Dr. Laura Cahillane:

The point I was making about Article 45 is that if the committee decided the best way forward was to incorporate a symbolic recognition for carers in the Constitution but was fearful of going further and creating concrete constitutional rights, Article 45 is the place where that symbolic recognition could be inserted while being reasonably sure it would not lead to any concrete obligations. As Professor Mullally has said, the human rights commission's fear is that it would not provide strong obligations for the State. The point is that Article 45 is a symbolic provision. There have been times the courts have used Article 45 to refer to unenumerated rights but generally Article 45 is not something which leads to concrete constitutional rights. That would be a solution if the committee felt that a symbolic provision was more appropriate and did not want to go forward with a concrete provision which would grant economic rights to carers.

On the marital family issue, it is difficult in that Article 41 has been interpreted by the courts to refer to the marital family. Where the family is given protection in the Constitution it is only the marital family which is given protection. The Constitution does not say that but because it gives special protection to marriage it has been interpreted by the courts as meaning that the family has to be a family based on marriage. There is always room for interpretation there. One hopes the courts would give an updated meaning to a provision in Article 41 to include families other than marital families, but that definition has been ingrained in the Constitution until now. It is slightly off point but a much more meaningful amendment to the Constitution would be to amend Article 41 to change that definition in order that a de facto family would be recognised, rather than a marital family.