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Good morning, I'm Stephen Heyer. The Commission has invited me to give evidence supporting the five submissions I made to the Bill of Rights process.
They are -
1. A right to marry and found a family.
2. Parliamentary supremacy.
3. Rights of nature: human ethics towards the natural world.
4. The rights of prisoners.
5. The right to bear arms: Natural right or obsolete luxury.
I cannot cover five complex submissions in 10 minutes. I do not intend to try. For those who have not read them, my submissions are number S43 in Volume 1 of the public submissions. If you turn to them you may be able to follow the discussion.
I ask your indulgence in keeping the discussion to general principles; I fear life's adventures have left me with some limitations of memory for detail. Away from my reference material I am a bit limited.
I should make it clear that I do not see myself as an expert. I do not claim to be able to provide all, or even most of the answers, let alone draft them in fine detail.
My interests and circumstances have given me a different viewpoint. It is that different viewpoint that I hope may be useful. In particular I am concerned at the narrowness and lack of historical perspective apparent in much of the debate on civil rights.
I must add that Issues Paper No 20 shows none of those faults. Just as a quick reference guide on individual rights it is excellent. It should be in every school library.
My purpose is not to advocate a particular point of view, but rather to try to broaden and deepen discussion. My submissions are intended to present alternative views and encourage research.
Our Westminster system, does not provide strong guarantees of individual rights, nor encourage the acceptance of individual obligations. Originally Judaeo-Christian tradition, Common Law, the Magna Carta and the English Bill of Rights provided strong support for individual rights, and their mirror image, individual obligations.
A right and an obligation are just opposite sides of the same action, "Thou shalt not kill" is both a right not to be killed, and an obligation not to kill. Whether it is treated as a right or a obligation makes little difference.
Nineteenth century British politicians invented the doctrine of Parliamentary Supremacy. This claim of parliament to absolute power over everyone and everything removed that protection, and incidentally the concurrent obligation.
Luckily Queensland has a constitutional system that should allow the attachment of a new Bill of Rights. The problem is that previous Australian attempts to introduce Bills of Rights have not been successful.
This was not due to basic rejection by the Australian population. Having lived through previous attempts I am convinced that a combination of bungling, and a public perception that the process had been hijacked by particular special interest groups caused the rejection.
Goodwill and tolerance will be needed to overcome this. The public will support a Bill of Rights but only if they see it as being as effective and popular as the United States Bill of Rights.
I also believe it is a mistake to expect immediate results from even the best designed and popular Bill of Rights. A Bill of Rights is something we should build for our children and grandchildren, not ourselves.
After all, the American Bill of Rights, though much loved, was put to limited use for the first 150 years of its existence. However in the last 50 years it has become a central factor in American society and government.
Attempts by some groups to gain immediate advantage only convinces others that this is merely another con, and erodes the long term consensus necessary for success. A good Bill of Rights is like a fine wine, it improves with age.
1. You state that the right to marry should be given specific recognition in a possible Queensland Bill of Rights. Do you believe this should extend to same sex couples as well.
I can see no objection to some form of marriage being recognised for same sex couples, and a lot to recommend it. However recognising that as a right in the marriage section of a Bill of Rights would not be appropriate, or accepted by the public.
If it is recognised it should be in another section, perhaps cultural or individual rights. So long as no one else is harmed excessively, how about a right to eccentricity?
2. In discussion of the right to found a family, mention is made of over-population and inherited disabilities. You state that such a right should be 'handled' cautiously and if included should be treated as a lesser right - subject to modification to meet future circumstances. Could you elaborate on this - do you believe the right to found a family should be subject to restrictions? How would the suggested modifications operate?
The more I think about a possible right to found a family the more difficulties I see, especially in the long term. For example in addition to the problems I mentioned, a total right to found a family could be interpreted as a commitment by society to expend unlimited resources helping childless couples to have children. While obviously some resources should be committed to this, there are many other worthy claims on limited community resources.
If this right is included there must be mechanisms to allow some degree of community control. The right should not be absolute, neither for that matter should any other right.
The hard part is achieving a balance between an individual's rights and their duty to respect others' rights. Anyway in the real world rights seldom are absolute.
If a right to found a family is included in the Bill of Rights it will take wiser minds than mine to design a workable comprise. Of course the simplest solution is not to include this 'right'.
3. How is it envisaged the Queensland Legislative Assembly can 'consider' itself less sovereign? Should a Bill of Rights be the only limit on the power of government?
As Issues Paper No 20 notes in 7.20 the concept of parliamentary supremacy was until recently based on mere "academic assertion and judicial acceptance of those assertions". In the recent New South Wales case BLF v Minister for Industrial Relations the NSW Court of Appeal "proceeded on the basis of that Diceyan view of parliamentary supremacy was part o the constitutional fabric of New South Wales".
This decision was limited in scope, and it seems to me as a civilian that the decision was more a recognition of an existing status quo than a statement of ancient principle. As such it should be easily reversible if Parliament and the people rejected the principle of parliamentary supremacy.
In short, just as the English Parliament claimed to be utterly supreme, without as far as I can gather much mandate from the people or reference to Common Law or History, the Queensland Legislative Assembly has merely to formally reject that doctrine.
In any case I doubt the doctrine of parliamentary supremacy could survive serious opposition from the people. If parliament insists on claiming it, the long term result is likely to be conflict.
4. You suggest that Parliament must not be able to override any part of a Queensland Bill of Rights with changes only able to be made by referenda. Are there any circumstances (eg. war, state of emergency) which might in your view justify Parliament suspending or restricting rights for the benefit of society?
Historical research, and current affairs leave me profoundly suspicious of any 'state of emergency' powers. They seldom seem to do much real good during a genuine emergency. They are however dangerous weapons, often used inappropriately in times of lesser trouble.
State of emergency powers seem to be most often used to either protect the power of an unpopular government, or to try to avoid facing difficult or unpleasant problems. In a real emergency what needs to be done usually is done, but if there is no state of emergency to hide behind more thought is given to justifying those actions afterwards.
But, if there are to be provisions for some parts of the Bill of Rights to be overridden by state of emergency powers, then very careful limits should be placed on that process.
5. Is it felt that a Bill of Rights should include the 'natural ethics' outlined in your submission or would a general provision be more appropriate?
The code of ethics outlined in my submission was based as closely as possible on natural human ethics, not ideal ethics, and as such are probably workable in the long term. Further research will improve it provided the process is not captured by any one group, but something very similar should be adopted.
While better than nothing, I do not think a general provision would be satisfactory. General provisions are open to interpretation; they tend to finish up being excessively strict in ways their authors never intended, and too lax in others.
6. How is it envisaged different views towards the land (eg. Aboriginal compared with Western views) be reconciled and catered for by recognition of such rights of nature?
The first thing we must do is find out what those beliefs are, or rather were, and perhaps will be once more. I come from pioneer stock on both sides and my families got along well with the Aboriginal people, so I have some family knowledge of their culture. I also have an interest that predates the current fashion, and the one thing I know is that present popular ideas of aboriginal culture are not very accurate.
As to reconciling Aboriginal and Western views, the natural ethics I outlined are probably more in accordance with hunter-gatherer ethics than those of modern urban Europeans. It is probably we who will have to do most of the reconciling.
Mind you, that is as it should be. Aboriginal people entered Australia somewhere between 50 and 120 thousand years ago using fire to alter the ecology to suit themselves and their preferred game animals. Sort of continent-wide farming without hard work or soil erosion.
While they were hardly preservationists tiptoeing around the Garden of Eden, they did manage to keep an entire continent's ecology viable for human habitation for over fifty thousand years, through periods of disastrous climatic changes. All Europeans demonstrated was that they could go a long way towards destroying it in two hundred.
7. Would these rights be entrenched and enforceable with penalties attached or merely declaratory? If declaratory, do you feel that this could prove useful as an educative method to increase environmental awareness?
I believe it is foolish to try to legally enforce a code of human ethics towards the natural world. Initial use should be educative, and as a statement of principles and a guide for new policy. I do not think there is much doubt it would be quite useful for those purposes.
It will probably be a generation or so before people are really comfortable with 'Rights of Nature' ethics. Even then acceptance will depend on public education and acceptance of the general principles, and of course those principles' soundness.
Eventually a code of human ethics towards the natural world should be legally enforceable. The important thing is not to try to hasten the process. Public consensus that the code of ethics should be legally enforceable, and on the range of penalties, must precede any attempt at enforcement.
As I said before, it is a mistake to expect immediate results from a Bill of Rights. A Bill of Rights is something for our children and grandchildren, not ourselves. That time lag makes it essential that we act in the near future, and that we get it right.
8. Please elaborate upon your views of the rights of prisoners? Do you see education of prison personnel as important? How is it suggested the public will see non-custodial means of correction as a viable alternative? Does education play a role in this area and might a Bill of Rights prove useful in this regard.
I'm no expert on the penal system, but I do not have to be to see that it is not working. I doubt that simple education of prison personnel would be of more than marginal use. It is the entire prison culture that must change.
To begin with prisons have to be decently equipped and run, with one prisoner to a cell. If the prisons are too bad we can hardly expect to attract the kind of decent, dedicated staff needed to make them work.
Judging from the opinions of friends and acquaintances, I doubt that persuading the public to accept non-custodial means of correction would be difficult. I believe there is already wide acceptance of the idea, but the present schemes are often seen as half hearted, poorly run cop-outs.
If people see well run schemes that involve real punishment and do some public good, gaining acceptance will not be hard. The problem is that this requires real resources, and harder yet, a lot of thought, research, trial and error, and intelligence.
There is however considerable opposition to non-custodial punishment for crimes of violence. I think such crimes may have to be excluded for the sake of public acceptance.
I do have two suggestions. Electronic bracelet type surveillance systems seem to have a lot to offer for home detention schemes, and for that matter for minimum security prisons.
Then there is the problem of people who just can not live in society without getting into serious trouble. Perhaps something more akin to a well run commune would be more appropriate, and less expensive than a life in prison.
9. You speak of the necessity of entrusting the citizens of a society with weapons although you recognise problems associated with this. In your opinion, should a right to bear arms be accompanied by extensive community education? Also mentioned were the cultural significance placed on weapons by indigenous and immigrant groups in Australia. Would protection of these rights be more importantly placed in a right to culture rather than a general right to bear arms?
The short answer is yes, sort of, to all of the above. Of course use of firearms, and any other dangerous equipment for that matter, should be linked with competence, fitness, and public education. However testing and education must be for genuine reasons of safety. It must not made so difficult or expensive as to be a form of de facto prohibition.
Likewise cultural rights to the use of weapons is self evidently a right to culture issue, but it is also much more than just a cultural issue. In fact that is the problem, it is impossible to isolate and simplify the arms issue, it spreads right across human culture and history.
Language, fire, and the making of weapons (some other species make tools) are the only things that distinguish us utterly from the other two kinds of chimpanzee. Like it or not, all three are central to our humanity.
People who wish to invent a weapon free culture for themselves have every right to try. They must not however try to impose their will on others, nor can they expect other citizens who do not follow those beliefs to automatically endanger themselves to protect them from less enlightened cultures.
This issue requires care and research. Simplistic, ill-considered policies are likely to do more harm than good in the long term.
Recent history only shows how unpredictable the results of even the best intended actions are when human nature and society are involved. Who would have dreamed that the great social changes the West undertook over the last thirty years, changes intended to found a gentler, less violent society, seem to have achieved just the opposite.
There is no final solution; at best there is a carefully contrived balance that works reasonably well most of the time. But then that describes most areas of human endeavour, doesn't it?
Another consideration: Just as private use of arms must be subject to reasonable restrictions for the public good, so must government use.
History, and recent events show that freedom and democracy are always unstable when an elite can impose its will on the rest of the population. This may sound paranoid, I only wish it was, but much as we don't like it that is the way the world works. Some recent Australian administrations have shown the arrogance, corruption and reluctance to face public scrutiny that is the beginning of this process.
In the end, the long and bitter end, the only reason any group respects the rights of any other group is because not doing so would be too costly. Otherwise some justification will always eventually be found to remove the others' rights, piece by piece, for their own good of course.
There is always a dynamic balance of power between government, other powerful groups, and the people at large. Get the balance wrong and the result is tyranny, feudalism, or anarchy. Since cannon, guns and the printing press broke the power of the castle, the knight, and feudalism we have had this balance about right in the West, that balance is now threatened.
I have worked with computers since the seventies and know what is happening. Within 40 years computer operated tanks, aircraft and surveillance will be practical, the aspiring tyrant will have back his castles and knights in armour, and a small elite will once more have the ability to dominate an entire country. The balance of power that is one of the keystones of Western liberal democracy will be no more.
By that time there will be many more people, and machines will do much more of the work, humans will be a surplus commodity. If tyrants and their machines gain control even once, there will be no going back, and we will not fare well.
There are many other factors in this balance of power besides raw force, but all others in the end can be negated by force.
I do not know if any Bill of Rights will be help much, but we should at least try.