Paul Rishworth et al New Ze aland Bill of Rights (20 03); Andrew Butler and Petr a Butler,
above n 81.
88 R v Morin [1992] 1 SCR 771(SCC). A case not to be copied but t he principles have been
followed: Mart in v Tauranga District Cou rt [1995] 2 NZLR 419, 422(CA)(Cooke P). Morin
has been cited, a s have other Canad ian cases on de lay, in later New Zeala nd cases: Lim v
R [2004] NZCA 257[17]; R v Williams [2009] 2 NZLR 750, 758[11](SC); Fincham v e
District Cour t at Lower Hutt [20 09] NZH C 786 [10],[18 ]-[21] .
89 For a recent statement of the a pplicable principles see CT v R [2014 ] NZSC 155.
90 Magna Carta 1215 Chapter 63 provided for a commit tee of barons to oversee t he Charter
but that was removed i n 1216: Michael Evans and R Ian Jac k Sources of English Le gal and
Constitutional History (Butterworth s, Sydney, 1984) at 60. e statutory versions of 1225 and
1297 had no enforcement mech anism: David Carpenter, above n 6 , at 424; Rahey v R [198 7]
1 SCR 588, 634(SCC), though t he charter was reinf orced through inquirie s in the following
centuries: Calendar of Patent Rolls, Ed ward IV, EdwardV, Richard III, 1476-1485 (1901) 23.
56 Canterbury Law R eview [Vol 21, 2015]
V. U N Z H
A. As a fulcrum for a political critique
From an early date the Charter was invoked in politica l and constitutional
arguments. In the mid to late 1840s the population both criticized the
colonial oce, attacked specic mea sures by the colonial executive, and
used the charter to arg ue for greater self government. British constitutional
measures were described as arbitrary and unequal and a denia l of the rights
of free subjects, rights guara nteed to them by Magna Charta a mongst other
things.91 A letter from an Auckland correspondent to the Colonial Secretary,
Earl Grey, in 1847 severely criticized the draf t constitutional arrangements
for New Zealand describing it as utterly worthless and noted that:92
We are, my Lord, the free and equal citizens of England
and have not in any respect alienated our rights; therefore,
according to Magna Charta, and to natural justice, we are
entitled to frame the laws we are bound to abbey, without
the interference of anyone.
By the 19th century, Magna Carta had ceased to be a medieval document
and had come to stand for several political idea ls, including the right to self
government, a general right to freedom and the notion that the executive
was bound by the law. None of these ideals are expressed as such in Mag na
Carta 1215, but the argument here is that Magna Carta survived becau se
it was transformed and put to new uses not in contemplation in the 13th
century. Departures from the regu lar course of the law were often attacked
as contrary to Magna Carta, whether this was at the time of emergency laws
in the 1860s or in the aftermath of the unrest in New Zealand administered
Western Samoa in 1929, as it was then called.93
B. As an element in Legal, School Education and Public Discourse.
e study of constitutional history was a standard part of the education
system in 19th century New Zealand for students and would be lawyers. In
1875 the Chief Justice, James Prendergast, set out the material that barristers
had to study for admission to the profession. Apart from the fact that the list
included Latin and Greek classics, a s well as algebra and geometr y, classics of
English constitutional law and history were also included, such as Halla m’s
91 Nelson Examiner and New Zealand Chronicle (New Zea land, 22 March 1845) at 12.
92 New Zealander (New Zea land, 1 May 1847) at 3. See also t he letter by A Briton in the
Daily Southern Cross (New Zeala nd, 26 February 1848) at 3 who claimed t hat the lack of a
representative gover nment had rendered Magna Ch arta a tabula ra sa. For the background see
J Hight and H D Bam ford, e Constitutional History an d Law of New Zealand (1914) 195-
203. Phillip A Joseph, abov e n 1, at ch 4.
93 See “Justice f or Samoa” e Evening Post (New Ze aland, 23 January 1929) at 8.
In a Constitutional State: Mag na Carta in New Zealand 1840-2015 57
Constitutional History, Hallam’s Middle Ages, Broom’s Constitutional law
and, of course, Blackstone’s Commentaries.94 In all of these works Magna
Carta was discussed though often in the 19th century manner of great
reverence towards the accomplishments of English constitutional progress.95
In the schools, English constitutional history was taught as late as the
1960s.96 In an article written by the headmaster of Waitaki Boys’ High School
in 1931 entitled “School and Empire: Education for Imperial Citizenship” the
writer stressed the importance of:97
… t he Magna Carta , Trial by Jury, Integrity of the Judicature,
Habeas Corpus, C abinet Government, Freedom of Press, Freedom
of Speech, Freedom of Conscience, and the whole syste m of
Responsible Parlia mentary Government.
School students wrote essays, some of which were published in the press,
that showed, not only that they were familia r with Magna Carta, but that
they were able to extend the term to the Treaty of Waitangi, which one
student described as “this Magna Ca rta of the Māori race”. 98
Whether what was taught was historically accurate is a nother matter.
Certainly, press coverage of the Charter often referred to the idea that King
John signed the charter in 1215.99 John probably could not write, but the
evidence examined in 1924 of the four surviving 1215 charters show that
three had a seal att ached while the fourth had an incision in the vellum where
a seal attached to a ribbon would have gone.100 In 1913 a number of school
errors, called howlers in the press, were spoken of at a teachers’ conference.
One was that “Magna Car ta said that no freeman should be diseased without
the consent of Parliament”.101
94 “e Chief Justic e’s Examination Papers” in [1875] Colonial Law Journal ( NZ) 34, 35.
95 Criticised in He rbert Buttereld, e Whig Inte rpretation of History (G Bell, L ondon, 1931).
96 My upper sixth form history cla ss at the Otago Boy s’ High School in 1968 consist ed of
lectures on Tudor and Stuar t history with an empha sis on constitutional developme nts.
97 e Press (Christchurc h, 5 December 1931) at 8. Similar lists appea red at an early date and
are evidence of t he intellectua l inheritance of New Z ealanders: e Nelson Examiner (New
Zealand , 12 March 1842) at 2 has a long art icle on the subject. A sa mple question paper
on English His tory that mentions Ma gna Charta i s reproduced in e Colon ist (Nelson, 5
December 1873) at 3.
98 Marga ret Harvey (aged 17) “Six Mile stones in History” e New Ze aland Herald (Auckl and,
8 July 1933) at 4.
99 Wairarapa Times (New Zealand, 29 Aug ust 1913) at 5; e Press (Christchurch, 15 June
1928) at 11; Auckland Star (Auckla nd, 15 June 1928) at 6, e Evening Post (New Ze aland,
15 June 1939) at 11; Jeremy Finn, “e English Heritag e” in Peter Spiller, Jeremy Finn &
Richard Bo ast (eds) above n31 at 35.
100 John C Fox “ e Originals of the Great C harter of 1215” (1924) 39 English Historical Review
at 321-336. See also “King John a nd the Magna Carta” e Evenin g Post (New Zealand, 25
November 1939) at 20 reporting an A merican historian who ref uted the misconception that
John signed the Cha rter.
101 Dominion, (New Z ealand, 9 September 1913) at 4. See also e Eve ning Post (New Zealand ,
25 February 1911) at 11: “Magna Carta s aid that the king ha d no right to bring soldiers in t he
lady’s house, and tell her to m ind them”.
58 Canterbury La w Review [Vol 21, 2015]
Magna Carta also appeared in popular cu lture in the early 20th centur y.
e Blenheim Harmonic Society put on a production of Henry Coward’s
historical cantata “Magna Carta” in 1909.102 e celebration of the Charter
had an international dimension as well when, in the 1920s, New Zealand
joined Australia in celebrating Ma gna Carta Day, an idea rst launched in
Minnesota.103 Despite the celebrations and general knowledge of Magna
Carta, historica l research by the 1920s had severely undermined many of
the myths surrounding t he Charter. Common errors were refuted,104 as were
other errors, such as when the Charter was invoked as a bulwark of liberties,
as in claims about the Treaty of Peace in Paris in 1919.105 In 1929, a writer in
the New Zealand Herald attacked the idea that Magn a Carta was the origin of
“our great democra tic liberties”106 a nd a correspondent in 1939 denounced the
usual mythology as “ hysterical bunk ”.107 In an important lecture by Professor
James Rutherford of the Auckland University College to the Empire Society
in 1934, many of these myths were refuted, including the persistent notion
that Magna Car ta 1215 was the foundation stone of English liberties.108
C. As a term referring to a foundational document: e Treaty.
e most frequent use of Magna Carta to refer to a New Zealand
foundational document is in the numerous references to the Treaty of
Waitangi as the Māori Magna Ca rta. is was, of course, the title of a book
by Paul McHugh published in 1991109, but the term appeared in the press on
many occasions between 1845 and 1940.110 Despite the reverence accorded
to the Treaty, its political and emotional importance, and its legal status
since the Treaty of Waitangi Act 1975, attempts have been made to invoke
Magna Carta to either enforce the treaty or to establish Māori Sovereignty.
e latter argument is that Māori did not surrender sovereignty in 1840,
102 Marlborough Express (New Zea land, 26 October 1909) at 8.
103 e New Zeal and Herald (Auckla nd, 15 June 1929) at 10.
104 Ernest Scot t’s article “e Myt h of Magna Carta” rst publishe d in e Argus (Melbourne,
27 November 1920) at 6 was reprinted in e Do minion (New Zealand, 14 December 1920)
at 7. See also “Magna Car ta A Myth” e New Ze aland Herald (Auck land, 6 August 1927) at 1.
105 “e Peace Treaty: A Mis taken Parallel ” e New Zealand Herald ( Auckland, 2 Aug ust 1919)
at 1.
106 e New Ze aland Herald above n102, at 10. In a simila r vein see “Magna Car ta and All at”
e Evening Post (Ne w Zealand, 21 November 1936) at 8.
107 Auckland Star (Auck land, 23 February 1939) at 23.
108 e New Ze aland Herald (Auckla nd, 16 November 1934) at 13. For Rutherford see the entry
in .
109 Paul McHugh, e Māor i Magna Carta: e Treaty of Waitangi an d New Zealand Law (19 91).
110 Daily Southern Cross (New Ze aland, 5 April 1845) at 3; Nelson Examiner and New Zealand
Chronicle (Nelson, 3 May 1845) at 35; e New Zeala nd Herald (New Ze aland, 11 March
1933) at 1; (6 February 1934) at 11 and (22 Januar y 1940) at 24; e Evening Post, ( New
Zealand , 5 February 1934) at 8.
In a Constitutional State: Mag na Carta in New Zealand 1840-2015 59
despite a provision in the treaty to that eect,111 and that Māori a re therefore
not subject to New Zealand law, including the criminal law. ese arg uments
have always been rejected. 112 Just li ke Magna Carta itself, the Treaty of
Waitangi does not have superior constitutional status and is subject to the
sovereignty of the New Zealand parliament. 113
VI. C
A legal or constitutional instrument may remain an animating presence
and a source of inspiration long after the particular details of the document
have either been removed from the law or have faded with the change of
historical circumsta nces. In the case of Magna Carta our interest lies in what
was made of the document in later centuries and its relationship to a wider
constitutional tradition that has grown up since 1215. Most of the elements
of the rule of law, itself a combination of law, constitutional practice and
political ideas, simply did not exist in the 13th centur y, but we are heirs to that
tradition and are also its beneciaries. It represents an historic achievement
that was hard won and, though not now a rarity, it is an achievement that
New Zealand may cla im to have both added to and to have improved upon.
In the course of the last eight centuries M agna Carta was transformed from a
medieval document into a set of malleable ideas whose ver y exibility enabled
it to survive to become part of our political and constitutional arrangements.
Although it has been shown that several of the notions about the Charter are
myths, myths ser ve useful purposes, for a tradition is not static and can be
transformed and renewed. is is why people and law yers continue to refer
to it 800 years after it was concluded in a meadow called Runnymede, at a
time when the countries to which it spread were then unknown in Europe. In
a world where there are peoples and states that have not mastered the arts of
civil peace, as we have, it is tting to reect on the past and to appreciate in a
clear-eyed way the results of the eight centuries of constitutiona l and political
struggles since 1215.
111 Treaty of Waitang i, Article the Fir st, Schedule to the Treaty of Waitang i Act 1975. See also
that sovereignt y resides in New Zea land’s Parliament: New Ze aland Māori Counc il v Attorney-
General [1987] 1 NZLR 641, 690(CA)(Somers J).
112 Kohu v P olice (1989) 5 CRNZ 194, 196-197(HC) (a case of crimina l trespass); Berk ett v
Tauranga District Court [1992] 3 NZLR 206, 214(HC) (case involving assau lt, unlawf ul
assembly and inter ference with propert y); R v Takao [2005] NZCA 279[9] (kidnapping
charges und er the criminal l aw applied to a Māori accus ed); Matahaere v Police [2012] NZHC
2436[7]-[13] (criminal law appl ied to a Māori convicted of obstru cting the police).
113 Matah aere v Police [2012] NZHC 2436[12] where Venning J wrote ‘e Treaty has st rong
moral force but does not ha ve binding legal force: Kai hau v Police. ‘In Kaihau v Police [ 2001]
NZHC 377[4] Chambers J det ailed a line of eight case s on the point.
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