What we need and don't have is a bill of irrevocable rights, which by definition, will include citizen's initiated referendum, preceded by the required volume of signatures!

We ought to have the referendum in question and at the next federal election to both simply it and minimise the expense! When Our first Australians were asked to go away, have a conference then come back with an agreed proposition. None thought that a highly autocratic, pompous PM, would dismiss it out of hand, with the nonsense, we have no remit!

And as put, just did not include a third house nor the power of veto! Just a standing body and consultation!

What was wrong with that Malcolm?

The constitution, written for another time and another place! Needs a thoroughgoing review and revision/updating.

Look, if we reboot to 1770, we most of us, came from elsewhere! [You know, that place where the weather is always fine?]

Today, more Australians are native born than migrants!

And a revised Constitution would factor that in and the fact that swearing a solemn oath on a holy book, transfers your allegiance and citizenship!

Give complex rationalists their heads and they'll complicate the the hell out of anything!

But particularly that which only ever needs the application of this nation's rarest commodity! Good old fashioned common sense!
Alan B.

Thanks for posting a sensible discussion on a topic which so often becomes emotional.

I agree that the first several suggestions are close to the mark.

The last is problemmatic. The Senate has grown more powerful, eg since Ministers arrived there, after previously being confined to the Reps. I'm unsure of the actual process by which this happened, but winding it back should be considered. Was John Gorton the last to migrate from the Senate to the HoR in order to become PM? IMHO, the whole ministry should be in the HoR, which then becomes the originator of most legislation. The Senate would return to being a House of Review. Anything that can't get through the HoR shouldn't be on the table in the Senate.

Further, the Senate has increased from 10 to 12 per state in my lifetime. If minor parties are such a problem, and I don't argue here for or against, that suggests reduction in numbers and hence increase in quota should be considered.

A blunter stick might be to require a minimum vote, say 3 or 5%, in order to stay in the Senate count. So, Step 1: Throw back the undersized fish. That still leaves PHON, Nats, Lib and Lab, perhaps also Zenophon Party in the hunt. The votes would not be lost - they would stand as popular votes on the issues that they represent, before their votes are distributed at the next step. Every elector's vote still counts.

Ideally, of course, the actual power of the Senate to propose and to amend bills could be reviewed, but this could not be the first objective.

Plus, of course, Greens.

That makes half a dozen above the cut, possibly more. I know that Ricky Muir with his handful of votes turned out better than expected, but put this beside the confused and confusing rabble that occasionally populate the red benches of the Senate. Is that what Australians, generally, really want?

The Constitution is only 'out of date' for those people who think that the history, past experience and the wisdom of their forebears is irrelevant: disrespect, impatience and the desire to tear everything down is the order of he day. It is easier to wreck something you don't wish to comply with – or that which trendies, malcontents and country-hoppers don't agree with, than it is to grow up and get on with things. The purveyors of mass immigration and multiculturalism certainly have a lot to answer for. Critics of our Constitution are juvenile whingers with developmental problems.

Given the stupidity, self-obsession and Australia-hating in this country, the Constitution is the very last thing that needs meddling with.

“Six months of consultations between the Turnbull Government and Aboriginal and Torres Strait Islander leaders (predictably) have fallen in a heap”. I don't know why Brendan O'Reilly 'predicted' that result, but the reason would have to be that the whole idea of Recognition is so silly, that even Turnbull could see that Australians would not accept it. So, for the time being at least, the Constitution will not be mucked up in the name of divisive, suicidal politics pushed by all the me-too drones in Canberra. So, that's one referendum we don't “need” to have.

As for the absurd proposal to change Section 44 just because we have a lot of migrants: stuff and nonsense! While it is always on the cards that Muslim immigration, if permitted to continue, could change Australia, your average immigrant does not come here to change anything about us. It is a few self-hating, Marxist locals who wish to do that, and they must be stopped.

The Constitution is not on the minds of many Australians at all. Given the abysmal state of education, I would be surprised if they knew we had one, or that they would know what a Constitution is. Leave it alone!

Singleton Engineer. Couldn't find a single thing to disagree with in your DTE erudite, commonsense, cogent and credible clarity!

More power to your pen!
Cheers Alan B.

Dear Alan B.,

I agree with you totally.

Prof. Bruce Baskerville an expert in the Australian
Constitution writes:

"When the Australian Constitution was drafted in the
1890s, allegiance was given to the Crown, not to a
territory. We all shared the status of British
subjects, and a person born in Australia could be elected
to parliament in Britain, New Zealand, Canada, and other
places, and vice versa. There was no need for renunciation or
denunciation of allegiance."

The following link explains further:

http://mrbbaskerville.wordpress.com/2017/07/21/ahistorical-history-on-the-run-section-44i-of-the-australian-constitution/

Today, we have problems because of a law that is no longer
relevant to Modern Australia and people like our previous
Deputy Prime Minister, Barnaby Joyce, who was born in
Tamworth Base Hospital, whose great grandmother was born
in Tamworth, whose great grandfather was born in Glen Innes,
Barnaby served in the Australian Army Reserves and yet
somehow he's not Australian? Yet we have a British-born
Head of State?

It makes no sense.

Foxy is correct that it makes little sense. Also that the current constitutional clause might have results that its drafters did not expect.

Surely this is far from the first or last time that legal drafters' efforts have resulted in unexpected interpretations.

I have in mind, for example, the possible multiple interpretations of USA's citizens' "right to bear arms".

The question is not whether to comply with the constitution, or even who interprets it (ie High Court of Australia). Ignoring the law is not going to solve anything. Non-compliance is not an option.

That leaves only the matter of changes to the constitution - if, what, how and when.

I couldn't disagree more.

Instead of trying to make it easier for boat people & other recent blow ins to alter Australia to something more like the hell holes they fled, if they can be believed, we should be making it a damn sight harder.

First citizenship should be restricted to only those, [& their children], who can demonstrate 5 years of productive work, including tax payer records, before any consideration can be given. It should only be available to those who renounce any other citizenship prior to being granted.

Eligibility for election to any level of government should be restricted to native born Australians, who are eligible for only the Australian passport.

Why anyone would want to let these recent arrivals alter our laws or constitution I really can't imagine.

Hasbeen,

Well said, although I think the true villians for change are the bad Australians of the Left, with the exception of Muslims, of course.

Perhaps all that is necessary to be done is an
amendment clause that lawyers could work out
included in Section 44i of
the Constitution so that we don't have these
problems in the future of disrupting our
parliament from doing its job - governing.
And prevent any attempts at political gains being
sought by unfair and self-serving means.

"...these problems in the future of disrupting our parliament from doing its job - governing"

You must be referring to the preoccupation with Gay marriage that has wasted so much parliamentary time for years and thanks mainly to the ABC. While 'wicked' problems like those 'Struggle Streets' and the effects of too rapid population growth through over-enthusiastic immigration are forgotten.

Anyone who risks an eight year term for Senators is crazy.

No-one is going to trust any of the present lot in Canberra to be fooling around with the Constitution. Particularly where some federal politicians were less concerned with eligibility requirements, contemptuous even, than they obviously are with getting the maximum out of their entitlements.

It is usually where politicians get pulled up for abusing travel and gifts that they plead ignorance.

What about they sort that complex tax law as a matter of urgency? Nope, Xmas break is coming and the study tours to overseas tourist spots are being planned.

Hi all,

I am of the view that any further attempts to amend individual clauses are futile and that there is so much wrong with this archaic Constitution that Australians should seriously consider the idea that the entire Constitution needs to be rewritten. This should be done by a group of independent people, excluding serving politicians, especially those of the major political parties.
I'll submit an article that explains the reasons for recommending a complete rewrite.

klaasvaak

You wouldn't be a constitutional lawyer by any chance would you klaasvaak?

About the only people likely to benefit from any constitutional change apart from recent blowins, & some members of the aboriginal industry, would be the legal fraternity.

They would have legal challenges going on for decades, challenging interpretations made by other of the legal fraternity.

Hi ttbn,

>>The purveyors of mass immigration and multiculturalism certainly have a lot to answer for. Critics of our Constitution are juvenile whingers with developmental problems.

Agreed. And if we want a glimpse of Australia's future under the influence of the multi-culti Left, here it is - Australia now is a microcosm of what is ALREADY HAPPENING in Merkel's Germany:

https://www.gatestoneinstitute.org/11264/germany-refugee-shelters

That is how "diversity" works. The only way to punish the Merkels of this world is to wish more "diversity" on them.

Foxy,

So you're proposing that we allow people holding dual (or multiple) citizenships to become Members or Senators? And what happens then, when, say, North Korean, Chinese, Yemeni, or Afghan Members or Senators make it all the way to Cabinet, where they will, as a matter of course, have access to Australian Eyes Only security documents? Just trust people with, at best, divided loyalties, because we mug Australians might think it impolite to do otherwise?

I accept that many migrants are not a risk. But too many are risks we don't need and the idiot who runs ASIO is in denial about that in his evidence to Senate committees.

The framers of the Constitution were right and nothing has changed.

Why should we accommodate within our political system, people who hate us and everything we value? Why should we accept the higher crime rates which have followed directly from unwise immigration policies? Why should we accommodate calls for Sharia law, for example? Why should we continue to allow immigration from people who have not the slightest interest in integration, who join the black economy and Middle Eastern bikie gangs? And why should Australian taxpayers be expected to pay for all the downsides of such moronic arrangements? And why allow immigration from anyone who wants all the benefits and none of the responsibilities of Australian citizenship?

Hasbeen is correct: our approach to legal immigration, economic invaders who arrived illegally on boats and "refugees" should be a lot more discriminating.

Further thoughts on "diversity" from the American journalist and blogger Fred Reed:

https://fredoneverything.org/anti-togetherness-the-virtues-of-disunity/

Beware klaasvaak. He is a retired academic probably looking for something to meddle in. He has appeared on Q&A. Immediate trigger warning. His suggestion that the Constitution needs a complete rewrite is bizarre. He revealed his name on OLO a short time ago, if you can be bothered looking for it. None of our crappy elites could be trusted to rewrite the Constitution.

calwest,

I'll tell you what 'diversity' means: it means fewer white people. Any white person championing diversity is like a turkey looking forward to Christmas.

Implementation of mass immigration, the homosexualisation of society, and cheering the 'other' is not diversity: it is identarian ideology. The current mob of 'diversity' pushers do not really want diversity: they want 'sameness of views', disguised in a myriad of foreign faces, tattooed females with crewcuts' and the 'forever young', with no 'pale stale males' in sight. Diversity is their cover for societal destruction.

Get rid of the states and then start again.

We don't need a new constitution. We simply need for the elite to do what the current one says. The only reason anyone wants to remove something and replace it with something else is so they can gain from it's replacement. Always worded to benefit them and their mates. The public will not be given any consideration in any new constitution. As it is I am disappointed that we have changed it at all over the years, (for the worst).

.

Dear Brendan,

.

There comes a time when there are so many holes in the rusty old bucket that you just can’t fix it anymore.

Our old colonial constitution was drafted in the 1890’s. Population was about 3.5 million in those days. But we are no longer a British colony. We abandoned the White Australia policy in 1973 and have since become one of the world’s most multicultural societies.

According to the federal government web site :

« At Federation in 1901, ‘British subject’ was the sole civic status noted in the Australian Constitution … Throughout the 1960s, Australian citizens were still required to declare their nationality as British. The term ‘Australian nationality’ had no official recognition or meaning until the Act was amended in 1969 and renamed the Citizenship Act. This followed a growing sense of Australian nationalism and the declining importance for Australians of the British Empire. In 1973 the Act was renamed the Australian Citizenship Act. It was not until 1984 that Australian citizens ceased to be British subjects ».

Our rusty old bucket (the constitution) is so old and fragile it is full of holes and beyond repair. Freedom of expression (speech, cartoons, etc.) has fallen through one of them. The Prime Minister has fallen through another one. There is nothing in the constitution about a Prime Minister. It says the British Crown is the head of state.

We tried to patch it up 44 times since it was drafted 120 years ago but only succeeded 8 times.

The only way it can be fixed is by referendum and that’s almost certain to fail. Howard knew that. That’s why he used it to preserve royalty and prevent the country from becoming a republic.

Nevertheless, the only sensible thing to do would be to wrap our old colonial constitution in fine silk tissue paper (just plain white would be nice) to carefully conserve all the dusty bits and pieces - and get a new one.

That won’t happen until we decide to become a republic. For that, we need more non-British Australians.

.

Banjo, firstly I do not mind being beholding to Britain. Politicians being so dishonest and corrupt, I like the feeling of having 'Mummy' to go crying to when something is not right. To me it's the same as writing a new Bible. The rules are set and do not change with time. We must not give in to some fantasy promoted by the Republican movement. We, the people, are protected by our current constitution. If we give in to the pressure by the Republicans, we will lose any protections we so desperately need today. No Banjo, leave the bucket alone, I think you may need to have a closer look at it and see that it's not so bad after all. I will guarantee you, if we get a new bucket, it will not hold as much water, we will be paying to constantly have it repaired, and it will only be used to carry water for the people when it's not being used to carry water for the elite. In fact the people will get punished for any attempt to demand more access to the new bucket. NO to a republic thanks.

Let's be clear. we are the most multicultural society on the planet? And we come from over a 140 different nationalities.

26% of us were born overseas, and 45% of us have at least one parent born elsewhere. That leaves just 29% who are unaffected by the old archaic constitution!

Why even some black fellas would be ruled out by the provisions of section 44?

Take Big Nana, my favourite poster. her indigenous kids could fail even though able to trace their native born ancestry back some 60,000 years! Why?

Because according to her, their mum is of Japanese origin? And would still be in trouble if just one grandparent were born elsewhere?

My Point being, if any part of the indigenous population can be excluded on grounds only appropriate the turn of the century?

Which by the way, back then, never ever excluded Kiwis Or Canucks or Indians or South Africans or indeed any member of the then British empire! Where today the same "unaltered" document excludes every last one of them!

Even those born here but with a foreign born parent and or, in some cases, even a grandparent or great grandparent, or great great grandparent?

All while our head of state is a foreign national!

Anyone not completely confused or satisfied with this dogs breakfast of a constitution, simply has to have manure for brains?

If it ain't broke don't fix it! If it is little more than a ruin with a roof? Pull the whole rotten edifice down and rebuild to comply with the express wishes and will of the majority!

Otherwise just click your heels raise a stiff right arm and say, seig hiel.

On a brighter note, even newly arrived, brand new Australians not only get to vote but are required to by law to do just that!

So where does that leave the remaining 29% and what they want? Which probably includes Diver runner and their meritorious mate ttbn? Hahahaha!
Alan B.

Nonsense, Alan B.

That 26% born overseas includes my wife.

Not surprisingly, her parents were born overseas also, so she is included in the 45% figure.

So she figures in both categories so you have counted her twice.

I can state with certainty that there is only one of her.

I'd be very surprised if most of those born overseas did not have a foreign parent.

A simple Venn Diagram would show most of the "born there" set overlays the circle representing the 45% "parents from there" set.

Elsewhere I have read that the combined set includes 51% of Aussies, which seems to make sense.

I'm convinced that the remaining pool of 10 million or so Aussies includes at least 226 aspiring Federal politicians who could do the job far better than the current crop.

Dear Banjo Paterson, and Alan B.,

I totally agree with you both.

Change needs to happen. But who's going to have
the gumption to do it? And more to the point - when?

.

Dear ALTRAV,

.

You wrote :

« I do not mind being beholding to Britain … I like the feeling of having 'Mummy' to go crying to when something is not right. To me it's the same as writing a new Bible. The rules are set and do not change with time … If we give in to the pressure by the Republicans, we will lose any protections we so desperately need today. »
.

That’s the sentiment of many Australians, ALTRAV. But if you look at the facts, I think you will see that, as I pointed out in my previous post, our constitution is full of holes and does not offer much protection at all. Things have been fine so far thanks to our common law, our national culture, the political stability of our democracy, our secular government, and our liberal economy. But if anything were to go seriously wrong in the future, our constitution would be found wanting.

As for “Mummy”, I presume you mean Queen Ellizabeth II. The dear lady is ninety-one years old and I don’t think she could offer much protection for Australia these days. As a matter of fact, I don’t think she or her predecessors ever have – apart from helping us chase the Aboriginal peoples off their lands (not to mention the gory details).

We Australians, on the other hand, sacrificed much of our prime youth fighting numerous wars for the protection of the interests of the UK: Sudan 1885, Second Boer War, 1899–1902, Boxer Rebellion, 1900–01, First World War, 1914–18.

In the First World War alone, 38.7 per cent of our male population aged between 18 and 44 helped defend British interests. As Australia was not directly involved in the war, they were all volunteers. The total population of Australia at the time was 4.9 million.

The problem is not to “give in to the pressure by the Republicans” or the Royalists, or anybody else. It is to act responsibly and protect our country both internally and externally.

It’s realism, not ideology.

.

ALTRAV,

A big YES to both your posts. Straight to the pint and entirely true.

Banjo, I hear you but you give no comment to the risk of losing control to the elite. Unfortunately we are too many to form a consensus. In the absence of multi-partisan support, the top end of town will get to write or edit the new document at the expense of everyone else. This is a fact. It will appear a well thought out document, until it is tested, then begins the problems. I don't see these problems you speak of with the current constitution, so I will not favour a new one and certainly not from the Republican camp.

Of course those born overseas have a foreign parent or parents! And even if they do have foreign parents, are not included in the demographic of Australians born here, but with a parent, born overseas!

And two separate categories!

26% belonging to the first category the second belonging to an entirely different 45% category

So the numbers stack up!

Which should mean, the most powerful, convincing and persuasive arguments will decide what future direction we head! And with a new constitution written for a multicultural society?

Which simply has to include every first Australian! You know those folk who weren't included/recognised as people in the first one!

Time! Alan B.

Alan, I see a problem with your suggestion of including the abo's. If we count only those who have descended from full bloods, without any contamination of foreign blood, from the beginning till today, then we can do what you say. The number is very small and workable, but, if as an elder once suggested that he wanted all wanna-bee's to stop calling themselves aborigines, when by any definition they were not. Re-gender-ratification, and re-classification, has a lot to answer to in forging the figures in their favour, so they make money out of it. Those people you say were not included in the first one are all dead now, so the number will be greatly diminished, and more realistic.

.

Dear ALTRAV,

.

You wrote:

« I don't see these problems you speak of with the current constitution … »
.

By today’s standards, the referendum for the establishment of the constitution in 1901 was flawed :

A reputable constitutional lawyer, George Williams, indicates:

« Large sections of the community were excluded from voting, including most women and many of Australia’s Aboriginal people. Women were able to vote only in South Australia and Western Australia, and Aboriginal people in New South Wales, South Australia, Tasmania, and Victoria. Overall, only a small percentage of Australians actually cast a vote in favour of the draft Constitution. In New South Wales, Queensland, and Tasmania, the figure was below 10 per cent. »

He adds :

« The Constitution that came into force in 1901 was not a people’s Constitution, but ‘a treaty between States’. Customs duties and tariffs, and the capacity of the upper house of the federal Parliament to veto money bills, were of far greater concern than the protection of human rights. According to one historian, the drafters ‘wanted a constitution that would make capitalist society hum’. The framers were certainly not prepared to insert a Bill of Rights.

The Constitution contains few express rights. The main ones are:

s 41 – the right to vote;

s 51(xxxi) – the right not to have the Commonwealth acquire property, except on just terms;

s 80 – the right to trial by jury;

s 92 – the right that ‘trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free’;

s 116 – the right to freedom of religion; and

s 117 – the right to freedom from disabilities or discrimination on the basis of State residence.

The drafting of these provisions is in most cases problematic and restrictive.

The High Court’s approach to the civil and political rights in the above list (that is, excluding ss 51(xxxi) and 92) has been extremely narrow, with each of these rights being interpreted almost out of existence.

.

(Continued …)

.

.

(Continued …)

.

In fact, 1989 was the first time that a plaintiff was successfully able to invoke an express guarantee of a civil and political right in the High Court, in that case, s 117.

As Brian Burdekin, a former Australian Human Rights Commissioner, commented in 1994: “It is beyond question that our current legal system is seriously inadequate in protecting many of the rights of the most vulnerable and disadvantaged groups in our community” ».
.

He concludes :

« Australian federalism is dysfunctional because it is based on rules that no longer match the reality of how power is exercised in Australia. Based on a Constitution in which the States were to be the master, Australia now has one of the most centralised systems of government in the world.

Our federal system was conceived in the 1890s, the age of the horse and buggy. We are in the mess we are today because our system of government has passed its used-by date. It was created in 1901 and has not been modernised to meet the challenges facing us a century later »
.

US Professor William Rich concluded in a 1993 study of the Australian Constitution :

« The unsettling conclusion is that there is a large element of uncertainty in current understanding of Australian constitutional law which shakes the confidence of those who expect the law to protect values of consistency, stability, and predictability. »

http://www.austlii.edu.au/au/journals/UTasLawRw/1993/12.pdf
.

You also wrote :

« … you give no comment to the risk of losing control to the elite … »
.

I think that goes without saying, ALTRAV. I know no country in the world where government control is not in the hands of the elite. In my humble opinion, it always has been in the hands of the elite and always will be. Even if the so-called “inferior” or “lower classes” somehow manage to take over the political power, either they become the new “elite” or they are quickly ousted.
.

Here are some articles you might like to peruse :

http://openresearch-repository.anu.edu.au/bitstream/1885/42078/2/Williams.pdf

http://en.wikipedia.org/wiki/Section_116_of_the_Constitution_of_Australia

http://www.aspg.org.au/wp-content/uploads/2017/08/Session-1-Williams.pdf

http://www.naa.gov.au/collection/publications/papers-and-podcasts/australian-constitution/professor-george-williams.aspx

.

Banjo:
Finally some courteous civil erudite informed debate and on topic! How refreshing!

Whose interests would be harmed by a root and branch review of our constitution? Which would likely conclude? It was written for another time and place, for us, by foreign folk!

It simply beggars belief that someone born here can somehow, by dint of convoluted complexity, in an now ancient parchment? Is somehow not Australian?!

And or that we would have so few, actual guaranteed in law rights!

And only applicable as a list of rights, one would think? If the thinking of the drafters was limited almost exclusively to drafting a constitution for a recent penal colony/British possession?

What if anything prevents us from simply sitting down and drafting a new and more appropriate one? Replete with a bill of irrevocable rights, which would of necessity include a citizen's initiated referendum. Which could have forced the resisted referendum? That would have dealt with the current ministerial malaise?

Moreover, applicable to this time and this place as it is, rather than how a few elites want it to be?
Alan B

Banjo, staying with what I have written previously, I do however ask a favour of any commentors who may be able to enlighten me as follows; I recall reading in the constitution some time ago, the passage where it stated that the courts were a 'people's court and that the judge was not there to pass judgement but simply to oversea proceedings in the interest of the accused. The part about being judged was 'by a jury of 12 of our piers'. It was not acceptable that the fate of a person lay in the hands of one unpredictable person. So my question is; Why are we 'judged' by one person today, rather than a jury of 12 of our piers? Why was this allowed to happen? I understand it would take up a lot of time and resources to have juries for EVERY trial, but that is the law or at least the way it should be as in the constitution. I find the law almost always acts more like a bully trying to prove a point rather than finding the truth. If the jury option is the norm then I would charge the legal profession with acting outside the law and moving to swiftly incarcerate them all. I'd like some feedback on this one. This'll be good!

We don't need a referendum, all that we need are politicians and their advisers that have a basic knowledge of English and who have read the Constitution.

calwest

Fred on this was much more interesting...

https://fredoneverything.org/diving-days-no-vast-political-importance/....

Is Mise, "We don't need a referendum, all that we need are politicians and their advisers that have a basic knowledge of English and who have read the Constitution"

Agreed. And they do have eligibility requirements spelled out to them, in briefings, document and verbal, by ever-patient public servants.

As has been said many times previously, if only they familiarised themselves with their own responsibilities as well as they run the magnifying glass over ways and means to stretch the envelope on their entitlements.

What about parliament attending to those 'wicked' problems though? Such as housing prices and rents have been forced up by Canberra's Ponzie immigration scheme and Chinese entrepreneurs buying up real estate around Australia. While on that, how many ex-pollies are making hay out of representing foreign billionaires while receiving that golden handshake courtesy of the taxpayer?

Is Mise, thank you for that. I'm not so much caring about what is, but more about what might be. I do not have ANY faith or trust in people to make decisions that are good for EVERYONE. I am sick of bloody mantra's like 'for the greater good', my arse if it's not good for all of us, shove it. So unless there were to be a new constitution that was for the 'good of all', don't touch the current one. I don't understand if the constitution is a set of rules laid down by our forefathers, like the bible, we must not change it by making insane excuses like 'it's out of date' and so on. The fact that the sleazy politicians wanted to gain favours with the electrate does not justify scheming some way around the original document. So unless I am guaranteed that I will not be compromised in any way, I will never agree to a new constitution. The Republicans will never agree to my demands, so there it is.

.

Dear ALTRAV,

.

You wrote :

« Banjo, staying with what I have written previously »

No problem, ALTRAV. That’s fine with me. That’s the beauty of democracy. We’re all free to think what we like, to decide what we like and to vote what we like.

However, I noticed you wrote to Is Mise :

« I am sick of bloody mantra's like 'for the greater good', my arse if it's not good for all of us, shove it. So unless there were to be a new constitution that was for the 'good of all', don't touch the current one »

Does that mean that you consider that our present constitution is “good for all of us” ?

That’s certainly not my impression, ALTRAV.
.

You add :

« So, unless I am guaranteed that I will not be compromised in any way, I will never agree to a new constitution »
Are you sure you have not already been compromised by the present constitution ?

None of us have voted on it. Perhaps we shall have the opportunity of voting on the next one – though we may no longer be around when the final draft is hammered out and proposed at a referendum.

However, if, by chance, we are still around, ALTRAV, at least you will have the satisfaction of being able to vote “NO!”, if you wish.

Depending on what it looks like, I might too. Who knows ? That is, … if I’m still around !

Wouldn’t that be nice ?

.

Banjo, my displeasure is aimed at those who have their way no matter what. As it tuns out I don't recall any 'real' displeasure with the 'original' constitution. Where I am displeased is that it was changed. I happen to be one of those people who see's the constitution not unlike the bible. It is a means of guidance and an instrument to fashion our lives on. I do not care for the changes that were made, sighting keeping up with the times. Just two examples of change and look at the mess those changes have created. Giving the abo's the right to vote. It won't be long and there won't be any more abo's because someone forgot to tell them to be an abo you need BOTH parents to be abo's. As we have so few of them and diminishing every year, I see that was a moot change. What we see today are well tanned (or not) Aussies. I have yet to test the constitution to asses your comments about it failing me. If it fails me it won't be the constitution, it will be the legal profession promoting the bidding for the elite. BTW I still have not had any comments on why we are not 'judged' by 12 of our piers, in courts as the current situation is in clear breach of the constitution. So you see Banjo this is just one such example of why I don't want a new constitution. I'll stick with the old one especially when it pisses off the big boys and their ability to run amok.

If we threw the Constitution open for a rewrite the resulting prolonged public barney would dwarf the current chook fight over marriage laws. Government would stop dead for months, maybe even years.

.

Dear ALTRAV,

.

Thank you for explaining your world view as it applies to the constitution. I respect your reverence of the bible, though, personally, do not hold it as a sacred document but, rather, as an anthology of monotheistic mythology, similar to Greek, Norse and Roman mythology.

Nor do I hold the constitution in reverence. Having painstakingly waded through reams of accounts of the (sometimes fierce and conflictual) political discussions leading up to the adoption of the final draft, I am persuaded that it was the best compromise possible when it was established.

As you say: “It is a means of guidance and an instrument to fashion our lives on”. But, unlike you, I am loath to consider that any politician in the 1890s, endowed with even the most extraordinary sagacity and foresight, possessed the ability to foresee the needs of society one hundred years later. I don’t think any politician has ever had that vision, and probably never will.

The constitution is the result of the confrontation of conflicting political interests at a particular point of time in the colonial history of Australia. Those interests evolve and change over time. You can bet your boots that if the same politicians were alive today, they would produce a completely different constitution.

If it is to be “a means of guidance and an instrument to fashion our lives on”, then it must not be allowed to turn to stone. It has to evolve.

.

(Continued …)

.

.

(Continued …)

.

You added :

« BTW I still have not had any comments on why we are not 'judged' by 12 of our piers, in courts as the current situation is in clear breach of the constitution »
.

This is another “hole” in the constitution that needs to be fixed, ALTRAV. But, as I previously opined, there are so many holes in our rusty old colonial bucket (the constitution), we need to get a new one as soon as realistically practicable, i.e., as soon as we become a republic.

I think you will find that most constitutional scholars and practitioners consider that the text of s80 (Trial by jury) of the constitution is, at best, ambiguous and requires clarification.

It has been suggested that trial by jury should apply in respect of offences punishable by more than twelve months' imprisonment. In my view, even this would be too great a burden on society. It seems more reasonable to me to limit trial by jury to offences punishable by at least ten years imprisonment.

Here is an article on the question by Graham Fricke QC, who was a barrister and trial judge for many years in Victoria and, I understand, is now retired :

http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp11

.

Banjo, I agree with much of what you say. In a perfect world many of these 'safeguards' would not be necessary, unfortunately we do not live in such a world. Your attachment, in part, vindicates me in explaining that the trial by jury is there to ensure that the defendant is not wrongly sentenced due to the emotional state of one man, 'on the day'. I believe the wording and therefore the intent of the constitution was designed to stand as a reference for all time and not be changed. Had we followed it word for word, and policed it, I feel we would be a lot better off today. Like the Roman times. It began with discipline and order. Go forward some years on and we find a disgusting environment of orgies, drunkenness and a society out of control, to the point of it's own ultimate extinction. We are heading down that same path. If we don't follow something which keeps us safe and well. The constitution is such a medium. You mention ambiguities and the like. I say it is quite clear as it is very frugal with words so it is not possible to mis-read it's intent. Unless you are looking for a way around the wording to suite your own agenda. Back to my original point. As I still see no mention of removing a jury from a trial, my point still stands, that the legal system is in breach of the constitution and therefore should be charged accordingly. You see Banjo, if we allow a few people to dictate at their leisure only bad things can come from it. You say it was difficult to have trial by jury today. I would say it was a lot more difficult back then with much fewer people. No lets not try to change things because it doesn't suit us and try to work better with what we have.

.

Dear ALTRAV,

.

You wrote :

« As I still see no mention of removing a jury from a trial, my point still stands, that the legal system is in breach of the constitution and therefore should be charged accordingly »
.

Fair enough, my friend. The only problem I have with that is the huge burden on the community of co-opting people to sit on juries when, in some cases, the trial may last several days. Jury trials can be expensive and time-consuming, and some have suggested that they are inappropriate in complex fraud cases which some of the members of the jury are incapable of understanding.

I have known people who have been co-opted several times on juries and who have problems with their work because of it. Here are the latest statistics on the total number of court cases and the total number of indictable offenses in Australia for 2015-2016 :

Total court cases : 3029 (page 27, 1st paragraph)

Total indictments : 649 (page 28, Table 5)

The report defines an “indictable offence” as :

« A serious criminal offence that is usually heard in a higher court before a judge and jury. Less serious indictable offences and summary offences, are usually heard in a Local Court » :

http://www.cdpp.gov.au/sites/g/files/net2061/f/0086_2016%20Annual%20report_v29%20web.pdf

Presuming (though most unlikely) that all 649 indictments were jury trials, 7,788 individuals were co-opted to serve on the jury. If all court cases (3029) had been tried by jury, 36,348 individuals would have been co-opted to serve on the jury.

.

(Continued …)

.

.

(Continued …)

.

Jurors receive a small payment for each day of attendance. Employers are also required to pay their employees "make-up pay", that is, the usual pay the employee would have earned from working, less the jury duty payment received from the state.

In NSW, for example, the state pays $106.30 a day for the first 10 days, and $ 247.40 a day until the end of the trial.

Quite frankly, ALTRAV, I don’t think the professional magistrates in Australia are so bad as to warrant all the extra hassle for everybody, all the court congestion, cost inflation, etc., to settle the “less serious indictable offenses and summary offenses” by judge and jury.

In my humble opinion, it’s just not worth it. Otherwise, I agree there are advantages in having more than just one person (the judge) deciding whether the accused is guilty or innocent of a crime. However, on the other hand, there is an advantage for the accused, if he is, indeed, guilty, and willing to admit it, in not having his trial publicised by twelve people from the community in which he lives.

From this point of view, trial by jury does not encourage the accused to own-up to his crime. If he does not plead guilty, he can always pretend he was unjustly condemned. Whereas a secret trial, without a jury, encourages the accused to admit his guilt and has the advantage of avoiding undue publicity.

.

Banjo, good points all. I suppose I am coming from a purely legal position. I agree that the cost and inconvenience would be a burden on society, but, I am reminded that this reason in itself does not form any part of law and it's execution. In my opinion the very existence of laws is a nuisance and unnecessary (to me), but the law is set and once gazetted becomes our guide and it does not care how much trouble or expense it may cause us (the public). If it was not written into the constitution I would not make this point, but, because it is there (irrespective of the cost and the trouble), we must abide by it. We cannot simply 'cherry pick' because we don't like one or more parts of the constitution. Just think of the myriad of laws that are costly and a nuisance today, yet we blindly oblige because it is law.

.

Dear ALTRAV,

.

You wrote :

« If it was not written into the constitution I would not make this point, but, because it is there (irrespective of the cost and the trouble), we must abide by it. We cannot simply 'cherry pick' because we don't like one or more parts of the constitution »
.

Section 80 of the constitution stipulates that :

“The trial on indictment of any offence against any law of the Commonwealth shall be by jury”.

The Commonwealth can determine which offences are “on indictment” and which are not. It can determine that a homicide offence could be tried not “on indictment”, or conversely, that a simple assault could be tried “on indictment”.

Somebody coined the aphorism that: “if there is an indictment, there must be a jury, but there is nothing to compel procedure by indictment”.

Professor La Nauze, in his account of the making of the Constitution, suggested that the lawyers at the convention had been content to let through a provision “so vulnerable” because they had perfect confidence that trial by jury for those categories of cases in which it had been sanctioned by centuries of tradition would not be at risk. They believed that neither the Commonwealth nor the states would seek to evade the use of juries in cases in which trial by jury was “conceived by the electors” as ‘necessary to justice.

The difficulty of giving a fixed meaning to the words “trial on indictment” was recognised by the Judicature Sub-Committee of the Australian Constitutional Convention in 1985-87. The committee was unable to formulate a satisfactory standard to differentiate those offences which might properly be dealt with summarily from those that should be subject to the constitutional guarantee. It noted that one option would be to remove the provision (“trial on indictment”) altogether. But, given the failure rate of referendums in Australia, they recommended leaving the provision in its present form for the time being.

.

(Continued …)

.

.

(Continued …)

.

Virginia Bell, a justice of the High Court of Australia, observed during her lecture at Monash University on 24 October 2013, that :

« The confidence of the convention delegates [for the establishment of the constitution] that the Parliament would not legislate to provide for the summary trial of serious offences has to date proven not to have been misplaced. Section 80’s work has been to preserve the essential features of the jury trial from legislative modification »

Here is the text of her lecture :

http://www.monash.edu/__data/assets/pdf_file/0007/139498/bell.pdf
.

It, nevertheless, rests that the Constitution is flawed (and vulnerable) on this particular point – yet another hole in the rusty old bucket.

The “bucket” is 116 years old now. It has served us well, but it is tired and worn out, rusty and full of holes. We tried to patch it up 44 times but only succeeded 8 times. It’s time we got a new one. But, realistically, that won’t happen until we finally accept to cut the umbilical cord that ties us to the British Crown, and finally complete the long, heart-breaking process of emancipation that commenced 116 years ago, in 1901, at the birth of our nation.

Much to my regret, I doubt that that will happen before we are ready to stand squarely on our own two feet and become a republic.

The representatives of the parliaments of our six states drew-up our federal constitution - not the British Crown or government - or anybody else, for that matter. It is our creation, our constitution. And it is our bounden duty, as the worthy heirs of our noble forefathers, to give it a worthy successor.

I, for one, am confident that we are just as capable as they were, 116 years ago. And I consider it is my duty, as a responsible citizen, to share that confidence with my fellow compatriots.

.

Banjo, in the event that consensus cannot be reached, then the correct outcome is to retain the current interpretation, which would be correctly applied. I think too much thought is given to find an outcome which happens to help the party seeking a pre-determined outcome contrary to the constitution simply to bolster their agenda or argument, and nothing to do with seeking the truth.

.

Dear ALTRAV,

.

You wrote :

« … the correct outcome is to retain the current interpretation, which would be correctly applied … »

That’s strange, I understood that you were not happy with “the current interpretation” which allows trials for less serious indictable offences and summary offences to be judged by a single magistrate and only trials for serious offenses to be judged by a jury. I thought you wanted the constitution to be interpreted in the sense that all offenses should be tried by a jury.

The problem is that if the wording of Section 80 of the constitution were applied literally, all “indicted offenses” must be tried by a jury – which means that “non-indicted offenses” do not have to be tried by a jury. And, as there is no obligation in the constitution (or anywhere else) for offenses to be indicted, the Commonwealth could simply stop indicting them, if it wanted to, and try them all by a single judge.

That is why some jurists consider that s80 is a “mockery” and that to accept it “would be akin to suggesting that some of the framers drafted the provision on April Fools' Day, setting out to ensnare the public into the delusion that they had been accorded a protection which they did not in fact enjoy”.

Not only is there absolutely no obligation in the constitution for all offenses to be tried by a jury, but, worse, the Commonwealth is free to choose not to try any offences at all by jury if it wants to. All it has to do is to no longer indict offences.

That is why there is a gaping hole in the constitution that needs to be fixed.

Nobody seems to have explained this to our compatriots and they voted against fixing it in the referendum in 1988.

It was lumped together with other matters that also needed fixing, including freedom of religion. The latter aroused the suspicion of church interests who were concerned about funding of education, and the proposal proved to be quite contentious during the campaign.

.

Banjo, I haven't changed my position, I simply see the interpretation as it was intended. To try to interpret it in any other way is only to try and contrive a different outcome, more like the one which would suite the readers agenda. I don't believe there are that many 'holes' in the constitution, unless one is deliberately not trying to understand it by considering the 'intent' of the wording by it's creators of the day.

.

Dear ALTRAV,

.

You wrote :

« I haven't changed my position, I simply see the interpretation as it was intended »
.

Section 80 of the constitution was “intended” exactly as it was written, ALTRAV.

You will recall that I posted on page 7 of this thread, an article by Graham Fricke QC, who was a barrister and trial judge for many years in Victoria. He describes how the final draft of s80 was drawn up (and subsequently approved) :

« A Tasmanian jurist, Andrew Inglis Clark, composed the first draft of what was to become section 80 in 1891. Taking as his precedent Article III, section 2 of the Constitution of the United States of America, he drew a clause providing that the trial of “all crimes cognisable by any Court” shall be by jury. Sir Samuel Griffith altered Inglis Clark's draft to confine the guarantee to “indictable offences cognisable by any court exercising federal jurisdiction”.

Here it is the link once again :

http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp11

Sir Samuel Griffith was chief justice and premier of Queensland and became the first chief justice of the High Court of Australia when it was created in 1903. His made a major contribution to the drafting of the Australian constitution :

« His speech at the 1890 Melbourne conference accurately represented him as a cautious lawyer and practical politician. He was particularly influential in the 1891 Sydney convention where he admitted he dominated the discussions: “my work … was very hard, for it fell to my lot to draw the Constitution, after presiding for several days on a Committee, and endeavouring to ascertain the general consensus of opinion”

Australia’s first prime minister, Sir Edmund Barton saw him as “the greatest lawyer in the Commonwealth” »
.

As I indicated in a previous post, the final text of the constitution, including s80, “was the best compromise possible when it was established”.

The final “intention” that was adopted, was not to grant "trial by jury" to all offences, but to limit it to “indictable offences”.

No indictments, no juries. A big hole !

.

Banjo, as i said before, I care not why the change was made. Obviously it aided the agenda of the changer. My point is it should not have been changed and we would have a much cleaner section 80. Not something which requires debate and manipulation to achieve the outcome being sought by someone to suit them and their agenda.

.

Dear ALTRAV,

.

You wrote :

« I care not why the change was made. Obviously it aided the agenda of the changer »
.

The “changer”, Sir Samuel Griffith, knew that the delegates to the convention for the establishment of the constitution were not in favour of “jury by trial” at the time, and that the proposed wording of s80 would be rejected outright. The “proposer”, the Tasmanian jurist, Andrew Inglis Clark, had simply copied Article III, section 2, clause 3 of the Constitution of the United States of America, which reads as follows :

« The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed »

As Sir Samuel Griffith was an excellent jurist and an astute politician, he modified the clause in order to render it more palatable to even the more recalcitrant delegates, by watering it down so that it only applied to “indicted offenses”. Section 80 then became :

« The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State, the trial shall be held at such place or places as the parliament prescribes »

Thanks to Sir Samuel Griffith, the revised version was adopted at the convention. It was a compromise, but it succeeded.

It would be an injustice to the integrity of Sir Samuel Griffith to consider that he did it for his own benefit. He did not need that. He was a man of great stature. He had been chief justice of Queensland and elected twice as premier, before becoming the first chief justice of the High Court of Australia on its creation.

A university adopted his name :

http://en.wikipedia.org/wiki/Griffith_University

.