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Author: Stephen Heyer
Address: PO Box 24
Rockhampton 4700 Qld.
Submission: on the issues for public comment:
7.29 Should the legislative powers of the Queensland Legislative Assembly be considered sovereign in an absolute sense?
7.30 If Queensland were to enact a Bill of Rights that could potentially invalidate the legislative action of Parliament, should it contain a provision reserving a right of Parliament to expressly override the application of the Bill of Rights in specific legislation?
7.31 Should some rights then be incapable of being
overridden? If so, Which rights?
Discussion
1.00 Popular knowledge: The most important factor in any discussion of esoteric doctrines of government is the abyssal ignorance of the most basic mechanisms of government shared by most of the Australian population. This has allowed institutions to develop that much of the population would undoubtedly oppose if they were aware of their existence and understood the full implications.
1.01 I believe the doctrine of parliamentary supremacy falls into that category.
1.02 Any vague knowledge most Australians have of the philosophy of government has generally been acquired from television. This usually reflects the United States rather than the Westminster system. As a result, many of the freedoms and safeguards Australians think they enjoy apply to America, not Australia.
2.01 History: Few ordinary Australians are aware that nineteenth century British politicians decided that parliament (themselves) was basically answerable to no one and nothing. They had "the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament." (Dicey 1967, pp.39-40)
2.02 Neither are they aware that the various Australian parliaments agreed heartily, but were careful not to tell the people. We were left with this vague idea that parliament sort of held power in trust for the people, and was answerable to someone or something, maybe Justice, or a fair go, or even God. Sorry, wrong parliament, wrong country.
2.03 For a doctrine based on mere "academic assertion and judicial acceptance of those assertions" (O'Neill 1986, p140) to have become so central to the organisation of government is surprising. For this to have happened as it were by stealth, is almost obscene.
3.00 Effect of religion: However at that time the effect of the doctrine of parliamentary supremacy was probably more theoretical than real. A general acceptance of Christianity meant most members of parliament would have felt their policies had to be seen to conform to Christian ethics and law.
3.01 While their faith may have had some beneficial effect on their behaviour (pigs might fly too), the important thing was its function as a de facto bill of rights.
3.02 Central to Christianity was acceptance of the laws of Moses and Christ on which Western ideas of justice and civil rights are based. Even the Ten Commandments are a kind of bill of rights and obligations.
3.03 This ethical code may have been religious, not secular, but that did not reduce its effectiveness. One important feature was that it was common. It was shared and known by most people in the society. Even people of Jewish and Islamic faith shared the law of the Old Testament.
3.04 As the twentieth century progressed fewer people practiced religion, and more of those who did followed non Judaeo-Christian faiths. Many elected representatives found themselves in a moral vacuum without reason to value one way of life, one action, above another.
3.05 They had no guide but the shifting fashions and fads in society and government. For the first time Westminster style parliaments were truly supreme.
4.00 Too open: The doctrine of parliamentary supremacy is too open, too like science to function as the central organising doctrine for our most important civil organisation, government. The following quote could apply almost as well to modern government as to science.
4.01 "The openendedness, the valuelessness, the apparent objectivity and effectiveness of science have progressively stripped away any reason to value one way of life, one system, above another. Modern scientific attitudes - because of science's effectiveness rather than any conspiracy by scientists - destroy purpose in life, reduce us all to a condition of blank, adolescent nihilism." (Brian Appleyard, The Australian 6-7/6/92 on his book Understanding the Present: Science and the Soul of Modern Man)
4.02 Does that sound like the confusion of purpose we are seeing in parliament?
4.03 The only real difference is the effectiveness, I would hardly call our parliaments effective. Science is a powerful tool, well worth the trouble, the same can hardly be said of the doctrine of parliamentary supremacy.
4.04 Systems of human organisation do not work in
an existentialist vacuum. People need a simple, common, and generally
accepted code on which to base their actions. They don't even
have to believe in it too deeply, just know and accept it.
Recommendations
5.00 No absolute sovereignty: The legislative powers of the Queensland Legislative Assembly should not be considered sovereign in an absolute sense. Just as the English parliament considered itself sovereign in an absolute sense, the Queensland Legislative Assemble can consider itself less sovereign.
5.01 We the people certainly believe there are and should be limits to our government's power, and it should be answerable to us, if no one else. If constitutional change is necessary to remedy this situation then it should be considered.
5.02 Bill of rights: A simple, well designed and popular bill of rights would provide the most practical limit on the power of government. It could also provide the guiding code of ethics once supplied by a common religion.
5.03 Parliament must not be able to override any
part of a Queensland Bill of Rights, it must only be changeable
by referendum.