Hilarious. This article amounts to an argument to subvert the sovereignty of the people in order to save postage stamps, and to trim a few pages of obsolete verbiage off the Constitution. Only a technocrat could see any merit in the suggestion.

By Mr McConvill's logic, we should save even more money by getting rid of all those expensive politicians and just leave everything to Dear Leader, who knows best.

Mr McConvill probably enjoys a good sneer at "elitist" progressive-types, yet here he is sneering at the entire Australian populace for apparently not knowing what's good for 'em. How elitist can you get?

I seem to recall reading a recent OLO article relating to how the business community was constantly pushing for government reform in the interest of streamlining the process and reducing red tape.

http://www.onlineopinion.com.au/view.asp?article=5033

I thought it summed it up quite nicely. It's all very well to go slashing legislature in the interest of efficiency, but there's a reason why the process is slow and demanding - accountability. A process which is always at risk of being subverted, what's more, those who need to be held accountable the most almost always hold a genuine belief that their being scrutinised isn't necessary.

The only "PP" that have contrained the constitution is the managerial elite who have had and are in the "P" of position to change it.

Why would the rich and famous really want or need the average citizen in their world?

If people are as disinterested in the Constitution as McConvill claims - and the claim is probably true - that is enough for me not to want any change. If people are disinterested now, they will be no more interested after a change, and with the suggestion that a majority in Parliament should make constitutional changes and, note well, “divert the power of constitutional change from the people to their elected representatives..” then that would be very dangerous.

McConvill talks about not “succumbing (to) forces of partisan politics”, relying on the lack of any party having a sufficient majority to force it’s will. This is about the now. What about the future?

Is there a guarantee for the future? Even people not interested in the Constitution or in politics per se know that politicians think of themselves as being different from other people. When they get together, irrespective of party, it’s more “them” and us (the voters) than people realise. They are a club, irrespective of party, which they prefer belonging to rather than mucking in with the rest of us. They all see themselves as “statesmen” who need to guide us in our ignorance. Remember, politics is about power (even if some politicians sincerely believe that they want it to help people) and the power is over us: the people.

We should stick with the current Constitution and with referenda. Better still, we should have real power over our elected representatives (who are really representing their parties to us, not the other way around) of Citizen Initiated Referenda

I find it interesting that Dr McConvill fails to make the case for why we need a completely new constitution. If it is to fix various sections that are now out of date, using his example, to make section 51(v) reflect the modern technologies of radio, television and electronic media, and to remove redundant provisions, then why could we not have a referendum on that? I doubt even the most conservative voter will object to these seemingly simple changes.

I am not convinced that the examples he has provided for us constitute the need to give more power to our elected representatives, since the constitution is the only document we can use to keep them in check. Giving them the power to change the document is analogous to giving them the power to decide on their salaries and superannuation payments, and those decision have had a overwhelmingly been decided in politician's favour. Why would this system of constitutional change be any different?

"given that it is only on rare occasions that a political party will have a sufficient majority at a joint sitting to force through their desired constitutional amendments"

Apart from the parliaments of 1993 and 1996, every government since 1949 (at least) would have had an absolute majority in a joint sitting.

As he mentioned WorkChoices-

There have been 4 referenda on the issue of referring State IR powers to the Commonwealth. The people have rejected a unitary system 4 times.

Now the elitists in Parliament and the High Court will (probably) subvert the will of the people to pass laws which most benefit foreign owned corporations.

I note that in his excitement about the US Constitution he does not mention the Bill of Rights, I mean you wouldn't want the great Australian unwashed having some rights, now would you ?

Where do these guys come from ?!!

Ah, Mercurius,

Its hard to find a better word, isn't it? Hilarious. He must have taken a bet with some of his mates after a Melboune Cup party as to how many false assertions relating to the Constitution could be packed into two pages of A4 paper, or something. I can count at least six on the first page of the printable version. Wonder how much grog they polished off between them all? Did James Mc Convill lose so much on the Cup that he had to get them all fired up for this challenge to have a chance at recouping his money? Wonder what the top bet was as to how many he could pack in?

But please be careful, Mercurius. He already has you within the shadow of Godwin and His law! "Dear Leader" indeed! That's sailing just too close to the wind. The nazi little bait-trailer will get you disqualified from the argument too early, and that would be a pity. THIS one promises to be real fun. Might even make me larf.

In fact, why don't we hoi poloi start a competition of our own as to how many false assertions we can spot in his article? If n be the number of identifiably false assertions on the first page (the page ending at ".....and I believe this procedure is appropriate for constitutional change."), I will bet right now to being able to find (n+1). Graham to referee. Game on?

Come in spinner!

Before we all get too excited, this article was not meant to be read by us.

It was published in Lawyers Weekly, "Australia's leading information resource for the legal professional", and therefore was the equivalent of a contribution to "The Shooter" advocating relaxation of the gun laws.

It is simply a glimpse into the closed world of the "legal professional", who quite probably lapped it up without questioning the premise, the arguments, or indeed whether there was a single supportable idea in it.

A quick run through other pieces in the same journal delivers some gems.

There is one article on ethics that says, apparently with an entirely straight face:

"Practitioners also owe their clients a duty to exercise due skill and diligence, to maintain their obligations of confidentiality and to avoid conflicts of interest. Finally, practitioners owe a duty to fellow practitioners to deal with them in an honest and professional manner"

I'm sure they all howled into their cornflakes at that one.

It also gives an insight into the tough environment they work in. Here's an excerpt from the NSW Law Society's commentary on awarding a trophy to the Crown Solicitors Office:

"...the CSO is in many ways an ideal place to work. It sets reasonable working hours: a standard seven-hour day with an average of five billable hours. And 'if they work more than seven hours a day, they accrue the balance towards flex leave,' [the CSO] said.

Sick leave can be converted to carers leave, work from home is an option, and the CSO even allows staff extended periods away to study, travel..."

Much can be learned from their view of themselves, certainly enough to put this irritating little piece into perspective.

So much for democracy!

Thanks Pericles, I always find it very useful to understand what group or audience an article is written for. Your examples of the other articles in that journal were enlightening. One wonders how Dr McConvill's article made it here, and for what purpose?

Flaneur,

Thank you for the timely observation that it would not have been rare for a political party in government in Australia to have had an absolute majority in any notional joint sitting of any Commonwealth Parliament since 1949. I think James McConvill must have been mentally straying back to his brief resume of the two thirds majority of State legislatures required to alter the Constitution in the land of the free and the home of the brave in saying what he did in paragraph 13 of his article. In saying "given that it is only on rare occasions that a political party will have a sufficient majority at a joint sitting to force through their desired constitutional amendments" he has been just plain foolhardy, and undermines his own credibility. Maybe he had a joint, sitting on his own after that Melbourne Cup party! Sadly, Flaneur, paragraph 13 is not on page 1 of the article, so it cannot count in the competition. It was a most important point. Thank you once again.

To the game.

False Assertion 1. Paragraph 3, "This case is the first time in a while that the constitution has been the subject of significant public attention." Er, what about both the republic and preamble questions at the November 1999 referenda? The virtual totality of the Constitution was put under the magnifying glass on that occasion. Every elector had to vote on it. Only seven years ago. Is that not recent enough?

False Assertion 2. Paragraph 3, "...the constitution is dead boring and in need of fundamental reform." No it's not. Actually, read with a little understanding, it is a riveting document, choc full of possibilities and guidance for governance. Inspirational, from "Whereas the people..." to "....according to law." And this to a mere lay mind! How much more so should it be to a lawyer? Quick and Garran, Evatt and Forsey...the list goes on and on. Stars in the firmament of the law. Bored or boring? I don't think so. James, are you happy in your work? Have you missed your vocation?

Pericles,

Most helpful insight. Could James' mission be to bumdrum the legal profession with respect to the Constitution? A retired judge's wife once told me there were relatively few constitutional lawyers practising in Australia. Very little money in it, apparently. That could create an opportunity for 'snowing' the rest of the profession.

False Assertion 3. Paragraph 3, "...there is precious little in our constitution to get the heart racing." Wrong again. Section 61 managed it 31 years ago as from tomorrow. This section underpinned everything Sir John Kerr did. Hearts were set racing that day! It's not hard to imagine Section 72 (ii.), at some future time, setting hearts racing, either.

False Assertion 4. Paragraph 5, "...a stale document reflecting the attitudes and values of our dead ancestors, ...". Also wrong. I, and plenty like me, are not dead yet. If the inference intended was that many people do not share the concerns or appreciate the skills and foresight of the drafters of the Constitution, be assured that that is not so. The measure of the dis-ease of our body politic today is in the extent of attempted departure from, rather than adherence to, the precepts of the Constitution.

False Assertion 5. Paragraph 6, "...rarely, if ever, is the referendum process for changing the constitution raised...." There has been nigh on a century of repeated assertion, often subtle, but recently much more strident, to the effect that Section 128 does not mean, in its fourth paragraph, what it clearly says. Fortunately, most of the time, these assertions have been irrelevant, and the referendum provisions have served us well.

False Assertion 6. Paragraph 8, "This is money clearly wasted." If that's right, how about we junk elections too? The price of democracy is everlasting voting, every so often.

False Assertion 7. Paragraph 10, "One way around this, however, is to just get rid of the current constitution in its entirety." This statement, in terms of the Crimes Act 1914, is plain straight sedition. It proposes overthrow of the Constitution.

Anyone got any more false assertions on page one?

McConvill writes that Australia could "tidy up" the corporations power so that "Parliament can make any law affecting a corporation. At present, the parliament can only make laws in relation to “foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”, hence the WorkChoices challenge presently before the High Court".

The Workchoices challenge is not really about what Parliament can make laws for (any corporation vs "foreign corporations, and trading or financial corporations formed within the Commonwealth"). Most corporations in Australia already fall within the latter description.

The main question is what kinds of laws Parliament can make with respect to these entities - what kind of connection the law has to have with corporations in order to be supported by the corporations power.

Forrest, I don't think you should get too excited. I'm pretty sure this article is satirical - no trained lawyer would make a bona fide statement suggesting that "alter" could be interpreted to exclude "rewrite". Or that the constitution can be repealed by our parliament when it's considered to be an Imperial, not Cth act (the question of whether or not it can be repealed by the mother country is somewhat more interesting, although to my mind answered).

So don't bother trying to count "false assertions" I say. Either this guy's taking the piss or he's not worth the time it takes to be critical.

Hehe, and you probably shouldn't just allege "sedition" (I think you meant s24AA(1)(a)(i) treachery) like that in a public forum against a named individual, particularly since you may have misinterpreted the actus reus component of that section.

Don't want to spoil your fun though.

Forest,
I would not even give the author the curtasy of a serious reply. his article is ludicris.

I am simply glad our constitution has been a brake on stupid politicians thus far. The polys have too much power now and citizen initated referenda is sorely required to enable us to keep control.
Multiculturalism is a good example of polys acting stupidly. There are plenty of other examples.

Thank our lucky stars that the constitution was written in the days when polititions cared about doing what was best for Australia.

One would be stark raving to trust the present lot of snake oil salesmen on either side.

Nay, Banjo, but he doth ask for it. Forsooth, but I should let him have it! Would that a winged Griffith would alight upon him and rend his carrion flesh from off his bones for this disrespect to our noble foundation document. But we lesser mortals must content ourselves with issuance of sober refutation and measured reproof in the face of these outrageous assertions.

Now to inject some new life into the debate.

False Assertion 8. Paragraph 7, "Since federation, there have been 44 referenda in Australia in which only eight have been successful." Wrong. There have only been seven that have been successful in accordance with the provisions of Section 128 of the Constitution as to determination of result.

Yes, I know that the Parliamentary Handbook says there have been eight, but it is not so. The 1946 Social Services referendum did not meet the second of the Constitutional requirements that it pass with a majority in a majority of States. The informal vote at that referendum was not taken into account in the manner provided in Section 128, and as a consequence the number of 'Yes' votes required to constitute a majority was not calculated correctly.

In Tasmania, where the official record declares that the referendum passed with a greater number of 'Yes' votes than 'No' votes, had the informal votes been taken into account as the Constitution required in determining how many 'Yes' votes constituted a majority, it can be seen that in fact the question fell short of a majority by 4,978 votes. That leaves that referendum having only secured a majority of 'Yes' votes in three States, and therefore not in a majority of States as the Constitution requires.

That this situation has remained unnoticed for 60 years is a measure of the zeal that Parliamentarians have had for our Houses. There was clearly little risk of that zeal ever consuming them. Even the self-styled 'independent umpire' that conducts elections and referenda, the Australian Electoral Commission, has championed to this day the error that this departure from Section 128's provisions constitutes.

The Left perhaps arent happpy about decentralisation, so: 'why not confirm the Commonwealth’s dominance in the text of the constitution?'.

The constitution is designed to limit the powers of government, but the Leftists think they have a monopoly on intelligence, thus they are in favour of: 'getting rid of the dysfunctional referendum process that gives too much power to the Australian public who aren’t equipped to exercise it effectively.'

Like all good narcissists, they dont like you and I. Down with peasantry, up with surfdom they cry, saying 'Co-operative federalism between the Commonwealth and states has not worked effectively, and with power naturally leading towards the Commonwealth anyway, let’s just speed up the process.'

Thus they have arrived at the conclusion all by thereselves that 'Our dysfunctional federalism can be fixed by replacing our dysfunctional constitution'. All they have to do is ignore the will of the people, withold the right to referenda, and declare Australia a Republic modelled upon a China/Russia mix of C.....M Then they will have a monopoly monology, a Marxologists monoparty state, a Gentry Services Tax to sustain them, and a two-teired socialist system to seperate the masses from the State.

Too easy.

Enter Labor, 2007-08.

Our lawyer friend says that "Australians are a conservative bunch who when faced with change - even positive change - that they don't fully understand, vote to maintain or restore the status quo."

Seems pretty sensible to me, except that McConvill's answer is NOT to ensure that people understand the proposed change, but to remove their right to have any say about it. You'd have to be a mug to trust a lawyer.

I too think it is hilarious that an argument for change is the fact that the Australian people have used their democratic vote in referendum after referendum to reject the particular constitutional amendments put forward. Imagine applying the same principle to elections: any election in which the people do not change the government is proof that the people shouldn't be allowed to choose the government. How arrogant can you get? Catch 22 rides again!

However, it is time we gave up the idea that the only way to change the constitution is by referendum. The High Court's extraordinary reading of the corporations power enables the federal government to do anything it likes. It seems that the express limitation of Commonwealth power in industrial relations to matters concerning interstate disputes is meaningless. If you deal with a corporation, the government can control you.

Throw in the High Court's reading of the external affairs power, and all we need is for the federal government to sign a treaty with Monaco to corporatise federal parliament and then have that same parliament pass a law abolishing itself under the corporations power.

As I understand it, even though the federal parliament can pass laws regulating corporations, it is state law that creates them. If this is so, a determined state government can thwart the federal government by abolishing corporations completely, but it had better do so before the federal government signs a treaty with Monaco declaring that the states themselves are corporations.

Chris C,

You provide, albeit in what we would all really hope to be in jest (but really probably isn't), a germ of the development of an illustration of just how wrong at least one of James McConvill's assertions could be. McConvill asserted that there was little in the Constitution to set the heart racing. In a post earlier in this thread I suggested that at some future time Section 72 (ii.) might do so. That day may be nearer than we imagine.

Section 72 (ii.) of the Constitution deals with the removal of High Court Justices. Whilst not to be entertained lightly, delivery of a decision that effectively tends toward the overthrow of the original concept of federation, and appears to fly in the face of four referendum results over the years, might reasonably be examined for signs of 'incapacity' in the Justice(s) delivering it.

Whilst it may not presently be easy to envisage, the composition of a future Parliament may be able to invoke Section 72. Read it and ponder.

Doesn't James McConvill also teach at Deakin University with that other online opinion contributor Mirko Bagaric? You know, the guy who wrote that torture article last year.
Is it just me, or does there seem to be some similarities in their logic/outlook...:-(

It is frustrating that Australia's constitution has "fallen behind the times". One University Law lecturer I had in 1993 described it as a "horse and cart constitution". This may be so. However, in no way can I justify in my mind the idea of removing the people's right to have their say on the document that underpins all government law making and activity. What McConvill is effectively advocating is a revolution. The Federal Parliament cannot pass the law/s he is advocating because such laws are Unconstitutional ! No political party in their right minds would attempt to do what McConvill is advocating - it would be political suicide ! Good intentions or not, this argument does not stick and reflects a totally masculine pyschology. I see it this way....if a party-in-government drafts a sound and worthwhile amendment to the constitution and the idea is sold correctly to the public, then such amendments stand a good chance of getting up. For a document as fundamental to society as the constitution, it should never be the case that anyone can just come along and "change it". For all its faults, it has provided the foundation for a solid democracy for over 100 years and I would expect the people would vehemently oppose the kinds of changes McConvill is suggesting.