Thanks Michael. This was an interesting and thought provoking article.

I am thinking out loud here as is my want. I wonder whether the rate of change is any greater now than one hundred or so years ago - eg when cars, electricity, telephones and so on came to the fore. I don't know.

Technological change is built into capitalism - it is driven by the desire for more and more profit at the expense of competitors.

But change also occurs between systems. The change from feudalism to capitalism in Europe was sometimes gradual but often brutal. Driving people off their land and into the cities was pretty major change.

One thing I agree with is that we have become a world economy (at uneven rates of integration into that world economy admittedly). And so this enhances perhaps the rate of technological change. In any event it speeds the rate of information flows, as Michael points out with his example of prisoners' voting rights and the use of non-traditional precedents for justification.

But still the precedential process itself is rooted in our feudal and capitalist history. So it is not new wine in old bottles, just, perhaps, better wine.

Another thing about globalisation is the impact it has on policy makers - eg to free up the economy to enable the flow of capital to "benefit" one country over another. I think this makes the nation state even more important now.

Note too that it is always capital that can cross borders freely. With labour it is much more contested.

Anyway, thanks again Michael.

As a complete amateur at law, I would like to say that the workings of the legal system are, to me, so devoid of common logic that they have to be regarded as the doctrines of some secular religion.

A brief look at some of the High Court decisions over the years highlights my concern:

1. Section 5 of the preamble now provides that our constitution can be in force on the ships of a foreign country.

2. Section 41, which should provide one of the basic supports of the right to vote (and where state law overrides commonwealth law), has virtually been repealed by the Court.

3. When it comes to the qualifications for standing for parliament, you are now required to renounce any other citizenship you may have, but if you happen to also be a citizen of a country that has no provision for renunciation of citizenship, well, that's OK, you can stand with your dual citizenship intact.

4. Implied clauses, which do not exist in the text, and have have never been approved by the people, have been recognised by the Court.

5. Some judges even consider conventions and rulings from the United Nations to have force in Australia, but this organisation is not recognised in the Constitution, and the people have never voted to give the UN any power regarding Australian laws.

What is the point of the people voting down a referendum proposal when the same result is often achieved by other means? Is it any surprise that they vote "NO" at every possible opportunity?

The only way to restore democratic control of our legal system is to adopt the Swiss system of citizen initiated referendum, where provisions can be enacted into law in the teeth of the opposition of the whole political and legal establishment. Of course, this will never be done, because if it was, the first referendum would be on bringing back hanging.

I admit a perverse fascination with Michael Kirby’s technology and privacy parable. Consider human DNA. There’s not much more high-tech, nor a better example of personal information worthy of protection against use for “any other purpose than what the person had given it for, except by specific authority of law or by the approval of the data subject.”

Mr Kirby seems to take pride in an old law offering protection to old-tech personal information “It was effectively a moral and ethical principle, designed to keep people’s control over the use that was made of their private information. It was put into law.”

Not so, for personal information contained within human sperm. Unlike any other proprietary information, instruction, or code, “clever law makers” still only see sperm as a “gift”. Admittedly, some, more than others.

"We looked at the concern in many countries about the loss of national control over law."

Absolutely !

Australia should do one (or both) of 2 things.

1/ Withdraw from some UN Conventions on various supposed human rights.

and/or

2/ Add reservations, exceptions, qualifications which protect our national and cultural interest.

Anyone who thinks that those behind 'International Law' do not have a social, and political agenda would be naive in the extreme.. possibly even 'ignorant' of history as well.

Dave here
I appreciate the time of the High Court & Justice Michael Kirby but what is the point laws when they only apply to the rich. I presently nave an extremely complex case where my son was removed contrary to the Act, The Law & decisions of Supreme Courts & High Court & Magistrates & Judges just deny these rulings & make their own decisions it is time that Magistrates & Solictors were gaoled when they make those decisions
May your Lord shine on you all well
God Bless Dave