Inalienable Rights and Marriage Equality

I'm irritated about the marriage equality survey, not just because it is going to cost the community 120 million dollars, because the Liberal/National Party couldn’t make up its mind about marriage equality but for much more important reasons. One of the most powerful sentences uttered in human history is the Eureka Oath. The oath was taken by Ballarat miners on the 29th November 1854; “We swear by the Southern Cross to stand truly by each other and fight to defend our rights and liberties”.

The participants in the Eureka Rebellion believed they were born with inalienable human rights no government could legislate away. The essence of a democratic society – rule of the people, by the people for the people is the idea all human beings, irrespective of their race, culture, gender, sexual orientation or nationality are born with inalienable rights. Why am I, as an Australian on the electoral roll, being asked to decide one way or another whether someone can or cannot exercise rights they were born with?

The problem in Australia is compounded by the fact that although we live in a nominal democratic society, Australians have very few constitutional rights. The very building blocks Australia is based on the Australian constitution does not recognise Australians have inalienable human rights. The Australian constitution is so bereft of rights the High Court found an implied freedom of speech in the Australian constitution that only came into force between the time the writs had been issued for a Federal election and polling day.

The ability of people to exercise rights they are born with is the essence of a democratic society. If the government was serious about marriage equality they would have held a referendum about the question of marriage equality. If a majority of Australians in a majority of states voted for marriage equality this right would be incorporated into the Australian constitution. Once that right was in the constitution, no government could legislate that right away without holding a referendum.

It would be a pity of all those activists who are now campaigning for and against marriage equality did not take up the matter of individual inalienable rights once the survey result is known. In Australia, the government can and does pass legislation which removes people’s inalienable human rights. Nothing highlights this more than the legislative onslaught against the inalienable rights of asylum seekers. The High Court has decided, under Australia’s current constitutional arrangements, asylum seekers can be held indefinitely without charge for the crime of seeking asylum. The sooner the marriage equality debate morphs into a debate about defining what individual inalienable rights are and these rights are incorporated into the Australian constitution, the better off each and every one of us will be.

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