I'm currently doing a research and would like to enquire on whether or not the Australian Constitution is outdated in your opinion. If so, do give me valid reasons for your opinion. Thanks a lot!

-Kenneth Chaw-

Basically, Yes !

In the way that most Constitutions become out of date the moment they become operative, simply because they are compromised in their formation by the paranoia of the prospective parties about rights, relative position, power sharing and authority over amendment processes.

Australia is a Federation of States, which retain their identity today in the face of tremendous pressure to become "One Nation".....

The States or Colonies would never have voted to adopt the Constitution had it been in more futuristic form, but the time has long since come when we need to regard what we know as States to be simply convenient geographic regionalisation elements in what needs to become a single national community.

Most State responsibilites tend to be in the nature of service delivery. Health, education, local infrastructure and law enforcement activities in the various States are not sufficiently different one from another that they should be seen as beyond the reach of national co-ordination on a path to establishing a single societal mode for each.

Then maybe we could take our place as a street in the global village .......

Hey DRW, I really appreciate your opinion. Thanks a lot! I would also like to enquire even further, if you don't mind on whether or not a Republic structure of government should be encouraged to tackle the outdated Australian Constitution. What do you think? In other words, would you be for or against Australian Republicanism? Thanks again!

-Kenneth Chaw-

ken, i believe you should always regard political theory with one eye on reality: it's about power. not social welfare, not justice, not efficiency, just naked power- who's got it, how much, how exercised.

the australian constitution is a pathetic document. oz judges have imagined all kinds of things to be there, which simply aren't there. their reasons i cannot explain for certain, although judicial prestige and power would be the common theme, for my best guess.

is it outdated? yes, simply because real power has shifted from the states to the federal government. by allowing the federal government the power to collect the lucrative taxes, the states are much weaker than when they entered the bargain.

should we become a republic? no. oz pollies are much too powerful already, we are drifting into fascism. the current constitution puts over the pollies the power of the governor general, to force election. it is the only protection in law that we have from dictatorship. it is a very frail reed indeed, as the pollies have nobbled the gg's power almost entirely. still, kerr showed that it exists and might be used.

i argue in this site for democracy: direct election of ministers, citizen initiated referenda, and public execution of public affairs. until we have these powers, a republic would be slightly more dangerous than the current polity. that's too dangerous.

Dear Ken
for the high quality of political/social consultation here at OLO, could you advise us on where to send the invoice ?:)

I've got a question for you Ken.. what are ur feelings about how multiculturalism should be practically implemented in Australia ?

cheers

The current Australian Constitution was drafted by a select group of colonial men in the late 19th century who were intent on a federal system within the British Emopire where many powers would remain with the self-governing colonies (now States)but selected powers would go to the new Commonwealth Government and which system would be difficult to alter by national referendum. But circumsdtances have changed greatly since then, firstly by gradual acquisition of Australian national independence, secondly by a major transfer of power from the States to the Commonwealth through High Court interpretation and the central control of most government finances, and thirdly and lastly by developing global interdependence and the extension of international law and institutions. The Constitution has served Australia well and given it stable government but there is no doubt that it now needs major overhaul. Issues include the continuance of the British monarchy or change to some other system, the continuance of the federal system or some other system of decentralization, cooperation between different levels of government, intergovernmental financial relations, the effect of international relations and international law including regionalisation, international human rights and responsibilities and international peace issues, responsibility for the environment, water, resources, energy, indigenous rights etc.
Hope this is of some help.
Graham

Yes, I believe it is.
We need to remove the states and divide the state responsibilities
between local government and the Commonwealth.

It was fine at the end of the 19th century when it took three or four
weeks to attend a meeting in Perth.
The telegraph was only just available at that time.

I am not enarmoured of a republic after watching the operation of other
republics. Once you elect a President you have generated another power centre.
Imagine if you will someone like Paul Keeting or Mark Latham as President
and John Howard as Prime Minister.

There would be an almost immeadiate constitutional crisis.
This is the major advantage of the Monachy, it knows its power has
gone for good and can only advise, appooint and dismiss.
When it dismisses, it sends the problem to the people.
This is what happened in 1975 and the people changed the government.

It took just a couple of months to solve the deadlock.
Look how long it took to get rid of Nixon in the US, years !

Kenneth Chaw
I applaud your request for further information and if you log onto my website http://www.schorel-hlavka.com and forward me an email I can assist you considerably.(FREE OF CHARGE)

As a “constitutionalist” I am well aware how many are seeing the constitution through the colours of their eyes rather then what it stands for. Even con-job referendums such as the 1967 “Aboriginal DOOMSDAY” referendum was held upon misconceptions as to what the Constitution stands for. While many claim the Constitution is outdated, they obviously are not aware that the Australia act 1986 replaced the 1900 constitution with an identical worded constitution and by this turning a “constitutional parliament” into a Parliament that now is above the constitution. As such, when people talk about outdated constitution why then did the Federal Parliament recreate an identical worded constitution in 1986?
It is not the constitution (1900) that is the problem, it are the politicians and judges that have abused and misused their powers to such extend that few people are aware what the constitution really is about.
For example, “CITIZENSHIP” is a “POLITCAL RIGHT” nothing at all to do with “NATIONALITY” yet, most people understand that “Australia citizenship” is a nationality, albeit I succeeded on 19 July 2006 in court that it was not a nationality as the Commonwealth of Australia never had any constitutional powers to define/declare citizenship! As such, those who don’t even understand that Australians born or naturalised are in fact Subjects of the British Crown hardly then are in any position to clarify to you what is really applicable.
The Commonwealth of Australia is not a country but a LIMITED “political union” as like the European Union but even this most Australians never understood because they have been, so to say, brainwashed since childhood to belief otherwise.
See also;
INSPECTOR-RIKATI® on CITIZENSHIP
A book on CD about Australians unduly harmed.
(ISBN 0-9580569-6-X prior to 1-1-2007) ISBN 978-0-9580569-6-0

Hi RIKATI, Your comments were too kind and do not portray the actual die situation in all of the pretend courts of the States and the Commonwealth.
The Constitution of Aust is the one document they will never want us to have the capacity to understand but their day is coming. As I have stated on many other occasions if the originating process is not sealed with the SEAL of the court required to be applied in accordance with the legislation, the Court has not been constituted and does not exist and the individual, who just happens to be appointed as a judge, does deal with the dispute placed before him/her but it is not a statutory court, it is THEIR " court " , the rules do not apply and the dispute resolution process required to be compatible with Chapter 111 of the Australian Constitution has not been provided due to the blatant fraud and forgery of Her Majesty's Court process.
An understanding of this may be gained by reading paragraphs 14-16 in the High Court reasons for the decision in Kable v The DPPNSW by JBrennan and his statements below are very interesting.

Para16. In my opinion, Ch III does not operate in any of those ways. The test of incompatibility advanced by the submission is taken from the majority judgment in Grollo v Palmer (19), a case which was not concerned with the jurisdiction or powers of a court but with the powers that might be conferred on individuals - personae designatae - who were judges of a Ch III Court.
The incompatibility qualification applied to the persona designata doctrine has no counterpart in the context of possible limitations on the power of a State Parliament to invest courts of the State with non-judicial powers or the power of the Commonwealth Parliament to select whichever State courts it sees fit to invest with federal judicial power. No case has hitherto considered whether Ch III has any of the postulated operations. The absence of such a case
indicates that the proposition has never before been advanced.

Politicians and judges only can get away with their rot if we let them!
I am not going to give up on “OUR” Constitution and what it stands for and as long as other neither do so we must succeed.
Sure, it does take a lot of time and effort but we will.

The High Court of Australia as a Court of Disputed Returns, as such without judicial powers as a Court of law, but as a “persona designata” on behalf of the politicians declare the Australia Act 1986 to be valid with its substitution of the constitution. Yes, pull the other leg will you!
No matter what politicians and judges may fancy as long as We, the People, object to it and do not concede to their unconstitutional conduct we have not lost!
When I succeeded after a 5-year legal battle on 19-July-2006 against the Federal Government lawyers UNCHALLENGED on all constitutional grounds it was because I persisted to push for my constitutional rights.
Likewise if other did so they may just discover we can turn it around and return the powers to the People!

Now RIKATI,
I don’t quite see where your going with your statement but I know one thing, in the matter of a dispute in the Federal Electorate of Leichhardt after the last Federal election, the documents were sent to the Registry of the High Court for the purpose of filing and when they were returned they were not sealed with the SEAL of the High Court of Australia.
The High Court Justice did hear the matter in Brisbane and sent it on to the Federal Court. These originating process documents do not display on their face either the High Court SEAL or the Federal Court SEAL as required by the rules.
Are you suggesting that the individual, personae designatae - who was judge of a Ch III Court and who eventually heard this matter, of a dispute on the result of the election, sat as a judge in the Federal Court of Australia in which the individual was not bound by his judicial oath of office when he had no evidence before him that the matter was filed and issued to the Federal Court as the originating process was not signed, sealed filed and issued to the High Court or the Federal Court of Australia. You have got to be pulling your own leg. We have put this to the test in the Qld Supreme Court and after six hearings conducted by a self litigant he is still there and going back to deal with the Chief Judge of the Qld Supreme Court as all hearings have been adjourned when questions have been asked about the non use of the SEAL and the judges judicial oath of office. No seal on the documents as required by the legislative provisions of the Act passed by the Qld Parliament, NO COURT OF LAW EXISTS and no authorised exercise of judicial power without the consent of both parties. If you were to serve the invitation, a properly signed, sealed, filed and issued document called the originating process, then you have provided your consent to his authorised exercise of judicial power as a judge

Hey, thanks a lot to everyone for taking the time and effort to post your opinions. I appreciate it a lot! Honestly, this is my first research and I still need to learn a lot regarding this subject. But yes, your opinions have helped me a lot!

I'm not too sure about certain terms that were used, but basically, what I catch here is that the Australian Constitution is outdated mainly because the judges shift the state's power to the federal government throught the process of interpretation.

Hence, the state's power should be codified in the constitution and not just remain as a residual power. Also, Australia is not ready for a republic until democratic rights are assured. Otherwise, too much power will be concentrated on the president, and will rule more like a dictatorship.

About that multicultural thing... I think electing an Australian Head of State will allow for better understanding of the growing needs of a multicultural society instead of a British Governor General, who grew up at Britain. I hope that answers your question...

I still hope to be hearing more from all you guys! Thanks again and have an awesome day!

Australia's fe(de)ral CONstitution is not a valid act of any parliament anywhere. wrap the fish heads up in it, throw it in the bin where it belongs & let the States once again have the self determination that existed before this almighty great CONstitution. BTW, there was no q'ld rep at the CONstitutional CONvention held in Melbourne in 1898 while the colonies of WA, SA, TAS, VIC & NSW all had 2 each in attendance.

The reason Qld was not present in 1898 was their own doing, but they nevertheless accepted the DRAFT constitution! The Queenslanders were busy fighting if the State was to be split in two or three parts and so, basically had no time to attend.
As for the High-Court-of-Australia or any other Court sitting as a Court of Disputed Returns, in my recent book published in “032-Chapter 003 LEGAL FICTION - persona designata” I did set out that this is not a Court of law at all and no judicial decisions can be made.
Still the judges try to pretend that they are judicial decisions.

A Court-of-Disputed-Returns is acting on behalf of the parliamentarians to deal with the right of a person to sit in parliament or not, a political not a judicial decision. Politicians have no judicial powers and hence any other dispute that comes down to legal issues, requiring a “judicial determination” cannot be heard before the Court of Disputed Returns. However, the judges of court of laws are now taking a decision of a Court of disputed Returns as being that of a Court of law, and as such ignoring the division between the executive, legislative and judicial parts of the Constitution.

For example, when I sought to file a case regarding the legal validity of the 2001 writs as well as a Section 75(v) of the constitution writs the High Court of Australia insisted I filed in the Federal Court of Australia. Marshall J then argued that it should be heard before the Court of Disputed Returns. To me he was a complete idiot to argue that somehow politicians can hear and determine writs against the government, or for that matter judges acting on their behalf.
When judges do not comprehend what is legally applicable then where is it going one may ask?
Judges are selected to head a Court of disputed Return not because of their "judicial" position but because it was deemed they would conduct matters in a fair manner. If just they understood that themselves! Seems no one told them about this.