A right to marry and found a family.

Author: Stephen Heyer


Submission: on the issues for public comment;

10.104 Should the right to marry be given specific recognition in a possible Queensland Bill of Rights.

10.112 If a Queensland Bill of Rights were to be enacted, should it include recognition of the right to found a family.

1.00 Purpose: This is more a comment than a submission and as such I will restrict myself to the core issues of marriage and children. I leave the related issues to those with specialised knowledge and interests in those areas.

Discussion

2.00 Marriage: The right to marry, and the right to found a family seem to have been claimed fairly recently. The only mention in British or American Bills of Rights I have found is in the Magna Carta of 1297 which states:

2.01 "No widow shall be compelled to marry so long as she wishes to live without a husband, provided that she gives security that she will not marry without our consent if she holds of us, or without the consent of the lord of whom she holds, if she holds of another."

2.02 You will note that this is a right not to marry. Far from recognizing a right to marry it specifically states the right of others to veto a marriage.

2.03 This seems consistent with European tradition. Family, state, church and employer were all considered to have a legitimate interest in when, whether and who a person of either sex married. However, even where people were forced to marry against their will, there seemed to be a popular belief that forced marriage was wrong.

2.04 Apart from anything else, there was enormous social pressure not to marry until income and housing were sufficient for a family's needs. Marriage and children were more privileges than rights, and many never achieved either.

2.05 This is not ancient history. Well into this century there were still situations where couples had to seek permission to marry.

2.06 Nevertheless a right to marry is a nice right and does little harm, though it is probably superfluous, no conceivable Australian government would dare to try to prevent people marrying. It should be included in a Queensland Bill of Rights, especially as the United Nations confirms it in a number of documents.

3.00 Reproduction: The question of a totally unlimited right to reproduce raises more complex questions. Hopefully Australia will be able to allow its citizens to make their own reproductive decisions for some time to come, but almost certainly not forever.

3.01 There is much debate about the level of population that the world, and particularly Australia can support. Some claim that current population level is not sustainable, at least not at Western standards of living, while others claim that a much larger population can share the world, and Australia.

3.02 The point is that the exact sustainable population level has little effect on the final result. Whatever that level is, the relentless process of exponential growth means that it will soon (historically speaking) be reached.

3.03 Almost certainly within the life-span of people now living human population will reach its limits of growth. How it is stopped, and how close it is to those limits when it is stopped, will decide the lifestyle possible to our children.

3.04 Contrary to popular perception Australia's natural rate of population growth is high by Western standards, and in addition there is usually a large immigration intake. Nevertheless we probably have considerable room for expansion. If we manage things carefully we should be among the last countries able to afford not to interfere with our people's reproduction.

3.05 I believe it is important that we manage Australia so as to preserve for as long as possible the privilege of making our own decisions about family size.

3.06 However we have to face the fact that eventually we will reach our limits of growth. If at that time we have in place an absolute iron clad right of unlimited reproduction of long standing, it will cause heart ache and dissension.

3.07 There is also the question of severe inherited disabilities. It is not remarkable for countries to discourage couples from reproducing if it is likely their children will be severely handicapped.

3.08 This is not current practice in Australia. However there is a body of opinion that predicts a collapse of our welfare system in the next century. If (I repeat if) that happens, we may come to regard encouraging the birth of people doomed to extreme poverty as cruel.

3.09 I pray this never happens. However we should retain the legal flexibility to address it if it does.

Recommendations

4.00 The right to marry be given specific recognition in a possible Queensland Bill of Rights.

4.01 The right (or privilege) to found a family be handled more cautiously. If it is included it should be treated a lesser right, subject to modification to meet future circumstances.

5.00 Additional: That Australia be managed so as to preserve freedom of choice of family size for as long as possible. This last is not the province of a bill of rights but is a plea to the general community.


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