These claims are wrong for several reasons. Any one of the reasons would be sufficient by itself, but they also reinforce each other as a series of logical steps.
Magna Carta is in the form of a proclamation by "John, by the grace of God, king of England, etc etc" addressed to "the archbishop, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, stewards, servants, and to all his bailiffs and liege subjects". He says "Know that, having regard to God and for the salvation of our soul, ... we have granted as underwritten" and in what is "underwritten" there are constant promises that "we" (the Royal we) will not do this or that - for example "to no one will we sell, to no one will we refuse or delay, right or justice". It is not a promise that Parliament will not do anything; it is a promise, made by the King to the nearest thing that there was to Parliament in 1215. It is a surrender of power by the King to the people who would later constitute the Parliament.
When the Charter was re-enacted as an Act of Parliament in 1297, it is the King, Edward I, who declares "We, ratifying and approving these gifts and Grants aforesaid, confirm and make strong all the same for us and our Heirs perpetually." However, some of the promises made by John no longer seemed relevant, so some clauses were deleted and the number of clauses reduced - so "perpetually" means "as long as those bothersome Parliamentarians keep insisting upon it".
[Incidentally, there is another myth, that Magna Carta guarantees the writ of habeas corpus - the action by which people challenge the validity of their imprisonment. As explained in Chapter 2, historians now believe that the "writ of inquistion of life or limbs", referred to in "chapter" 36 of the Charter (Ch 26 of the re-enactment in 1297) is not the ancestor of habeas corpus, but that the courts developed habeas corpus independently over the next couple of centuries.]
Similarly, the Bill of Rights 1688 (or 1689)* is an acknowledgment, by the King and Queen, that they no longer claim powers claimed by the Stuart kings. It is formally an Act of Parliament, but in reality it is a treaty between the Parliament and the King and Queen. Unlike a modern Act of the UK Parliament, which begins by declaring that the monarch has enacted it with the advice and consent of the two Houses (which rather implies a spirit of niceness and cooperation, even though we know there may have been disputes along the way), the history of the negotiations is written clearly in this Bill. All the earlier part is a long ultimatum by the "Lords Spiritual and Temporal and Commons", climaxing in the series of declarations that the pretended powers of suspending laws, dispensing with laws, levying money without parliamentary approval, etc, etc, are illegal (search for the first occurrence of "declare" in the text, and the declarations follow. Though there are no numbers in the original, the 13 declarations are conventionally referred to as "Articles" 1 to 13.). Then, later in the text and later in time, their Majesties accept the ultimatum by declaring that they are "contented and pleased [that the above] shall be declared, enacted and established by authority of this present Parliament, and shall stand, remain and be the law of this realm for ever". There is no acknowledgment of "forever" by the Lords and Commons - they have received a surrender from the King and Queen, but they are not surrendering anything.
*The Bill was not finally enacted until 1689 but the UK Parliament itself has declared that it should be cited as the Bill of Rights 1688, presumably because of its association with the Glorious Revolution of that year.
No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.This emphasises the point made under heading 1, that the Charter was limiting the powers of the King, not the Parliament. It meant that the King and his Ministers renounced the power to arbitrarily throw people into gaol or seize their property [contrast the use of lettres de cachet in France until the time of the Revolution]. However, it quite specifically left the way open for Parliament to make alternative provisions as to how people might be "taken or imprisoned". As we shall see below, Parliament didn't take long to make provision for trials without a jury in minor criminal matters.
That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.Again the general principle under heading 1, that the Bill was only intended to limit the power of the King, is reinforced by specific words. The evil that the Parliament sought to remedy was that Charles I had tried to disarm Protestants in order to impose his will on the country; hence here the new King and Queen are promising that they will do no such thing (although what does "suitable to their conditions" mean? That the gentry can have firearms but the peasants can only have pikes and bows and arrows?). Parliament is not promising anything about the right to have arms, and in its drafting is ensuring that its power to regulate the keeping of arms is specifically recognised. If the words of the Article did bind Parliament, it is clear that a power to "allow" includes a power to impose conditions and disallow in some cases. It could be arguable that it does not extend to a total disallowance in all cases, but (i) no Parliament that I have heard of has ever done this, and (ii) for the reasons explained under headings 1 and 3, the words do not bind later Parliaments.
As noted in Chapter 4, the main reason for this doctrine was simply historical - the Kings had claimed absolute power and when the Parliament won the civil war it inherited... absolute power. But the Charter and the Bill of Rights illustrate another reason for the amendability of every Act. Opponents of a constitutional, judicially-enforceable Bill of Rights claim that such a Bill would "enable the dead to chain down the living" (Bentham, Collected Works, 1843, p 491). If a written constitution or Bill of Rights had no mechanism for amendment, this would certainly be true. Stating that something is binding for all time or that it declares "imprescriptible rights" is asking for trouble - circumstances will change, and a later generation will find some of the details of the unamendable document absurd, so they will have no choice but to ignore the claim to unamendability. This may be one of the reasons why the French Declaration of the Rights of Man and Citizen, for example, has never been regarded as something that can invalidate later laws. Constitutions can have a special status but avoid the "dead hand of the past" criticism only if they can be amended, when really necessary, by some special procedure - a referendum or a constitutional assembly, or the complicated amendment process for the US Constitution. [Even the US Bill of Rights could be amended by the same process by which it was added to the Constitution, though its words have acquired such sanctity that it seems unlikely that anyone will ever try.] But neither the Charter nor the Bill of 1688 said anything, postive or negative, about a method of amendment.
So if the Charter or Bill of Rights had declared that they bound later Parliaments (which they did not) that claim would have had to be ignored. The Charter, in particular, refers to many thirteenth-century rules of English land law that it would be absurd to apply today. And consider Clause 27 - "If any freeman shall die intestate, his chattels shall be distributed by the hands of his nearest kinsfolk and friends, under supervision of the Church..." (meaning, then, the one holy and apostolic church with its head office and head man at Rome) - and Clause 54 - "No one shall be arrested or imprisoned upon the appeal of a woman, for the death of any other than her husband." In fact, nearly every clause of Magna Carta is absurd, discriminatory, or simply meaningless in modern society. As we will see below, even the one about "trial by his peers" has been watered down. The Bill of Rights still mostly makes sense, but there is one provision that says "jurors which pass upon men in trials for high treason ought to be freeholders" which made a lot of sense to the Barons in 1215 but seems absurd and discriminatory now. Since no special amendment mechanism was provided, they had to be subject to the ordinary amendment mechanism - express or implied repeal by a later Act of Parliament. Some of the people claiming special status for them (eg, the submission to EARC noted above) claimed that provisions of the Bill of Rights could not be amended without approval by a referendum. This is to create a fanciful hybrid between the Commonwealth Constitution and the Bill of 1688 - one says it can't be amended without referendum, but the other doesn't.
I mentioned in passing in the last paragraph that an Act (other than a special thing like the Constitution) can be amended either expressly or impliedly. The historic Acts were, and are, just as subject to the doctrine of implied repeal - a later Act overrides an earlier Act to the extent that they are inconsistent - as any other Act. This started to happen to Magna Carta quite early - late in the 14th century the "justices of the peace" were created and by a series of Acts beginning, Maitland says, in 1433, they started to be given power to try minor offences "summarily", without a jury. This does not seem to have been challenged on the grounds that it took away the "guarantee" of trial by one's peers provided by Magna Carta (although centuries later Blackstone complained that every new summary tribunal "is a step towards establishing aristocracy, the most oppressive of absolute governments"). Slowly most of the other provisions - all the medieval nonsense about odd forms of land tenure such as socage and burage, and old forms of trial such as novel disseisin, mort d'ancestor, and darrein presentment - were overtaken by later enactments.
For a long time the UK Parliament was content that the statute books should be full of inconsistencies, and that people should work out the end result by applying the rules of implied repeal, but under its more modern attitude it takes steps to expressly repeal parts of statutes that are no longer effective (so that people can actually understand the statute books!). By a series of Statute Law Revision Acts running from 1863 to 1969, all but three clauses of the Charter have been repealed. One of the remaining ones is clause 1, that the "English church" shall be free - which is a bit hard to reconcile with the fact that the appointment of the Archbishop of Canterbury is made on the recommendation of the Prime Minister. Another is clause 9, the liberties of London, and the other is clause 29, which as already noted is partly repealed by implication by the acts providing for summary trial of minor offences. The Bill of Rights has fared rather better, but the part that says "jurors which pass upon men in trials for high treason ought to be freeholders" has been expressly repealed. In the land of their origin, whose courts, Parliament and legal scholars must be accepted as some sort of authority on their own country's version of Constitutional law, the historic Acts are not "fundamental law".
It has been generally supposed that the two historic Acts applied as part of the colonisers' "birthright" - although we will see below that there is still doubt as to the details of their applicability. However, just as in Britain, the old Acts were not "supreme" law that invalidated anything inconsistent. As well as the old statutes, the colonies also inherited the doctrines of parliamentary sovereignty and implied repeal (except as to "Imperial" Acts), so
[The States are not fully sovereign now that they are bound by the Commonwealth Constitution, but that has minimal effect on their powers to legislate counter to the Charter and the Bill.]
In recent decades most of the States have passed an Imperial Acts Application Act (which all misuse the term "Imperial", because they apply to received English Acts) and in each case the Act preserves the operation of "25 Edw I C. 29" and the Bill of Rights 1688. This leads people to claim, half correctly, that the old Acts are "still part of the law" here, and, incorrectly, that they count as some sort of superior law. There are two problems with this latter claim:
So a more accurate statement of the old Acts' present status is that just one "chapter" of Magna Carta and most of the Bill of Rights are still part of the law of the States, to the extent that they have not been impliedly repealed by the passage of inconsistent laws.
Since the principal historical significance of Magna Carta is that it is part of the series of steps by which the rule of law was established as a basic principle of English, and then Commonwealth, law (see Chapter 2) you might expect it to be cited in cases on the rule of law. Yet in A v Hayden, the leading Australian case denying arbitrary executive power, it is not mentioned; it is, after all, only a part of that series of steps and by the 1980s the importance of the rule of law hardly needed support by quoting all of its history.
The detailed provisions of the Bill of Rights have much more continuing relevance. The part that says "jurors which pass upon men in trials for high treason ought to be freeholders" has been expressly repealed in the UK and some Australian States, and impliedly repealed by Jury Acts in others, but most or all of the rest is still good law - but it still needs to be borne in mind that it limits the executive government, not the legislature. Of course it remains the law that the monarch or her Ministers cannot dispense with the laws, raise taxes, spend money without consent of parliament, seize weapons from her Protestant subjects (or indeed her Catholic, Jewish or Muslim ones) without authority of an Act, or punish Parliamentarians for criticising the government. Parliament could repeal these articles, but that would be surrendering its power back to the monarch, so it is not likely to do that! And accepting that the Cabinet these days has the powers formerly held by the monarch (see the Cabinet Government chapter), you might think that a parliament utterly dominated by Cabinet would have no problem in giving absolute power back to the Cabinet - but the fact that this would still apply after the next election, when the other side might win power, is a strong disincentive.
Often, however, one of these basic principles originally stated in the Bill of Rights has been re-stated in a more modern Act. In Queensland, for example, article 4 ("levying money without grant of Parliament") has been re-enacted in sections 65 and 66 of the Constitution of Queensland 2001, and article 9 ("freedom of speech and debates or proceedings in Parliament") has been re-enacted as section 8 of the Parliament of Queensland Act 2001. Only an antiquarian would cite the Bill of Rights for those principles in a Queensland Court; a modern lawyer would cite the Queensland Acts.
As to legislation, however, the Bill has only an indirect influence if any. Though the monarch or her Ministers cannot seize arms from Protestants by prerogative power, the in-built exception in article 7 has of course been used in all States when they have enacted weapons-licensing laws. As to "cruel and unusual" punishment, when there is any uncertainty about the meaning of the words in an Act, Article 10 has been used to interpret them in the defendant's favour - see Sillery v R, but a legislature could impose cruel or unusual punishment by the use of very clear words, that gave the courts no chance to read them down.
However, we can't even assume that every word of the Bill, except the "trials for high treason" bit, has a clear application in Australia. Three Justices of the High Court have recently observed that there may be problems in working out exactly how some articles of the Bill apply in Australia - see Egan v Willis at para 23 - but we can assume for the purposes of this chapter that most of the articles apply (to the executive, not to the parliaments) in some way.
So, to end where we began, the claims that Magna Carta and the Bill of Rights are "constitutional" is a half-truth - and a half-truth can be more deceptive than an outright falsehood because it sounds more persuasive. The half truth is that these Acts are part of English constitutional history, which is part of our constitutional history, and the powers of executive government are still controlled by principles first stated in the Charter or the Bill. That indeed makes them very important. But the half falsehood is any claim that they are constitutional in the strong modern sense. As earlier chapters have shown, English constitutional history got as far as establishing limits on executive power (Ch 2), but never established limits on legislative power (Ch 4). It took the Americans to do that, and we have only partly copied it (Ch 3). So the historic Acts do not establish "constitutional rights" that cannot be overridden by an Act of Parliament. They do not invalidate later inconsistent laws. People who think that some of their provisions should have overriding force should be campaigning for those things to be embodied in a modern supreme-law Constitution or Bill of Rights, instead of perpetuating a constitutional mythology which damages their own cause.