23rd Parliament · 1st Session
Mr. SPEAKER (Hon. John McLeay) took the chair at 2.30 p.m., and read prayers.
– I ask the acting Minister for External Affairs whether the Government has any intention to raise again in the United Nations the question of the right of search and seizure under United Nations authority of ships engaged in the Saudi Arabian slave trade. Was Australia represented on the January, 1957, committee which recommended this? How did Australia vote on the question before the United Nations? Why was the committee’s recommendation not accepted by the United Nations?
– I am sure the honorable member will not mind my asking him to put that series of questions on the notice-paper. The Minister for External Affairs will then be able to deal with them within the next few days.
– My question, which is addressed to the Minister for Trade, relates to import licensing. Has the Minister heard or seen a statement made by the president of the Associated Chambers of Commerce in which he said that, following a review of the balance of payments position, the stage had been reached where the Australian Government should seriously consider the lifting of the remaining restrictions imposed by import licensing? Does the Minister feel that we have reached the stage where the complete elimination of import licensing would be justified? Is he prepared to give any encouragement to manufacturers in this respect, so that they may make some forward planning?
– I am aware that the president of the Associated Chambers of Commerce has made a comment - I think in addressing his own body - to the effect that the Government should now consider the possibility of terminating import licensing. The Government is most anxious that import licensing should continue no longer than is necessary, but it is doubly anxious that we should never have the experience of terminating import licensing only to find that it must be reintroduced to protect our overseas balances. This does not reflect any reluctance to abandon import licensing, but is a statement of a determination shared equally by the Government and commerce that, if anything, it is preferable to sustain the procedure a little longer than to take the risk of a possible re-imposition with all the dislocation that this would cause to industry. The Government has the advantage of recurring advice from a consultative committee on imports under the chairmanship of Mr. M. E. McCarthy. Included on that committee are some very distinguished leaders in the commercial field. The committee is not of the opinion that the time has arrived when import licensing could be terminated. The procedure which the Government has obviously been following is progressively to relax controls and a term has been coined which rather fits the position - that the Government is in the process of sliding out of import licensing. To-day more than 50 per cent, of all imports are unrestricted and controls remain with any degree of tightness only on goods in the lower essential categories.
– I should like to ask the Minister for Trade a question arising out of the one he has just answered. Will he tell the House who are the members of the committee to which he referred? Are the reports of that committee dealing with policy matters available to Parliament? I cannot recall reports of this committee being made available to honorable members, especially reports dealing with the aspects of import licensing mentioned just now by the right honorable gentleman.
– I will be glad to make available to the House the names of the members of the committee. I cannot recall them all from memory. As is the case with a multitude of committees which advise this Government and which advised previous governments, it is not customary to make the advice of the consultative committee public. Quite frequently this is no less undesirable from the point of view of the members of the committee than it is from the point of view of the normal processes of government. It is confidential advice.
– I ask the Treasurer a question relating to overseas investments in Australia. May I, by way of preface, recall that on 23rd September, in the absence abroad of the right honorable gentleman, I asked the Prime Minister whether he would consider the preparation and presentation to Parliament of a White Paper on overseas investment in this country, tracing its ramifications and effects on the economy in as much detail as possible. I now ask the Treasurer whether the Government has made a decision on this matter.
– I regret that I am unable to give the honorable gentleman any precise information at this stage. Of course, inside the Treasury we do periodically survey the incidence of various aspects of economic indicators and economic developments and, as far as possible, keep the Government informed of trends. But we have on more than one occasion told the House of the general view which this Government holds in relation to overseas investment and we maintain policies which we think will provide encouragement to sound overseas investment in this country.
– I ask the Postmaster-
General a question. Does the Government propose to extendnationally-owned television to country areas? Will the honorable gentleman consider the early extension of television to country areas by the economical system of translator stations from the nationally-owned stations in each State?
– I can assure the honorable member, asI have stated on a number of occasions in this chamber, that the originalpolicy determined and announced by the Governmentregarding thespread of television has not changed. That is to say, the Government still believes that television should be extended by the provision of a dual service - a national service and a commercial service. That is the system that has operated so well in the broadcasting field. Therefore, the Government will proceed from time to time in stages, as is the case now, to provide national stations, and the commercial stations will be provided by private enterprise.
– Can the Prime Minister state the present position in relation to the report of the Constitutional Review Committee? Will it be presented to the House before the recess? If so, would it be possible for the evidence that has been taken to be made available also, so that honorable members could peruse it during the recess in conjunction with the report?
– A few days ago, the chairman of the committee sent me what might be described as the page proofs of the report. It is a very lengthy document, and so far the pages have not been assembled or bound in booklet form. How long that will take, I do not know: However, quite clearly the report is almost ready to be presented.
– It will be presented tomorrow week.
– I have been informed by the Deputy Leader of the Opposition that the report will be presented to-morrow week. As to the portion of the honorable member’s question relating to the evidence, I cannot answer that by the book. However, I will find out whether there is any possibility of making the evidence available to honorable members who desire to study it.
– I address my question to the Minister for Social Services. Will he have a departmental examination made in order to ascertain the serious hardship that is being suffered by married invalid pensioners whose wives receive only the wife’s allowance of £1 15s. a week? When two persons have a joint income of only £6 10s. a week, they must be living under conditions of extreme hardship. In those circumstances, will the Minister consider what action can be taken to alleviate the pathetic plight of these people?
– I have pleasure in informing the honorable member that there is no need for a departmental inquiry into the question that he has raised. All the information is available to the department. The wife’s allowance is reviewed every year, as are the rates of all other social service benefits, which are increased from time to time consistent with the financial capacity of the community to pay for them. That process will continue, and the wife’s allowance will be reviewed again at the appropriate time.
– I preface my question, which is addressed to the Treasurer, by referring to the right honorable gentleman’s recent announcement relating to the new Canberra mint and the future activities of the mints in Melbourne and Perth. Will the historical link with the Royal Mint in London be retained, or is it expected that, with the establishment of the Australian Mint in Canberra, gold refining will be continued at the mints in Melbourne and Perth, as branches of the central organization?
– It is intended that refining shall continue in Melbourne and Perth, as at present. As to the other part of the honorable gentleman’s question, concerning our relationship with the Royal Mint in London, I do not have the details in my head at the moment. I will give him a considered reply.
– Has the attention of the Minister for Air been directed to the unsatisfactory standard of the housing accommodation provided for personnel at the Royal Australian Air Force station at Darwin? If the Minister’s attention has been directed to this matter, will he outline the proposals that the Government may have in mind to correct this unsatisfactory state of affairs? If his attention has not been directed to this matter, will he take immediate steps to investigate the complaints that have been made in relation to it?
– I am very well aware of the state of the housing accommodation available for Royal Australian Air Force personnel at the Darwin base. I became aware of this problem - and it is a problem - on my first inspection of the base over two years ago. There is a shortage of houses which has persisted since war-time. A number of families - I think some 40 families - are housed in emergency quarters of a sub-standard character. Urgent steps have been taken by my department to overcome this difficulty. Thirty houses of a very good standard for tropical conditions were built at the base in the last financial year. Thirty are being built this year and fifteen are intended for next financial year. The airfield construction squadron which is still working at Darwin occupies a number of houses, and these will be released for other personnel when the squadron moves out. I am very confident that the whole problem will have been solved within about eighteen months. In the meantime, I can only ask those families who are inadequately housed to be patient in the certain knowledge that their problems are being progressively solved.
– I desire to ask the Minister for Primary Industry a question without notice. Has the Minister received a report on the damage caused by hailstorms yesterday to valuable crops in the Moree and Liverpool Plains districts in my electorate? If he has, is he in a position to indicate the extent of the loss which will be suffered by the growers of wheat and other crops in those districts?
– We have received local reports of some damage. If these reports are an indication of a general condition throughout the area, the damage sustained could prove to have been considerable, but the extent will not be known for a few days yet. The extent of the overall damage depends, in the main, on whether there is an improvement in the weather in the future. 1 think the vital point is whether we have good weather for harvesting.
– I desire to ask the Prime Minister a question without notice. I ask the right honorable gentleman: Does he remember receiving, about a month ago, a letter from the Reverend Frank F. Byatt, national secretary of the Australian Council for Inter-Church Aid and Service for Refugees, appealing for assistance from the Australian Government to help replenish the dwindling supply of powdered milk which the world council of this organization has been supplying for some years to under-nourished children in refugee camps, particularly as the United States Government says that it no longer has surplus stocks available for this purpose? If the right honorable gentleman has received a letter to this effect, will he say whether he has yet been able to do anything about the matter?
– I cannot say positively that I have had a letter on this topic, but I do from time to time receive letters from Mr. Byatt about these matters. I will inquire as to the state of affairs in relation to this one.
– My question is directed to the Postmaster-General. I ask the honorable gentleman whether he will give due consideration to the issuing of a special postage stamp to commemorate the introduction of a new and modern form of the sea transport of goods by the vessel “ Bass Trader “, which is at present being built at Newcastle and which will commence service between Melbourne and the Tasmanian ports of Burnie, Devonport and Launceston either late in 1960 or early in 1961.
– A similar request was made for the issue of a special postage stamp to commemorate the commencement of the very efficient form of passenger sea transport already available between Melbourne and Tasmania. In response to that request, it was pointed out that that event did not come within the scope of the policy which determines the issuing of stamps, and, therefore, the request could not be granted. From what the honorable member has just said, it seems to me that a similar reply must be given to the request that he has just made. I point out that we need to have considerable limitations on the issuing of postage stamps, commemorative and otherwise, because of the number of requests which we get. Therefore, it is necessary to define and apply a fairly strict policy in that regard. If this were not done, the issuing of Australian postage stamps could easily begin to assume rather ridiculous proportions.
– I desire to direct a question to the Minister for Immigration. In the open-door scheme announced by the Minister to encourage more migrants from Britain to come to Australia, is any effort on a governmental level being made to provide the additional housing required for the expected new arrivals, or will they be expected to fend for themselves in the grim struggle to find accommodation?
– I think that, on this question of housing, it is only fair to remind the honorable gentleman that, as the figures given from time to time by the Minister for National Development show, the housing situation in Australia is most steadily improving and in a most praiseworthy way. Of course, we are conscious of the housing problem. Nonetheless, it is a great mistake to think of the problem as being of anything other than a short-term nature. So far as the honorable gentleman’s particular question about the “ open door “ scheme for inducing British immigrants to come here is concerned we have made it quite plain that, upon their arrival, all the facilities of my department, and of the Department of Labour and National Service in relation to Commonwealth hostels, will be available to them and they can be given temporary accommodation until they make their own arrangements. So far, those arrangements have been proceeding, on the whole, quite satisfactorily.
– Since all mail, where speedy air services are available, is now to travel by air, does the Postmaster-General anticipate that the volume of Christmas cards travelling by air may cause disorganization and delay in the delivery of urgent business and other letters? Has he looked into this position and can he give any assurance to the business community that this will not happen?
– The volume of letter-form mail to be carried by air as a result of the new policy adopted by the Government is a question to which the department has given particular attention since this decision was taken because it was realized that this would pose quite a problem for the services available. There have been conferences between the department and the airline operators. I am glad to be able to inform the honorable member that, as a result of the co-operation which the department has received, we are not expecting any very great difficulty in meeting the increased volume of letter mail going by air under present conditions, or in meeting the increased volume which we expect at Christmas time. Of course, as is the case every year, the volume of Christmas mail poses a very great problem to the department’s resources and the department is, figuratively speaking, always flat out in dealing with it. Particular attention has been paid to the problem to which the honorable member has referred and my latest advice is that while there may be some slight delay there will not be any serious delay as a result of the increased volume.
– Will the Treasurer inform me to what extent entertainment expenses paid by municipalities and shires to mayors and presidents is considered to be income and taxable under the Income Tax and Social Services Contribution Assessment Act? Will the Treasurer discuss with the Minister for Repatriation whether such allowances are income when received by totally and permanently incapacitated pensioners and whether it is desirable from the Government’s point of view, to cancel total and permanent incapacity war pensions when the pensioner is holding office in local government, especially where the action contemplated is designed to satisfy the ego of disgrunted councillors as it is in the case in which it is alleged that a Democratic Labour Party councillor named Stanton of Redhead in my electorate has written to the Repatriation Department and accused the Lake Macquarie shire president of receiving income? Will the Treasurer take action to stop a recurrence of such despicable and irresponsible action in the future by determining that totally and permanently incapacitated pensioners may take executive office in local government?
– Order! I think the honorable member is transgressing the Standing Orders. He should ask his question.
– Will the Minister see whether something can be done whereby these people can take executive office in local government without their allowance being deemed to be income?
– I shall have the details of the honorable gentleman’s question examined. I shall arrange some suitable discussion with the Commissioner of Taxation and supply the honorable member with such information as I can secure.
– Did the Minister for Primary Industry recently meet representatives of the Australian dried fruits industry and offer them a stabilization plan? Can he give any brief details of the plan?
– I was invited to meet, and I was able to meet the Australian Dried Fruits Association on Friday last in Melbourne at its annual meeting. I indicated to the members of that association, in reply to a request for a stabilization scheme, that I was prepared to discuss the matter with them.
– In view of the Government’s obvious intention to dispose of its interests in the Australian Aluminium Production Commission’s works at Bell Bay, I ask the Minister representing the Minister for National Development when the two questions dealing with this very important matter, which have been on the notice-paper for some considerable time, will be answered.
– I will pass on to the Minister in another place the honorable member’s request and see what can be done.
– I preface my question to the Prime Minister by stating that the Newcastle University College Staff Association and the citizens of Newcastle are very much opposed to enlarging the Tighe’s Hill technical college as a joint technical college and university college while the selected university site at Shortland is lying idle and not being developed. I ask the Prime Minister: Did the Murray committee recommend where the £400,000 for enlarging the Newcastle University College was to be spent? Was it to be at Tighe’s Hill or Shortland? If no recommendation was made, will the Government, even at this late stage, give consideration to granting this £400,000 subject to it being used to develop only the Shortland site? The reasons I ask this question are, first, the increased building costs as a result of the Tighe’s Hill site being on old mine workings and secondly the continuous bickering between the Newcastle University College and the technical college over the laboratory and other facilities on the present technical college site.
– The honorable member has me, though not out of my depth, at any rate out of my territory, but I will find out whether there was anything in the Murray report and get such information as I can on the other matters he has referred to.
– Has the Minister for Primary Industry seen a report that some grocers in England are issuing ration cards to their customers for butter supplies? If this report is true, can advantage be taken of the position by negotiating agreements with these stores guaranteeing them supplies of choicest butter under the Australian brand in return for preferential buying treatment?
– I have not seen such a report, and I am not aware that a report of rationing has been made. I have had a discussion with the Chairman of the Australian Dairy Produce Board in recent days about supplies of butter to England and he said that the suggestion of a shortage of butter in England is not really borne out because there are ample supplies to carry the people through.
Australia’s first deliveries from the present season’s production will be reaching London about next week when about 10,000 tons will be put on the market. From then on there will be progressive deliveries. I do not think there will be any need for ration tickets in London, from now on at least.
– I ask the AttorneyGeneral whether the Copyright Law Review Committee will investigate the rates charged by the Australasian Performing Right Association Limited, when it examines the copyright law of Australia. If the terms of reference do not include the operations of the Australasian Performing Right Association Limited will the Minister widen the scope of the inquiry to include the arbitrary fixation of charges and other aspects of the operations of this organization?
– I have already passed to that committee a communication which I received from an honorable member with respect to the Australasian Performing Right Association Limited, and no doubt the committee will deal with it in due course. I wish to add just one comment in answer to the honorable member: The Australasian Performing Right Association Limited is a body which protects authors and those who have copyright who, unless they had such an association acting on their behalf, would have no means of policing the performances of their various works and would not be able to gather all the royalties that are due to them.
– Does the Minister for Labour and National Service see any trend in the Australian employment figures that would support the frequent and gloomy forecasts of rising unemployment made by all members of the Opposition during the last twelve months or more?
– I think it is a fair comment to say that forecasts of trends made by leading members of the Opposition during the last two years have turned out to be grossly wrong?
– Is the PostmasterGeneral aware that it was alleged in evidence before a law court in Sydney last week that certain radio announcers known as “ disc jockeys “ were paid the sum of £10 a week “to play the guts out of” certain records? Is the Minister aware of complaints that are being made of the similarity of the musical programmes being broadcast by four out of the six commercial stations in Sydney? Is the Minister also aware of complaints that these programmes are tedious and monotonous? Will he take steps to inquire into the allegations and ascertain whether they have any relation to fact?
– I shall, as requested by the honorable member, have inquiries made into the matters he has mentioned, in order to ascertain the real position regarding them. I point out to the honorable member in a general reply to his question that the Australian Broadcasting Control Board supervises the types of programmes that are broadcast; that certain programme standards have been promulgated after discussion between the commercial stations and the board; and that, in the main, commercial stations do everything possible to ensure that programme standards are observed. However, I shall be glad to get the information asked for by the honorable member and let him have it.
– My question is to the
Minister representing the Minister for Civil Aviation. Does Trans-Australia Airlines intend, as indicated by the Chairman of Australian National Airlines Commission last week-end, to embark on the purchase of new aircraft of the pure jet type? If so, is the Government to be asked to find loan money in order to make these purchases possible, or will the airline finance this capital expenditure itself?
– I shall convey the honorable member’s question to my colleague in another place. However, to the best of my knowledge Trans-Australia Airlines has no proposal in hand for the purchase of any new aircraft of any sort, so the question does not really arise.
– Can the Minister representing the Minister for Civil
Aviation say whether it is a fact that the original motive in Ansett-A.N.A. being allowed to purchase two Electra aircraft was to provide accelerated services between Perth and the eastern States, and that for the same reason Trans-Australia Airlines was also permitted to purchase two Electras? Is it not a fact that Ansett-A.N.A. has not used the two Electras for the purpose originally intended, but has used them in unfair competitive flights against T.A.A.’s interstate Viscount services, and has now pressurized the Government into giving it permission to purchase a third Electra, ostensibly for the same purpose for which it received permission to purchase the other two? Further, is T.A.A. being pressurized by the Government, at the instigation of Ansett, to exchange three Viscounts for two outmoded piston-engined DC6B’s, the very planes alleged to have caused the economic collapse of Australian National Airways Limited before Ansett came into the picture?
– I think the honorable member will agree that these are really questions for the notice-paper. The Minister concerned is in another place, and the honorable member has asked a long series of questions. In one he spoke of “ pressurization “. I think he may have been confused, and was using a term applicable to aircraft. He said that the Government had been “ pressurized “ by Ansett-A.N.A. to allow it to get a third Electra. The reason why Ansett was allowed to obtain a third Electra was that Trans-Australia Airlines had 25, or perhaps 27, jet turbine aircraft, while Ansett-A.N.A. had only about eight.
– I direct a question to the Minister acting for the Prime Minister. In view of reports that the Queensland Government will be requesting financial assistance from the Commonwealth for the building of roads into the Channel country or other areas for the more efficient movement of beef cattle, will the Minister ensure that all known systems of cross-country transport are thoroughly investigated, so that the most suitable and practical systems may be integrated with any projected or existing roads system?
– I will see that the suggestion implicit in the honorable member’s question is placed before whatever Commonwealth authorities are concerned with whatever proposals may come forward from the Queensland Government.
– Will the Minister for Trade consider selling our surplus food products to our Asian neighbours on the basis of long-term interest-free loans?
– I think the only product that we could conceivably have in surplus - that is, in excess of what can be consumed or sold on commercial markets - is wheat. At the present time there is no Australian - surplus of any commodity. The honorable member’s suggestion is not a novel one. The Government has given some thought to this. The difficulty is that Australia has a balance of payments problem. That is why we operate a system of import licensing. When one has an immediate balance of payments problem, it is contrary to sound principles to sell what one has to sell on overseas markets for deferred payments. That is the inherent difficulty.
– I desire to ask the Minister for Territories a question. Is it a fact that Daly has appealed against the decision not to allow him to marry Gladys? Is it also a fact that Daly has briefed Mr. Ward to appear for him? Further, is it a fact that Arthur has agreed not to object to the romance between Daly and Gladys? Finally, is it a fact that the Attorney-General has advised Mr. Ward to defer proceedings, pending the result of the Barwick divorce bill?
– I understood that Mr. Ward had been briefed by Daly from the commencement of these proceedings, and that he has been in close consultation with him throughout. I do not know the mysteries of the mind of Arthur, and can give no answer on that aspect of the matter. As I understand it, this matter was raised during a recent meeting of the Northern Territory
Legislative Council, and an amendment to the legislation was introduced, so that in this case and in future cases, if the Director of Welfare withholds his consent to the marriage of a ward, the suitor or the ward herself can appeal to a magistrate. I see no reason why that legislation should not be assented to and become law in due course.
– Can the PostmasterGeneral give any indication as to when it may be anticipated that the Australian content of television programmes will be brought into proper balance with the present one-sided predominance of American programmes?
– This problem has occupied the attention of the House, of the Australian Broadcasting Control Board, of the Australian Broadcasting Commission and of commercial licensees ever since the commencement of television. As I have said from time to time, the object of all associated with television is steadily to develop the Australian content of programmes, but any attempt to force on to licensees a quota that could not be filled would result only in ultimate harm to the efforts of all to achieve the objective. I assure the honorable member that this matter is being constantly watched. Possibly he will be surprised, as I was, to learn that surveys of viewers show that programmes which we may not ourselves regard very highly attract the greatest number of viewers.
– I address my question to the Postmaster-General. If the policy is, as he stated, to increase the Australian content of television programmes, how does he account for the fact that the last report of the Australian Broadcasting Control Board indicated that the Australian content was decreasing, particularly on the commercial stations, and that many programmes of the Australian Broadcasting Commission, particularly those associated with the last war, could have an Australian content? Will he take steps to inform the commission and the licensees of other television stations that, as far as he knows, Australian forces took part in the last war?
– The honorable member for Wills stated that the use of Australian talent on television was declining. That is not correct. He stated, also, that a recent report showed that this is so. A recent report showed that there had been some small drop in the percentage of Australian programmes in the total of programmes, but that there had been a considerable increase in the number of hours during which the stations operated, and that the percentage drop arose from the fact that the increase of Australian programmes was not as large as the increase in total hours. However, the actual number of hours provided for Australian talent has not been reduced nor has the number of Australians employed decreased. In fact, there has been an increase.
To add to my previous reply, Mr. Speaker, I point out that licensees on a number of occasions have shown their desire to use Australian talent and have actually run competitions and conferred with organizations such as Actors Equity of Australia to try to build up the Australian content. The honorable member for Wills also referred to the Australian Broadcasting Commission. I think that every one will agree that the commission does not deserve any criticism whatever for its use of Australian talent. It presents a high percentage of dramas and other features that use a good deal of Australian talent and in that regard deserves approbation.
– Yesterday, the honorable member for Fremantle (Mr. Beazley) asked whether I was aware that my predecessor had said that the Speaker of the House of Commons regarded it as his duty to ensure that there was no inordinate delay by the Ministry in answering questions on notice. He further asked whether I had investigated the matter and whether I regarded ensuring that such questions are answered speedily as one of the ways in which the Chair could defend the privileges of this House.
There is no record of any such statement by my predecessor. On the contrary, Mr. Speaker Cameron, on 28th November, 1951, in replying to a question relating to this matter by an honorable member, stated that he was being asked to do something that was completely outside his powers and responsibilities. He said that Ministers were not obliged to answer questions unless they chose to do so. It was for Ministers to decide when the answers would be given and that was their responsibility. Mr. Speaker went on to say that it was not his responsibility and he certainly did not seek any control in the matter.
The 16th edition of “ May “, at page 357, states that an answer to a question cannot be insisted upon if the answer be refused by a Minister.
– by leaveLast Thursday, the honorable member for Werriwa (Mr. Whitlam) asked me a question as to a vote by the Australian delegate in the Fourth Committee of the General Assembly of the United Nations. I think the honorable member and I were slightly at cross purposes. I took him to be asking me about a resolution on which our delegate abstained from voting. I should like to say now that some seven resolutions concerning South-West African territories were before the Fourth Committee. We abstained from voting on six and voted against the seventh resolution. The honorable member asked me what our reason was for the vote and I answer him by saying that we voted against the resolution, which was designed to coerce South Africa into referring a question to the International Court, because the committee had already passed a resolution urging South Africa to negotiate with the United Nations on the very same matter. We felt that a resolution attempting to compel legal process in the midst of negotiation was not the right thing to support.
– On behalf of the Minister for External Affairs and myself, I lay on the table the following paper: -
International Labour Organization - 43rd Session, Geneva, June, 1959 - Reports of the Australian Government, Employers’ and Workers’ Delegates.
In the interests of economy, I do not propose to move that the reports be printed.’
However, copies will be available to honorable members from the parliamentary offices. Following established practice, the House will be informed at a later date of the action taken or proposed to be taken in respect of the conventions and recommendations adopted by this conference.
Motion (by Mr. Harold Holt) - by leave - agreed to -
That leave be given to bring in a bill for an act to amend the Life Insurance Act 1945-1958.
Bill presented, and read a first time.
– by leave - I move -
That the bill be now read a second time.
The purpose of this bill is to amend the Life Insurance Act 1945-1958. The original act, which came into force on 20th June, 1946, set up in Australia a comprehensive code of laws for the conduct of life insurance business and provided a measure of protection for policy-holders. It replaced six different State acts and its introduction has been accompanied by a period of stability and growth in the Australian life insurance industry.
The three amendments now proposed have been the subject of careful examination by the Insurance Commissioner. They are, in brief -
The Government is satisfied that the first two proposals, when implemented, will ensure sneedier service to claimants under small policies. As regards the third proposal, the act provides at present that where a policy-holder surrenders his policy prior to maturity, the surrender value he receives shall not be less than the amount calculated in accordance with the sixth schedule to the act. These minimum values have not been increased since the act came into force on 20th June, 1946.
A major result flowing from the life insurance act has been a general improvement in the strength of the industry. This improvement, together with the higher interest rates currently being earned, have resulted, in most instances, in improved benefits for policy-holders in other directions, for example, bonus rates.
In order to preserve equity between policy-holders who discontinue their contracts and those who retain their policies until maturity, a moderate increase in the minimum surrender value basis is warranted. Where more than the minimum surrender value is already paid, and this occurs in many cases, no alteration in the rate of payment will occur. However, some additional benefit will now be available in those cases where the payment is based on the minimum provisions of the act. I commend this bill to honorable members.
Debate (on motion by Mr. Calwell) adjourned.
– I propose to move the suspension of Standing Orders in order to enable new clauses that it is proposed to insert in the Matrimonial Causes Bill 1959 to be considered by the Committee of the Whole in the order in which, if agreed to, they would appear in the act. By your indulgence, Mr. Speaker, may I explain that Standing Order No. 223 provides that new clauses shall be considered at the end of the bill. That procedure may not ordinarily present any problems, but in the case of this bill, where a relatively large number of new clauses are proposed, the procedure makes an adequate committee consideration difficult as the new clauses would be dealt with out of context in relation to existing clauses of the bill. I suggest, if I may, that it will suit the convenience of honorable members and simplify the committee procedure if new clauses are considered in their numerical order with the clauses printed in the bill. 1 ask for leave to move suspension of the appropriate Standing Orders.
I therefore move -
That during the consideration in Committee of the Whole of the Matrimonial Causes Bill 1959, so much of Standing Order No. 223 be suspended as would prevent proposed new clauses being considered in their numerical order with the clauses as printed in the bill.
– Would the AttorneyGeneral (Sir Garfield Barwick) apply thai practice in respect of the much debated clause 27 (m)? I think there are three clauses amending the first form of clause 27 (m). In conformity with the practice proposed by the honorable gentleman, would those clauses be discussed in that order, linking them all up with the main clause? Would all those clauses be discussed together?
– in reply - The motion, as I have proposed it, will simply allow a clause - say, clause 17a - to be moved immediately after we have dealt with clause 17 and before we deal with clause 18. The point raised by the right honorable gentleman is whether, for example, clauses 32a and 33, which impinge on clause 27 (m), will be debated with clause 27 (m). I propose to ask the committee to do that when we reach that point, but that aspect is not covered by my present motion.
Question resolved in the affirmative.
In committee: Consideration resumed from 17th November (vide page 2784).
Clause 8 (Suppression of existing laws).
– I move -
After sub-clause (1.), insert the following subclause: - “ (1a.) Subject to the next succeeding sub-section, where, before or after the commencement of this Act, a matrimonial cause has been instituted, then, whether or not that matrimonial cause has been completed, proceedings for any relief or order of a kind that could be sought under this Act in proceedings in relation to that matrimonial cause shall not be instituted after the commencement of this Act except under this Act.”.
This clause is part of the machinery-making jurisdiction in matrimonial causes exclusive to the Commonwealth invested jurisdiction. I shall explain the purpose of the amendment. There may be causes of action in the State courts which could be taken to ask for the same relief as could be granted under this bill in a matrimonial cause once it is commenced. I illustrate that in relation to my own State in this way. New South Wales has an Infants Custody and Guardianship Act. It would be possible to bring an action for custody of a child under that act although there was a divorce proceeding already on foot under the federal act unless one had a provision like clause 8(1.) (a). The idea behind the amendment is that the whole of the differences between the spouses, once they have commenced a matrimonial cause, should be confined to this act.
– And, in fact, continued under this act.
– Yes. May I further say that I gave consideration during the night to what I could do to assist honorable members to follow these amendments as they were proposed. I found that there was no way in which I could assist through printing. What I propose to do, if I may, is this: Honorable members will have the print of the amendments and each amendment is numbered. I propose, in rising to move an amendment, to call the attention of honorable members to the number of the amendment on the print so that they may immediately place it beside the clause that it proposes to amend.
– This amendment being No. 5.
– The one we are now dealing with is amendment No. 5. May I add that if honorable members use the print of the amendments, with explanations, that I have circulated, they will find that the numbers of the amendments will correspond with the numbers of the amendments in the committee’s own print, without explanations, until we reach amendment No. 55. The reason is that two formal amendments have been added to the print of the committee.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 9 (Grants to approved marriage guidance organizations).
.- Clause 9 is the first clause in Part II. under the heading “ Marriage Guidance Organizations “. This portion of the bill has received the praise of all sections of the community because it demonstrates that the AttorneyGeneral (Sir Garfield Barwick) has endeavoured to safeguard the sanctity of marriage and family life. He deserves the praise of all honorable members for having endeavoured, by the insertion of this clause, to help the marriage guidance organizations. Clause 9 is in these terms -
The Attorney-General may, from time to time, out of moneys appropriated by the Parliament for the purposes of this Part, grant to an approved marriage guidance organization, upon such conditions as he thinks fit, such sums by way of financial assistance as he determines.
How much money will be appropriated by the Government? To whom will that money be granted?
The annual report of the National Marriage Guidance Council of Australia shows that last year it conducted its activities in the various States on a grant from the respective State governments of £10,000, and gifts from well-wishers and clients amounting to £3,000. In other words, the activities of this organization last year were conducted on £13,000. The secretary of the council, the Reverend W. G. Coughlan, has indicated that there are various avenues open for the extension of marriage guidance in the community, and he has suggested such things as the selection and training of additional counsellors, the extension of the council’s activities to such centres as Newcastle, Wagga, Orange, and Tamworth, and the employment of additional full-time staff to enable development of an educational programme. He has also suggested that if these plans are to be implemented, the organization will need perhaps ten times the amount of money that it has received from the State governments, the public and clients.
I should like the Attorney-General to indicate the amount of financial assistance to the marriage guidance organizations that the Government has in mind.
.- The precise amount has not been set. Honorable members can rest assured that the marriage guidance organizations will not be dealt with in a niggardly fashion. It will be necessary to examine their needs, in co-operation with them, and to determine what activities require support. The honorable member for Lang (Mr. Stewart) can rest assured that these organizations will have my very sympathetic consideration. I have already talked to such persons as the Reverend Coughlan in an endeavour to find out what their needs are so that I will know precisely what ought to be done.
Clause agreed to.
Clause 10- (1.) A voluntary organization may apply to the Attorney-General for approval under this Part as a marriage guidance organization. (2.) The Attorney-General may approve any such organization as a marriage guidance organization where he is satisfied that -
– I move -
In sub-clause (2.), paragraph (b), omit “ a substantial “, insert “ the major “.
I should like to explain the reason for this amendment. If honorable members will look ahead to clause 11, they will see that it provides that an annual financial statement of the receipts and expenditure of the organization, in which receipts and expenditure in respect of its marriage guidance activities are shown separately from other receipts and expenditure, will be required by the Attorney-General. If honorable members will look further forward to clause 13 they will see that provision is made to treat a branch or section of an organization as itself the organization for the purpose of approval.
My purpose in these clauses was to prevent organizations, which had only a small and insignificant amount of marriage guidance work, requiring me to look at their accounts and oversee too large an area of activity. Having provided by clause 13 that any organization which has a multifarious line of activities shall segregate one of them and say, in effect, “ This is our marriage guidance section “, I shall then be able to approve that particular section.
Under clause 11 I shall then receive only the accounts of that section.
As a simple illustration, let me take the Salvation Army, and let me suppose that the Salvation Army has a marriage guidance organization, as I have no doubt it will have. I would not want to approve the whole Salvation Army as an organization and ask it to send me annually a statement of all of its receipts and expenditure. Having regard to clause 13, I want to say, “ You may call your marriage guidance section the Salvation Army Marriage Guidance Section if you wish, and I will approve it. I do not want to know anything about your other activities. I will give a subsidy to that particular section and then you will need to bring me only the accounts of that section.”
When I looked at the word “ substantial “ in clause 10(2.) I thought that the word “ major “ would be more appropriate, because then these organizations could submit for approval the section, the major part of whose activities was devoted to marriage guidance. It need not be the whole part. There has been some misunderstanding about this change of word. Somebody has thought that this was a way by which I was trying to evade the moral obligation that I had created in my second-reading speech. That is not so at all. This was done simply for ease of administration by my department, and ease of administration by the marriage guidance bodies themselves. There will be church organizations which will have some kind of welfare bureau carrying out a number of activities. My desire is that these organizations should simply segregate marriage guidance into a section of which marriage guidance will form the major activity - not all the activity but the major activity. I will approve that section and require accounts and information about only that section. I will not try to pry into the other activities of that church organization.
– Which may have no relationship to marriage guidance.
– That is right.
.- I do not wish to comment on the proposed amendment, but I seek a re-assurance from the Attorney-General (Sir Garfield Barwick). I have some concern about the effective working of marriage guidance councils where you have what I may describe as a lot of well-meaning busybodies who have the idea that they would like to be marriage guidance counsellors. They have no qualifications for this work, and not necessarily any worldly experience. They are just well-meaning persons.
Now I want to ask the Attorney-General: Is he completely satisfied that adequate protection will be given within these provisions? My argument moves from an assumption, and it may demonstrate to the honorable gentleman what I have in mind. Let us assume that the bill goes through and that a collection of people come together and form themselves into a marriage guidance council, that they comply with all the provisions of this measure, and that it is then brought to the Attorney-General’s notice that the members of this body command no qualifications whatsoever. Is the honorable gentleman at liberty, at that point of time, to say, “ Firstly, you do not fulfil the requirements of a marriage guidance council and you will not be entitled to any government support; and secondly, I, as Attorney-General, am at liberty, or the Government or the Parliament is at liberty, to direct public attention to the sort of work you are doing and to the possible danger “? I have put my proposition in the form of a question. I hope, Mr. Chairman, that the Attorney-General will understand the concern that I have on this point.
– I want to add just a word or two, Mr. Chairman. I think that the honorable member for Moreton (Mr. Killen) has emphasized something which, no doubt, the Attorney-General recognizes. It seems to me to be probably one of the keys to the administration of this measure that the marriage guidance bodies should be 100 per cent, efficient. The honorable member for Moreton mentioned a possibility which may exist in certain cases, there being so many of these organizations - the possibility that the members of these organizations are not qualified, or not sufficiently qualified, for the job. This job, I suppose, is the most delicate of all in connexion with marriage, and the success of marriages and efforts to reconcile the parties to marriages. All those things are of tremendous importance.
I do not know what the Minister’s plans are. I suppose it is quite obvious at this stage that the matter cannot be fully developed and that everything will depend upon the progress of these bodies towards 100 per cent, efficiency. Therefore, I do not think it is at all a waste of time to look at matters like this. The situations which must be avoided are well recognized. You have only to read novels like some of those written by Dickens to find illustrations of situations of the kind which we may get and which may be avoided - and which, I am sure, will be avoided by the Government.
I entirely agree with the proposal that a great body like the Salvation Army, which undertakes an enormous number of activities, need present an account only of its work in marriage guidance in order to attract the proper support of the Government. I think that goes without saying. But it is the broader question that I feel will become increasingly important. The Attorney-General has emphasized the need for safeguards, and many members of this chamber and many citizens have had their attention attracted to the need for safeguards. This is a very difficult sphere of administration, and I am sure that the Government and the Attorney-General want all the assistance from honorable members that can possibly be obtained.
.- Mr. Chairman, the virtues of marriage guidance need no emphasis in this committee. But I think that the honorable member for Moreton (Mr. Killen) is quite right in directing attention to this matter. In the fields of human relations and public welfare, those organizations which grow from goodness itself, which are established in communities for the purpose of helping people, and which grow in this field of activity as we have seen various organizations grow, perform outstanding service for the community. But there is always a danger where an artificial organization grows up and has bestowed upon it the blessing of the government by the distribution of public moneys.
The honorable member for Moreton is afraid of well-meaning busy-bodies, and I think that the Attorney-General has a duty to heed the kindly comment - if one does not describe it as criticism - offered by the honorable member. However, I should like to go further and develop the thought suggested by the Attorney-General that established organizations be afforded an opportunity to continue to serve the community by providing the services that they have been performing over the years and are performing now. Who does this class of work? It is done by the local clergyman, the parish priest, the local minister, the padre and the captain in the Salvation Army. It is not surprising, therefore, that we have received circulars from a number of organizations such as the Brotherhood of Saint Laurence, the Catholic Family Welfare Bureau, the Citizens Welfare Service - through its director of social work and research - and the Red Cross Welfare Service, seeking amplification of information on this matter.
I think that the Attorney-General should try to give the committee a clearer outline of what is intended. The substitution of the term “ the major “ for the term “ a substantial “ in paragraph (b) of sub-section (2.) has been explained by the Minister, but is there any real reason why the expression “ a substantial “ should not remain? Let us take the church organizations, which have other activities of first importance. The term “ a substantial “ would meet their case. The local minister of a Church devotes much of his activity to family welfare, marriage guidance and a variety of other matters, including care of the needy and the promotion and conduct of Sunday schools. All these are important activities, and I think the point is being stressed much too heavily if he is to be required to perform the major part of his duties in marriage guidance work in order to attract Government support. I believe, therefore, that we should appreciate the fact that marriage guidance workers such as the heads of Churches in various communities, of necessity, devote their time to a variety of other activities. I think it would be entirely wrong to require them to devote the major part of their time to marriage guidance work in order to obtain government support in this work.
I can only hope that the Minister’s explanation is sound and that his proposal will meet the situation. To my mind, as a layman unskilled in the words of the law, the proposed wording does not clearly state the position. We can only trust that the Attorney-General will be followed by a succession of well-meaning Ministers who will look at the matter in the sympathetic way in which, perhaps, the committee and the Attorney-General look at it now. If the Minister has anything further to say that would assist honorable members in arriving at a better appreciation of what is involved, I should be delighted to hear from him again.
– Mr. Chairman, I must say that although the Government’s purpose is a laudable one I am not clear how it will be accomplished. What is to be our attitude towards marriage guidance councils? Are we going to establish a major organization in the metropolis in each State and other bodies in all the big cities and towns? How are we going to interpret the matter? Let us take the position of a country town perhaps 250 miles from a capital city. In a country town with a population of 1,000 people there may not be any large body that would do this work. I would like to know whether it would be possible to bring to such a town, from a long distance, officials of the marriage guidance council in order to take up questions requiring attention. A remote suburb of a city might be in a similar situation. I should like to know how it is proposed to select the members of the marriage guidance councils. The Minister mentioned the Salvation Army which does most of its social work in the cities or very large towns. It may have a separate body for this kind of work. But. generally speaking, as the honorable member for Macquarie said just now, the work is done by the local captain of the Salvation Army or by the minister of a church. They may be the ones who will interview people. They may know the parties intimately and know all about their affairs and so can give the best marriage guidance. I cannot see that marriage guidance would be the major part of such a man’s work yet, if marriage guidance is to be “iven successfully throughout the community somebody must be available in almost every area of Australia in which that work may be required. I think the
Attorney-General may be able to grasp what I am driving at and I should like to know what he has in mind in regard to these people and how they can be assisted financially.
.- I have some queries about the voluntary constitution of marriage guidance bodies. I hope that the bill will not mean some little piecemeal sort of effort but rather that marriage guidance will be comprehensive, scientific and thorough. I hope, for instance, that research activities will be included. I hope that this work will not be dependent merely on the goodwill of people who are anxious to see marriage endure. These bodies should include some people with professional knowledge. I hope that there will be an insistence that the bodies shall include people who are skilled, not only in psychological techniques and social case work, but in the follow-up techniques that are necessary in order to check upon the effectiveness of the methods that are being used. These things require skill and training. They require something more than just a person in the community who has a sense of morality and an interest in the well-being of others. I hope therefore that the marriage guidance bodies will not merely observe symptoms and treat what may be regarded as results. I hope that they will be equipped, both with staff and finance, to carry out fundamental inquiries into sociological problems. I hope that they will be able to go into the larger question of the causes of marriage breakdowns. What part does human personality play in these problems? The answering of this question requires knowledge of techniques of personality measurement. It may be necessary to devise techniques or mechanisms for this procedure. Provision should also be made for follow-up inquiries of a comprehensive kind in order to ascertain the effectiveness of the procedures and the techniques used. I hope that the selection of members of marriage guidance bodies will depend on more than goodwill so that these bodies may constitute a thorough, comprehensive and scientifically based project.
.- I am a little concerned about the suggestion conveyed in the amendment, not because I doubt the motives behind it or behind the bill in general but because the setting up of marriage guidance bureaux has possibilities for good as well as for evil. Such an organization could degenerate into a lonely hearts club. Because of the imprecise language of the proposal, we do not show exactly what will happen. The tension behind blasted marriages and happiness destroyed cannot be mended simply by a visit from a clergyman, lt is necessary to get down to the basic causes of broken marriages - such things as inadequate housing and unemployment. If the Minister does nothing to create an organization of that sort he will be ignoring an enormous problem in human relationships. I do not like the imprecise language of the proposals. The conclusion that can be drawn is that married couples will be subject just to some sort of visitation. Nothing fills some people with horror, if they have matrimonial disputes, more than the thought that the well-meaning private eye will descend on them, whether it be a representative of the Church or just the lady around the corner. We should protect people from being managed in their rather distressing matrimonial circumstances.
This is an odd thing to find in a piece of federal legislation. It looks as though it is a sort of gimmick to apologize for forcing into one pattern the matrimonial legislation of the various States. I hope, as we all do, that it will work but, at the present time it is very nebulous. The groundwork of it is insubstantial. The idea is a good one and the feeling is to do good, but whether the organizations which will be created will be able to do that is problematical.
The honorable member for Port Adelaide (Mr. Thompson) touched the position in one of its most difficult aspects when he talked of the situation in the country where everybody’s business is known to others. If the little marriage guidance counsellor comes tootling along on his bike people will know that some one is suffering a matrimonial crisis, and the position will be very difficult indeed.
I believe that the Brotherhood of St. Laurence and the family organizations of the Catholic Church and other Churches have been doing good liaison work for a long time, but only up to a certain point. I have worked as a journalist in the courts of Australia, particularly in Sydney and I have seen the effects of broken marriages in the children’s court and the divorce court. It is not only a matter of getting a kindly disposed person to apply some sort of conversational salve to the situation. The rift goes so dreadfully deep on occasions that it is almost irreparable. If we have these do-gooders subsidized by the Government floating at large, in my opinion more harm than good may be done.
.- The points which I should like the AttorneyGeneral (Sir Garfield Barwick) to clarify concern marriage guidance. How far does he intend this to extend? Does he intend it to include preparation for marriage and general education for marriage, or is the subsidy to be only for guidance to people whose marriages are actually breaking down? The Reverend Coughlan, who I mentioned earlier, believes that there is great scope for expansion of activities in that field. He has pointed out that many breakdowns occur in marriage because young couples are not prepared to make concessions to each other.
What publicity will be given to these marriage guidance organizations in order that people who are having marital difficulties and, perhaps, people who want to enter the marital state, after having correct preparation, will be able to go to them and receive information and guidance. The report of the United Kingdom royal commission on marriage and divorce states under the heading “ Marriage Guidance and Conciliation “ -
The first task of marriage guidance must be to bring to light the causes of failure, actual or threatened. If these prove to be largely external (housing shortage, unwise relatives and the like), or largely personal (petty selfishness, lack of understanding, sexual maladjustment, failure to have children), there is a reasonable chance that wise and skilled counsel may bear fruit.
The report goes on to say -
The tendency to take the duties and responsibilities of marriage less seriously, to which we have referred in paragraph 47, coupled with the fact that marriage can be entered into so easily, in our view goes far to explain why so many marriages are predisposed to break down under the first sign of serious strain.
We consider that the removal of this major source of marital unrest can be achieved only by the development of a carefully graded system of education for young people as they grow up, in order to fit them for marriage and family living, and by the provision of specific instruction for those about to enter marriage. By “education “ we do not mean merely formal education in school but education in the widest sense. We received a large amount of evidence containing many varying and helpful suggestions as to how best such a programme could be put into effect, and many of our witnesses also urged that such steps should be accompanied by amendment ot the marriage laws so as to put a brake upon hasty and ill-considered marriages.
I break in there to say that I understand the Attorney-General has announced that he intends to take the step of reviewing the marriage laws. The report goes on -
In our opinion, the consideration of such matters is not within our terms of reference. All of our witnesses were, however, agreed on the urgency of the problem and we were left in no doubt that while much valuable work is already being carried out much more needs to be done. We therefore consider that the Government should at an early date set up a suitably qualified body to review the marriage law and the existing arrangements for pre-marital education and training.
The report then proceeds to talk about a programme for education and training in marriage and suggests that any plans which may be laid down at this stage will take years to bear fruit. I feel that the same condition applies here. Any plans which may be laid down by marriage guidance organizations will take years to develop. But I should like the Minister to bear in mind the fact that publicity is absolutely essential. If those people whose homes are likely to break up because of domestic difficulties do not know that these services are available, or if people who are contemplating marriage do not know that they can go along to any of these organizations, whatever its denomination may be, to receive instruction - sexual instruction, parent education, training of children and so forth - then I feel that this provision in the Matrimonial Causes Act will be just so many words and will not prove to be the benefit that I am certain the AttorneyGeneral and all honorable members want it to be.
– Could the honorable member give the reference in the book from which he has just quoted?
– Yes, it is the report of the Royal Commission on Marriage and
Divorce which was conducted in the United Kingdom from 1951 to 1955. I was reading at pages 93 and 94.
.- I think it is necessary to remember that I am not, by this bill, setting up government agencies. I am subsidizing voluntary agencies.
– It will all depend on finance how far they can go.
– Perhaps so. The bill provides for the subsidizing of approved organizations. Whether an organization has associated with it a clergyman or not may yet have to be seen, but I am not attempting to regulate the activities of people in marriage guidance so that only certain people can do this work. 1 am not doing that; I am saying that- approved organizations will be subsidized. In order to approve them I have taken wide powers, because we are entering a very new field and it will need to be developed.
My hope is that by this means we will build into this community, progressively over the years, a social mechanism which will expand and perhaps extend its activities further down the line towards pre-marital training. That is a matter for the future; but one has to begin. But in this bill, I have provided that the Attorney-General can approve these organizations on such terms as he thinks fit.
I am alive to the problem mentioned by the honorable member for Moreton (Mr. Killen) and the Leader of the Opposition (Dr. Evatt), that people will not want this work to be done just by do-gooders. I have already set in train in anticipation - perhaps too much in anticipation - inquiries and activities concerning standards or requirements of competence and training to be possessed by the people who are going to do this work. I will want to know from these organizations just who they are going to employ and what methods they will use and I will want them to tell me each twelve months, for the purpose of approval of such subsidy, what they are doing and how they are succeeding.
Honorable members will see that subclause (2.) of clause 10 stipulates the requirement that the Attorney-General shall be satisfied that the organization is not merely willing, but also able to engage in marriage guidance. That ability goes alone to the sort of people who have to do the work. Later, in sub-clause (5.) it is provided that the Attorney-General can withdraw the approval where he is satisfied that the people concerned are not adequately doing the work. These are general and wide powers, but I feel that I must necessarily provide for them, particularly in the early stages, if we are to build up a satisfactory organization for the purposes of subsidy and for the purposes of the work.
I have not attempted to define marriage guidance. I thought about whether I should endeavour to do so, but I rather thought that I should leave the term undefined so that there was no need to confine the activities too tightly. I have no doubt that marriage guidance may very often, on the one hand, spring out of perhaps some social welfare work with regard to children. This may lead to marriage guidance. On the other hand it may stretch back, on occasions, into pre-marital advice or training.
There are already some moves afoot to acquaint me sufficiently with the sort of standards that I ought to set. This will be attended to with as much care as I can possibly give it. I assure honorable members that this part of the bill is no gimmick. I really mean business in this particular activity because I am convinced that it is right.
Let me say one other thing. In the second-reading speech, I said that I thought that this work was better done by trained people who were offering their services than if it were done simply by a sort of officialdom. That has been misunderstood, 1 think, because some of these folk thought I had set my face against fully trained personnel. That is not right. I believe that these groups will need to have a substantial core, it may even go beyond being a substantial core, of fully trained people. But I know that there are many useful people - not busybodies - who have been well trained, who may have moved out into married life themselves and who come and assist because they have a sense of calling and devotion to the task. I think these people should be encouraged to come anc! offer their services alongside the trained assistants, the paid personnel.
Reference has been made to publicity. Of course, one would expect these marriage guidance organizations to let themselves be known. As I have said, I have not wanted to turn this into any sort of official outfit, but I do want to see these marriage guidance counsellors build themselves into the social structure of the community because they must take the place, as honorable members will agree, of sources of counsel and guidance which are drying up. The family doctor very often acted as a marriage guidance counsellor, but he is disappearing. The family lawyer did a lot of it. He gave good, quiet, sound, straight advice. But people do not have family lawyers now. Even the bank manager was often a very useful person. The local member does a little bit of it, no doubt. There is a larger section of the community now than formerly, who do not turn to their priest or parson, so these organizations are necessary to take up that slack.
Now may I answer the honorable member for Port Adelaide (Mr. Thompson) and say that I am quite alive to the difficulty of the country town and the inland city. At the outset it is going to be difficult to get enough good personnel to make this effort go quickly. I think we will have to be patient. However, I will do what I can to encourage the organizations to provide their assistance in the country as they grow stronger. But I would not encourage them to do it unless they have enough personnel - and we find people poorly trained trying to interfere. I have analysed that particular aspect, and I think that what I have said answers the question which the honorable member asked.
.- I think that these clauses constitute some of the most important in the bill. Part II. of the bill is generally acceptable; but there is a feeling that the Minister, having encouraged high hopes of generous Commonwealth assistance to marriage guidance councils, has now decided to limit to some extent what he proposed to do.
– That is not correct. You were not here when I made my explanation.
– I accept what the Minister says, but I think that he should specifically answer the contention regarding the substitution of the words “ the major “ for the words “ a substantial “ in paragraph (b) of sub-clause (2.). If the amendment is accepted sub-clause (2.) will read -
The Attorney-General may approve any such organization as a marriage guidance organization where he is satisfied that -
marriage guidance constitutes or will constitute the whole or the major part of its activities.
The representatives of four organizations in Melbourne, speaking for their family welfare services, claim that the high hopes held out are not likely to be realized. They claim that the substitution of the words “ the major “ for the words “ a substantial “ in that paragraph will serve to exclude from Commonwealth recognition organizations a substantial amount of whose activities are concerned with marriage guidance, but which provide other services constituting half, or more than half, of the total amount of work that they do. Admittedly, the Minister made a statement in reply to that, but I should like to put the names of those people on the record. The representatives, and the organizations that they represent, whom I have mentioned, are: David Scott, Director of Social Services, Brotherhood of St. Laurence, 67 Brunswick-street, Fitzroy; Reverend Father E. G. Perkins, Director, Catholic Family Welfare Bureau, 406 Albert-street, East Melbourne; Leonard J. Tierney, Director of Social Work and Research, Citizens’ Welfare Service, 62 Victoriaparade, East Melbourne; and Mrs. J. Borthwick, Director, Red Cross Welfare Service, 114 Flinders-street, Melbourne. Three of the signatories to the written criticism of the marriage guidance provisions of the bill have their offices in the electorate of Melbourne, which I have the honour to represent here.
I should like to direct the attention of the Minister, if he has not already seen it. but he probably has, to an analysis of the Matrimonial Causes Bill 1959 by the National Catholic Welfare Committee. That committee also made an analysis of the Matrimonial Causes Bill 1957, which was introduced by the honorable member for Balaclava (Mr. Joske). It may help this committee of the House, and it may help persons who are not members of Parliament, to know that this committee said in its analysis -
The decision of the Government to support financially those organizations whose fundamental aim is “ to maintain marriage and to protect the family “ will be regarded generally as a major move in the right direction. However, while the provisions in the bill are in no way restrictive, the Minister indicated that it was the intention of the Government to limit its financial help to assistance with the costs of training and administration. This follows the English pattern, but, unless there is greater flexibility here, it is likely that the help given will be insufficient to expand the existing over-taxed services to meet the ever-increasing need and desire for guidance in marriage problems not only in the capital cities but also in provincial areas.
My fear is that the Minister, who proposes to act very cautiously in this regard, may be missing some opportunities to repair some marriages which at the present time are threatened with breaking down. If the Minister does not mind my saying so, I think he should be more precise as to his intentions. He should make up his mind now as to how far he will go, and not leave it to time and circumstances to decide just how far the Government can help, because I regard this as a very vital part of the bill, since I am entirely in support of what the Minister proposed to do. Indeed the very title of the bill - the Matrimonial Causes Bill - shows that the main purpose the Minister had in mind was to prevent a breakdown in marriages, and I feel that training ought to proceed immediately. While we are waiting for people to be trained we should make full use of all available agencies, and even if in some cases mistakes will be made we cannot wait for perfection, and it is better to try something, and fail, than to attempt nothing at all. I am not so sure that because of their devotion to the work and to the cause of preserving marriages voluntary workers will not in many ways be much more suitable than people who will accept the work as an occupation or calling. I am glad that the Minister agrees with me in that regard, since he is nodding his head. I shall quote further from this report, Sir. The National Catholic Welfare Committee said further in its analysis -
The Minister considered that “the work will best be done by those who, as well as being trained, have a sense of vocation and who, to a large extent, volunteer their good offices in this very skilful and sympathetic task”.
I hope that that sentiment will be accepted by everybody. The committee went on further to say -
In this, as in other fields of social welfare, there is need for both the volunteer, part-time person and the professional full-time worker. Both require training, but not necessarily at the same level.
I ask the Minister to engage the services of those people, full-time and part-time, and whether a person be a volunteer or a parttime worker, or a professional and fulltime worker.
I do not want to refer to the number of divorces that have occurred, and the number that might have been prevented had this particular organization been in existence over the years. This portion of the bill makes the bill even more acceptable than the previous bill which it supersedes.
.- I think the Minister is wise in leaving undefined the qualifications for marriage guidance organizations, which tend to be a complex of qualified persons rather than individuals. However, I certainly hope that in these unspoken criteria he is going to use psychiatric and medical personnel in the marriage guidance organizations. I think also that his warnings about not expecting a great deal are important warnings. I do not think that we sufficiently consider the enormous cost of psychiatric treatment. I am not speaking necessarily of the money that the psychiatrist charges, but of the fact that to rehabilitate one patient to-day by psychiatric treatment the psychiatrist must really give himself, or herself, and an enormous amount of time, to the patient. In fact, a psychiatrist gives a lot of attention to a very much smaller range of cases than is true of medical practitioners. The psychiatrist has to get a living, and is, therefore, an expensive kind of professional man or woman to call in.
But I believe the really significant point with regard to marriage guidance is this: If a couple is willing to resort to marriage guidance, it means that they have a will to make their marriage work. That is by far the most important feature about marriage counselling and marriage guidance. We need not flatter ourselves unduly about the organization, although I am not belittling its importance. What is vital, however, is the will to rehabilitate one’s own marriage. The Minister told us last night about the major grounds for dissolution of marriage. In the case of desertion, for instance, it is very doubtful whether you will find many with a will to make the marriage work, and, therefore, a will to resort to marriagecounselling. In many cases of adultery there will be no such will. We need not expect, therefore, that this provision will have a tremendous impact in the case of those two major grounds. I expect, also, that in cases in which the fiveyearseparation technique is used to get rid of a spouse, there will be few cases in which the parties will be willing to resort to this kind of counselling. Therefore, I do not think we should be disappointed if the effects of the proposed machinery are found to be slight, and if it is found more helpful with regard to those minor categories of grounds for divorce that the Minister mentioned than in the case of the major ones.
If we could effect anything like the fall in the divorce rate that is now taking place, then naturally we would regard the legislation as spectacularly successful. Without anybody having done anything, without the State laws having been touched, the number of divorces has dropped from 7,900 to 6,200 odd, and the downward trend is continuing* I think, too, that when we speak about adding marriage counselling to marriage guidance, we should remember that people with solid family backgrounds are the most likely to contract successful marriages, whereas people whoare the products of certain kinds of broken homes have very great difficulty in forming stable marriages themselves. Certain factors that are very deep in a person’spsychological make-up cannot, I think, be touched just by what we call training for marriage - the kind of schooling that hasbeen mentioned in connexion with marriage counselling.
Notwithstanding the Minister’s statement about the solidarity of the Australian community and the similarity of its values inall parts of the country, statistics show quite spectacular differences. They indicate that there are some factors in the mores or customs of the community that we need to look at. Many people have told us, for instance, how clergymen will be involved- as a result of this legislation. It is a peculiar fact that in Queensland only 3 per cent, of people resort to the registry office when marrying, while in Western Australia 15 per cent, of the people do not want clergymen to have anything to do with their weddings. These figures show a difference in community values which is quite unaccountable. The Northern Territory has a very high illegitimacy rate, of about 15 per cent., while Canberra has one of the lowest in the world, at 1.76 per cent. That is, quite clearly, a much deeper factor indicating the valuation placed on marriage than the question of who performs the original ceremony, important though that may be. These great differences in community values in various parts of the Commonwealth will make it difficult to assess exactly what marriage counselling is achieving, because undoubtedly the divorce rate is falling without any significant or widespread attempt having been made to achieve that result.
.- During the second-reading debate I made some references to this matter of marriage guidance, and I do not want to repeat them now. Having listened to the debate on this aspect of the bill, however, I feel that there is one simple point that should be made. It would have been better, I believe, if a provision to this effect had been included in the bill, but in any case I suggest that the Minister might consider presenting an annual report to Parliament, setting out the amounts of money that have been provided for marriage guidance services during the year, and giving the number of cases in which assistance was extended. Information could also be given concerning the extension of the service to country areas. The report might also set out the conditions laid down by the Minister in granting financial assistance to the various organizations, and it could give information as to the staffing position, such as the proportion of professional and nonprofessional persons employed. Finally, information could be provided as to how the various cases came before the organization - whether referred by a court or by some other means. Perhaps most important of all for the Parliament, an analysis could be given of the causes of break-down of marriages, and perhaps also the circumstances in which the marriages were contracted in the first instance. Such an analysis might give a clue to remedies that could possibly be applied.
In the course of this debate some honorable members have claimed, for example, that bad housing conditions have been a predisposing cause of marriage failures. This may or may not be the case, but I do suggest that the kind of analysis the Minister might prepare, by collating the reports of the various organizations that will be submitted to him from year to year, might give some clue as to whether bad housing conditions do tend to contribute towards marriage failures, and might indicate something that the Parliament can do about it. In many cases, and perhaps in most cases, the Parliament may not be able to do anything, but some analysis would be valuable, and I believe the bill would have been a better one if it had included a requirement that the Minister table a report annually. If it is not possible to introduce such a provision now, either here or in another place, then at least I feel that the members of the Parliament should ask the Minister from time to time to make a report on these matters, and I hope that he will be willing to do so.
– I support the clause as amended by the Minister. I am quite satisfied that if this scheme is to work the Minister must have the widest possible powers. We cannot leg-rope him to a set code, saying, “ You cannot go outside this “, because we are delving into an entirely new field of activity, one that has never been entered upon previously, to my knowledge, in any State. I believe that not only must the Minister be given very wide authority to decide who shall be given assistance, and what that assistance shall be, but also that the Parliament must be prepared, if necessary, to vote very large sums of money for these purposes.
I am one of those who believe that much can be done to save marriages that break up and end in desertion. I do not believe that in all cases of desertion the marriages could never have been saved. On the contrary, I believe that had marriage guidance been obtained early enough - and I stress that point - many marriages that eventually ended in the desertion of one of the parties would never have broken up. It is no use calling in a marriage guidance counsellor after a marriage has been broken. The assistance must be given early. It is very difficult to induce people who are in the transition stage leading towards a final break-up to take the plunge and go to a marriage guidance council. For that reason I agree with the honorable member for Lang (Mr. Stewart) that wide publicity - costly publicity if need be - should be embarked upon. The various Churches should advise their members of the services that are available. I believe there is no better qualified person than the minister of religion or the parish priest to undertake this work. 1 agree with the further statement of the honorable member for Lang that one of the major factors in successful marriage is a complete pre-marital understanding of what is required of the various parties to the marriage. Marriage guidance might very well be extended to include the period before marriage. For that reason, I hope that there will not be any qualms about giving financial aid to religious organizations. If they are to be called upon to do this kind of work, it may be necessary for them to incur very heavy expenditure, for instance, in the purchase of motor cars to enable visits to be made to homes. I do not believe that marriage guidance will work if it is to be confined to some city address where people seeking assistance must queue to interview some person, just as they queue to interview the Commissioner of Taxation or some similar person. The proper place for marriage guidance is in the home, when the children are away at school.
If I am right in this assumption, then sufficient money must be made available to enable this to be a full-time job so that guidance can be given during the day. With poor people, when an already bad situation may be exacerbated by the loss of pay which would be involved if the husband remained away from work, marriage guidance organizations may need authority to reimburse the husband, to encourage him to remain at home during the day so that he and his wife may have the benefit of marriage guidance in the quiet surroundings with which they are familiar. The people undertaking marriage guidance must know something of medicine, something of psychology and something of the spiritual requirements that make for a successful and happy marriage. Not everybody has this knowledge.
I believe that the Minister has done a worthwhile job here. We ought not to be finicky about Part II. I do not believe that the well-intentioned people, such as the Brotherhood of St. Laurence, mentioned by other speakers, really understand the provisions. The alteration of “ substantial “ to “ major “ will not do the things that they fear it will. I agree entirely with the alteration. I do not want to see some phoney organization obtain a handout from the Government simply because it says it is a marriage guidance council. For all we know, such an organization may be a marriage guidance council only to a minor extent, and the major part of its work may be connected with matters completely unrelated to marriage guidance. It is not right that the Government should have to pay such bodies large sums of money which would be used for activities that are not contemplated by this measure. I am entirely satisfied with the provision as proposed to be amended. I agree that the Minister should be given wider powers and that the Parliament should be prepared to allocate large sums for the job that is in front of marriage guidance organizations.
.- I ask the Attorney-General to say what yardstick will be used to measure the capacity of these organizations. These people may have the best intentions in the world, but they must be skilled in their special sphere of activity. They could be motivated by a genuine desire to help, but if they have not the skill needed for the task, they could do more harm than good. I ask whether the conciliator or the guidance counsellor is to possess training and, if so, what sort of training it will be. Are they to have diplomas or certificates to give them some hallmark of efficiency to undertake these non-official tasks? Will the parties subject to possible reconciliation be informed that the conciliator or the marriage guidance counsellor may disclose information not to the court, which is forbidden, but to their friends, relatives, or other persons? This may be confidential information concerning property or business and private life. I feel that the zeal of a person attempting to guide in these matters may sometimes lead to the disclosure of knowledge which in the end could affect the lives of both parties to the marriage, and they could end up worse off than they were in the beginning.
I ask the Attorney-General to say what will be the guiding rule in appointing these people and what qualifications they will have before these organizations will be appointed to engage in marriage guidance.
.- 1 do not share the optimism of the honorable member for Hindmarsh (Mr. Clyde Cameron). During the discussion on clause 10, the Attorney-General was asked a number of specific questions. In my opinion, he has not replied to them. He has not indicated what part the local marriage guidance organization, the counsellor, the padre, the priest, the local minister or the local Salvation Army captain will play in the future in dealing with these problems. The Attorney-General, in his secondreading speech, seemed to have an entirely different view of the work and worth of existing marriage guidance organizations from the view indicated by his amendment. He now suggests that these organizations and the people associated with them should devote the major part of their time to marriage guidance. Let us again refer to the earlier statement of the AttorneyGeneral. In his second-reading speech, he said -
I have been most impressed in what I have read and by those with whom I have taken the trouble to speak by the efforts in this direction of the marriage guidance organizations. I am sure they have already in this country saved many marriages from breaking down. I think they should be supported. The Government has decided that these voluntary and independent organizations should be encouraged and subsidized. Consequently, in this bill provision is made to approve marriage guidance organizations and to subsidize them, exercising for that purpose some limited supervision of their activities.
He has now declared that this must be a full-time job; it is the job of the specialist. The voluntary workers who performed the outstanding services to which the AttorneyGeneral referred in introducing the bill apparently now will not measure up to the specifications required by the amendment. I think that is to be deplored. However expert or professional people may be, no one is better fitted to advise on marriage problems than men of religion who, in the first instance, may have performed the wedding ceremony.
I think that the local minister or priest, to whom a couple go for the wedding ceremony, would be the ideal person with whom to discuss marriage problems and from whom to seek advice, guidance and assistance. The local minister of religion performs many duties and we all know how over-worked these men are in the various parishes. Consequently, they could not devote the major part of their time to marriage guidance.
Let us think of the minister in a country parish. He performs all kinds of duties, including christenings, marriages and funeral ceremonies. He is interested in local social service organizations and younger set activities plus other Church works too numerous to mention. Under the proposed amendment it would seem that that clergymen would not be qualified to play his part in marriage guidance. That is to be deplored.
Again I direct attention to the great problems that will exist in country centres. The honorable member for Fremantle (Mr. Beazley) pointed to the high illegitimacy rate in the Northern Territory and the low illegitimacy rate in the Australian Capital Territory. The situation in the Northern Territory is brought about by reason of its vast, sparsely populated areas and lack of normal amenities that would be available in more populous areas.
I suggest to the Attorney-General that greater consideration should be given to this matter. I am not happy with his proposed amendment. I think that the clause as originally drafted is superior to the proposed amendment. I agree with what the honorable member for Parkes (Mr. Haylen) said about the need for marriage guidance. There are certain basic reasons why marriages break up and it would be extremely difficult for marriage guidance councils to deal with these problems. The Attorney-General has circulated a graph of the divorce rate indicating how the rate rose rather rapidly from 1938 to 1947. That was the period of the Second World War when the world was convulsed. In this country men were in the services and women were seeking employment to aid the national effort. In that disturbing state of affairs home life was disrupted and in 1947 almost every State had a record divorce rate. That indicates quite clearly that material factors do play a most important part in marriage and if marriage guidance is to have any real impact, then side by side with marriage guidance the Government must stir itself to provide housing, and the amenities and services necessary to meet the needs of the people.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 11 to 13 - by leave - taken together, and agreed to.
Clauses 14 to 17 - by leave - taken together.
.- Mr. Chairman, the clauses under discussion have received applause from all sections of the community because they are a further attempt to maintain marriage and the family. But I should like to ask the AttorneyGeneral some questions about certain aspects of these clauses. I raised this matter when speaking to the second reading of the bill. I was dealing with voluntary marriage guidance counsellors and it was apparent that the Attorney-General did not think that a solicitor handling a case in a court would, if the judge decided that conciliation was possible, ever act in a voluntary capacity as a marriage guidance counsellor. I feel that if a judge decides, under clause 14, that a case is one in which reconciliation is possible, the legal man acting in the case should be able to continue to act at the fee that would have been applicable at the time the judge intervened to conciliate. I feel that unless the couple before the court are given to understand that no further legal costs will be involved, they may be unwilling to allow the judge to conciliate. In his second-reading speech the Attorney-General, dealing with this aspect, said -
But I would expect judges not to undertake to conciliate unless there are sound prospects of success, and the parties will no doubt realize before giving their consent to conciliation by the judge himself that they may thereby involve themselves iri tome additional costs.
If we are to endeavour to reconcile married couples I feel that all considerations should be taken into account. It is important to remember that once a case gets to court the persons involved have generally made up their minds that they want a divorce. If they think there will be a long delay and extra costs, they possibly will not be prepared to conciliate. I understand that under clause 14 any case that is adjourned with a view to the parties becoming reconciled may, at the request of the parties, be brought on for hearing almost immediately.
With regard to reconciliation, publicity is an important factor. That aspect was stressed in the report of the United Kingdom Royal Commission on Marriage and Divorce, which stated - 352. We have considered how best arrangements can be made to bring the facilities for conciliation to the notice of the public. We are certain that many of those in difficulties are unaware of the facilities available and that many of those who take divorce proceedings have never had in their minds the possibility of seeking the guidance of a skilled counsellor. We have referred to the need for guidance to be offered at the earliest possible stage. We consider that often at present the earliest opportunity of bringing to the notice of parties the facilities available arises when an approach to a solicitor is made, either privately or under the Legal Aid Scheme. 353. We know that solicitors seek to impress on their clients the gravity of the step they are contemplating. We wish to stress, however, the importance of every solicitor having clearly in mind the fact that he has an opportunity for bringing the facilities for marriage guidance to the notice of his clients, many of whom may not have considered the possibility of seeking advice from such sources, or may even not have been aware of their existence. No doubt in all consultations with clients upon matrimonial matters solicitors have fully in mind the desirability of effecting reconciliation, and we do not suggest that anything in the nature of compulsion or pressure should be brought to bear upon the spouses. We do, however, suggest that every solicitor should inform his client at the earliest possible stage of a suitable marriage guidance agency in his area, and the facilities which it provides (assuming that such an agency is operating in that area), unless circumstances exist which in his opinion make it unnecessary or undesirable to do so.
That is a point which could be stressed in this legislation. Solicitors who will be acting for parties in divorce proceedings should, when they are approached by clients seeking a divorce, first point out to them the serious step that they are proposing to take and the effect that it will have on the future life of their children. The solicitors also should suggest a suitable marriage guidance organization to which the client might be prepared to go. If that were done by the solicitors before the initial steps to institute divorce proceedings were taken, there might be a greater opportunity to effect a reconciliation than there is under the existing act, which provides that a judge may intervene. I think that the judge still should have the right to intervene if he considers that there is any possibility of a reconciliation but, as the royal commissioners have said, the ‘earlier that you can bring to notice of the parties the services that are available for reconciliation and guidance, the more likelihood there is that the couple will listen to the advice that is given to them and endeavour to salvage their marriage.
I ask the Attorney-General to consider these points: First, no additional cost should be involved in the way of legal fees or in any other way if the judge intervenes; and secondly, in some way, whether by inclusion of a provision in the bill or by making contact with solicitors, the honorable .gentleman should direct that in all cases where solicitors are approached by .a client who desires a divorce, they should inform the client of the activities of marriage guidance organizations and make every endeavour to effect a reconciliation, both at that stage and when the matter comes before the judge.
– I support the honorable member for Lang (Mr. Stewart). I do not want to repeat anything .that he has :said, but .1 seek some infor.mation. Clause 14 (2.) provides, apparently, that where the judge adjourns the proceedings .to afford the parties an -opportunity to become reconciled, and the attempt .at ‘reconciliation fails, that judge or another judge -may resume the hearing. ‘Clause 15, apparently, means that although a case ,may have proceeded for some time and a large amount,of costs may have been -incurred before any ‘thought was given to an endeavour to effects reconciliation, if either of the parties wants to continue with the hearing after the .attempt at reconciliation has ‘.failed, the case ‘has to start again. This means >that She costs will be considerably increased, because another judge will have to be appointed to hear the case. In those circumstances, the appointment of a judge as conciliator will be something of a handicap in relation to costs. Perhaps I have interpreted the clause wrongly. 1 am merely asking the AttorneyGeneral whether my interpretation of the clause is correct.
– May I answer the honorable member for Chisholm (Sir Wilfrid Kent Hughes) in this way: Under the provisions of clause 14, the judge has several courses that he may follow. He may refer the matter to somebody else or he may handle it himself. I should not imagine that the judge hearing the case would offer to conciliate unless he thought that -he would succeed. That is what I said in my second-reading speech. Undoubtedly, if he intervenes and fails, additional costs will be involved. Whether another judge is brought in depends on the parties themselves. I think that there should be a provision, such as is contained in clause 15, to .encourage people to be frank.
I have had quite a deal of experience of endeavouring to settle cases. When you try to do that, the parties hold back for fear of something said during the negotiations being used if they go on with the case. They will not be frank before the judge for fear that he, unwittingly, will use it against them. I thought that the judge should not be forced on them for a further hearing without their consent. I do not think that there will be very .many cases in which the judge himself will offer to conciliate. I think that he will say to the parties, “ There is a marriage guidance organization, if you want to go to it, or there is a conciliator “. But I think that I should provide for a judge to conciliate in some circumstances.
In -reply to the honorable member for Lang (Mr. Stewart), I would not attempt to provide what the fees and charges should be between the parties at that stage. I agree that if the matter has to be commenced again, there may be further fees, but, in the ordinary way, as I understand this jurisdiction, there is usually an agreed fee. This is not a case of solicitors charging item by item. They are inclined to take an agreed fee and see the case through. Look at the matter from the point of view of the bar. A barrister, having said that he will conduct a case, usually sees it through. Most of us, as young people, avoided divorce cases of any length as we would the plague, because the fees were so small, and towards the end of the case you were working for nothing.
I am sure that the legal profession will do in the future as it does now. Having taken on a case, the solicitor or barrister will see it through, even though very often the money runs out. However, I will consider whether I might bring before the various law institutes the remarks that have been made by the Morton commission and allow the institutes to circulate them to solicitors.
.- I require some information from the AttorneyGeneral. Clause 16 is in these terms -
Evidence of anything said or of any admission made in the course of an endeavour to effect a reconciliation under this Part is not admissible in any court (whether exercising federal jurisdiction or not) or in proceedings before a person authorized by a law of the Commonwealth or of a State or Territory of the Commonwealth, or by consent of parties, to hear, receive and examine evidence.
If there are reconciliation proceedings, admissions might be made which completely belie the evidence that is given before the court. I quite appreciate that if we are to effect reconciliation there should be some secrecy, but if I am involved in reconciliation proceedings and want to be open and frank, I should have some assurance that what I say will not be used against me in the court. I envisage the situation that, after an open and frank discussion, the parties become a little heated and, instead of reconciliation, there is a more determined desire for divorce, and that admissions that were made during the reconciliation proceedings will give the lie complete to evidence that might be given in the court. What remedy is there in a situation such as that?
– There is no remedy. The whole point is that the pro vision is there to induce frankness. You must offer the parties secrecy, and that means 100 per cent, secrecy.
– What about perjury?
– There is no question of using that evidence even to try to establish a case of perjury. You must go the whole way if you are to get frankness and a sense of security in the negotiations.
Clauses agreed to.
Proposed new clause 17a.
.- I move-
After clause 17, insert the following new clause: - “ 17a. A minister of religion (not being a marriage conciliator) is competent but not compellable in any proceedings before a court (whether exercising federal jurisdiction or not) or before a person authorized by a law of the Commonwealth or of a State or Territory of the Commonwealth to hear, receive and examine evidence, to disclose any admission or communication made to him in the course of or for the purpose of effecting marital reconciliation by parties to divorce proceedings.”.
The intention that resides in this proposed new clause is comparable to the intention that resides in clause 12. I hope, Sir. that the committee will be indulgent enough to allow me to discuss the proposed new clause and clause 12 in relation to each other. There is, admittedly, a distinction between the two clauses. Before I deal with it, may I say that the proposed clause proceeds from the premise that a very great deal of marriage guidance work is done by ministers of religion who are not marriage guidance counsellors within the terms of the marriage guidance provisions of this bill. I do not think that is a premise that would be contested by any member of the committee. I think it will be freely acknowledged that ministers of religion of various faiths do a great deal of work in this field. Tn my own limited experience, as one who has had a fairly close and somewhat active association with the World Council of Churches, I have seen the sort of work that the representatives of the constituent members of that organization do and have done. My own rector does a great deal of work in this sphere, and I know that the Roman Catholic Church also does a great deal of work in this sphere.
I come now to the distinction, Sir. I have phrased the proposed new clause in these terms -
A minister of religion … is competent but not compellable . . .
That, of course, provides a ready distinction from clause 12, which provides that a marriage guidance counsellor is not competent or compellable. In that case, a negative rests on both. In my proposal, a negative rests only on compellability. I am quite open to the views of the committee, Sir. I want to establish - and I hope that the committee will embrace - the sentiment contained in the proposed clause. Many ministers of religion who have not the time, or, possibly, are not in appropriate circumstances, to become involved in an organization which is a marriage guidance council, within the provisions of this bill, would be doing precisely the same sort of work as marriage guidance counsellors would be doing or would intend to do, and, in many instances, ministers of religion would be far more competent in some spheres - particularly a sphere that may bear down on spiritual considerations - to give a judgment or advice, or to render assistance.
There is nothing more that I can add. Sir. I feel that the committee will see quite clearly the intention of the proposed clause. I am quite agreeable to putting a negative on both competency and compellability, but the proposed new clause, as I have phrased it, leaves the matter to the good sense and the discretion of the minister of religion. I realize that, in respect of a quasi-statutory organization such as a marriage guidance council - I hope that description will not offend the AttorneyGeneral - it would be impossible to allow any element of discretion to exist. But I think that, in respect of a minister of religion, there should perhaps be a measure of discretion. It may be that a couple will go to a minister of religion, that he will try to sort out their problems for them and fail, and that both parties may desire that he be summoned to tell a court precisely what they discussed with him.
As I have said, Sir, I am agreeable to modifying the proposed new clause, but I hope that the committee will recognize the sentiment on which it rests, and accept the amendment.
– Mr. Chairman, with great respect to the honorable member for Moreton (Mr. Killen), I oppose this amendment. Let me tell the committee why. The purpose of clause 12 is, not to afford a benefit or a privilege to marriage guidance counsellors, but to encourage people to go to marriage guidance councils. To apply that reasoning to a clergyman would be extraordinary, because people do not have to be encouraged to go to their priest or parson by a statute which provides that he shall not tell. For clergymen do not tell. I have never heard of a clergyman being called to give evidence on what passed between him and his parishioner in confidence, for the very simple reason that nobody finds out what was said. We all know that you find witnesses in a case by listening to the fellows who talk. If the people concerned say nothing, it is very hard to find witnesses. I should regard it as a particular insult to a Church to say that we had to pass a statutory provision to encourage parishioners to confide in their Church.
I have been among churchmen very much during the period in which this bill has been under consideration by the community. I have spoken to clergymen of every denomination, and to each on more than one occasion. I have never heard it suggested that there was need to provide, by statute, that clergymen shall not tell - for the reason, as I have said, that they would regard it as something of a slur on them.
The way in which the honorable member for Moreton proposed the amendment was even worse. He said that he would like to see on the statute book a statutory permission for the clergyman to tell. The honorable member said that the clergyman should be competent to tell, but not compellable. I think that view is misconceived. If I thought for one moment that you had to encourage people to resort to their priests and clergymen by putting a statutory cloak of secrecy around the priests or clergymen, I should do it willingly. But I feel that it would not be right.
– Why not put a cloak of secrecy around Spry?
– Do not worry about Spry.
I want to say one further thing, Sir, and it is practical. When a clergyman sees his parishioners, as the honorable member for Macquarie (Mr. Luchetti) has said, he may have a variety of courses. He may want to give them spiritual counsel, or something like that, and he may say, “ How is the marriage going? “ The job of sorting out what is covered by this would be extremely difficult.
I think there is no need for this amendment. I certainly have had no request for it. I do not think it would do the Churches credit to pass such a provision, and I ask the committee to reject the amendment.
.- Mr. Chairman, I think that the AttorneyGeneral is drawing the long bow when he says that the privileging of marriage guidance councils simply gives to them a measure of protection in the sense that it will’ encourage people to go to them. I put it to the honorable and learned gentleman that if people will go to a marriage guidance counsellor in the knowledge that what they tell him and what they discuss with him will not be repeated, it may be said with equal force that people will go to a minister of religion if they have a similar assurance.
The Minister has said, Sir; that a minister of religion or a priest would not disclose to a court what he had learned. My I ask the honorable gentleman: Is there at present any statutory bar which prevents a person from subpoenaing a witness who may be a minister of religion or a priest to come into court and give evidence under oath? There may be, not a statutory bar, but a conventional bar. However, conventions exist simply to be broken, and it may well be that, in the future, parties under great provocation who have discussed something with their local minister of religion or their parish priest will take a stand. Each of them may say, “ I want to bring into court the minister of religion “ - or the parish priest, as the case may be - “ with whom I discussed the matter “. The Attorney-General may say that a convention will prevent the court from agreeing to this course. I repeat - I hope it is not an impertinence - that there is ample evidence in history of the breaking of conventions time and time again. The honorable gentleman said that he has discussed the bill with representatives of the Church’ and that none of them had raised this point with him. May I say, with respect, that I have discussed the point with some members of the Church and they regard it as being a slur upon them that you confer protection upon a marriage guidance council which has, in effect, a quasi statutory duty to perform, and not upon them.
– What sort of sordid story did you tell them? Are you suggesting that marriage guidance councils are-
– I do not follow the honorable gentleman. I did not get the tail end of his interjection which was obscured by chewing gum, I think. The whole issue is this: It could well be that a circumstance would occur in which one or other of the parties would call a minister of religion into the court to give evidence of what they had discussed with him. With great respect, I put to the Attorney-General that there is another side of this. Believing as I do that this constitutes nothing but a slur on the Church, believing that circumstances could well arise in which a minister of religion would be called and the existing conventions broken, and believing that a number of people including well-thinking clergy consider that this protection is desirable, I propose to divide the committee on the amendment.
.- The honorable member for Moreton (Mr. Killen) has explained why he thinks that clergymen should be given a guarantee against being compelled to give evidence. He has not explained why, if a matrimonial guidance counsellor is not competent to give evidence in court, a clergyman should be competent to give such evidence. No Roman Catholic priest, whether this law makes him competent or not, is competent, because of the oath that he takes, to give evidence of what he has heard in the secrecy of the confessional.
– But this is a secular matter.
– I do not know. There might be a confession of something that would make the marriage voidable or dissolvable, because it was a confession of something that the person making the confession regarded as a sin. Therefore, it is not quite a secular matter. There are some members of the clergy who are erratic and who might suddenly get a bee in their bonnet. Such a man might suddenly decide that although he could not be compelled, he was competent to go into court and state what he had heard a party to a marriage say. Consequently, I cannot see the point of providing that the clergy shall be competent to give evidence, although I can see the po:nt about guaranteeing him against being compelled to give evidence.
– I think that the honorable member for Moreton (Mr. Killen) is pressing this point beyond any possibility of danger. The situation dealt with in the proposed amendment concerns an attempt to effect a reconciliation between the parties. That is correct, is it not?
– There is a fairly close analogy to that in the practice of the courts where parties are endeavouring to effect a settlement or reconciliation. Usually, such an attempt is made with legal advisers, but sometimes it is not. Practically as a rule, the occasion is regarded as privileged because evidence as to the negotiations to effect a reconciliation is not admitted by the court. People are thus encouraged to speak frankly. I cannot imagine a minister of religion in that situation subsequently revealing information of an apparently detrimental character which he heard in the course of the attempt to come to an agreement. I think it is quite beyond all probability to try to legislate for cases of that kind.
The whole trend in the courts, to-day, with regard to conversations of a confidential character - speaking in the popular sense - is to exclude evidence of such conversations. The medical man has not that privilege, but there are circumstances in which the privilege might be given to him. I do not think that a special provision is required to exclude from evidence discussion of a confidential nature. In other words, it is not necessary to try to escape something which, by hypothesis, is really impossible.
– Could circumstances come about in which one party would virtually demand it?
– One could perhaps imagine an extreme case, but I think it is beyond all practical experience that that kind of case would occur. As the honorable member for Fremantle (Mr. Beazley) has said, it would be the duty of a priest of the Catholic Church never to disclose information. I think that the tendency is for the courts to extend this situation to whatever ordinary human nature would regard as confidential. I suggest to the honorable member for Moreton that he should not press his point at this stage. It is a precaution which I think is really unnecessary. I do not think the situation would arise in which the prejudice which the honorable member, quite rightly, is trying to prevent, would occur.
Proposed new clause negatived.
Clause 18 - (1.) Subject to the next succeeding sub-section, a marriage that takes place after the commencement of this Act is void where -
– I move -
In sub-clause (1.) after “sub-section”, insert “ and to section nineteen a of this Act “.
May I explain the purpose of this amendment? In proposed section 19a, which is covered by amendment No. 9, I have provided a means whereby people who are within the degrees of affinity may, in very special circumstances, obtain permission to marry. In the bill as originally drawn, the degrees of affinity are set out. They are not as stringent as they are in some States. However, upon listening to a number of people, I had it pressed on me that there are sometimes very exceptional cases in which it is necessary to relax even the degrees which I have set out in the bill. If the committee will look at amendment No. 8 it will see that there is a means whereby a judge may give a couple permission to marry although they are within the degrees of affinity prescribed in the schedule to the act. It is necessary to make this insertion in clause 18 in anticipation of the insertion of proposed clause 19a.
.- When one looks at the schedule to the bil! one cannot imagine any circumstances in which a judge could waive a ban on the marriage because of consanguinity. I cannot imagine any of these people being able to marry. I cannot even imagine it being justified. It is not like the case in the Gilbert and Sullivan opera “ Iolanthe “ -
We shall prick that annual blister -
Marriage with deceased wife’s sister.
These are actual blood relationships of a very close kind. I cannot see how we can possibly give a judge power, in the Attorney-General’s projected amendment, to vary the points set out.
– These conditions apply not to blood relationships but only to affinities. They do not apply to consanguinities. When I spoke to the lawyers in Tasmania they gave me instances of where this had happened.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 19 agreed to.
Proposed new clause 19a.
– I move -
After clause 19, insert the following new clause: - “ 19a. - (1.) Where two persons who are within the prohibited degrees of affinity wish to marry one another, they may apply, in writing, to a Judge for permission to do so. “ (2.) If the Judge is satisfied that the circumstances of the particular case are so exceptional as to justify the granting of the permission sought, he may, by order, permit the applicants to marry one another. “ (3.) Where persons marry in pursance of permission granted under this section, the validity of their marriage is not affected by the fact that they are within the prohibited degrees of affinity. “ (4.) The Governor-General may arrange with the Governor of a State for the performance by Judges of the Supreme Court of that State of functions under this section. “ (5.) In this section, ‘ Judge ‘ means -
a Judge in respect of whom an arrangement made under the last preceding sub-section is applicable; or
a Judge of the Supreme Court of a Territory to which this Act applies. “ (6.) The Governor-General may make regulations making provision for or in relation to the practice and procedure in and in connexion with applications under this section, including provision for or in relation to the summoning of witnesses, the production of documents, the taking of evidence on oath or affirmation and the payment of expenses of witnesses.”.
This proposed new clause is represented by amendment No. 8 as circulated. It is designed to give a judge power, in special circumstances, to grant permission for a marriage within the degrees of affinity. It also has machinery provisions which involve various constitutional aspects to enable arrangements to be made for judges of the supreme courts to perform these functions. This is not a function which I could vest in a supreme court as invested judicial jurisdiction. In this provision I have made arrangements for a judge to be able to perform what is really a ministerial function.
Proposed new clause agreed to.
Clauses 20 and 21 - by leave - taken together.
There is a real mystery about clause 20. I think that the grammatical construction at the beginning is so strange that the Attorney-General should have a look at it. The clause says that a marriage is voidable where, at the time of the marriage, either party to the marriage is incapable of consummating the marriage. All that this takes into consideration, grammatically, is a point of time. The condition laid down is that at the time of the marriage the parties were not capable of consummating the marriage. But if, subsequently, they become capable of consummating, apparently after it has become a working marriage, it is possible for either party to go back to the point of time of the marriage and say that because then the other party was not capable of consummating the marriage, therefore, it is voidable. That seems to be the strangest kind of thing. It just takes the point of time of the marriage and says that because the parties were incapable of consummating at that time, then - grammatically - they can go back and void the marriage. I cannot understand that.
The second point is that the clause, as drafted, mixes two things. It mixes factors which, I think, would render a person devoid of capacity of consent to marriage with other factors which are eugenic grounds. If a person is of an unsound mind or a mental defective it is very doubtful whether he would consent to a marriage. In clause 18 it is laid down that mental incapacity to understand the contract of marriage is one of the conditions which makes consent ineffective and therefore no marriage ever existed. If there is no consent to a marriage, clearly incapacity exists and there is no marriage. That is the position taken by the Catholic Church. It teaches that if a person is coerced into a marriage or is incapable of consent to marriage - consent between the two parties to the sacrament being necessary - then, in the absence of that consent, there is no marriage.
But then we come to this strange, covering, qualifying point that it is at the time of the marriage that everything counts. If, for example, at the time of the marriage the wife is pregnant to a person other than the husband, then the marriage can be voidable. No mention is made of whether the husband knew of his wife’s condition and, knowing it, he consented to the marriage.
– If the honorable member reads forward to clauses 43 onwards he will find this aspect dealt with in the nullity provisions.
– None of those provisions seems to me to overcome the objection that at a subsequent stage to the marriage, although all these things were known when the parties were married, one of them can turn round’ and say, “ At that time these things were so and no matter what has developed since, we can make that former condition a ground of voiding the marriage “.
There are two other things which seem to be not in conformity with any of these matters. One is that the marriage, although not void, is voidable. In other words, either party has to take action to make it so. For example, if there were recurring attacks of epilepsy, this could be a ground for voiding the marriage. I can think of two people, offhand, one of whom began to have epileptic fits at the age of nineteen and the other at the age of 21. If there is a eugenic ground for saying that there should be no marriage of epileptics, this clause still takes the point of time of the marriage and says, “ If you ever had any epileptic attack round about that time, then the marriage is voidable “. All the eugenic objections to the marriage of epileptics apply with equal force if there is an onset of the attacks after marriage. So, again, tremendous power is given to this provision to the particular point of time.
The strangest one, I think, having regard to the curability of venereal disease, is to apply this provision so that if, at the time of marriage either party is suffering from a venereal disease in a communicable form, the marriage can be voided. There does not seem to be the clarity of drafting that would separate a ground from just pinning it on to a point of time.
– These provisions as to void and voidable marriages specify the conditions under which marriages are voidable and of necessity they must deal with the point of time when the marriage took place. To cover the possibility of subsequent events, Division 2 of Part VI. of the bill, dealing with nullity and affording a means of voiding a marriage by suit, lays down a number of specifications. Clauses 44 and 45 are very much in point. Clause 45 provides -
A decree of nullity of marriage shall not be made on the ground that the marriage is voidable by virtue of paragranh (a) of sub-section (1.) of section twenty of this Act unless the court is satisfied that the incapacity to consummate the marriage also existed at the time when the hearing of the petition commenced and that -
the incapacity is not curable;
the respondent refuses to submit to such medical examination as the court considers necessary for the purpose of determining whether the incapacity is curable; or
the respondent refuses to submit to proper treatment for the purpose of curing the incapacity.
– This gets over the question of time.
– That is so. Honorable members will notice that there is an amendment in which I suggest that even in those circumstances it may be against the public interest to allow a person, who has approbated, a marriage of this sort. For example, a young woman may marry a very old man knowing he is incapable of consummating the marriage. She has some financial reason, and after some time wants to void the marriage. I have made provision in amendment No. 18 that the court may say, “ No, it is against public interest, we will not have it “.
– Will the Minister answer the point I raised regarding epilepsy?
– In the case of epilepsy in one party to the marriage, that is thought to be a circumstance
Which will entitle the marriage to be voided, if the person who married the epileptic was unaware of the affliction at the time of the marriage. If the honorable member will look at clause 46 he will see that the petitioner must satisfy the court that at the time of the marriage he or she was ignorant of the facts constituting the ground, that the petition was filed not later than twelve months after the date of the marriage, and that marital intercourse had not taken place with the consent of the petitioner since the petitioner discovered the existence of the fact constituting the ground. Now, as to supervening epilepsy, there has never been a suggestion that supervening epilepsy should be a ground for the dissolution of a good marriage.
.- Whilst I appreciate that the grounds set out here are also covered in clauses 45 and 46, this is one clause of the bill by which, we are entitled to claim, we are making divorce available to people who, at the time of their marriage, possibly had some idea that these disabilities were in existence.
– No, that is the point. They must not have known of them at the time of the marriage.
– I fail to see how anybody could marry a person of unsound mind and at the time of marriage not realize that the other party to the marriage was of unsound mind, unless that person was of unsound mind himself or herself. I also feel that this provision rather throws the field open. If I marry some one of unsound mind knowing full well that she is of unsound mind it would be relatively easy for me, once I decide to get rid of her, to deny in court that I knew at the time of marriage that that condition existed. In any case, what is the purpose of getting married? To procreate the race, or because one person is attracted by another person?
– To reduce your income tax.
– That is hardly worth while bothering about under the present Government, which allows a man a deduction of only £143 for his wife. If I am of sound mind and contract a marriage with a person of unsound mind surely there must be some attraction to the partner in the first place, whether it be sexual, physical or intellectual. Then, if I get tired of that woman, under this proposal I can claim she is mentally defective or of unsound mind. If that can be proved I am entitled to a divorce. Surely if we enter into a marriage and are of sound mind at the time of entering into it, we must beprepared to accept the responsibilities we have taken unto ourselves instead of being able to walk out of the marriage virtually when it suits us.
– No, no. If the honorable member reads clause 46 he will see that it covers that position completely.
– I quite appreciate that clause 46 provides that the petitioner must satisfy the court that at the time of the marriage he or she was ignorant of the fact constituting the ground, that the petition was filed not later than twelve months after the date of the marriage, and that marital intercourse has not taken place with the consent of the petitioner since he or she discovered the existence of the facts. Let me put it this way: If I am the sort of person who intends to get rid of my wife, even though I knew at the time I married her that she was of unsound mind, there is not one thing in heaven or earth that will prevent me from swearing in court that I have meta11 the provisions of clause 46. For the life of me I cannot see how any person could be stupid enough to contract a marriage with a person falling within two or three of the categories mentioned in the clause without being aware at the time of the marriage that that was the case.
– I cannot see any definition in the bill of the terms “ unsound mind “ and “ mental defective “, although I have heard a good deal of discussion of them in the debate.
– There is a definition in the sub-section.
– What about “epilepsy “? Not being a medico I would not know whether or not there are degrees of epilepsy and of insanity. If there are degrees, what degrees must exist in order for it to be a ground for divorce?
.- As it is unlikely that the Parliament will in the very near future deal with matrimonial causes again I should like to raise a matter which may seem to be a little out of place in point of time. I hope that the AttorneyGeneral will forgive me if he thinks so, but this seems to me to be the appropriate time to raise my point. The relevant part of clause 20 reads -
Subject to this Act, a marriage that takes place after the commencement of this Act, not being a marriage that is void, is voidable, where, at the time of the marriage -
the wife is pregnant by a person other than the husband.
What is to be the position where a woman is pregnant by means of artificial insemination? That is a practice which is developing, and it involves great matters of morality and great issues of ethics. I ask the Attorney-General: If a woman, without the consent of her husband, is artificially inseminated and is pregnant, would the ground that I have mentioned in clause 20 impinge on such a case, and, broadly, what is the juridical position in this regard at the moment? It may be though that my question is anachronistic, but I think it has a measure of relevance and I hope that the Attorney-General will understand the mood which prompts the question.
– Before the Minister proceeds to answer that question, would he answer the question regarding the definition of “ unsound mind “?
– The condition of “ unsound mind “ is well understood in the law. We deal with this subject in a number of cases and there is no need to define it to the courts, because they already have a body of law on what is unsound mind. The same remark would apply, I should imagine, to epilepsy, which is a fairly well defined pathological condition.
The honorable member for Moreton (Mr. Killen) asked a question about artificial insemination. The honorable gentleman will have noticed that in my secondreading speech I said that the practice of artificial insemination had not proceeded to a point whereI thought we were ready to found rights and obligations on that subject and, consequently, I did not make any provision for dissolving a marriage where the woman has been artificially inseminated with the semen of another man without her husband’s consent - which is something that I suppose all of us would regard as a fairly serious matrimonial offence. Now, in a case where a woman is pregnant to another person at the time of the marriage - whether by means of artificial or any other form of insemination - a case could be made out that the man who did not know she was pregnant could very well say that the marriage ought to be called off, provided he could prove he did not know of this defect at the time of the marriage, and provided also that he moved quickly and had not had marital intercourse with her after learning the facts. In those circumstances I should think it was right to call the marriage off if the petitioner met those conditions that I have mentioned.
Clauses agreed to.
Clause 22 - (1.) Subject to this Act, a person may institute a matrimonial cause under this Act in the Supreme Court of a State or of a Territory to which the Act applies. (4.) Proceedings for a decree of dissolution of marriage shall not be instituted under this Act except by a person domiciled in Australia. (5.) Proceedings for a decree of nullity of marriage, judicial separation, restitution of conjugal rights or jactitation of marriage shall not be instituted under this Act except by a person domiciled or resident in Australia.
– I move -
In sub-clause (4.), after “ marriage “ insert “ or for a decree of nullity of a voidable marriage “.
I might shortly explain to the committee that the basis for jurisdiction in the case of a voidable marriage is domicile, and the bill as drawn does not clearly show that it is domicile as distinct from residence. The purpose of this amendment and the one which will follow is simply to ensure that the basis of jurisdiction in the case of nullity of a voidable marriage is domicile, while in the case of nullity of a void marriage it is simply residence.
.- I have just a very brief and blunt comment to make on clause 22. This clause, in my judgment, shows one of the greatest procedural weaknesses in the bill, especially when compared with the bill originally in- troduced by the honorable and learned member for Balaclava (Mr. Joske). I think the granting of federal jurisdiction to State courts, instead of providing a federal divorce court, is a manifest weakness. I say no more about the matter except that I believe that when the State courts assume this added jurisdiction - and there will be added jurisdiction in some States - the delays that are already experienced will be increased. I suggest that in five or ten years’ time another Parliament will be thinking about establishing a federal divorce court along the lines suggested some years ago by the honorable member for Balaclava.
Amendment agreed to.
Amendment (by Sir Garfield Barwick) agreed to -
In sub-clause (5.), omit “ of marriage,”, insert “ of a void marriage or for a decree of “.
Clause, as amended, agreed to.
Clauses 23 to 26 - by leave - taken together, and agreed to.
Subject to this Division, a petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be based on one or more of the following grounds: -
that, since the marriage, the other party to the marriage has, without just cause or excuse, wilfully deserted the petitioner for a period of not less than two years;
that, since the marriage and within a period of one year immediately preceding the date of the petition, the other party to the marriage has been convicted, on indictment, of -
having committed an offence involving the intentional infliction of grievous bodily harm on the petitioner or the intent to inflict grievous bodily harm onthe petitioner; or
having attempted to murder the petitioner;
that the other party to the marriage -
is, at the date of the petition, of unsound mind and unlikely to recover; and
since the marriage and within the period of six years immediately preceding the date of the petition, has been confined for a period of, or for periods aggregating, not less than five years in an institution where persons may be confined for unsoundness of mind in accordance with law, or in more than one such institution;
that, since the marriage, the parties to the marriage have been separated (whether by agreement, decree or otherwise) for a continuous period of not less than five years immediately preceding the date of the petition and there is no reasonable likelihood of cohabitation being resumed;
– I suggest that we deal with each paragraph of this clause separately, because the committee will, no doubt, want to debate some of the paragraphs as separate matters.
Ordered that the clause be considered by paragraphs.
Clause to the end of paragraph (a) agreed to.
– I move -
Omit paragraph (b), insert the following paragraph: - “ (b) that, since the marriage, the other party to the marriage has, without just cause or excuse, wilfully deserted the petitioner for a continuous period of not less than three years; “.
This amendment seeks to preserve the status quo in all States, with the exception of Tasmania. One can say that the period of time of desertion specified as a ground in the Australian States is three years. There are some people who do not support the principle of uniformity without a consideration of what is involved. I presume, on this occasion, to call in support of my amendment none other than the Attorney-General himself. Last night in this chamber the honorable gentleman very eloquently expressed this sentiment -
When you find that a particular State has a ground that is working well and has not caused any social evil, and with which the people of the State are satisfied, you carry a very heavy burden if you say, “ In my uniform law I am going to cast that ground over “.
For all practical purposes the law of the six Australian States specifies three years’ desertion as a ground for divorce. What nature of burden is it that the honorable and learned gentleman takes upon his shoulders in casting aside the settled provisions existing in all the Australian States? It may be argued, and no doubt it will be, that desertion does not suddenly occur on the second anniversary of separation. That is prefectly true, but a similar argument could apply with respect to the three years’ provision in the States at the present time. It may also be argued that with the delays that are experienced in divorce matters at present, even if a party petitions for divorce after two years’ desertion, the period will have extended to three years before the decree is granted. If that argument is put forward - and I expect that it will be - it must be remembered that these delays are occurring at the present time and result in a corresponding extension of the period of three years at present provided.
What evidence is there that would lead honorable members of this Parliament to presume that the Australian States wish to disturb the existing provision for divorce on the ground of three years’ desertion? The Attorney-General cautioned us last night, very properly, against setting aside lightly, when making a uniform divorce law, a ground that has worked well in any one particular State. Well, here is a ground that has worked in every State, and yet the Minister comes along and, obviously with the support of the Government, says, “ We are going to cast aside this ground that has worked well in the States.” I hope the committee, in considering this amendment, will at least accept the presumption that the States do not want to disturb the existing ground of three years’ desertion.
.- Clause 27 (b) deals with desertion. While I must agree that the Attorney-General was correct when he said that nine members of the United Kingdom Royal Commission on Marriage and Divorce were in favour of the separation clause, and nine were against it. while one stood out for a different provision, I think I am correct in saying that every member of the commission said it was undesirable that desertion for any period of less than three years should be a ground for divorce. I quote from the report of the royal commission which sat between 1951 and 1955. At page 43, paragraph 138, the following appears: -
Most witnesses were content that the period for which desertion must run should remain at three years. No witness suggested that the period of continuous desertion should be lengthened but there were several proposals that it should be shortened, on the ground that it is a hardship for a deserted spouse to have to wait for three years and that there is little prospect of a husband and wife coming together after, say, twelve months have elapsed from the initial desertion. We are all of the opinion that it would be most undesirable that the period during which desertion must run should be less than three years.
The Attorney-General has leaned rather heavily for support of some of his proposals on the information contained in the report of the royal commission held in the United Kingdom. Whilst I am prepared to concede that he has 50 per cent, of the members of the royal commission in his favour on the separation clause, certainly none of the commissioners is in his favour on the desertion clause. If my information is correct, the only persons who can at the moment obtain a divorce after two years are those resident in Tasmania.
– On the ground of desertion?
– Yes. I am speaking only to paragraph (b) of clause 27. There does not seem to have been any effort by any section of the community to have the desertion period reduced from three years to two years. I understand that the Attorney-General suggests that he has done so because, after a petition is filed, a delay of twelve months occurs before the case is heard and so we come back to the period of three years. A further argument that he uses is that, if a divorce is to be taken after three years’ desertion, it will most likely be taken after two years’ desertion, or if it could not be taken after two years, then the parties would be prepared to wait for three years, because after a desertion of two years the parties would not be reconcilable. But the position is that the laws of the States at present provide for a period of three years. The royal commission in the United Kingdom also suggested that it would be most undesirable for the period during which desertion must run to be less than three years. However, in this instance, we find that the Attorney-General goes against the provisions in the State acts and the recommendation of the royal commission, and decides to reduce the period to two years. In doing so, he is making divorce on the ground of desertion a little easier.
I understand that, on the figures for 1957, 64 per cent, of divorces in Australia were granted on the ground of desertion. People who have been deserted would suffer no undue hardship if they had to wait for three years to elapse. Those most affected are the wives, with their children, if the husbands desert them, and our social service legislation - I am not going into the pros and cons of it - provides a semblance of assistance for them. Even if they must wait for three years, it is unlikely that they would want to remarry before that time had elapsed. I feel that, to reduce the desertion period from three years to two years is wrong and I should like the AttorneyGeneral to reconsider his attitude on this issue. He has not given away much in any of the amendments that he has accepted so far. He has quoted the report of the royal commission to support his proposal on separation and possibly I will later quote the same report to support an argument against the provision relating to five years’ separation. But in this instance, all the commissioners have said is that it would be undesirable for the desertion period to be less than three years. I feel that if he takes notice of nine of the commissioners, plus one doubtful on one clause, he should take notice of all the commissioners on this ground of desertion.
.- The honorable member for Moreton (Mr. Killen) has circulated a series of amendments to the bill. He objects to the period of desertion being two years, but he does not propose any amendment to paragraph (k), which provides for divorce after one year if a party to the marriage has not complied with a decree of restitution of conjugal rights. If he were logical, he would surely ask that the period in this paragraph be made three years. 1 feel, therefore, that he has not a strong case. 1 support the Attorney-General’s contention that no purpose is served by requiring the parties to a marriage to lose a further year of their lives. If desertion has lasted for two years, I feel that sufficient time has elapsed for people to make up their minds and I see no purpose in delaying the matter for a further year. I support the Attorney-General’s proposal.
– I support the amendment for several reasons. The first is that no good reason has been given, as far as I can understand, for an alteration to be made in the period at present provided in the legislation of most of the States. I have not heard of any demand - perhaps I am wrong, but it has not come to me - for an alteration of the period of three years. All the States except Tasmania have had the three years’ period for a long time. As the honorable member for Lang (Mr. Stewart) has shown, a royal commission which sat for a long time in England investigating the matters we are now discussing, was against shortening the period of three years. Why, therefore, should we now say that the appropriate period is two years? Why not make it one year? I am not at all convinced by what the honorable member for Hume (Mr. Anderson) has said.
– Why make it three; why not four?
– Because three years has been the accepted standard for a long time, not only in the six States of Australia, but apparently in England and other places as well. When a royal commission of the composition of that in England, which went into these matters far more fully than we can in discussions in this Parliament, investigates all the pros and cons, takes a lot of evidence and comes to the conclusion that the period of three years should not be altered, I fail to see why we should now reduce it to two years. I ask the Attorney-General to give this matter a little consideration during the suspension for dinner and see whether he can meet the wishes of some honorable members on this point.
This is one of the two, or at the outside, three main objections raised by the Church to the bill, because it seems to make divorce easier, lt has already been pointed out that the lists of divorces published in the daily newspapers, certainly in Melbourne, show that by far the majority are granted on the ground of desertion. If the period of three years has not proved a handicap in the past, I do not see why it should prove a handicap in the future. As T said previously, when many, if not the majority, of the leaders of all the Churches take exception to the alteration of what has been the standard practice, honorable members would be wise to consider something that is not entirely secular. Marriage has a very large religious content for practically everybody in this community. If that is not so, why are there all these Church marriages? Why go through a marriage ceremony and make vows before the altar? This is not entirely a secular matter.
Sitting suspended from 6 to 8 p.m.
- Mr. Chairman, when the sitting was suspended we were discussing the amendment proposed to clause 27 (b) by the honorable member for Moreton (Mr. Killen). As the bill is framed, clause 27 (b) reduces the period of desertion as a ground for dissolution of marriage from the status quo of three to two years and the honorable member for Moreton has moved an amendment seeking to restore the period of three years, which is now operative in all States except Tasmania. Even though the AttorneyGeneral may feel that he has the numbers to carry paragraph (b), I ask him to look with some leniency on the proposed amendment. So far the honorable gentleman has given no reasons why the time should be reduced from three years to two years.
– That was dealt with by the Attorney-General in his speech last night.
– Last night the honorable gentleman said that the Government had no desire to make divorce easier. Time and time again in this debate we have been told that divorce is a secular matter and not a religious matter. As I recall his words, the Attorney-General said that the problem for Parliament was a secular one and was a question of deciding what was best for the social and moral welfare of the community as a whole. That principle applied to paragraph (m) of clause 27 and applies equally to paragraph (b).
– Is that principle disputed? Mr. Gladstone said that 102 years ago.
– That was the statement. I do not think that we as a Parliament are giving sufficient attention to the fact that all marriages, with the exception of a few that are entered into as civil contracts, have a very large religious content. If I have misinterpreted what the honorable gentleman said, so much the better. I think that the Attorney-General would be wise to take note of the opinions expressed by a majority of church leaders in relation to paragraphs (b) and (m) of clause 27. He should not approach this matter as a barrister pleading a case, where he must win every point. If we continue on that basis perhaps the victory will be a very Pyrrhic one and the casualties that may result are something for us to contemplate.
The amendment proposed by the honorable member for Moreton will not destroy the bill. This proposal to shorten the period of desertion was the subject of a letter that I and other honorable members received from the Anglican bishops. They felt that it was wrong. The amendment, if accepted, will merely continue the practice now in operation in five of the six States. I ask the Attorney-General to give this matter earnest consideration and to agree to the amendment. I am sure that many other honorable members would like to support it and I know that several of them will support it. I ask the honorable gentleman to carefully consider paragraphs (b) and (m) so that the bill may start off with much more goodwill than if it is treated as a secular matter with no religious content.
– Mr. Chairman, I am not very much concerned whether the period of desertion should be two years or three years. I do not think it makes much difference whether the period is two years or three years and I do not care whether the Attorney-General sticks to the two-year period or accepts the amendment proposed by the honorable member for Moreton (Mr. Killen). But when we come to paragraph (m) of clause 27 - the separation clause - if you take–
– The committee is dealing with paragraph (b) only.
– I think we are dealing with the whole clause.
– We are dealing with each paragraph separately.
– The honorable member for Chisholm (Sir Wilfrid Kent
Hughes) was speaking about paragraph (m). However, I will deal with that matter later. AH I say is that if you take out paragraph (m) you may as well cut the throat of the bill.
.- The question of whether the State laws in respect of the period of desertion should be altered from three years to two years before a deserted party may take the initiative, has, I think, only one significance. That is, whether the ground encourages or does not encourage collusion. I understand that certain honorable members are not greatly concerned about collusion. They feel that if each party to a marriage wants to end the marriage, that should be sufficient. That is a point of view with which I do not agree but which I recognize is quite common. Ordinarily speaking, the community has to determine that it has an overriding interest in the marriage institution as well as whether two people just wish to separate. Whether proceedings for desertion may be started after two years or after three years bears a relationship to the degree in which the ground may be used for collusion.
There is a genuine desertion and there is an arranged desertion. Parties to a marriage can say that they have only to wait two years and then the matter is ended. If the period of desertion remains as it is now in most States - three years - it is much less likely to become an arranged ground and more likely to be a genuine one. For that reason I propose to support the amendment moved by the honorable member for Moreton (Mr. Killen).
– I should like to say, first, in answer to the honorable member for Chisholm (Sir Wilfrid Kent Hughes), that I do not approach any part of this bill on the basis that I have the numbers. It is quite untrue to suggest that the Government has in any respect deviated from its statement that this is a completely nonparty measure and that every man is free to follow his own bent. As far as I am concerned, I have done nothing, nor do I know of anything done by any other member of the Government, to alter that situation. This matter may be approached by honorable members according to what they think after having heard the debate.
Let me put to the committee the reasons why I think two years is preferable to three years. First, the honorable member for Moreton (Mr. Killen) endeavoured to draw an analogy between this ground and the Western Australian ground as a result of what I said last night. I am not striking out a ground, but the ground of desertion is included; but this bill is a balanced bill. I have had to deal with many more problems than just taking one ground by itself. For example, there is a ground for dissolution for failure to support a wife for two years in disobedience of an order or in breach of an agreement. Does the honorable member for Moreton say that a woman should wait three years without any support from her husband, or does he agree with me that it is enough for her to wait two years without any support? When she finds a man who is willing to support her honorably after two years, should she not be free to say that she will divorce he delinquent husband and marry this man who wants to support her and perhaps the children of the former marriage? If the honorable member for Moreton wants to make the period three years in one case, he will have to make it three years in the other. He could not leave this bill in the position that there could be failure to support for two years but that there must be desertion for three years. Indeed, in many States at present failure to support is deemed to be desertion. I have included that ground in the bill because it is not so regarded in all the States, and because I thought it very right and proper that if a woman were left by a man high and dry for two years, and if she found somebody able and willing to support her, she should be free to marry him honorably.
There is another balance in this bill. I have kept in the measure the ground of restitution of conjugal rights because I have been convinced, by those who have practised more widely in this sphere than I have, that in a considerable number of cases reconciliation has resulted from the commencement of a suit for restitution of conjugal rights. If the percentage of reconciliations is anything like as high as I have been told it is - the figure of 8 per cent, has been quoted to me - the retention of this ground as part of the mechanism of this bill is well worth while. But if I had to allow two years for compliance with a restitution order, I might as well tear up the provision. The very longest time that I could allow for obedience to an order for restitution, and expect the provision to have any effect in relation to reconciliation, is twelve months. If I extend the desertion period to three years and leave a ground of failure to comply within one year with an order to return home, I will simply be providing a short cut to divorce in the way in which the New South Wales provision is constantly used now.
In weighing up the grounds, I have come to the conclusion that the people of Australia will not accept the New South Wales provision as it is currently used. Consequently, I have had to endeavour to balance this bill. To provide for desertion for two years really makes it useless for anyone to attempt to use the restitution procedure as a short cut because, if you will only do a little arithmetic you will realize that a petitioner must bring one suit for restitution, wait a year, bring another suit, and then get a divorce. A petitioner might as well wait two years and sue for divorce on the ground of desertion and save himself or herself the cost of one suit. The period of two years is important in the general balance of this bill which is not just a series of unconnected grounds.
Above that, and perhaps more important than that, are the merits of the provision. Why do we specify a term of years for desertion? Those who were responsible for determining what were matrimonial offences for the purposes of our present laws, considered apparently that a man who deserted his wife and stayed away for three years committed an offence of sufficient gravity to warrant her suing for divorce. But does not the man who deserts his wife finally and stays away for two years commit a matrimonial offence? Is the matrimonial offence so much different at two years from what it is at three years? If you look at this question of divorce in the way in which I have looked at it, you will ask yourselves whether a marriage has irretrievably broken down when there has been desertion for two years and the husband has not come home when the suit has started - do not forget that under this bill he can always offer to effect a reconciliation. This bill gives him the chance to come home if he wants to. So the hypothesis is this: The husband has been away for two years and, although the suit has commenced, he has made no endeavour to effect a reconciliation. Can we say that that marriage has not broken down finally and that we ought to wait another year to see whether it has finally finished? I am sorry to say that I cannot see any reason why a person should wait for that additional year.
As I said last night, when you realize that the preponderance of divorces take place between people aged between 30 and 40, a year of life is terribly significant. Let us remember too that a divorce is not sought until the petitioner wants to make a new life with somebody. After all, people do not get divorce decrees just to paste them on the wall. They get them because they want to marry again. If there has been desertion for two years and no offer of reconciliation, who will say that a man should be able to stand out another year before his wife, who has found another mate, can marry? This matter has been looked at on the broad, human basis. I am quite sure that the answer must be that two years is sufficient. Some period must be allowed in order to demonstrate that a marriage is irretrievably lost, and it is a matter of judgment as to whether it is two years or three years. Somebody has interjected and asked why not four years or five years.
– Why not one year?
– I am not talking about one year, I am talking about two years. In the judgment of this committee, is not two years sufficient? It is nothing to the point that a group of State parliaments, which would not touch divorce with a 40-ft. pole as a political problem, have left the period at three years. That is not the answer for this Parliament which is making an Australia-wide law. I hope that the committee will approach this matter, as I have done, with the idea of finding what is good and sound for the community on a humane basis. On that footing, I ask the committee to accept two years as being a sensible period.
As a side remark, let me say that this period of two years was a recommendation of the Law Council of Australia which looked at this matter as a group of practising men, not merely as lawyers but as people who have had experience of human suffering in the cases that they have had to handle. They came forward with the unanimous recommendation that two years was proper.
The honorable member for Chisholm has implored me to treat this as something other than a secular matter. Truly, we are here to deal with a code of divorce as legislators. We cannot sit here as clerics because if we do I suppose a great number of us would say, as I indicated last night, that marriage is indissoluble and that there can be no divorce. We cannot look at it in that way. For 100 years we have not looked at it in that way. We must ask ourselves whether, in our own honest opinion, we will tlo any damage to this community by reducing the period from three years to two years. Conversely, we must ask ourselves whether we will do anything useful, just and humane by reducing the period from three years to two years. I am quite content to leave the question to this committee as a broad human problem.
The honorable member for Fremantle (Mr. Beazley) has said that by reducing the period from three years to two years we will promote collusion. The force of that argument rather escapes me. There is a provision in this bill against collusion. But let me remind honorable members of something that is very basic, something that we sometimes forget. Always parties can finish the reality of marriage by consent. There is no law, human or divine, that prevents a man from walking out on his wife or agreeing to leave her, saying that the marriage is over so far as all the realities are concerned. There is nothing to prevent him saying, “ No longer will I cohabit; no longer will I love; no longer will I afford companionship “. He can do that always, and when he has done that - and nothing can stop him - no absence of divorce laws prevents him from breaking up the marriage. When he has broken the marriage the question, from the community’s point of view, is whether the one who has been deserted can, after a proper interval of time, start afresh. I press on the committee that two years is adequate.
.- The Attorney-General has made the statement in this chamber, on a couple of occasions, that some honorable members are approaching this subject from the stand-point that marriage is indissoluble. I have listened attentively to the debate on this bill. I heard most of the speeches at the secondreading stage, and, so far, I have not heard any honorable member state that he believes that marriage is indissoluble. However, the Attorney-General, when speaking in reply to the second-reading debate yesterday, claimed! that some honorable members had approached the matter from that stand-point, and he has made the same claim again this evening. Those of us who oppose some of the clauses of this bill are certainly not opposing divorce, because it has been accepted in the community for 100 years. Regardless of my views or those of my religion, I realize that I am in this place not to represent my religion only, but to do what I can for the whole of the people of Australia.
The Attorney-General has claimed that paragraph (m) is a good provision, because certain of the commissioners who comprised the Royal Commission on Marriage and Divorce, in the United Kingdom, recommended such a provision. On the other hand, he has completely disregarded the unanimous opinion of those same commissioners on the principle embodied in paragraph (b) of this clause. This seems to me to indicate that the honorable gentleman, having investigated this problem in Australia and discussed it with a certain number of people, has decided that he is now in a position to decide contrary to the unanimous opinion expressed by the royal commissioners in the United Kingdom after they had taken evidence from a host of organizations and of individuals. They unanimously decided that it would be wrong to reduce to less than three years the period of desertion accepted as a ground for divorce.
As I said earlier, the Attorney-General has leaned heavily on the recommendations of the United Kingdom royal commissioners. The provisions for marriage guidance that he has embodied in this bill are taken almost directly from the recommendations of the royal commission, as are the provisions for reconciliation. The royal commissioners were evenly divided on paragraph (m) - the separation provision - although a similar provision has existed in New Zealand and Western Australia, and the Attorney-General has decided to give a casting vote on that and to include it in this bill. Having taken the recommendations of the United Kingdom royal commissioners in respect of two or three matters, he now completely brushes aside a unanimous recommendation by those royal commissioners because the Law Council of Australia has said that the period of desertion accepted as a ground for divorce ought to be reduced to two years.
– The United Kingdom royal commission was not faced with the same pattern of other grounds as this Parliament has been faced with.
– The royal commission’s warrants and terms of reference were particularly wide. The only thing that the terms of reference did not take into account was the marriage rule. Practically everything that is mentioned in this bill was covered by the report of the United Kingdom royal commission.
– Did it ever examine Australian conditions?
– Yes, it examined Australian conditions. Having looked at the names of some of the people who submitted written evidence, I suggest that most of those persons who occupied the post of Attorney-General or Minister for Justice in the Australian States gave written evidence before the United Kingdom royal commission. One of the names that struck me when I was looking through the list was that of the late Clarrie Martin, who was AttorneyGeneral in New South Wales. In the report of the United Kingdom royal commission, there are sections on adultery, cruelty, desertion, insanity, sodomy and bestiality, restrictions, bars to relief, judicial separation, restitution of conjugal rights, jactitation of marriage, and children in matrimonial proceedings. So I cannot understand why the Minister for the Interior (Mr. Freeth) has said that the inquiry made by the United Kingdom royal commission was not as wide as it ought to have been.
– I did not say that at all. I said that the royal commission was not faced with the same pattern of conditions as we have here.
– The point is that evidence was given by many organizations and many individuals, and the royal commissioners recommended unanimously against reduction of the period of desertion from three years to two years or less. The Minister says now that two years is sufficient. I feel that, on the arguments he has used, he is entitled to say that one year is sufficient. A period of one year has been stipulated in respect of restitution of conjugal rights, and if one year is sufficient in that instance, it should, on the arguments that the Minister has used, be sufficient for desertion. The reason why the Attorney-General does not want to accede to our request, and the reason why he will not accept the recommendation made by the United Kingdom royal commission, is that he realizes that the proposal would affect two or three other clauses and that the period stipulated in this bill in respect of restitution of conjugal rights and various other mattes would have to be extended. The Minister has acted upon the recommendations of the United Kingdom royal commission on a number of matters - three or four of them come readily to mind - but, in relation to a matter on which the royal commissioners were unanimous, he says, “I know better than all of them. I say that two years is sufficient.” This indicates to me that the AttorneyGeneral believes that he is greater than anybody else in this Parliament and greater than the United Kingdom royal commissioners.
.- Mr. Chairman, I am quite certain that the Attorney-General is well able to take care of himself, but, having heard the remarks just made by the honorable member for Lang (Mr. Stewart), I must intervene. The honorable member said that the AttorneyGeneral used the report of the United Kingdom royal commission to suit himself yesterday. Let us examine that matter. The honorable member has quoted from the minority report of the royal commission, and the Attorney-General used the report in order to answer him.
– I did not quote from it.
– The honorable member quoted from the minority report of the royal commission.
– I did not.
– The honorable member did, and the Minister answered him by referring to the same report. That does not mean that the Attorney-General misused the report. It was perfectly in order for him to quote it in answering the honorable member for Lang. One must expect to find in this measure provisions which are in accord with the recommendations made by the United Kingdom royal commission, because, after all, the laws of the Australian States were based on the laws of England in the old days. As a consequence, you continually find likenesses appearing. The accusation that the Minister used the report of the royal commission for his own advantage is complete nonsense. He used it in order to reply to statements made by the honorable member.
.- Mr. Chairman, the Attorney-General has signified with great clarity that paragraph (b) is designed to protect the interests of women in marriage. The honorable member for Lang (Mr, Stewart) has mentioned the report of the Royal Commission on Marriage and Divorce in the United Kingdom. Therefore, I think it would be interesting to discover who were the members of that royal commission. Were there any representatives of the fair sex? Perhaps the Attorney-General will enlighten us.
– Mr. Chairman, I consider that paragraph (b) of this clause is the second most important provision from the stand-point of women. Tn considering this clause, we should remember, first, that we are dealing with matrimonial relief and the dissolution of marriage. In considering matrimonial relief, we should perhaps not take the selfish point of view and consider the interests of men only. We have heard quite a lot, throughout the debate on this measure, abut the selfishness of men who walk out on their wives and desert their families. One honorable member, I think, spoke of men leaving their families for dead and leaving them stranded, as though they meant nothing to them any longer. When we come to consider the restitution of conjugal rights and the rest of the matters involved in this problem, we must ask ourselves one question: What is the quickest and most satisfactory way to give relief to women who have been left by their husbands and who have family responsibilities?
Strangely enough, the only strong communication that I received in respect of this particular matter came from a very important section of women’s organizations in New South Wales which was most emphatic that I should support this clause and seek its support by other members of this Parliament. The one point on which I agree with the honorable member for Lang (Mr. Stewart) is that the argument put forward by the Minister would almost convince anybody that the period in question should be shortened to less than two years. A woman of 21, 31 or 41 years of age may have been left to fend for herself for two years. As the Minister has rightly said, before this clause can apply to her she must make an application. Who has to make the decision? I think that we are taking a lot upon ourselves even to state a limit of two years because in nine cases out of ten the one making an application under this clause will be the woman who has been stranded and not the man who has been left by a woman. If the woman who has been left stranded believes that it is wise to give him another twelve months in which to make up his mind, she is the best one to decide that question. She is the best one to determine whether a further twelve months is desirable to let this man make up his mind whether he wants to come back to his family. But do not let us take away from her the right, at the end of two years, to give her husband an opportunity to indicate whether under this law, reconcilation is possible, and if reconciliation is not possible to institute divorce proceedings immediately.
After all, there is not one female in this committee. Who are we to say to a woman who has been stranded, “ You have to wait three years to get your relief “. We should not attempt to take this upon ourselves. The right to determine whether the period should be two years or three years should be left to the woman who has been stranded.
– What about the husband who has been stranded?
– Let us consider the reverse situation. Suppose that the honorable member for Mitchell (Mr. Wheeler) was left stranded by his wife, with three kiddies. Suppose that, at the end of two years, there was no possible chance of reconciliation and that over those two years he had endeavoured, as best he could, to fend for the three children. Suppose, too, that at the end of two years there was some good woman who was prepared to throw in her lot with him and rear the three children. Does anybody say that the honorable member should not have the opportunity to remarry in order to give his children a break from the kind of life that they had been leading without a mother. That is the reality of this matter.
If there is one clause in this bill that I will support wholeheartedly it is this one because it reduces the period that the woman has to wait. I am not much concerned with the man because in the main the men will look after themselves. I know of instances in which the provisions of this clause will apply. Undoubtedly, some women will not make a move for three years, but others will take proceedings in two years because by remarrying they will have an opportunity to do something for their families.
I agree with the point made by the Minister. The period should be shortened because the best one to make the decision is the woman affected by the separation. I am all on her side. To the extent that we can help her, we should do so.
.-I think that one of the logical things that the honorable member for Blaxland (Mr. E. James Harrison) said was that, taking the extreme case of a woman who has been deserted and abandoned economically and who, with her two children, is in a desperate position, we might well shorten the period of time from two years. I was almost led by the observations of the honorable member for Blaxland to believe that the Attorney-General had brought in a measure to give financial aid to women who were so deserted. But this bill does not give any financial assistance. It does not solve the problem of a woman who has been abandoned with her children, unless there is another man who will come and take responsibility for the family. But these are extreme cases and to suggest that the proposal now before the committee will solve the problem of the deserted woman is not true. The Attorney-General says that he is presenting a balanced case. I do not believe that he is. I have been fascinated by his selection of illustrations. He has taken the case of a woman with two or more children who is deserted and completely abandoned without means of economic support. That is an extremely aggravated form of desertion and I think it would justify the existence of a separate clause altogether. This paragraph does not talk about women and it does not talk about men. It simply says this -
That, since the marriage, the other party to the marriage has, without just cause or excuse, wilfully deserted the petitioner for a period of not less than two years;
Honorable members have spoken about fathers who have been left with children by their wives. Some men in this position may wish to salvage the marriage. I think that the logical course of action by the honorable member for Blaxland is to fight the AttorneyGeneral because he is abolishing the New South Wales provision for the restitution of conjugal rights under which it is necessary to wait for only three weeks, whereas under this bill, it will be necessary to wait for a year. Though the AttorneyGeneral selected the case of a woman and suggested that somehow or other some kind of economic relief was being given through this clause, I still think that he failed to deal with the question of the facilitation of collusion. For that reason, I am not shaken by the case he has made.
.- The Attorney-General has advised the committee to look at this measure as objectively as we can. I hope that we are attempting to do that rather than reacting to persons because of their attitude to other matters. I hope that we are giving proper consideration to what they have to say on this bill. I suggest that part of the dilemma in which honorable members find themselves is, on the one hand, to give assistance to individuals who are suffering because of the breakdown of their marriage and, on the other hand, the broader question of the relaxation of the marriage laws and the community’s attitude to the permanence of marriage as an institution. 1 think that if we continue to extend the grounds for divorce, this must have an effect on the community. Whether we recognize that ourselves or not, it is psychologically operative, and it must affect the attitude of the whole community to marriage as a permanent institution. I suggest that because of that subtle effect, which may not register consciously in our minds, many women may be deserted. The attitude of the community generally may become that, if the yoke of marriage - if I may so describe it - can be lifted on more and more grounds, marriage is less to be regarded as a life-long, permanent institution. When the community subtly and, maybe, subconsciously, gets into that frame of mind, it is quite possible that the subtle effect could be to make us a little less conscious about the moral regard to have marriage as a lifelong, permanent institution. I think it must be a subtle effect and any continuation of this process of getting relief from marriage must be weighed against the other effect of giving beneficial help to those unfortunate persons who are unhappy in their married state.
That is the kind of dilemma we are facing. The criterion which the AttorneyGeneral has put to us is: What is the greatest good for the community as a whole? That is the question. What is the greatest social benefit. There are certainly benefits to be given to individuals in the community by relaxing the marriage laws and making it possible or easy to escape from the burden of unhappy marriage. They are the social benefits applicable to individuals within the community and I know that to people involved they are very real and very important, and I highly respect them.
The alternative question is: What effect will this sort of catering for individuals in this kind of situation have? What kind of subtle psychological effect will this have on the community attitude to marriage as a permanent institution? That is the sort of thing we have to think about. At this stage I do not find it very easy to make up my mind on the dilemma, but at the moment, on the basis of what T have heard, I think
I will have to support the retention of the provision that has caused marriage to be regarded in the community as being as near as possible indissoluble.
On those grounds where it is very harsh and oppressive for a party to marriage, then we may have to give some consideration. But I ask the committee to think very seriously about any move to create relaxations of marriage, and to be very much aware of what subtle effects they are likely to have on the community’s attitude. One of these relaxations might indeed be the very cause of the kind of desertions referred to and put people who constitute these individual cases in the position where they have to seek the help of Parliament and of the Church to enable them to secure a relaxation of their marriage vows.
.- The Attorney-General, in his well-tempered reply to my amendment said, among other things, that there is no human or divine law in existence or possible of being fabricated that will prevent divorce.
– 1 did not say that; T did not say anything like it.
– Well, I apologize.
– What you have said is too broad.
– Very well, I will thin it down a little, but that was the effect of the honorable gentleman’s remarks, as I understood them. He said that no law would prevent desertion - if you like to have it on that ground.
If that is the case, and if 1 concede that as an argument, where does that lead us? Surely it does not postulate that this legislature is not entitled to exercise its judgment as to where, in point of time, there should be a secular barrier. If the legislature is not able to exercise any judgment at all then we might as well leave divorce simply on the basis of application. That is to say, parties who want to secure a divorce may make an application to the appropriate government authority and the divorce is granted.
That is not my approach to the bill and I am perfectly sure that it is not the approach of any honorable member. Every member of this Parliament believes that he must exercise his judgment and a great deal depends precisely on where he comes down. The honorable gentleman has referred to the terms of years, as he styles it. He said, “ Let us deal with the merits of the case. Surely after two years’ desertion there is a matrimonial offence.” I put it to the honorable gentleman that surely after twelve months’ desertion there is a matrimonial offence. So again we come to the point where we draw the line at what should be approved by the authority charged with the responsibility of adjudicating on these matters.
The Attorney-General has invoked the opinion of the Law Council of Australia. He said, “ The Law Council has approved of two years for desertion “. I am not impressed by that invocation, nor did it impress the honorable and learned member for Balaclava (Mr. Joske). When he constructed his bill he considered that desertion for three years was an adequate ground. It would seem strange that the honorable member for Balaclava, who for so many years has specialized in this field and has built up a well-deserved and well-recognized reputation, should have simply walked past the recommendations and considerations of the Law Council. But the Attorney-General to-night invoked the authority of the council as one reason why we should support the proposal for a period of two years’ desertion.
Then the honorable gentleman said, “ Of course, the honorable member for Moreton misconstrued my comment last night when I referred to the fact that we must be careful in changing any of the grounds now existing in the States “. I am prepared to concede this much to the honorable gentleman: If he admits that there is no change or dropping of a ground now existing in a State, I think that the very best that he can make out of it is that there has been a substantial modification of the ground. For all practical purposes, six Australian States provide three years for desertion.
– That is the provision in five States.
– Tasmania is an exception. I used the qualifying words “ for all practical purposes “ in the hope that the committee would understand me. Yet we are now asked to say that the period should be two years. I want to say to those honorable members who have expressed concern over the financial and social position of wives who have been deserted, as I have said in this place before - and I say it, indeed with a sense of shame - that I believe that if this Parliament had the authority, which I am told it has not, it should impose the most severe form of sanction upon that miserable wretch who will walk out of a home and leave his wife and children without a bob to bless themselves with. I can well understand the attitude of mind of the character who says to his wife, “ I can’t stand a bar of you, I am going “. I understand that attitude but I despise the performance when he walks out and says, “ No, I am not going to make any provision for you “.
So T say to the Attorney-General that in invoking the authority and the opinion of the Law Council he has failed to impress me and I am sure he has failed to impress the committee also. He referred to the fact that State parliaments would not touch divorce with a 40-foot pole. The inference T drew from that observation was that every State parliament, for years now, has been lacking in a sense of political, social and moral courage. That, Mr. Chairman, is an inference which I am not prepared to accept. So I say to the committee that here it is, on this occasion that we are disturbing the status quo, for all practical purposes of six Australian States. My judgment is that we are not at liberty to do that and I should hope that the judgment of the majority of the committee would be similar.
.- The first thing I wish to say is that I support this clause. As the Attorney-General has said to-night, he has had to try to achieve a balanced judgment, a balanced decision, a balanced attitude and a balanced selection of the grounds for divorce that we should include in this uniform divorce law. We have to read paragraph (b) in conjunction with paragraph (k). When we do so we find that whereas the qualifying period of desertion in most of the States is three years, this paragraph will reduce the period to two years. But the provision in paragraph (k), conversely, increases the existing qualifying period in respect of failure to comply with a decree of restitution of conjugal rights, which is 21 days in New South Wales - the only State where that ground applies - to one year for all of Australia. So one existing qualifying period is reduced in one paragraph whilst in the other the existing qualifying period is increased. That is an example of the balanced attitude that the Attorney-General has tried to adopt.
The second thing I wish to say is that paragraph (b) deals with the human side of the breaking up of a marriage. We know that it is the woman who is usually the sufferer in a marriage which breaks up through wilful desertion, and we have to legislate to the best of our ability to ease the burden of suffering that lies on a woman and her children who have been deserted.
That brings me to the third point, which is that this provision will shorten the period of suffering of a deserted wife. As members of Parliament we deal with many cases in which we are asked to help deserted wives to obtain accommodation of some sort or some form of government assistance. Most of my colleagues in the Parliament have had case after case of this kind before them. Paragraph (b) will reduce by one year the period of economic instability and impoverishment through which a deserted wife will have to pass. I feel that that is desired by all reasonable people who wish to make some effort to help such women to newer and better lives.
Finally, I wish to point out that there is one State in which the provision in paragraph (b) is already operating. That State is Tasmania, and I refuse to accept the statement of the honorable member that “ for all all practical purposes “ the qualifying term for the ground of wilful desertion in the six States is three years. Nothing of the sort! The period in Tasmania is two years. Some honorable members may think that because the qualifying period in Tasmania is only two years, we must have in that State a flood of divorce cases in our courts. But an official graph circulated to all honorable members illustrates the remarkable fact that in Tasmania we have the lowest divorce rate of any State - 49 divorces in every 100,000 marriages. The next most favorable rates are those in South Australia and Queensland, in both of which States there are 54 divorces to every 100,000 marriages. In New South Wales it is 75 to every 100,000. The graph, therefore, shows quite clearly that the State in which this twoyears’ provision has already operated for years, has sustained no increase in its rate of divorces as a result, and I do not believe that this provision will increase the divorce rate when it operates on a federal basis. That is why I support the provision.
.- In view of the remarks made by the honorable member for Moreton (Mr. Killen) I feel that I should come into the debate on paragraph (b) of clause 27. The honorable member for Moreton referred to the Law Council bill and made it appear, no doubt unintentionally, that I was not in accord with the Law Council bill. That, of course, as no doubt many honorable members know, is not correct, because I was one of the framers of the Law Council bill, and that bill was based upon the bill which was submitted to the Attorney-General of the day, the present Leader of the Opposition (Dr. Evatt), by a committee that he appointed, consisting of Mr. Justice Toose, Mr. Alderman, K.C., as he was then, and myself.
It is quite true that the bill which I presented to the House as a private member’s bill was not entirely in accordance with the Law Council bill. Without my going into details as to why that came about, I think that most honorable members are aware that the circumstances of my bringing in the bill as a private member’s bill compelled me to make it a conservative bill. However, when I made it a conservative bill I was well aware that this House would have full power to amend it, and I would not have been unhappy if the House had amended the bill so as to bring it into accord with the terms that the AttorneyGeneral has included in the present bill.
.- I support the amendment moved by the honorable member for Moreton (Mr. Killen). I do so because I am implacably opposed to making divorce easy. The paragraph before us now will do just that.
I have sought information, I have examined the report of the United Kingdom royal commission which dealt with marriage and divorce, and nowhere can I find any reason to support the attitude of the AttorneyGeneral.
This is an important matter, and it should not be taken lightly. The question of human relationships is a most important matter, and I regret that here and there there is some levity in regard to this, some tendency to treat it as if it were of no very great concern at all, as if in the future some tens of thousands of people would not be affected by the law which is being made by this Parliament to-night.
We are indebted to the honorable member for Moreton for explaining to the committee his attitude in regard to this paragraph. The honorable member is not alone, because he has been supported on both sides of the committee. I should like him to know that in my electorate I have received quite a number of circulars dealing with this important aspect of the bill. The views that have been expressed to me in those circulars have not come from one side of the Christian Church only, but have been representative of the views of all Churches. I. am somewhat amazed to think that viewpoints which have been put forward in a responsible way have been brushed so lightly aside, in many instances. The Church of England Mothers Union at Lithgow, a church group at Bathurst, together with a number of private citizens, have written to me with respect to this subject. I also have before me information from the Primate of Australia outlining the Church of England’s attitude to divorce, and I note that there is a definite objection to 27 (b) which makes the qualifying period in respect of wilful desertion two years. I support the amendment because it tries to bring this ground of divorce back into the pattern which already exists in Australia. We seem to have reached a situation in which we find Barwick, Tasmania and Reno against the world. Let me refer to the report of the Royal Commission on Marriage and Divorce, which was held in the United Kingdom between 1951 and 1955. The report was published in March, 1956, and on page 43 these comments appear -
No witness suggested that the period of continuous desertion should be lengthened but there were several proposals on the ground that it should be shortened, that it is a hardship for a deserted spouse to have to wait for three years, and that there is little prospect of a husband and wife coming together after, say, twelve months have elapsed from the initial desertion. We are all of the opinion that it would be most undesirable that the period during which desertion must run should be less than three years.
That is the opinion of the royal commission which garnered and sifted this information, not in the heat of pressure politics, with Whips moving among members, instructing them what views to adopt, but in an impartial atmosphere, confining themselves to matters germane to the question of desertion. I think the opinion of this royal commission should not be lightly brushed aside.
In Australia the only State that has adopted the two-years period of desertion as a ground for divorce is Tasmania. It is Tasmania against the rest of the Commonwealth. I am not going to accede to the suggestions made to me, by way of interjection, by some of my colleagues, that I should discuss some of the extraordinary things that may happen in Tasmania. It is true, however, that Tasmania is the only State that has the two-year desertion period.
Divorce should not be made easy. The Attorney-General himself has said that such is not the intention of the legislation. Provision has been made for marriage guidance councils, and every effort is to be made to try to make marriages endure. I believe, therefore, that it would be a retrograde step if the rest of Australia were to follow the lead of Tasmania and adopt the two-year period. What is wrong with the experience of New South Wales, Victoria, South Australia, Queensland and Western Australia? Have honorable members who come from those States received any complaints over the years that the State law with regard to desertion is wrong?
– The honorable member for Capricornia suggests that he has heard such complaints. I will leave it to him to relate his own experience. Such is not my experience, and I am sure, from the remarks that we have heard here this evening, that it is not the general experience.
The committee will have to consider at a later stage various additional reasons and opportunities for divorce that the bill seeks to provide. That being so, we should not provide the additional opportunity that would follow from the extension to the other States of the Tasmanian rule, which these States have never found it necessary to adopt.
.- As one who intends to support the clause as drafted by the Attorney-General (Sir Garfield Barwick), and to oppose the amendment, I am not prepared to accept the suggestion made by the honorable member for Macquarie that this paragraph in clause 27 will make divorce easy. That is quite untrue. It will not make divorce easy. It will provide a degree of social justice that has been needed for a long time in this community. This paragraph will have application only where mariages have already broken down. In nine cases out of ten, a marriage has already failed long before separation actually occurs. I refer the honorable member for Macquarie again to the actual wording of the paragraph, which provides that a petition for divorce may be based on the ground that - since the marriage, the other party to the marriage has, without just cause or excuse, wilfully deserted the petitioner for a period of not less than two years.
In such a case the deserted party might well have been experiencing absolute misery for those two years, possibly having to care for children and find enough money to feed, clothe and educate them. For those two years the person concerned would be denied any social justice whatsoever. That period of time must elapse before the injured party can have the opportunity of marrying again and so being able to bring up the children in a proper manner. The honorable member for Macquarie is now suggesting that we should prolong the period of suffering by a further year. Instead of having the aggrieved person waiting for two years to get social justice, the honorable member suggests that the period should be three years. Is it a Christian attitude to condemn a person to suffer for three years instead of two? I find it hard to reconcile my views with those of the honorable member for Macquarie.
I intend to support the paragraph as drafted, and I cannot accept the honorable member’s suggestion that it will make divorce easy. It will shorten the period of suffering and will enable a person to obtain a divorce more quickly in a case in which the divorce was inevitable anyway. No one can convince me that if two people have been separated, in the manner set out in this paragraph, for a period of two years, reconciliation is probable. In such a case I believe that divorce is as inevitable as it could possibly become. Prolonging the waiting period for another year will not bring about a possibility of reconciliation. I strongly support the clause as framed, and I oppose the amendment moved by the honorable member for Moreton.
.- I intend to support the amendment moved by the honorable member for Moreton (Mr. Killen), for the reasons set out by the honorable member for Macquarie (Mr. Luchetti). I believe the reduction of the desertion period from three years to two is another step in making divorce easier, which is something to which I am personally opposed. I cannot understand why the Attorney-General (Sir Garfield Barwick) has set aside the law that operates in every State except Tasmania. In addition to the fact that the three-years’ period has worked satisfactorily in all the other States, we have also the opinion of the Royal Commission on Marriage and Divorce to the effect that the period should not be less than three years. If anything justifies my suggestion that a royal commission should be held before passing this legislation, it is the discussion that has taken place on this paragraph. In Great Britain, a royal commission inquired extensively into all aspects of divorce and particularly into the ground contained in paragraph (b) which we are now discussing. After a full consideration, it recommended that the period should be three years. Yet here to-day, despite the fact that a period of three years is provided in each State, except the smallest State, we find that the Government is acting arbitrarily to force through a provision to reduce it to two years.
I received from the Church of England Archbishop of Sydney a few days ago some correspondence on this legislation. Included in it was a statement on the proposed changes in the divorce laws, dated June, 1959. It contained the following passage: -
The Bishops of Australia who met at Brisbane recently have issued the following statement concerning the proposed Matrimonial Causes Bill which is to be brought before the Federal Parliament at its next session.
Whereas the Bishops of the Anglican Church in Australia have not yet had sufficient time to consider the Matrimonial Causes Bill in toto they are prepared to make the following considered comments.
Statements on various aspects of the bill then follow, and, referring to the ground with which we are now dealing, it said -
The Bishops deplore every provision which would make divorce easier than it is at present, and they draw attention to the danger of the following clauses: -
Then are listed a number of clauses, and amongst them is clause 27 (b), which permits divorce after desertion for a period of only two years. The statement concluded -
These, and other provisions, in the proposed bill are to receive careful study both by the Bishops and by church lawyers.
There the Anglican Bishops of Australia place on record their views on this clause which reduces the period from three years to two years and say that they regard it as a contributing factor to easier divorce. When all is said and done, with marriage as with every other vocation there is a period of trial and tribulation for each partner. If divorce is made easier in this way, the number of divorces will increase. If we contribute to this result by reducing the period for desertion, as this clause proposes to do, we will be acting against the good name of Parliament and of democracy generally. The clause we are discussing is a further illustration of the fallacy of rushing this bill through simply because the Parliament is to be dissolved so that the new Governor-General may open the Parliament next year. This bill has farreaching implications. Many aspects of it are most contentious and require full discussion.
I regret that the Attorney-General has seen fit to go outside the law existing in each State, except one, and in Great Britain and other countries, except those where divorce is exceedingly easy. I hope, therefore, that the amendment moved by the honorable member for Moreton is carried. Far be it from me to support, with any measure of goodwill, anything that he may put forward in this Parliament, but for once I am glad to commend him for the amendment. He has moved something worth while supporting, and I hope that he continues along that road. As an expression of my earnest goodwill and in the hope that he will continue to show earnest goodwill, I intend to support the amendment so that it may prevent this divorce legislation from incorporating a provision which will make divorce easier for those who might seek to sidestep their marriage obligations.
– I am very sorry that the Attorney-General has not seen fit to accept the amendment proposed by the honorable member for Moreton (Mr. Killen). I am not a lawyer; I have only been asked by my constituents to make laws for the past 32 years. When I have given some opinions, which apparently were right as against lawyers’ opinions, which were wrong, it has been to my detriment, because they did not like it. In this instance, we are not dealing with a human, social problem as lawyers; we here have a responsibility as human beings, not as lawyers. Because the Law Council has decided something, it does not affect me at all. The Attorney-General said, “ We are not clerics “, and I admit that we are not. But I have just as much right and even more duty on a matter that affects the Christian religion to listen to clerics than I have to listen to lawyers. After all, I know the lawyers have had a long experience and I congratulate the Attorney-General on the job that lawyers have done, on the time and work that they have put into this bill. But we cannot build a strong democracy by detaching it from its religious foundations, its motivating ideology and its soul. As Arnold Toynbee said, how can the Western nations successfully combat communism unless they establish a working Christianity?
It does not do to come into this Parliament and say that the lawyers are right and the clerics are wrong. Probably none of us is always right; we are always human beings and therefore liable to err. But, as I said before, the Churches have asked us to consider only three main points. The honorable member for Wilmot (Mr. Duthie) wanted to quote Tasmania, where the law and the Church have recently come into conflict, and I do not think that the law came very well out of it. However, if he wants to refer to the graph that has been circulated, I hope he will look at it from the point of view of paragraphs (k) and (m) when we come to them, because New South Wales, from which the ground in paragraph (k) was taken, and Western Australia, from which the ground in paragraph (m) was taken, have a higher divorce rate than has any other State.
– That is not so.
– It is true. Take the graph and have a look at it.
– Look at the year of it.
– I have looked at it, but we can argue that when we come to it. This is the official graph given to honorable members. It shows that one State, New South Wales, has 90 and Western Australia 80, as against 50 to 64 for the remaining States. That is the information given by the Attorney-General. If it is wrong, I merely point out that I did not prepare it.
With this provision, I am surprised that we are not adhering to the status quo, which has been so strongly supported by the Church. The Attorney-General said that most of these divorces occurred when the parties were between the ages of 30 and 40, when a year of life is terribly significant. May I say to the AttorneyGeneral that a year of life is terribly significant, no matter how old you are. Between 1914 and 1918, it was terribly significant to me when I was in my early twenties. Between 1940 and 1945, it was terribly significant to many people of various ages. Now that I am over 60 years of age, a year of life is even more significant than it was when I was between 30 and 40. This has nothing to do with the matter.
What we are dealing with are social problems and moral values in a Christian community. I am sorry that here is a small amendment that will not be granted, although it has been asked for by the Churches and it does not affect the bill. The Anglican bishops have not condemned the whole bill; neither have I nor has any one who has spoken on it. The Churches have asked for this amendment and I feel the quality of mercy might have been strained and the Attorney-General might have given way on it. But no, we will still stick to this secular outlook and we are not prepared to discuss it from the wider point of view, which I think is equally important. I feel that, if we do not be careful, there will be a very great danger that, instead of laying a corner-stone of a building of which we will all be proud, we will lay a foundationstone which will have a few names on it - I, for one, never was in favour of premature tombstones.
.- I want to make a few remarks on this clause. The ground for divorce is -
That, since the marriage, the other party to the marriage has, without just cause or excuse, wilfully deserted the petitioner for a period of not less than two years;
This clause does not invite desertions. It does not give a right to the guilty party to apply for a divorce. It may well be that a period longer than two years may elapse before the deserted party petitions for a divorce. Even after a petition has been lodged the court must be satisfied that there is ground for the divorce. The desertion could not be a phoney desertion. This paragraph will not make divorce any easier. We are merely discussing a period of time. Honorable members who have objected to this paragraph have not objected to divorce on the ground of desertion. They have merely objected to the period of desertion being two years instead of three years. That argument has as much logic in it as an argument as to the difference between Tweedledee and Tweedledum.
The great principle involved in clause 27 (b), as in every other clause, is unification. Most people in Australia want unified matrimonial legislation. I think we should not allow paragraph (b) to stand in the way of attaining that objective. For that reason I propose to vote against the amendment.
.- I will continue to support the bill. I have listened to statements about what is done in the United Kingdom. I have listened to statements about the position in every State in the Commonwealth. I have listened to statements about what this Church or that Church thinks and what the Christian religion stands for. I have been 30 years a member of parliaments of this country, and during that time many unfortunate women have come to me as their representative. My heart bleeds for those women - God’s creatures - and their children who have to suffer the indignities inflicted on them by wicked husbands. Under those circumstances, no matter what this Church or that Church or any other Church thinks, or what anybody else will do, I will do what I consider is the Christian thing and vote for a measure that will give the earliest possible relief to those who are suffering to-day.
.- There have been some remarkable alliances demonstrated here to-night. The honorable member for Grayndler (Mr. Daly) said that for the first time he is supporting the honorable member for Moreton (Mr. Killen). To his great misfortune he is no closer to being correct on this occasion than he has been in the past. The honorable member for Chisholm (Sir Wilfrid Kent Hughes) seemed to imply to this chamber that this is a matter which lawyers are considering exclusively as lawyers and that nobody else is considering it. That is far from the truth, because the reality of the situation is that most lawyers have experience of human problems and are therefore able to form judgments on them, and as members of this Parliament they are perfectly entitled to use that experience and judgment. So they are doing in this case.
I think, as the honorable member for Banks (Mr. Costa) pointed out, that this is a matter to be considered from the point of view of the person who is seeking the relief. This is not something that will be considered from the point of view of the deserter. This matter concerns the person who will be going to the court to seek relief. It is in that person’s hands whether relief issought after two years or after ten years. If such a person elects to seek relief after two years - if this bill becomes law - that person will be able to obtain relief.
The honorable member for Lalor (Mr. Pollard) said that over a period of 30 years he had witnessed the misfortunes and sufferings of women who found themselves in unfortunate situations because of the actions of wicked husbands. In cases like those, taking a line on the remarks passed by the honorable member for Banks, those women should be able to obtain relief at the earliest possible time in accordance with the conscience and morality of the country. I believe that the conscience of this country will be well satisfied with the passing of this provision as it now stands in the bill. I will vote against the amendment andI will support the bill.
Question put -
That the paragraph proposed to be omitted (Mr. Killen’s amendment) stand part of the clause.
The committee divided. (The Chairman - Mr. G. J. Bowden.)
Majority . . . . 64
Question so resolved in the affirmative.
Paragraph agreed to.
Paragraphs (c) to (f) - by leave - taken together, and agreed to.
– Paragraph (g) relates to the case in which a petitioner’s husband who, within a period not exceeding five years, has been sentenced in the aggregate to imprisonment for not less than three years, and has habitually left the petitioner without reasonable means of support. There is one small matter which, although not of very great importance, requires looking at and, perhaps, improving from the drafting point of view. Last night I asked the Attorney-General (Sir Garfield Barwick) how concurrent sentences would be treated in the ground covered by this paragraph. I understand from him that the sentences will be aggregated. That, I think, is wrong. It very often happens that a judge will impose concurrent sentences for a series of connected offences which in total might add up to more than the period specified in the paragraph, although the judge may consider that the offences merit only a short term in prison. I suggest that this paragraph, or perhaps some subsequent part of the bill, might be redrafted to cover this aspect of concurrent sentences. I do not think that the way in which they are treated in this paragraph is in conformity with the intention of the Attorney-General or, indeed, the general understanding of the committee.
– This ground in this form is in operation in several States. It has been the subject of some judicial interpretation. After a slight fluctuation of view, the consensus of opinion now seems to be that a man who has a number of convictions in respect of which the total sentences which, whether they are concurrent or cumulative, aggregate three years, and who has habitually left the other party without reasonable means of support, commits the matrimonial offence covered by this paragraph.
The honorable member for Mackellar (Mr. Wentworth) asked me last night whether the concurrent sentences were aggregated, and I said, “ Yes “. That is in conformity with the decisions. As I understand the honorable member, he now asks me to consider the case of a man who has committed a series of acts at the one time and arising out of one event. The prosecution may charge him in various ways, and the result may be that he will receive a number of sentences, all made concurrent and perhaps strictly relating only to one incident. The honorable member asks me whether in that event it would not be fairer to make some qualification of this ground so as not to treat those several convictions arising out of the one incident as being frequent convictions for the purposes of this paragraph.
Of course, you get concurrent sentences in other circumstances. A lad may burgle a group of houses in one week, remain quiet for a month and then burgle another group of houses. He may be brought to trial in respect of both groups before the one judge, who fixes a sentence and says, “ I sentence you to eighteen months on each of these charges, and the sentences will be concurrent”. In that event, it would be very right to treat those punishments as frequent convictions, because the lad really committed a series of distinct crimes.
The draft suggestion which the honorable member for Mackellar has shown to me, and which he has circulated–
– It has not been circulated.
– Well, the draft suggestion which the honorable member has shown to me would, in my opinion, cover too much and cut into this ground too far. But I am not averse to considering, if the honorable member will allow me to do so, whether there should be some qualification of this ground inrelation to those concurrent sentences which really represent but one offence, in substance. If the honorable member will accept my assurance, I shall look into this matter between now and the time when the bill is in another place, and I shall alsodiscuss the point with the honorable member. If at that point of time he is content, or I am content, or both of us are content, to make some amendment, I shall see that something is done in another place rather than take up the time of the committeenow.
– That will be acceptable to me.
Paragraph agreed to.
. - Mr. Chairman, a technical point arises again here. As it stands, the paragraph reads - that, since the marriage, the other party to the marriage has been in prison for a period of not less than three years after conviction for an offence punishable by death or imprisonment for life or for a period of five years or more, and is still in prison at the date of the petition;
On first reading that, I thought, as I believe most honorable members would think, that it meant that the crime for which the person was imprisoned would be a serious crime and, in fact, a crime more serious than one meriting a term of only three years; otherwise, the words “ five years or more “ would not appear, because they would be nugatory. However, on looking at the Tasmanian criminal law, I found that, under section 389 of the Tasmanian Criminal Code, practically all criminal offences, whether serious or relatively minor, are subject to imprisonment for up to 21 years and therefore, whether they are serious or not, fall within the class of crimes punishable by imprisonment for five years or more. That means that, in respect of Tasmania, this qualification becomes quite nugatory.
When one looks at the Victorian law, Sir, one finds queer anomalies. On looking at sections 215, 216 and 217 of the Victorian Crimes Act 1958, I found that, in Victoria, one can, technically, be punished by imprisonment for five years or more for cutting down a tree. This does not seem reasonable, and I do not think that any judge would sentence somebody for five years for such an act. But the fact remains that, under Victorian law, the cutting down of a tree is an offence punishable - not one that must be punished, because the provision does not use the word “ punished “ - by imprisonment for a period of five years or more.
Therefore, it seems to me that, if we are to’ retain these qualifications in their present form, one should increase the specified period of not less than three years after conviction to not less than five years after conviction, in order to bring these qualifications into conformity with what a normal person would expect to be covered. It seems to me that there is no other way of properly drafting this paragraph, and that it should read - that, since the marriage, the other party to the marriage has been in prison for a period of not less than five years after conviction . . .
I think that that slight change would merely bring the paragraph into conformity with what a normal member of this chamber would think it meant if he had not read the Criminal Codes of Tasmania, Victoria and perhaps the other States. I must confess that I have not looked up the criminal codes of the other States.
I should be interested to hear the AttorneyGeneral’s views on this matter.
– I only want to say, very shortly, Mr. Chairman, that I had not thought that the difference between three years and five years in prison was a trifling matter, as the honorable member for Mackellar (Mr. Wentworth) seems to suggest.
There are two factors in the ground provided for in this paragraph. First, the respondent must have been in prison for three years and must still be in prison at the date of the petition; and secondly, the offences must have been offences for which death or imprisonment for life or for a period of five years or more could be awarded. I only know that the honorable member has looked up the statutes of Tasmania and Victoria; I have not looked them up. But, if it be right that, in Victoria, the chopping down of a tree may earn a punishment of something like five years, the likelihood of a man being put in prison with an actual sentence of three years is very slight. So the committee may well agree that, as I would suggest to it, this paragraph ought not to be any stiffer than it is. At present, you are asking the innocent party to stand by for three years at least, because the respondent must have been in prison for not less than three years after conviction, and must still be in prison at the date of the petition.
– The wife of a man so imprisoned could not get a divorce on the ground of desertion, could she?
– It could not be desertion, because he did not wilfully go away. The police took him; he did not go voluntarily. These are odd cases and, as I said last evening, they do not cover many actual instances.
I am not prepared to accept the suggestion made by the honorable member for Mackellar, and I ask the committee to allow the paragraph to stand as it is so that it shall provide that the respondent must have been in prison for a period of not less than three years after conviction and that he must be still there at the date of the petition. It is not terribly significant whether the offence for which he was convicted was an offence for which punishment greater than imprisonment for three years could be given. This is a traditional form of ground that has been picked up from existing grounds in the States.
Mr. WENTWORTH (Mackellar) T9.49]. - I am not happy about the position in respect of Tasmania, Sir. The paragraph, as it stands, means that anybody who is in prison in Tasmania for three years or more is liable to be divorced just on that ground, and that, in Tasmania, the crime need not be more serious than one for which a sentence of three years’ imprisonment could be awarded. If that is so, what is the point of putting in the words “ for a period of five years or more “? I put it to the Attorney-General that this provision has probably been lifted from the law of a State in which the criminal code is different from that of Tasmania. I respectfully ask the Minister to have another look at the matter and see whether it may not be in all respects just to increase the three years to five years.
Paragraph agreed to.
– I move -
In paragraph (i) omit sub-paragraphs (i) and (ii), insert the following sub-paragraphs: - “ (i) having attempted to murder or unlawfully to kill the petitioner; or “ (ii) having committed an offence involving the intentional infliction of grievous bodily harm on the petitioner or the intent to inflict grievous bodily harm on the petitioner; “.
In Queensland there is an offence - “ unlawfully to kill “ as distinct from “ murder “ - and we have arranged the temporal order of the clause to put the more important one first. This is amendment No. 11.
Amendment agreed to.
Paragraph, as amended, agreed to.
Paragraphs (j) to 0) - by leave - taken together.
.- I want to address myself briefly to paragraph (k). The order for the restitution of conjugal rights has long been one of the easy ways to a “ quickie “ divorce in certain States. Although the Attorney-General has extended the period for compliance in this legislation, nevertheless, I think that attention should be drawn to the fact that this provides an easy way to divorce. It invites collusion. It invites a couple to pretend to have a difference of opinion and then when one does not comply with the order for restitution of conjugal rights a divorce must automatically follow.
I think that because this paragraph appears to provide a way to collusion for the purpose of obtaining a “ quickie “ divorce, the Attorney-General is in duty bound to explain it in greater detail.
– I am strongly opposed to the inclusion of paragraph (1) as a ground for divorce. It is quite true to say that this provision is in operation in five out of the six States. New South Wales is the only State in which there is no provision for divorce on the grounds of insanity. It is rather astonishing to me that the Attorney-General has sought to justify various grounds for divorce simply because they are already operating successfully in one State or another. I refer to paragraph (b) the provisions of which are said to be operating in Tasmania, and to paragraph (m) which, we are informed operates successfully in Western Australia. But it does not follow that just because a provision has operated successfully in one State, it should be included in this bill.
I remind the Attorney-General that the New South Wales divorce law has been operating successfully without the insanity ground. I have never heard of any public outcry or objection that this is not a ground for divorce in New South Wales. It is true that, in the other five States, during the last year, there were only eighteen applications for divorce on the grounds of insanity, but in my opinion, that was eighteen too many. 1 believe that mental illness is a sickness like any other bodily ailment. A case might arise in which a member of the family of one of the honorable members on my left who have been interjecting so vociferously might be concerned. I ask them to bear that in mind.
There are many returned servicemen who are in mental institutions because of the effects of the war. Is it their fault that they are insane? Why should such a person be subject to a law that gives his wife the right to divorce him on grounds that are no fault of his own? A man may have to look after his bedridden wife for many years. She may be a hopeless invalid yet he cannot claim a divorce on the ground of her illness. The argument has been put forward that if a wife is confined to an institution for the insane the husband may establish an illicit relationship with some other woman because like any other person he wanted normal happiness in his life. But the same argument could be applied to a man whose wife is bedridden, and is suffering from an incurable disease. Perhaps these things do happen, but that does not justify this provision. As we all know, there is a stage of a woman’s life at which there is always the possibility of a sever nervous breakdown through no fault of her own. Why should such a woman be penalized under this measure? If the practice in one State is sufficient to support the inclusion in this bill of a ground for divorce why not accept the practice of the State that excludes the ground of insanity?
.- I compliment the honorable member for Watson (Mr. Cope) on his excellent statement on the paragraph dealing with divorce on the ground of insanity. As the honorable member pointed out, there are numerous ailments that may cause a spouse to be bedridden for life. In such cases the husband or wife must accept that disability and all the inconvenience that goes with it and he or she has no means whatever of obtaining a divorce.
Looking at the question logically, why should mental illness be picked out as a reason for a person to secure a release from marriage? It is just another form of illness - a more serious and damaging one possibly, but many people whose husbands or wives are seriously incapacitated without being mentally ill undoubtedly suffer the same inconvenience. Scant consideration is given under this paragraph to persons in a mental asylum. They belong to no part of the community but the institution which they are in. Two people may marry in all good faith and remain married for twenty or 30 years. Then, one of them, perhaps for the reason mentioned by the honorable member for Watson, may suddenly become mentally unbalanced and be put in an asylum. The other party, under a provision of this bill which also applies in some States, then has grounds for divorce.
What is the difference between this situation and a situation in which one party to a marriage is afflicted by blindness? If you are going to make mental illness a ground for divorce, why not blindness? I can understand members of the Australian Country Party who are interjecting being interested in this clause, because probably a few of them will come within its scope. But the fact is that in New South Wales this ground of divorce does not apply and I cannot see why it should be made general throughout the country. Now it is to be applied to every State in the Commonwealth, discriminating against one badly afflicted section of society because of one particular illness which could affect any person, for various reasons and at various stages of life. To my mind, this is something which cannot be justified.
The fact that other States and countries have such a law is no justification for incorporating it in this uniform law for Australia. I should like the Attorney-General to reconsider this paragraph because 1 believe it is objectionable to a large section of the people. No matter what other grounds may be advanced, I have yet to hear, either in this Parliament or anywhere else, sound reasons given as to why mental illness is picked out as a ground for divorce and other illnesses are excluded.
This will affect the ex-serviceman. Like many other honorable members I have frequently visited institutions where exservicemen of all ages are patients. Because of war service some have suffered certain mental unbalance. Under this paragraph their wives may obtain a divorce for no other reason than that their husbands are mentally ill. It does not matter what kind of husbands they have been; some might have been perfect; but they suddenly find that they could be divorced just as a criminal can be divorced by his wife. Although those are two different categories they present a ground for divorce.
I do not know how any government or any individual can justify this paragraph and I hope that the Attorney-General will explain to a big section of the community who object to it the reason for discriminating against a particular illness. Thousands of people in the community, unfortunately, suffer from cancer. If a provision of this kind is carried to its logical conclusion, any man or any woman either, at any age, who suddenly finds himself or herself afflicted with cancer, could be divorced by the other party. Yet cancer is only another form of illness. When parties to a marriage take their vows they promise to take each other “ in sickness and in health, until death do us part “. When all is said and done there can be no justice, either Christian or material, in immediately dissolving a marriage simply because one of the parties, as a result of a break-down, is mentally ill. Before the paragraph is passed I should like to have a clear explanation of the reason for it. But I say to the Attorney-General that no matter what his reasons may be, I object to the provision and I will vote against it.
– I wish to talk about paragraph (k), which was referred to in the letter from the Anglican bishops. Although I do not propose to vote against it, I am not particularly happy with it. I really rose to ask the Attorney-General a question. He has very kindly and straightforwardly had graphs prepared showing the number of divorces for each 100,000 of population in the various States from 1932 to 1958.
The question of whether this bill will make divorce easier or not has been thoroughly debated, but the fact is that New South Wales, during the last four years, has held the record of all the States for the highest number of divorces per 100,000 people. Western Australia is the only State which has gone higher since 1947. We can talk about that when we come to paragraph (m).
Paragraph (k) has been taken from the New South Wales act, but extends the period from 21 days to a year within which conjugal rights shall be restored. I want to ask the Attorney-General: How long has this been a ground for divorce in New South Wales? What percentage of New South Wales divorces have been obtained on this ground? It is merely as a matter of interest that I want to know whether this paragraph has any real bearing on the fact that New South Wales has the highest divorce rate in Australia.
.- I am extremely sad to think that in the consideration of the various clauses of this bill so little regard has been given to the Christian attitude. Each day when Parliament assembles we commence proceedings by reciting the Lord’s Prayer. We start in a Christian manner. Most of these matters that have come before us have been dealing with intensely human questions, matters deeply related to our Christian upbringing, but nevertheless we seem to have set aside entirely our Christian concepts and to have accepted a secular point of view.
I support the honorable member for Watson (Mr. Cope), the honorable member for Grayndler (Mr. Daly), and the honorable member for Chisholm (Sir Wilfrid Kent Hughes) because I feel that it is necessary for us to show some humanitarianism, if we are not prepared to adopt any other attitude towards this matter.
The honorable member for Grayndler referred to the marriage ceremony and quoted the promise “ in sickness and in health, until death do us part “. One often sees cases in which loving regard and devotion are given by a husband to a sick wife or the wife will look after the sick husband. This sort of service, given in a Christian way, seems to ennoble mankind and bring out our greatest qualities and virtues.
But in a provision of this kind the animal attitude is being adopted. If somebody falls by the wayside he is abandoned and forgotten while those who could help look to the delights and pleasures of a new life without regard to the suffering or to the type or condition of the sufferer. Honorable members who have addressed themselves to this matter have clearly pointed out that mental sickness is no different from any other form of sickness. It is a sickness, and it might as well have been written into this bill that a person who suffers from polio or is bedridden with tuberculosis and has spent a period of years in a sanatorium should be divorced because, for a period of six years or something of the kind he has not been able to fulfil his part as an equal partner in the marriage relationship.
But no one would contemplate that sort of thing, and in this day and age with the wonders of modern science available and in view of what can be done by shock treatment and the new techniques for dealing with mental disabilities, I put it to the committee that a new approach ought to be made to this matter. The fact that some poor soul in the change of life has been committed to a mental institution and has remained there for a period of six years should not be sufficient grounds, in either a Christian society or a human society, for her husband to obtain a divorce from her.
If I cannot appeal to honorable members on the Government side of the chamber, let me remind my colleagues on this side that we, as members of the Australian Labour Party, are pledged to help the sick, the needy, the oppressed, the aged and the infirm, and that we are dedicated to that sort of life’s work. But under this paragraph, a person suffering from a mental disorder and who has been committed to an institution is liable to be divorced by his lifes’ partner. And we are called upon to record a vote for such a procedure.
For my part I cannot support a provision of that kind and to agree to it would be a retrograde step. I think that it is an unnecessary provision. It would be far better for us to try to encourage people to look after those who are sick. I have seen, times without number, noble human beings such as I have already referred to, going out of their way to help their life’s partners. Only a few months ago it was my pleasure to travel from Perth right across the continent by the railway. I saw a husband looking after his wife, a woman incapable of doing one thing for herself. He took her to meals and to the toilet and did everything he could for her on the journey to a specialist where she would receive care and attention in an effort to give her a new lease of life and a chance to live a normal existence. He did not desert her. He did not seek a divorce from that woman. No, he sought to care for her, to succour her, to protect her, to carry out his marriage vows to the last letter. I think that that is a reasonable attitude in our society. For that reason I shall oppose paragraph (1). I believe there is only one way in which to redress this wrong, and that is to delete subparagraph (ii) from the bill.
– I am rather sorry that the honorable member for Macquarie (Mr. Luchetti) practically said that we were not Christians, that we were taking an animal view of this matter. I want to say to the honorable member that I do not give second place to him or to anybody else in this chamber with regard to Christianity. When the honorable member talks about Christianity he has to remember that quite a lot of the fixed opinions that are expressed on these matters of divorce are Church dogmas and not Christianity. Nobody can tell me that any Church can lay down what a person shall do or shall not do and that that will automatically become the word of God. I am a bit of a radical when it comes to Christianity and the dogmas of any denomination. I hold that the individual himself is responsible to God for what he does and not responsible to somebody else who tells him what he has to do. So I regret that speeches made here to-night have seemed to stress more the animal than the Christian nature of people.
Now I want to turn to the ground provided for in the paragraph. Some years ago it was proposed in the South Australian Parliament that lunacy should be a ground for divorce. At the time I was very concerned about the result. I was concerned whether there would be cases where people who were in asylums, and were divorced on this ground, would recover, and I wondered what the position would be then. However, I remind the honorable member for Macquarie that in the provision before us the respondent in such a divorce case would have to have been in an asylum for five years, and it would have to be shown to the court that there was no likelihood of recovery. In fact, I have never encountered one case in South Australia where a person divorced on this ground recovered from the mental condition which enabled the divorce to be granted. I found that the fears that I had entertained earlier were groundless. Some honorable members have said that they have never heard of people wanting a divorce on this ground. I knew of such cases before that South Australian law was passed.
On the reverse side, I have encountered cases which were the exact opposite of the kind of case that the honorable member for Macquarie fears will arise if we adopt this ground for divorce. I can remember one case vividly, which concerned people that I know remarkably well. The wife of a returned soldier, who himself suffered from a heart complaint as a result of his war service, was placed in an asylum. This couple had a young family - two girls and a boy. After some years that man obtained a divorce because of his wife’s insanity. He had two daughters of about thirteen years and fifteen years of age respectively, and a boy of about ten years of age, who were not able to help him keep a home together. He was not a man of animal nature, but was a very fine type of man. When he re-married he set up a home with his new wife who looked after the daughters until they married, and looked after the boy until he grew up. She gave the children a home that their father could be proud of. Had it not been for the South Australian law which enabled that man to obtain a divorce on the ground of his wife’s insanity, he would have had to continue year after year unable to give his children the kind of home he wanted to give them, and unable to bring them up in the way he wanted to. After his second marriage the man lived happily until, as an old soldier with a heart complaint, he dropped dead on a bowling green. When he was gone the two married daughters and the boy that he left behind still had the stepmother to whom they could turn in time of trouble. They were still a family. That was an actual experience in South Australia after this ground for divorce was enacted. I ask: Was it an unchristian act to enable those girls and that boy to be looked after by their father’s second wife, who proved to be indeed a mother to them?
I agree with the honorable member for Macquarie that insanity is a sickness like other sicknesses, and I know of lots of cases like the one he mentioned where a husband made no move to divorce his wife on the ground of insanity, but looked after her as best he could. The honorable member mentioned the small number of divorces granted in the various States on this ground of insanity. I think that that shows again that, generally speaking, people do not look at the existence of this ground for divorce as an escape route from marriage, but regard it as a remedy for use in cases where it is much needed.
I intend to support the inclusion of this ground in the bill. I supported its inclusion in the South Australian law years ago, and after my experience in South Australia of the working of the provision in thai State I would feel that I was doing wrong if I did not support the provision here.
.- The honorable member for Macquarie (Mr. Luchetti) has laid down quite a vital challenge to other members of the committee on this provision. Like the honorable member for Port Adelaide (Mr. Thompson) I feel that the comments made by the honorable member for Macquarie call for a reply. I am quite sure that in what he said the honorable member for Macquarie has indicated more clearly to me than he has done even in his other contributions to the debate on this bill how mixed up he is in his outlook. He spoke on this particular provision as though everybody unfortunate enough to have a spouse who had been kept in an asylum for five years or longer was being compelled to sue for a divorce. I entirely disagree with him on that, and I am sure that many other honorable members do.
I want to say that the honorable member for Macquarie is not the only one who admires the splendid example of love which has lasted over a long term of years, displayed by a partner whose spouse has been ill, either mentally ill or otherwise. Any one with any quality of humanity will admire love of that kind. But we are not compelling people to divorce their partners because of their incarceration in mental institutions for a long period. I feel that I should ask the honorable member for
Macquarie whether he has ever had to bear the heavy burden of visiting a relative or a friend who has been in a mental institution for a long term. I say to him: Have you, my good friend, gone year after year to visit such a person? Have you observed the strain that is laid upon a husband or wife who has had to spend years in continual visiting of that kind?
What we are doing here is the very humane thing that the honorable member for Macquarie has been trying to stress. We are telling a husband or wife whose spouse, after perhaps a happy marriage, has been in such an institution for five years, and after a doctor has certified that the spouse is incurable even by modern medical science, that he or she may divorce that spouse. But we are only permitting that to happen after five years of the incarceration of the spouse in a mental institution, when the partner outside has been left perhaps with children to care for, and has come to realize that the spouse in the institution might indeed as well be dead. We are saying to a person in those circumstances, “ If you want to seek a divorce, here is a ground to make it possible “.
– And they do not have to seek a divorce.
– Exactly! There is no suggestion here that they are to be compelled. There is no sort of compulsion in the provision. In fact, that applies to all the grounds provided for in the bill. They will be there to be used according to circumstances when people so desire. We will still admire the husband or wife who does not want to take advantage of this provision. But if a husband or wife does desire a divorce under the circumstances covered by this paragraph, here is the humane provision, in this enlightened uniform matrimonial causes bill - which we hope will become law - which will be available to such a person. Having said that, primarily for the benefit of the honorable member for Macquarie, I think I have made it quite clear why I will be voting for the clause as it stands.
.- We have heard some gratuitous theology and theories of the Church in connexion with this matter. One does not need to subscribe to the view that one’s church is entirely under one’s hat, and confined by the boundaries of one’s own hat-band, to realize that one cannot legally require of people who have spouses confined in mental institutions the heroic virtue that many such people do display by repeatedly visiting and standing by, for many years, those unfortunate persons afflicted with mental illness.
That is not, however, the particular aspect that interests me at the moment. The Attorney-General (Sir Garfield Barwick) said earlier that there were court conventions governing the interpretation of “ unsound mind “. I am not going to vote against this clause, but there is this particular aspect that concerns me. If a person is completely and totally insane, he would not know what his partner in marriage was doing outside. He would not know whether he was being divorced or not, and so would not be affected. But there are many cases of unsoundness of mind in which a person is not completely unaware of things that happen externally. I am thinking now of a particular case in which a spouse, in this case the husband, displayed the heroic virtue I mentioned previously by continuing to visit his wife in a Western Australian lunatic asylum, and of how much his visits every week-end meant to her. In other words, she could still comprehend that he was her husband, and she could still appreciate the fact that he cared for her.
I am concerned about such cases, in which the afflicted persons are battling for recovery, suffering from an unsoundness of mind although still appreciating what is going on. Their chances of recovery could be seriously affected if they were divorced. I do not say that the Minister can do anything about this, but I think we ought to remember it, and not regard this provision as a facile solution of what is a very difficult problem. The Minister says he is conversant with the convention regarding unsoundness of mind because the courts are constantly following it. Those of us who are not constantly associated with courts are still a little mystified.
.- I think the honorable member for Swan (Mr. Cleaver) said that he regarded this as a humane provision. I do not believe it is in any sense humane. I repeat what I said previously, that the mother State of the Commonwealth, having 40 per cent, of the population of Australia, has never seen fit, under governments of all political colours, to include insanity as a ground for divorce.
– That is no criterion.
– Of course it is not. Neither can it be said that because the ground contained in paragraph (m) of this clause operates in Western Australia, it must be acceptable to the people of Australia. Likewise it cannot be suggested that because a two-year desertion period is accepted as a ground for divorce in that suburb of Melbourne, Tasmania, it must be accepted in the other five States. If that is the kind of argument that is put forward, then I repeat that we should have regard to the fact that there is no ground for divorce based on insanity in New South Wales, and the law there has operated quite successfully for many years under governments of all political complexions. I move as an amendment -
Omit paragraph (1).
.- Paragraph (1) of clause 27 refers to a party to a marriage being confined in an institution “ in accordance with law “. I believe the basis of this bill is uniformity, and so I ask - in accordance with what law? Is it to be the law of New South Wales, of Victoria or of any other State? Will New South Wales judges, for instance, follow the lunacy law of that State, while Victorian judges follow the Victorian law? I further ask the Attorney-General whether the Commonwealth Government has power to make laws of this kind. I very much doubt that it has. Does this Commonwealth divorce legislation define insanity, or is insanity too difficult of proof? If the basis of the bill is uniformity, then it falls down in paragraph (I), if the courts in the various States are left to interpret the phrase “ in accordance with law “. I shall be glad if the Attorney-General will advise me in this regard.
– Let me first refer to paragraph (k). Of course it is not correct to say, as the honorable member for Chisholm (Sir Wilfrid Kent
Hughes) seems to suggest, that this ground is the same as the ground that exists under the New South Wales law. It is not. The whole purpose of lengthening the period to one year is to ensure that there will not be any short cut to divorce through this ground. As I indicated before, when speaking of the period of desertion, there could be no reason whatever for parties to use paragraph (k) rather than rely on the provisions relating to desertion contained in paragraph (b). It is not right to say, therefore, that paragraph (k) makes divorce easier.
Let me now shortly answer the honorable member for Mitchell (Mr. Wheeler), with regard to the meaning of the words “ in accordance with law” in paragraph (1). This paragraph requires that the place in which a person is confined for the period of five years must be a place where persons may be confined for unsoundness of mind. That is to say, if a person is confined in Victoria, for instance, in an asylum, then it must be an institution in which, according to Victorian law, people may be confined. Similarly, if a person is in an institution in New South Wales, it must be an institution in which, under New South Wales law, people may be confined for unsoundness of mind. The standard of insanity has nothing to do with the matter; the paragraph merely designates the kinds of institutions in which persons may be confined.
It is important for the committee to realize how very narrow is the ground mentioned in paragraph (1). It must, of course, be read in conjunction with clause 32. It requires that the party whom it is sought to divorce must be of unsound mind and unlikely to recover. Let me say at once that the further medical science advances towards curing people, the harder it will be to satisfy a court that a particular party is unlikely to recover. The question would have to be determined on expert evidence.
It is also necessary that for at least five years, in the aggregate, of the six years before the date of the petition, the person concerned should have been confined in an institution in which persons can, in accordance with law, be confined for unsoundness of mind. In other words, it is not sufficient for the person to have been confined in some private institution, or to have remained at home although unsound of mind. The person must have been, as it were, put away, and must still be of unsound mind and unlikely to recover at the time of the hearing. This latter provision is contained in clause 32.
These are fairly wide prescriptions. They draw the picture of a person who has been of unsound mind and in an institution for five out of the preceding six years and who is still there and unlikely to recover.
I join with one other honorable member in saying that I did not take kindly to the suggestion of the honorable member for Macquarie (Mr. Luchetti) that he is the only person in this place who is a Christian. Nor did I appreciate the suggestion that only those people who are opposed to this ground for divorce are following Christian principles. It is no use saying that there is no difference, from the point of view of this kind of argument, between unsoundness of mind and cancer. A spouse with cancer can have companionship, and there can be a good deal of very pleasant life, even in looking after the sick one. But a person is put in an asylum when he is of unsound mind–
– But you do not have to put them there under the New South Wales law now.
– No, but let me suppose that the person is in an asylum, what of the person left behind? My form of Christianity, and I hope my humanity, causes me to look at the one who is left behind in utter, useless loneliness, unable to have any companionship and not even able to have the pleasure of looking after the other party. My Christianity says that in that event there is great virtue in saying that if that party wants to do so - he does not need to do so - and he can find companionship and meaning in life, he should be free to do so. The committee might well agree with me that this ground, which has been excluded in New South Wales for one reason or another–
– For what reason has it been excluded?
– Religious reasons have predominated in New South Wales.
– Tell us what the reasons are.
– Order! The honorable member for Watson will remain silent.
– The honorable member for Macquarie has given the reasons quite well. The ground has been excluded in New South Wales. It has not been found, in operation, to have caused hardship anywhere else and I am quite sure that it has provided some happiness for some few people. I think I have answered the questions that were asked of me on both grounds, and I feel that the paragraphs should be adopted as they now stand.
.- I want to seek some information from the AttorneyGeneral, particularly on paragraph (k). In his second-reading speech, he gave as a ground for including this provision that it is included in New South Wales, where no period is stipulated, and in South Australia, where a period of three years is provided. They were the only two States that had this ground. Earlier to-night, the AttorneyGeneral suggested that the reason he had made the period one year was because this ground was being constantly used in New South Wales as a means to obtain a quick divorce. The same argument can be applied to the provision, even with the stipulation of a period of one year, because no restriction is placed on this ground being used as a matrimonial cause, even within the first three years of marriage.
It appears to me that only one party to the marriage would be in the court - the person seeking the order for restitution of conjugal rights. I am concerned, therefore, to learn how the conciliation provisions would operate. Clause 14 (1.) in Part III. provides -
It is the duty of the court in which a matrimonial cause has been instituted to give consideration, from time to time, to the possibility of a reconciliation of the parties to the marriage . . .
If only one party is before the court and there is no compulsion in the reconciliation provisions, how will this provision help in effecting a reconciliation? The AttorneyGeneral said earlier that this ground is being used constantly as a means for a quick divorce.
– No, that is a different ground, not this one.
– No time limit is provided, although I think 21 days is the period set down at present. If it is being used now with a period of 21 days, surely it will still be used as a quick means of divorce even though the period may be one year. If it is being used now, because there is no restriction in New South Wales, surely it will continue to be used in New South Wales and will be used in all the other States as a means to obtain a quick divorce.
I regret that the subject of religion has been raised in the last few minutes. A few snide references have certainly been made during the debate, but it was not until a few minutes ago that this actually came out into the light. I do not want to go into the pros and cons of the doctrines of the Bible or anything else, but I suggest that most of the religions follow the word of the Bible. I suggest that some honorable members, who talk of doctrine, of Christianity and of religion, should look at some of the passages of the Bible dealing with this very question and see whether any interpretation can be put on them except the interpretation that I believe to be the correct one.
On the question of insanity, I wish to raise only one point with the AttorneyGeneral. In his second-reading speech he said -
After a lapse of more than six years there seems just reason to permit a petitioner who faces the balance of life without a partner because that partner’s illness of mind is incurable, to form some regular union and begin family life anew, and that it would be harsh to condemn him or her to a life of useless loneliness.
I fail to see that that is any reason at all, because thousands of bachelors and spinsters are, in the words used by the AttorneyGeneral, now living a life of useless loneliness.
– But they are free to marry if they want to do so.
– To suggest that as a reason for including this ground, I feel, is taking the argument a little bit too far.
– I listened with a good deal of interest to the contribution of the honorable member for Watson (Mr. Cope), and I hope that he does not persist in the point of view that he holds with regard to the deletion of paragraph (1). It is agreed, I think, that the position of those who have become mentally ill has been largely neglected in this country over a long period. New South Wales is advancing perhaps more rapidly than any other State in regard to the treatment of the mentally ill. The New South Wales Minister for Health has adopted a humane approach to the problem and, although I have not discussed this with the Minister, I feel that this provision has been drafted with the New South Wales legislation in mind. Honorable members will notice that paragraph (1) does not use the term “ mental institution “. In New South Wales, this term is being eliminated from legislation dealing with the mentally ill. The New South Wales legislation deals with the psychiatric rehabilitation of those who become mentally ill from time to time. Over the last two years there has been a tremendous advance in New South Wales by rehabilitation associations, in conjunction with organizations such as Rotary, to take advantage of the latest modern methods of treating the mentally ill and restoring them to a degree of sanity so that they can return to civil life and to some form of useful occupation.
– Are you supporting my argument?
– No. Every day it is becoming harder to obtain a divorce on the grounds of insanity. Having played some active part in the work that is being done to rehabilitate the mentally ill, I find myself coming down very firmly on the side of this paragraph. Without this ground, what happens? If the inmate of an institution, who has been cared for in every way possible and given humane treatment for his mental illness, is regarded by the medical superintendent in charge of the organization as being totally and permanently of unsound mind - and the numbers are being reduced substantially as a result of modern treatment - by what means, short of subterfuge, is the other partner to the marriage to obtain release from a situation that offers no possibility of improvement? If relief cannot be obtained under this paragraph, resort must be had to paragraph (k) or to some other provision in the bill. If you moved away from parasraph(1) to paragraph (k), for example, in order to seek relief in a situation such as I have described, it would have the effect of removing the precious protection that is afforded in (1) to ensure that mental illness is not used as a means to obtain a divorce. To me that is of paramount importance. Nobody should be permitted ever to use mental illness as a vehicle to an easy divorce. With modern science helping to rehabilitate those who are mentally ill, this paragraph is the finest safeguard that could be incorporated in the legislation to ensure that no other vehicle can be used if in fact the person mentally ill is being detained because of that illness. Then the final step must be taken by the medical superintendent averring that there is no possible hope of recovery. If this type of relief is not available, people will resort to subterfuge. If this ground is removed the gate is open to subterfuge under paragraph (k) or some other provision, whereby great injury could be done to those inmates of institutions who may eventually recover.
Do not disturb a situation which in my view is the best protection this bill affords to those who have a chance of recovering from a mental illness because of modern methods of treatment now being advanced and developed very quickly to restore to human society persons sorely afflicted. Leave this paragraph as it is and as medical science advances, so you give greater protection to those who are mentally ill and to those who deserve every kind of treatment that can be extended by their relatives, by this Government, and by everybody who has anything at all to do with the problem.
.- I wish to intrude again into this debate for two reasons. First, I do not think that the speech of the Attorney-General (Sir Garfield Barwick) should pass unchallenged. Secondly, I wish to say that the honorable member for Blaxland (Mr. E. James Harrison) gave the best reasons in the world why he should support the amendment proposed by the honorable member for Watson (Mr. Cope). That amendment is designed to prevent the occurrence of the very type of situation outlined by the honorable member for Blaxland. Who is to know when these people are beyond the stage of recovery? We read of people who are presumed dead and years later they return to the community, only to find that in their absence they have been divorced.
With the aid of modern science a person who to-day may be considered beyond help may be fully restored to health to-morrow. But under this legislation that person could be divorced before he achieved his recovery. Undoubtedly there can be no justification for this provision. As the honorable member for Macquarie (Mr. Luchetti) pointed out, if you support this proposal it means that one partner to a marriage uses the other partner while that partner’s life is good and while he or she is in good health. When it is discovered that the partner is mentally ill, he or she is discarded like a mangy dog for the simple reason that he or she is of no further use. That person is then locked in an institution and the other partner obtains a divorce and remarries. There is nothing humane, Christian or decent in that. That is why I am offended by the gratuitous insult handed out by the Attorney-General, not only to honorable members on this side, but also in other respects.
When we study the speeches of the Attorney-General on this bill we find that continually he has cast slurs on Churches of all denominations that have dared to question this legal luminary. Divorce is a racket for lawyers who pay no regard whatever to humanity. The AttorneyGeneral, in dealing with criticism of this proposal, said that the law in New South Wales, as it applies with respect to mental cases, was introduced for religious reasons. He does not seem to know that ever since New South Wales has had responsible government there has never been any provision for granting a divorce to people whose spouses are mentally defective. Does he say to-day that successive governments in New South Wales have, for religious reasons, refused to grant a divorce on the ground of insanity? He either does not know the reason or does not want to accept it, because he seeks protection by casting slurs on people on this side who are opposed to his legalistic legislation. He has no answer to our arguments.
It is all very well for him to say that these things occur. It is all very well for him to cast slurs. The other night he cast a slur on the Anglican Churches for the point of view that they held. The only thing in which he has been consistent has been the fact that he has not excluded any church from criticism and slur. He criticized the honorable member for Macquarie for his statement-
– Order! Does the honorable member intend to deal with the paragraph before the committee or not?
– I am dealing with it.
– Order! The honorable member has not time to speak in order to disparage the Attorney-General continually. He may make a comment, but he must deal with the paragraph before the committee or sit down.
– I quite realize that you want to protect the Attorney-General.
– Order! The honorable gentleman will resume his seat.
– I beg your pardon?
– I have ordered the honorable gentleman to sit down.
– For reflecting on the Chair. Sit down, please.
– If I have reflected on the Chair, I withdraw that reflection.
– Order! The honorable gentleman has reflected on the Chair and I have ordered him to resume his seat.
– I shall move that the honorable member for Grayndler be heard.
– Order! That is not permitted. I call the honorable member for Bruce.
– I shall move that the honorable member for Grayndler be heard.
– Order! That also is not permitted. I have called the honorable member for Bruce.
– Then I shall move that progress be reported.
– You have ordered the honorable member to resume his seat, Mr. Chairman. Will you accept a suitable explanation from him?
– Order! I will consider an apology, but I will not guarantee that it will alter my decision.
– I ask the honorable member for Grayndler to reconsider what he has said.
– Order! The honorable member for Grayndler will obey the Chair also. He has not been given the time to speak in this debate simply to attack the Attorney-General continuously. We are dealing with a particular clause.
– Surely I can criticize the Minister at the table. That is all I was doing.
– Certainly, but it is not permissible to direct a continual tirade of abuse at him. Do you apologize tor your conduct?
– I withdraw any imputation against the Chair.
– Very well. You may continue.
– I resent the AttorneyGeneral attacking honorable members on this side of the chamber because legitimate criticism has been directed at him by supporters of the amendment that has been proposed by the honorable member for Watson. The Minister has not explained why, since constitutional government has been in operation in New South Wales, this provision has never been incorporated in the acts of the Parliament of that State. It is not right for him to say that that provision has not been included in the legislation of New South Wales simply for religious motives. I could not count the number of governments of all political colours and creeds which have been in office.
As the honorable member for Watson has said, for the Attorney-General to escape his obligation to explain to this chamber the reasons why this provision has never been incorporated in the New South Wales legislation, by pretending that it has been on religious grounds, does him very little credit. I remind the committee that it is not possible even to declare a member’s seat in this Parliament vacant because he is mental. A member can be declared and certified insane and still have the right to sit in this Parliament. But we are to permit a marriage to be dissolved because one party is unfortunately afflicted by a mental illness. The Attorney-General has come out of this in a very sorry way because he has failed to explain these matters. He has simply glossed them over. 1 am one of the honorable members on this side of the chamber who resents his imputations against all who criticize this legislation. I do not care from which side of the Parliament the lawyers may come, they are the greatest theorists and the most impractical persons one could find. They work out problems in facts and figures and then they theorize and expect their theories to be applied to human problems, although they know that they cannot possibly be applied.
It is all right in theory to say that a spouse must have consideration when the partner to the marriage is insane. But when a wife may have to nurse a sick husband for years and perhaps watch him die slowly, on what ground can we justify this escape from the responsibilities of marriage simply because this form of illness - mental illness - is involved?
The sorry picture that the AttorneyGeneral has presented to this committee in explaining this position does him little credit, and I register my objection to his attitude.
.- The honorable member for Grayndler (Mr. Daly) has been most unfair in his criticism of the Attorney-General. It is quite undeserved. If the honorable member, despite his opposition to this paragraph, faced the facts, he would come to the conclusion that the Attorney-General has placed before this chamber an excellent bill, even though he may object to it in some minor detail. I support the entire bill because I think that it is an excellent piece of legislation.
The honorable member for Grayndler has said that the Attorney-General has cast slurs on the Churches. This is quite untrue. The Attorney-General has considered the requests of the Churches for amendments to the legislation. Of course, those requests did not emanate from all the Churches and they related only to specific matters. The Attorney-General, in refusing to accede to requests for amendments, has used a perfectly sound and proper argument. He has said that this Parliament is not a Parliament of clerics, and that we must deal with the matter as a human problem affecting the personal status of the individual. I hope that that is the way in which we shall deal with it, because each honorable member has a free vote. If the honorable member for Grayndler can convince a sufficient number of honorable members to support him - apparently he has failed to do so up to this stage - then this ground for divorce will be taken out of the bill and he will have his way. But the division in this chamber an hour or two ago did not seem to indicate that the honorable member has great persuasive powers.
In dealing with this ground of insanity the honorable member has failed to look at the fundamental humanity that is involved. He has said that because the ground has not been used in New South Wales, the Attorney-General should explain why. Surely the Attorney-General, no matter how capable he has shown himself to be over many years, is not responsible for the actions of the New South Wales Parliament over some 80 years. How could the Attorney-General of this Parliament explain why governments of New South Wales have failed to insert an insanity ground into the divorce law of that State although a ground providing for the the restitution of conjugal rights, restricted only to 21 days, has been included?
The whole point of the insanity provision is not only that the respondent must be in an institution, but also that proof must be brought to the court that he is unlikely to recover. As the honorable member for Blaxland (Mr. E. James Harrison) has pointed out, the courts insist that the superintendent of the institution in which the respondent is detained must give evidence as to whether or not the patient is likely to recover. No harm will be wrought by this provision. No harm has been wrought in the five other States which include it in their law. This matter should be approached in a humanitarian way, and the spouse of a person who is detained in an institution should receive the utmost consideration.
Let me refer now to the period of twelve months which must elapse after the first action - I emphasize, “ after the first action “ - in a suit for restitution of conjugal rights. This is the only ground on which two actions are necessary. Everybody must realize that there is a great reluctance in the community to litigate; indeed, to-night there has been great criticism of the law as a profession. But honorable members should, on some occasions, feel sympathy towards the profession because, as I have said, there is a great reluctance to litigate. Nobody wants to take himself to court, put himself in the witness box and be subjected to crossexamination under oath. It is most embarrassing to any litigant. Further, nobody will seek, of his own free will, to litigate twice and to subject himself to embarrassment on two occasions when the probability is that he will achieve nothing, in terms of time, when compared with an action on the ground of desertion for two years.
I support both these paragraphs. I think that they are sound and should be retained in the bill.
.- Mr. Chairman, I should like to ask the Attorney-General a question arising out of paragraph (j). Before I do, I think I should say that it is time we heard an end in this debate to references to clerics and the Churches. When all is said and done, whether or not one agrees with what the Churches have said about marriage and divorce, the existence of the Churches is responsible for those values in this community that make divorce relatively uncommon. The basic thing about Christianity is that it produces a transformation of motive, not so that a person is kept good or his conduct changed because of the law, but so that his nature is changed and he does not want to embark on conduct which would break the law. That is a function of the Churches. It is a different matter, I think, from a lot of the problems that we are facing, and there is no sense in putting lawyers and clerics in juxtaposition in this matter.
Arising out of paragraph (j), I ask the Attorney-General whether the failure to pay maintenance is actually, in respect of this provision, successful evasion. It seems to me that, in other respects, this bill, as a Federal measure, will tremendously tighten up the power of the courts to order the payment of maintenance. It is not unusual for somebody to bolt from one State to another in order to get out of the jurisdiction of a State court which has made a maintenance order, thereby making it very difficult to enforce the order. This measure provides for the attachment of wages and so on. So I take it that the person concerned is a successful evader, and that it is not a question of a loop-hole being left by some other provision in the bill.
– No. Has the honorable member noticed proposed new clause 31a in the circulated list? It requires that some endeavour shall be made to collect money. The matter cannot go by default.
Question put -
That the paragraph proposed to be omitted (Mr. Cope’s amendment) stand part of the clause.
The committee divided. (The Chairman - Mr. G. J. Bowden.)
Majority . . 80
Question so resolved in the affirmative.
Paragraphs agreed to.
– I move -
Omit the paragraph, insert the following paragraph: - “ (m) that the parties to the marriage have separated and thereafter have lived separately and apart for a continuous period of not less than five years immediately preceding the date of the petition, and there is no reasonable likelihood of cohabitation being resumed; “.
I suggest to the committee that with this provision we debate the proposal to insert the clause contained in the amendment No. 14 which is numbered 32a and also clause 33 as in the bill, and further, amendment No. 15, which seeks to insert a sub-clause in clause 33. I make that suggestion because these clauses qualify the provision of paragraph (m). If it is convenient I shall explain the inter-relationship of all of these so that the whole ground can be seen at the one time.
The reason for the substitution of the paragraph, which is the amendment, for the paragraph in the bill, is merely for clarity of expression and to make quite sure that the ground does not cover some involuntary separation; that is, the parties must be separated. As expressed, that is made quite clear.
– You have removed certain words?
– I have taken out of the paragraph in the bill the words “ whether by agreement, decree or otherwise “ and I have expressed them in proposed new clause 32a without any real change of effect. I did so because, when I discussed this matter with some members of the legal profession, some thought that there might be some ambiguity in the word “ otherwise “. I must confess that I was not aware of it and I doubt whether the word is ambiguous. But I thought that there was no sense in leaving possible ambiguity, if some minds which are trained can see ambiguity. It is just as well for it to be made clear. I hope I have made it clear in proposed new clause 32a. That is the reason for the change in that respect.
The reason for amendment No. 15 is to insert a provision to make it quite clear that certain financial arrangements must be made before a court can grant a decree on this ground. The first thing I want to observe and bring to the notice of the committee is that paragraph (m) of clause 27 states only the ground on which a petition can be lodged. If honorable members want to discover what decree can be made, they must look up these other provisions to which 1 have referred. By virtue of clause 27 (m) one can put this into a petition but a court cannot make any decree on it except in accordance with the other provisions. Consequently, these other provisions are of immense importance in relation to this ground. The ground, by itself, will not take a party anywhere, because there are provisions in the act which stipulate that a decree cannot be made on this ground.
If I may, I should like to develop what these conditions are on which a court can make a decree. Let me take them in the order they appear in clause 33. A court is unable to make a decree because it has no discretion, on this ground, if it is satisfied that the conduct of the petitioner, whether before or after the separation, or for any other reason would make it harsh and oppressive on the respondent to grant a decree. My paraphrase of that is that if it would be unjust on the respondent, personally, by reason of the conduct of the other party or for any other reason, the court must refuse the decree.
– Give us an illustration of “ harsh and oppressive “.
– Let us assume that a man has wantonly broken up his home - with complete abandon as it were - and disgracefully treated the lady and then gone off, as some one has suggested, and carried on deliberately with somebody else, perhaps flaunting his relationship under her very eyes. Would the court say, “ You cannot have a decree in those circumstances? “
– How will the court find that out?
– It will find it out by evidence, as it does any other fact.
– Given by whom?
– If there is no one to give it, the court will itself ask questions. The court does not need to sit dumb when it has a duty of this kind to perform.
– The wife can defend the suit.
– Of course she can, and if she wants to defend it the court sees that the husband provides the wherewithal for her to defend it. She is not helpless by any means. The other condition is that the court must refuse a decree if the granting of it in the circumstances would be against the public interest. The phrase “ public interest “ is found in the Law Reports in relation to matrimonial causes, because the courts have traditionally looked to see whether some particular sort of conduct was against public morals. Having said that it is against the public interest, the court will refuse a decree. In the set of notes which I provided with the amendments honorable members will find references to cases where a court has actually expounded this doctrine. A particular case was one in which a marriage took place where one party was incompetent, but the marriage went on after the knowledge of incompetence. There was nothing in the positive law - the statutory law - to require the court to refuse a decree; but the court said, “We will not give you a decree because it is against the public interest to do so. It is against public morals. You cannot approbate this marriage over a period of years and then suddenly wheel round and say that you want a decree.” The court regarded that as against the public interest.
Under this ground the courts will be able to develop doctrines and illustrations which will govern the conduct of parties and the granting of a decree. Those provisions in clause 33 have been thought out quite deliberately in order to prevent this ground from being abused and from being used as an instrument of unjust treatment to a party who, so far as legal matrimonial offences are concerned, is not guilty.
The next condition would be inserted by amendment No. 15, which provides that a decree shall not be made on this ground until such financial arrangements are made as the court thinks just and proper in the circumstances. I have paraphrased the amendment. That is a good charter to any court. The court is required to look at the situation and see whether there are provisions that ought to be made in order to do justice, and having found those provisions it is unable to grant a decree until the conditions are met. I had an illustration of this put to me only in the last few hours. Consider the case of a woman who has been deserted by a man who has access to some superannuation right later on. Under this provision, if she came before the court and said, “If you grant this decree I will lose that financial benefit, because I will become a divorced woman “, the court will say, “ That is right, and this decree cannot be made until that right is substituted by some other arrangement”.
– Are you referring to superannuation?
– Does the court take the responsibility of seeing that the order is enforced?
– Of course. This directs the court not to grant the decree until the arrangements have been made. They must make the arrangements and the court has to see that the necessary deeds are executed. Indeed, there is provision in this bill to enable the court to appoint somebody to sign the deed for a man, and make it binding on him, if the man has bailed up and not signed the deed.
As another illustration, consider the case of a woman who has helped to build the fortune of the family, or quietly done her part in enabling it to be amassed. Let me assume that her husband has deserted her and is suing for divorce under this provision. The court is empowered, under the provision, to do two things: First of all, to look into the circumstances of the two parties and see whether it is right and proper that some provision be made for the respondent woman. Secondly, in accordance with the provision 1 have made in clause 79, the court will have power to make a settlement of property. This is a new power in divorce law. It means that a court, using the powers under clause 33 (1.) (a), as proposed to be amended in a case where the wife has contributed something to the property by either effort or money, would be able to say to the man, “You must make a settlement; you must execute an instrument which will vest in the respondent some interest in some specific property “, and make that completely binding.
That seemed to me to provide what I called financial justice - to see that the person being divorced under this ground, unwillingly, was secure financially. If you add the three limitations together you find that there is an endeavour to see that there is no personal injustice, that the granting of the decree is not being harsh and oppressive–
– What is the position if an order for maintenance is not observed? Does the court accept the responsibility of seeing that it is enforced?
– That is a weakness.
– It has never been so anywhere in Australia. The party always has to enforce it, but I have provided in this bill much greater facility for enforcement, because under this bill a maintenance order can be registered in any court in the Commonwealth, whether a court of summary jurisdiction or a supreme court, and be enforced immediately through that court as if it had been made by that court. As honorable members know, I have also provided the power to garnishee. This is a new provision in this country. The honorable member for East Sydney is quite right; the court itself has never undertaken the job of enforcing these orders. Alimony orders are enforceable by imprisonment, and the court will, of course, grant an application for committing a man to prison if he disobeys an order of this kind, so in that sense the court participates in the enforcement.
– In the direct sense.
– Yes. Now I should like to return to the point I was making when the honorable member for East Sydney interjected. The conditions of the decree are, first, that it shall not be harsh and oppressive to grant it. I called that an endeavour to secure personal justice. The second is that the granting of the decree shall not be against the public interest. I called that an endeavour to secure the community against wanton and outrageous conduct - immoral conduct in the community sense. Thirdly, financial justice is secured to the party by means of this provision under which the court is directed not to grant the decree until financial arrangements which it thinks just and proper in the circumstances have been made.
There is also a qualification that adultery, whether before or after the separation, is a discretionary bar. That means that the court is able to look at the circumstances of the adultery, pass upon it, and say whether the circumstances were such as warrant a refusal of the decree. While I am dealing with this matter I should like to compare this provision, first of all with the Western Australian provision as it now exists. In Western Australia at the moment there is this five-year-separation ground, expressed somewhat similarly to the ground in 27 (m). There is an absolute bar - in fact there are a number of them. First of all, there is the commission of adultery in that five years. That is to say, in Western Australia the adultery that perhaps caused the separation and which occurred before the separation, is out of mind. Under this bill it is not.
Sitting suspended from 11.30 p.m. to 12 midnight.
Thursday, 19 November 1959
– Before the suspension of the sitting I said that a number of conditions would be imposed upon a court in granting a decree on the ground contained in paragraph (m) of clause 27. I pointed out the difference between this ground and the provision in Western Australia. The first difference to which I directed attention was this: In Western Australia adultery within the five years - that is to say after the separation - is an absolute bar; under this bill, adultery before or after the separation is a discretionary bar. I should point out, further, that it has been customary, at least in some of the States, where there is a discretion in the court to overlook adultery, to require a petitioner to file what has come to be called a discretion statement. He is required to file at the opening of the suit an admission of his adultery, if it be the fact that he has committed adultery, and an explanation of it. If the petitioner does not do so, and it subsequently turns out that he had committed adultery, he then has great difficulty indeed in persuading a court to overlook the adultery. I would propose, in the rules to be laid down under this legislation, that a discretion statement, that is to say, a statement conceding adultery and giving the circumstances of it, be required in the case of a petition on this ground.
I have mentioned these various safeguards in order to point out that the grant of a decree on this ground is anything but automatic. I have provided that the whole of the conduct of the petitioner, whether before or after the event, shall be thrown open to the gaze of the court, and I have required that the court must be satisfied about these matters. I have provided that a court cannot grant a decree if it is satisfied that it would be harsh or oppressive or against the public interest. I have required the court to ensure that there is financial justice, and I have said that adultery is a discretionary bar, depending on the circumstances in which it has taken place.
– Why did you not take the provisions straight out of the Western Australian legislation?
– Because I felt that, in the first place, to be unable to consider adultery before the separation was not good enough, because it may be that that is the most significant adultery. It may have caused the break-down, and a court having considered it might say, “ We are not going to allow you to have the benefit of this provision “.
There is one other provision that I should mention. It is contained in sub-clause (3.) of clause 33, which provides that it” a respondent to a petition for divorce on the ground contained in paragraph (m) of clause 27 himself presents a petition on some ground of matrimonial offence, then the court is bound to grant the decree to the respondent, if it is satisfied with his petition, and not to the petitioner under clause 27 (m). In every-day language, this means that if the respondent does not want to be the divorced party, but prefers to be the divorcing party, and if he has a ground for divorce other than that provided in clause 27 (m), he can bring his crosspetition and be awarded the decree. This provision enables people who, until the petitioner has started a suit on this ground, have been reluctant or unwilling to bring a suit, to come in at the last moment and become the divorcing party rather than the divorced party.
– To turn the tables, as it were.
– Yes, to turn the tables. I think I indicated last evening that when you have provided for personal justice to be done, when you have ensured that no harsh and oppressive results can flow, when you have seen that financial justice is done, that the public interest is not prejudiced, and that there has been no adultery that is significant, there are not very many grounds left upon which a respondent could say, “ I still stand out “. He cannot say, “ I stand out because I do not want to be the divorced party “, because he can bring his own suit there and then and have priority. He may say, “ I have some religious or sentimental reason for not wanting to be divorced “. In speaking on this matter last night my proposition was that the interests of the community in ensuring that the other party to the marriage did not form an illicit union and was able to form a sound union would overbear those sentimental or religious scruples on the part of the respondent.
I have taken a little care to explain these grounds, because I thought I ought to. I have been reluctant, up to this point, to refer to the memorandum circulated by the Anglican bishops, and to which reference has been made by honorable members, but 1 think I ought to do so. I want to make it perfectly clear that in no sense am 1 criticizing a churchman for expressing his point of view on a matter of social and moral concern to the community, lt is his right and duty to do so, and I have not been in the least bit restive about any criticism from churchmen. I have been at some pains to see them and talk to them. I know their points of view with regard to many matters, and I respect those points of view. The only small complaint I have is this: If there is to be widely circulated public criticism it should be accurate. I ask for no more than accuracy.
This memorandum that was circulated by the bishops is based, so far as it refers to the ground contained in clause 27 (m), entirely on quotations from the Morton report. It offers no independent reasons of the bishops themselves. They have picked up the quotations and cited them as authoritative, and any one reading this document would certainly imagine that the quotations were from at least a majority viewpoint, or that they represented the firm view of the commission. As I was saying to the honorable member for Lang (Mr. Stewart) last evening, the Morton commission debated the question whether or not it should recommend abandoning the theory of matrimonial offence as providing ground for divorce, and adopt, instead, the principle of break-down of marriage. The members of the commission divided on this point. Nine members, from whose sayings or writings the bishops quoted, were in favour of maintaining the principle of matrimonial offence and against the adoption of the principle of break-down of marriage. Nine other members were in favour of adding to the existing grounds based on matrimonial offence a ground founded on the principle of break-down of marriage. But there was a tenth member, who expressly said in his separate reasons, “ I am for abandoning the principle of matrimonial offence and for including a clause which will follow the principle of break-down of marriage “. That is to say, it was ten to nine, in actual counting.
It was said that there was another member of this commission who died before it reached its conclusions and who, therefore, did not join in the report. It was said that this member was in favour of retaining the principle of matrimonial offence and nothing more. If I add that opinion, there is still a draw - ten to ten. Reading this document of the bishops, however, one would never suspect that opinion was equally divided. They have taken these quotations from what in very truth was a minority report. The next thing that they have done is this - and this is very important in the hands of people who want to criticize publicly on a basis of wide circulation and influence public opinion: They have cited these passages which were applicable to an exemplification of this principle of breakdown of marriage, which is quite different from clause 27 (m). I had read this report with care before I set about drafting clause 27 (m) and I set out to make good all those deficiencies which some people had thought were inherent in the forms which were discussed in the Morton report. The several forms of clauses considered by the Morton committee were not qualified as clause 27 (m) is. The nine members wrote this about these clauses -
That would introduce into the law a principle which would have even more damaging consequences for the institution of marriage than divorce by consent, since it would mean tha: either spouse would be free to terminate the marriage at pleasure.
If there is one thing that cannot be said about clause 27 (m), read with these other clauses, it is that it allows the termination of marriage at pleasure. I have made certain of that in the draft.
– At what page does that passage appear?
– It is section 69, clause (xiii), page 17. The ground that we are debating is nothing like the ground that the Morton report was discussing. The bishops’ circular goes on to say -
Not only would this clause make possible divorce by consent; it would make possible the grave injustice of vesting “in a husband or wife the right to divorce a spouse who, ex hypothesi, had committed no recognized matrimonial offence, and who did not want a divorce “.
That cannot be said, with truth, about this bill, unless clauses 31 and 33 are removed. If the ground is stripped of all the safeguards that I have endeavoured to put into the bill, one may be able to say what is said in this passage, but, with very great respect to these learned gentlemen, it just cannot be said with truth about this ground. These criticisms have been circulated to all honorable members and have been widely published in the press. The next statement of the bishops is - and this is quoted from the Morton report -
In other words, people would enter marriage knowing that no matter what they did or how their partners felt, they could always get free.
– Do they mean at the beginning of the five years?
– No, when they enter it, at the beginning.
– Before the separation?
– When they are first married. What is said is that people would enter into marriage knowing that no matter what they did or how their partners felt, they could always get free. This is on the theory that the existence of any divorce law makes people irresponsible when they enter into marriage. I want to say something about that, because after all most people marry when they are young. With very great respect to the bishops, I think it is most cynical to say that when two youngsters are in love with each other the girl will quietly say to herself, before the marriage ceremony, “ I may love Joe, but it is so much better that there is clause 27 (m) “. It is just too fanciful and two cynical, because I do not believe that people enter into marriage in that fashion. The next thing that the bishops say is -
The acceptance of this ground would further undermine the sanctity of marriage in that far from discouraging illicit unions, it would encourage them, since those who enter into them would be “ secure in the knowledge that, after the required number of years had passed, they would be free to marry “.
I want honorable members to understand what is being said. It is that a man or woman would leave the lawful spouse and deliberately begin a de facto or illicit relationship on this footing, “ Well, it is all right; at the end of five years of this illicit intercourse, I will be able to get a divorce “. If there is one thing that is not true of this bill, it is just that. For this statement to be circulated in this uncritical fashion, I think merits the criticism that I have offered. If that sort of wanton conduct were presented to a court, I would expect the court to say that it was not in the public interest and that it was against the public morals.
– How are you going to get into the bedroom to find out?
– There is no need, because, according to the bishops’ statement, there is no anxiety in these people and no need to be clandestine about it; they believe that it is all right. That is what the bishops say in their document.
– The wife has to prove it.
– The wife is free to prove it. Any one would imagine that women in this country are unable to look after themselves under a divorce law that requires their husbands to provide the costs of their defence, and provide it in advance from the very moment that they start proceedings. I hear an interjection from the honorable member for Chisholm (Sir Wilfrid Kent Hughes). Last night, I cited something from this report. I said then that I did not cite it for its authority, but I cited it for the manner of its expression. I did not found anything on this report.
– It was not in the report. You said it was very difficult to get into the bedroom to find out.
– Of course it is. The bishops say finally -
Legislation should uphold the cause of law and order, but the passing of this clause would undermine them. “It would be primarily those husbands and wives who took their marriages more lightly, and those persons who sought to break up a home . . . who would benefit.”
This is written, of course, on the theory that the only way marriages are broken is by some wanton conduct on the part of one of the spouses. I would not deny for a moment that on occasions there is wantonness and one member of the partnership breaks away without any care at all for right or wrong. But I would deny that that is the normal conduct. I would deny that that is so in the majority of cases. In literally thousands of cases the marriage has broken down not from any wantonness but after a great deal of effort by the parties to preserve it, but has just not worked. One party has, perhaps, committed the offence of deserting and the other party, sometimes out of spite and sometimes out of stubborness, just refuses to exert the initiative which the principle of matrimonial offence gives to him or her.
They are the only reasons that are offered in this document that is widely circulated. Do let me repeat that I do not criticize the clergymen for expressing an opinion; they ought to do so. I say only: Let us be accurate and let us be informed, particularly when we put pen to paper and circulate our views amongst many people who perhaps, if I had not risen here and said what the facts are, would never have known that these quotations were a minority point of view written about clauses which differed radically from the clause in this bill. This clause has been drawn in an endeavour to make certain that the abuses do not arise. But there is one other thing I want to say about the Morton report. I have had its transcript searched. The commission had no evidence whatever before it of the experience of this ground in Western Australia. It had no material whatever before it to show what had been the effect of the introduction of this ground into the law of Western Australia.
– The commission did not refer to Western Australia, and it is clear that it had knowledge of this ground only with respect to New Zealand.
– You might perhaps pardon these folks. They were at a different task from the task on which we are engaged. They were thinking whether they would introduce a ground that had not been current in any part of England. We are considering whether we will maintain a ground that has been current in Australia and made available to Australians. That is very different proposition. The United Kingdom commission had no practical experience of how this ground had worked out. Well, we have, and we have had it over a very significant span of years.
I asked my department to construct a graph for the benefit of honorable members showing the experience in Western Australia compared with that of the other States. With the concurrence of honorable members, and assuming there are no printing difficulties, I will have the graph incorporated in “ Hansard “. The graph has been circulated, and if honorable members will look at it they will see that when this law was introduced in Western Australia in 1946 it did not deviate the line of the graph at all. Honorable members will find on the graph a break to indicate where the law came in, but if one lays a straight edge along the red line one will see it carried on in exactly the same trend. Not only that, but when divorce began to fall in the rest of Australia - you can see the peaks in the other States - it began to fall in Western Australia. In other words, this statute did not deflect the Australian experience at all. But honorable members will also see that the divorce rate fell faster, and it has continued to fall faster than in any other State. It has continued to fall, yet in some of the other States it has risen. There is nothing so demonstrative of what this ground will or can do than that experience of fourteen years.
I can understand people who have had no experience of this ground perhaps using a priori reasoning to say that this provision will increase the divorce rate and make people irresponsible in entering into marriage. But that cannot be said when one looks at the experience shown in this graph. Honorable members will notice that the people of Western Australia were more prone to divorce before this ground became available, and, strangely enough, they appear to be less prone relatively following the introduction of the ground.
Those are very strong pieces of evidence. As far as I know the bishops did not have any material before them on this point.
– Order! I have been informed that it is impracticable to include the graph in “ Hansard “.
– Well, if the printer can be persuaded to include it, he is free to do so.
I have paused for this moment to do no more, so far as the churchmen are concerned, than criticize their precise statement. I have made it clear to honorable members that the criticism is that the statement is inaccurate. The quotations are about a different kind of bill altogether, which did not have these safeguards. Those from whom the bishops quoted had no material before them at all as to what the Western Australian experience was.
I know we can have two views about this thing. I am quite clear about that. Some people may say: “ I am going to save the personal right of the innocent person never to be divorced against his or her will. Tt does not matter how irrational her desire or his desire not to be divorced may be. I do not care how just you can be. I do not care how much you can secure by way of financial rights. I do not care about the absence of any conduct which could be thought to be against the public interest. I just will not go against the particular will of that person”. Well, I put the contrary view. I say there is so much interest in the community in getting rid of illicit unions and allowing a party to be free - all these safeguards being satisfied - that the public interest should overbear the private sentiment of the person for whom you have provided financial justice, provided you have seen that there has been no abuse of the ground. Which is better for the community? Let us consider which situation upholds the dignity of marriage the better. There is the woman or a map on one side just hanging on to the last shreds, and the status of the other party living illicitly and perhaps having children to whom, sooner or later, the sad news must be broken and, as I quoted from the gentlemen of the Morton Commission last night living under fear and with a sense of wrong? Is that preferable to a divorce and a regularization of that other family life? The only penalty is that the party who does not want a divorce may be hurt in sentiment. Which does uphold marriage the better? Which is the better for the soundness of marriage? Does the prevalence of illicit unions - and they are prevalent - do honour to the institution of marriage? Or would it not be better to sever the unreal marriage that is finished and allow a new marriage? Mark you. as I understand womankind, I know that a woman will live with a man of whom she is fond without the marriage bond if he is not free to marry her, but if he is free to marry her she will say: “ You marry me if I am to live with you “.
– I should like the Attorney-General to consider the way in which the committee, which has worked very hard for a long time, can best employ its consideration of this matter. In his speech the honorable gentleman dealt with some tremendously important matters and the question before the committee seems to to me to involve not very many of them. The theory of the breakdown of a marriage as opposed to the generally accepted principle of matrimonial offence is very interesting. The report of the royal commission in England is extremely interesting. There you see a struggle between two views - the historic one of the matrimonial offence and the new theory adopted in New Zealand and mentioned in the report. I refer to pages 26 and 27 of the report, where Mr. Justice Finlay of the New Zealand court described how that view arose in New Zealand. Perhaps I should refer to a few sentences from the evidence that he gave before the royal commission. He was asked -
Can you throw any light upon the reason for the introduction of divorce after three years’ separation? - Yes. It had its basis in the exercise of what was good, sound judgment. This proceeded upon the footing that marriage should be permanent, but it then went a step further and brought into the scale the fact that marriages which were marriages in name only were cruel to the individual and against the public interest.
If a parliament, such as this Parliament, with jurisdiction over these matters, thinks that a certain thing is right, it does not have to obtain the authority of any royal commission. It simply embodies in its laws that principle which has been stated clearly by His Honour Mr. Justice Finlay, and which has been adopted in New Zealand. After all, New Zealand has complete nationhood and the power to make laws. We do not have to obtain endorsement by a United Kingdom royal commission, and neither its approval nor disapproval seems to me to be relevant. The reply to the question continued in these terms -
After, I imagine, a great deal of thought and a good deal of careful consideration, the conclusion was reached that if a marriage had failed, and the failure had endured for three years-
The period is five years in Western Australia - that was a firm assurance that it was never likely to be any use as a marriage.
That is a very popular, simple and clear way of expressing what the AttorneyGeneral expressed when he used the term, “ the breakdown of a marriage “ Could anything be regarded as more absurd and destructive of the institution of marriage than two people separating, not for a few months but for five years? They took the pledges of marriage and promised that each would cherish and comfort the other in sickness and in health and in all the other respects that are mentioned in the marriage ritual. Those vows can never be repeated too often because they are the essence of the marriage contract and the status of marriage results from them. The parties have been separated for five years-
– They have broken their vows.
– Yes, probably both parties have broken their vows and the marriage is a marriage in name only. Just imagine how unfortunate it would be if one party became ill and the other was not living in the home! The hypothesis is that they have separated. It has to be proved before a court that they are not living together. We must assume it to be true because they are completely separated. Can the community take any action which may restore the married status? Nothing in the law prevents an attempt being made at reconciliation. I do not wish to read the whole of Mr. Justice Finlay’s evidence although it is a splendid statement by a very distinguished judge in New Zealand, but I shall refer to only one portion relating to this ground. He was asked -
It was said, for instance, that the legal profession in New Zealand as a whole regarded this ground as both desirable in principle and satisfactory in practice. Would you agree with that?
And he replied -
Yes; I would agree with that.
If this Parliament feels that this ground should be given a trial in the whole of Australia, as it has been tried in New Zealand and in Western Australia, there is nothing in the world to prevent it from incorporating that ground in the divorce laws of the country.
What is the case against it? This ground is a part of the law in Western Australia. Is there any serious defiance of the natural principles of life or of the tremendous importance of marriage to the community as a whole and to the persons concerned? Is it not vital to the unfortunate people that they should have the opportunity to start afresh? I agree with the judge who said to the royal commission -
After a long lifetime’s experience, I am convinced that there should be divorce, and that if a marriage has failed for more than three years and the parties have been apart for so long as three years, they are never likely to come together again.
Although the parties are never likely to come together again, the possibility always remains that they will. I am not worried about what the distinguished church leaders think. They look at the matter from a slightly different angle from the way in which the Parliament looks at lt. The duty of Parliament is to provide for the peace, order and good government ot Australia in relation to this subject. Parliament is the absolute master of the situation. Why should it not adopt something that has been adopted already in Western Australia? Why all the fuss about it? 1 had expected the figures to show that in Western Australia everybody was committing adultery, judging by the absurd statements that I have heard made in this chamber, but the reverse position obtains. The figures indicate that so far from this ground being an avenue leading to breaches of the marriage vows, it seems to be perhaps the most successful and effective of all the grounds that exist in Western Australia. I am not dealing with any question of law but a question of what the Parliament should do in its supreme discretion. Why should we not adopt this ground?
Last night the Attorney-General put his case in a most brilliant manner. To-night, like the rest of us, he is fatigued by a very long day and he has dwelt on some details that do not matter. What are the facts? Paragraph (m) states -
That must be proved when the case comes to court. The period might be ten years, but five years is the minimum. The paragraph continues - and there is no reasonable likelihood of cohabitation being resumed.
That is the basis of action by the court. The safeguards that the Attorney-General has mentioned are important. If there is proof of adultery, that is taken into account. There must be no harshness, no oppression, and other conditions must apply. I do not think that they are very important except as specifying the safeguards which will secure, so far as the law can do so, justice in the particular case.
That is my approach to this matter. 1 know that the ground in Western Australia has been criticized, but nothing positive against it seems to have been established. On the contrary, the reverse seems to be the case. This clause has been carefully and properly drafted, and it contains all the safeguards. Nothing will be done to help the person who has been guilty of adultery. If the husband or the wife has the financial resources, there will be no oppression. These are all means of achieving justice in the particular case.
– Order! The right honorable gentleman’s time has expired.
– Does the right honorable gentleman want an extension of time?
– No, but I should like to speak again at a later stage.
– Paragraph (m) of clause 27 is obviously the most contentious portion of the bill. I should like to thank the AttorneyGeneral for his courtesy in making available some two hours of his very valuable time to discuss it with me and certain of my colleagues. I should like to express my appreciation of the way in which he has approached, in the bill generally, and also in this particular portion of it, the position of the unoffending party and the children. It is with very deep regret that I must say that I find that I cannot accept his arguments and must, therefore, vote against this clause.
During the course of the debate extensive reference has been made to the similar ground which exists in New Zealand. However, we should be deceived if we assumed from the insertion of the reference to the New Zealand act in the explanatory notes that there is some analogy between that part of the New Zealand act and this clause, as presented to the committee. My main objection to the clause is based on the portion of it that is not included in the New Zealand legislation. Section 18 of that legislation is quoted in the explanatory notes and provides that where . . .
That is my basic objection to this particular clause, as drafted. I believe that the sentiment expressed in those notes on the New Zealand legislation is in harmony with my own idea that an unoffending party should not be placed in the position which he or she may be placed in under this bill.
Another point on which there might be some misunderstanding in the mind of certain members of the committee has been the temporarily high incidence in Western Australia of divorces taken under this or a similar ground. Reference has been made to the fact that at one stage more than 30 per cent, of the total divorces in a year were obtained by the use of this ground. It has also been pointed out that at least 85 per cent, of this comparatively large group could have taken a divorce under other grounds. 1 believe that I am justified in saying that it is a subterfuge to use that ground in respect of cases which obviously should be brought out in their true light before the public. I know that some of my sentimental friends will say that it is nice to get out quietly by using a ground such as this, to which no moral or spiritual stigma attaches, but I should also like to point out something that has not so far been mentioned. It concerns the position of the unoffending party. It is well known - indeed no one can deny - that a social stigma attaches to being a divorced person. Under the bill we are going to place certain innocent people in the position of becoming divorced people. Whether we like it or not, that is a fact. There is undoubtedly a social stigma attached to being a divorced person.
– There is not.
– Of course there is. For instance, divorced persons are not eligible when it comes to the award of certain types of decorations. I could quote one or two cases, but I shall not do so here. It is well known that, in court circles for instance, divorced people are regarded with a certain amount of diffidence, if they are not excluded altogether. One realizes that, by going through a long rigmarole, an unoffending party to a divorce may say, “ 1 was divorced not for a matrimonial offence, but under section 27 (m) “. It is going to take a lot of explaining. It has been suggested that sufficient safeguards exist to ensure that the court will exercise its discretion in the public interest. I want to direct attention to the situation that could easily arise when an offending party, during the five year period, decides that a court is likely to use its discretion in his or her favour. Such a person could go along to the court and say, “ I have had two or three children since the break-up of the marriage and I feel that the public interest would be better served if some regularity were to be given to my association in the interests of the children “. I do not think that that suggestion is far-fetched. I consider it a natural corollary to actions that ordinary human beings would take. I am not saying that it is praiseworthy - lar from it - but I believe that such a plea could be taken to a court which had a discretionary power, in the public interest, to allow a divorce under this separation clause.
Finally, I want to say that I realize that this is a very vexed problem. I compliment the Attorney-General upon the thoroughness with which he has gone into the whole legislation. The problem seems to be to make a decision between expediency and legality. While I have the highest regard for members of the legal profession, and for their sincerity of purpose, I feel that the decision on this matter clashes with what we believe to be one of the finest institutions in our social set-up, one that is blessed by the religions that we observe. I personally propose, therefore, to vote against this ground and to urge that it be removed from the bill.
.This is obviously the most objectionable feature of the legislation. As I listened to the debate proceed. I was greatly surprised that the Attorney-General had introduced it and persisted with it. It would seem that there would have been very little opposition to the bill which was presented to this House by the honorable member for Balaclava (Mr. Joske). Perhaps there is a little professional jealousy between these legal men over this measure. Perhaps the Attorney-General was faced with the problem of making this bill somewhat different from that which was introduced by the honorable member for Balaclava, so that in future the legislation will be called, not the Joske Divorce Act, but the Barwick Divorce Act.
Let us examine what the AttorneyGeneral has done. He has not taken the Western Australian provision and transferred it to the Commonwealth legislation. He has set himself to amend it. In Western Australia, if certain offences are committed by the petitioner, and proved to the satisfaction of the court, the court has no discretion at all in the matter. It must reject the petition. Honorable members must keep in mind that this is not a question of an ordinary court action, in which an innocent person moves the court to obtain his or her freedom. It is a question of giving a guilty person and an innocent person equal rights to approach the court for relief. What does that, in fact, mean?
It is quite true, as the Attorney-General has pointed out, that the provisions in this bill in regard to the maintenance of a wife who is respondent in a divorce case, or of any dependent children, appear to be a big improvement on the arrangement that previously existed. But I think that, when we set out to get uniform divorce laws, we should not be satisfied to grab the first measure presented to us and to accept it just for the purpose of getting uniformity.
I have seen the various maintenance provisions operating in the State sphere and I know that there are many occasions when an unfortunate woman is sorry that she ever obtained a maintenance order, because, if her husband clears out, she then has to go through the process of having a warrant issued for his arrest. It would appear that, in many cases, the police are not very anxious to apprehend the offender or very active in pursuing him. Under the existing social service law, the wife has to wait six months before she can receive any benefit from the Department of Social Services, which, within that period, regards a maintenance order, even if it is unsatisfied, as income in determining eligibility for socal service benefits.
What will be the position under the terms of this bill? The Attorney-General has pointed out that, in respect of property, a deed or an order can be made and registered, and I imagine that it would be very easily enforceable if the person against whom it was made failed to comply with it. But maintenance is in a slightly different category. It is perfectly true that, under the terms of this measure, the wife has an opportunity to get a court to make an order for maintenance, but the responsibility for taking the initiative in seeing that that order is enforced still rests with the unfortunate victim of the broken marriage. I believe that, if you want to make this protection complete in respect of both the wife and the children, the obligation and the responsibility for enforcing the order should be placed on the court itself. If the court can enforce an order with respect to the distribution of property, it can easily enforce an order imposing a penalty on the guilty person and ensuring that he maintains those dependent upon him.
It is a remarkable thing that some people see great virtue in this paragraph, but the Attorney-General, evidently, does not share the confidence possessed by other honorable members who support this provision, because he himself has already expressed some very serious doubts as to whether it will work satisfactorily. The honorable gentleman said, in his secondreading speech, that he is not certain that it will not be subject to abuse. He compared this paragraph and the provision in Western Australia, and he said -
But neither measure seems to me altogether satisfactory.
One would expect the Attorney-General, who presented this measure to the Parliament, fully to support this paragraph, but he said himself that neither this provision nor the one in Western Australia is satisfactory.
– That is not right.
– I have the Minister’s speech here.
– Read it again!
– If the Minister wants to correct his speech, he may be entitled to do so, but I am reading from page 11 of the circulated printed copy of his secondreading speech, where it is recorded that he said -
But neither measure seems to me altogether satisfactory.
The honorable gentleman then went on to say that he was not satisfied that this provision would not be subject to abuse. If the Attorney-General is not satisfied, why should we be satisfied to accept this provision?
We know that when lawyers begin to talk about the public interest and use similar terms which have to be determined by the court their idea of what constitutes the public interest may be completely foreign to the view held by other members of the community. I shall be quite frank with the committee. If two people who have married find that they are incompatible, and they want to separate, I would not worry about it if there were no children; I would make the way easy for them to have a divorce. But I think that, where children are involved, we are not taking sufficient care to see that the interests of the children are protected.
Here is another reason for my opposition to this paragraph. Two people may marry young in life. They may be happily married for three or four years and may have three or four children. The husband may have been a good husband and father, but, after about four years, he may suddenly become infatuated with another woman and leave the home. From that point on, he may not take care of his children, he may not protect them and he may not give them the assistance that they should receive from him. If such a husband stays away for five years and then takes divorce proceedings, under the Western Australian law at least, if it can be proved that some matrimonial offence has been committed by the petitioner within the fiveyear period, the court has no option but to reject the petition. But, under the terms of this paragraph, the wife may prove to the court beyond doubt that the husband had beaten her or that he had left her without sufficient maintenance and the court may use its discretion and refuse the petition of the deserting husband. On the other hand, it may, in its discretion, grant the petition if it regards such a course as being in the public interest.
It is of no use for honorable members to quote Western Australian divorce figures. That is a wrong approach entirely. If there were only one case of an innocent person in Western Australia suffering a penalty as a result of an action taken by the guilty party, in my opinion even that one case would warrant our refusing us to write this principle into the present bill.
– That sort of thing will happen, in any case.
– Apparently, because the honorable member thinks it will happen in any case, we have to make it legal by writing into a Commonwealth act this provision which permits it. I invite those honorable members who are so vociferous in acclaiming my remarks to show me where else in Australia, except in Western Australia, a guilty party can at present take the action necessary to bring about a dissolution of marriage. This principle is a complete violation of what I regard as one of the sound principles in law - that whatever protection is afforded by the law shall be afforded only at the instance of the innocent party. The Attorney-General says that there must be some protection for a person where the other party has been guilty of outrageous conduct, and that, therefore, the court is to be given discretion. Is it not interesting that honorable members opposite who support this paragraph and who say, “ It is in the public interest to see that where- “.
– Order! The honorable member’s time has expired.
– May I just make a short explanation, Mr. Chairman? The honorable member for East Sydney (Mr. Ward), both to-night and last night, read a quotation from my secondreading speech, which he could not possibly misunderstand. May I read the relevant passage at page 1 1 of the circulated printed copy of my speech? It is as follows: -
I have examined the way in which the Western Australian and the New Zealand legislation attempts to deal with such situations. The method in Western Australia is to make the commission’ of adultery, and certain criminal conduct towardsthe respondent, an absolute bar to relief. In those instances no discretion is left to the court. It must refuse the decree. Over and above this, there is a general unregulated discretion in thecourt, in any case, to refuse a decree. A similar general discretion is also given by the New Zealand act.
No sufficient judicial development of this, matter has taken place to enable one to say with any satisfactory degree of precision what is the limit of the discretion which these statutes give to the court.
Then follows the passage quoted by the honorable member -
But neither measure seems to me altogether satisfactory.
The honorable member for East Sydney read that sentence last night and again to-night as if the word “ neither “ referred to the Western Australian provision and to this paragraph. Any one who can read the Queen’s English knows that that is not right.
.If it is in order, Mr. Chairman, after the Attorney-General (Sir Garfield Barwick) has moved his amendments, I would like to move the amendments that have been circulated.
– That course will not be in order.
– Then I should like to oppose all the Minister’s amendments. The Minister’s change of tone in connexion with this clause has been interesting. When he was speaking about a woman who was deserted and who was going to take action against her husband who had deserted her, the picture we had of the woman then deserted was of Joan of Arc going out for her rights. But this woman who is deserted and is divorced after she is deserted by the aggressor in the desertion, may have sentimental scruples and religious scruples; she is quite a different person. But if we read, in connexion with these new grounds, clause 28, we see that the Minister has gone to great pains to make certain that the deserted party is innocent, because that clause provides -
A married person whose conduct constitutes just cause or excuse for the other party to the marriage to live separately or apart, and occasions that other party to live separately or apart, shall be deemed to have wilfully deserted that other party without just cause or excuse, notwithstanding that that person may not in fact have intended the conduct to occasion that other party to live separately Oi apart.
If this woman is a vixen, behaves badly to her husband and gives him good reason for leaving her, under this law she could be regarded as the deserter. Clause 27 (m) would not apply. But clause 27 (m), in conjunction with clause 28, makes certain that the person who is abandoned is entirely innocent, or at least it goes a long way towards doing that. That, I think, is a very important matter. The Minister has said that, after all, the courts cannot find out all the facts, and of course that is so, but the facts of which the court can take cognizance are the kind of things that would be established, whether clause 28 applied or whether it did not.
I think that a lot of exaggerated statements have been made during this debate. I thought that the statement of the Leader of the Opposition (Dr. Evatt) was exaggerated. I have never heard any one contending that, because this ground existed in Western Australia, adultery was taking place everywhere in that State. That is the effect of what the right honorable gentleman said, and I do not think that anybody is arguing about that. We are under an obligation to try to get a just ground. The Minister’s graphs in relation to total population are not very impressive. I think that the most significant statistic is the number of divorces in relation to the number of marriages. That ratio is declining. A million new migrants have entered the Australian community. A very large number of them have come from southern Europe, which has different marriage customs from ours, much more stable marriages, and marriages that are not so largely based on mutual attraction of the parties. Many marriages there are arranged by the parents. Divorce is much less common that it is here. If, Sir, you bring in a million new migrants with no change in the divorce customs of the Australian people at all; if you bring in people with another set of values altogether, you are going to have a falsified statistic when you try to work out the number of divorces in relation to total population.
I do not think that the Minister rests very heavily on his graphs. But that is not the important point. The important point is still that a person who- has given no occasion to his or her spouse to leave can be divorced. The innocent party can bc divorced. We have seen that happen among acquaintances in Western Australia. What takes place is what I think the honorable member for East Sydney (Mr. Ward) was suggesting. There may be a perfectly happy marriage. Then, a lady may appear on the horizon, and she may be very determined. The husband may have partly fallen for her. There is no reason why he should not leave the other party arid make a new liaison. If we are called upon to choose between the marriage and the liaison with the new attraction, according to this bill we should choose the liaison with the new attraction.
All sorts of things have been said about the respectability and the stability of the new attraction, lt is not so very long since a man of middle age, who was very high in English society, had a great heart affair. For various reasons, it could not come off. Within a year, we heard of another tremendous heart affair. The attraction that had been insuperable was got over, and there was an attraction to another person. Why is it that in the whole of the discussion that has been going on in this place there is an assumption that when you are choosing the new attraction, as against the marriage, there is something peculiarly stable about that, something which constitutes an unanswerable case for putting in a provision such as this? This is an interesting thing. It is a case of reversed initiative. You have chosen, on the question of desertion, to reverse the initiative, so that the one who is deserting can get rid of the other person. That is justified on the ground that the marriage is dead because of the fact of desertion. Why not. with equal logic, reverse the initiative on other grounds as well? It is quite possible to argue that, with adultery having been committed, the marriage is dead, and to allow the adulterer to divorce the innocent person. The same position could apply to habitual drunkenness and any other ground. If you can reverse the initiative and decide that the innocent party can be disposed of on one ground, it seems to me that there is equal logic in calling a marriage dead and reversing the initiative on other grounds as well. For that reason, 1 do not find that the measure, with all its amendments, is acceptable.
There is just one other thing I want to say in concluding. I think it is entirely to the credit of the Attorney-General tha: he obviously has tried to hedge this matter round with all kinds of safeguards, compared with the grounds of Western Australia, but I remind him that there must be some economic guarantee for the abandoned wife and her children. If the court insists on this, of course, the wageearner cannot invoke this ground because he cannot support the first wife and children and the others as well. To an extent, it has always been true that divorce is a wealthy mans hobby. On this ground, it also will be a wealthy man’s hobby. 1 think we are going to get ourselves into a difficulty in reversing this initiative and in giving the guilty party the right to divorce the innocent party. I certainly cannot support the provision on that ground.
.I should like to answer the honorable members for Corangamite (Mr. Mackinnon), East Sydney (Mr. Ward) and Fremantle (Mr. Beazley). I ask: Who is the guilty party? I think that the AttorneyGeneral (Sir Garfield Barwick) asked that question a day or so ago. How can you prove which is the guilty party? If two people are married but are completely incompatible, surely there is no guilty party. One of them must leave the home. The arguments that I have heard from the last three speakers are grossly offensive to my sense of justice. If we are to make a decision on this all-important point, it is time that we looked at this matter clearly.
Which is the guilty party of a married couple who are totally incompatible? Consider the case of the frigid woman. The honorable member for Fremantle supported his argument by citing the most extraordinary cases. Apparently he would like divorce laws to fit all the improbable cases that can be imagined. We know that some married couples are incompatible and that neither party is at fault. What is to happen in such a case? The parties cannot live together. One of them must leave, and it is usually the husband who does so. Incompatibility is no crime. Who is the guilty party? Honorable members should ask themselves that question. One of the parties to the marriage must leave in order to survive; otherwise they could both become candidates for the mental asylum. This clause applies to innocent people who are forced to separate.
The honorable member for Corangamite (Mr. Mackinnon) has said that this provision will damage the greatest institution in the world - marriage. What about people who cannot live together? Is this institution to be regarded highly by them? Of course not! What nonsense! Consider the position in relation to crime. Do not we say that it is better that a thousand criminals should go free than that one innocent man be punished? For criminals we have a code of law. Yet it has been suggested that two incompatible people should be forced to continue to live together. Where is the justice in that? What nonsense has been talked! The Attorney-General has provided safeguards in connexion with this provision.
The honorable member for East Sydney (Mr. Ward) said, in the most careless manner, that if a couple had no children he would make it easier for them to obtain a divorce, but that if they had children they should not get a divorce. Is it in the interests of children that they should be brought up in an atmosphere of hostility?
– What is your problem?
– My concern is that justice should be done to innocent people. In this type of case, a life sentence as it were should not be imposed. People should have a chance to build up a new life - a new, happy marriage. There is no possibility under this provision for divorce by consent or for any divorce which would be harmful to the community interest. I very strongly support the clause. There is one other thing that I would like to say to honorable members: Before they vote they should think carefully whether they could decide in cases such as those that we are examining now, who is the guilty party.
– It is with a certain amount of regret that I rise to oppose the amendment. I shall give my reasons for doing so. I am aware of two or three marriages that have gone on the rocks, and I shall tell the committee about one of them. It will probably be necessary to call upon the Attorney-General (Sir Garfield Barwick), the Leader of the Opposition (Dr. Evatt) and, possibly, the Prime Minister (Mr. Menzies) to sort out this case. It is one that deserves consideration. It concerns a young couple who were married at the age of about 20 years. Possibly no pair that ever approached the altar were better looking than these two. In about six and a half years, three children were born to the marriage. Very soon afterwards, the man seduced a married woman, or she seduced him - I do not know which. At least, it was the finish of home life for his wife and three children. He was found to be living with this other woman and paying for a flat for her accommodation - or his own; I do not know which. The point I want to make is that when it was revealed that the second woman had a child six years of age, who was living with her husband, the man went away. He told his wife that he was going to work in the country and would come back. His wife was left with the three children. But shortly afterwards it was found that he was living with the second woman, to whom another child was born.
I have asked a few lawyers about this case - certainly they were bush lawyers - and they told me that the second man had a claim on this gentleman because he had pinched his wife and consequently destroyed the home life of himself and the child. Where does the wife come in? I think that this man earns only the basic wage. The other man has a claim on him for the loss of his wife. The second woman has a son to be kept. I do not want to be interrupted by honorable members who are interjecting from the other side. I want to tell my story as best I can. This young woman was married, to use the AttorneyGeneral’s words, on sentimental grounds - for better or for worse - and by now you know that it was for worse.
– Order! I ask the committee to come to order. There is far too much noise and laughter during the consideration of this very serious business. Solemnity must be observed.
– This young married woman has now gone to work. Her mother is looking after the three children. As it was a Catholic marriage, the wife does not want a divorce. If she got a divorce from this man, by the time his wages had been cut three ways, she would not be able to keep the children on her share.
The position I want to clear up is this: According to the Attorney-General, this man could not get a divorce because he has committed adultery. He has committed every crime in the marriage calendar. Nevertheless, if the wife refused to defend his petition, it would be granted. Honorable members opposite, by interjections, deny that, but it is so. This woman is the innocent party and she has had enough of the marriage. When the court is reached, he will get a divorce. It would be far better if this Parliament, instead of making laws and regulations to allow people to carry on like that, were to make laws to deal with such scoundrels. I hope and trust that the Attorney-General will not simply class as sentimental the girl or woman about whom I have spoken.
The eyes of the world are on the bill. After the bill is passed, thousands of people will not live up to their obligations. Anybody who has been dealing with lawyers knows that a woman left in a position similar to that which I have described cannot get social service benefits until she takes the man to court and gets a decree. I know of a case that went on for four or five months. The woman in the case was asked by the department whether she had taken her husband to court. When she said that she had not done so, she was told that until she did take him to court she could not get social service payments. That is the anomalous position in which persons are being placed. I hope that the AttorneyGeneral will change the provision and make a better job of the bill than he has made of it so far.
– This clause breaks new ground, not in one but in two directions. In the first place, whatever may be said to the contrary it does in certain circumstances - I emphasize “ in certain circumstances “ - make it possible to get divorce by consent without perjury and within the law. That is breaking new ground. The second way in which it breaks new ground is that it does produce a case in which a party who has had nothing proved in court against him or her may suffer by the verdict of the court. That is a new principle not merely in matrimonial law. It is a novel principle, I think, as far as the general law is concerned.
Even if we stomach the first breaking of new ground - and I think something is to be said for the point of view put forward by the Attorney-General (Sir Garfield Barwick) and the honorable member for Hume (Mr. Anderson) - we should not, I believe, consent to the second. It is largely because of that second aspect that certain other undesirable consequences flow. The Attorney-General has, I think very rightly and properly, explained the safeguards that are in clause 33. But that clause itself does break rather new ground in another direction, because it places in the hands of the court responsibility for making the law, in a way that very few other statutes - perhaps none - do. The court is asked to declare public policy, without any direction from this Parliament or from established custom as to where the public interest lies in this class of novel case. We abdicate our law-making function and place the responsibility on the court. This also is a bad principle. May I read to the committee some remarks made by Mr. Justice Crawford on this matter at the eleventh legal convention of the Law Council of Australia. Referring to clause 33, from which he cited, he said - i imagine that would be subject to great varia tion in interpretation by judges, although appeal to the High Court is only by leave. i think the High Court will be hard pressed frequently. i can think of cases which will be hard.
He went on to describe a particular case. I have cited the opinion of Mr. Justice Crawford, because I think it is incontestable that we are placing on the court a responsibility that is properly a law-making responsibility that we ourselves should carry. We do not give the court either guidance of statute or guidance of custom as to what is the public interest in a matter of this character. I know that it is quite right to say that a principle of the common law is to extend the law by making fringe judgments all the time. I know that that is part of the principle of law. Here we do so rather beyond - perhaps only a little way beyond - the established concept.I do not think a phrase like this occurs in any other statute. I asked the AttorneyGeneral’s Department to find out whether it did. The department was unable to give me a completely parallel case.
It does seem to me that if we pass this clause we shall be doing something to at least remove the case where an innocent party - I agree that it is not always easy to determine innocence - who has had nothing proved against him or her, suffers by a verdict of the court. We should at least not stomach that principle, which is new not only to matrimonial law but to British law generally. If clause 27 (m) is passed in its present form, I shall be proposing a new clause 32b to provide that a decree shall not be pronounced under this clause in defended cases. That will meet all of the cases raised, for example, by the honorable member for Hume, because it would be possible to specify every one of the classes of case he adduced.I agree that it will not cover the whole of these cases that are in the Attorney-General’s mind, because I do not think that class of case should be thus covered. I conclude by once again directing the attention of the committee to the vital difference between this provision and the provision in the Western Australian legislation that is cited as being parallel.
– In dealing with this matter, we should look at the whole framework of this bill rather than the clause itself. As I said earlier, it is my considered view that if this clause is removed we shall spoil a piece of legislation that is designed for the protection of both parties right from the commencement of marriage. There is provision for marriage guidance councils, which are designed to prevent divorce. The submission made by the honorable member for West Sydney (Mr. Minogue) was not a laughing matter. It went to the crux of the situation that has to be faced. A child, even though it may be the product of an illicit association, should have a proper place in society. What right have we to condemn that child, which had no say in the affairs of its parents, to bear throughout its life a stigma which it would not bear if we had legislation in this form?
If, in point of fact, this were a provision designed to give a guilty party freedom without obligation, there would be a great deal in what has been said in opposition to it. But it is not designed to do that. We must keep in mind that, if I understand the measure correctly, when a guilty party makes an approach to the court at any time, the court, within the framework of this legislation, will see that that guilty party carries his share of responsibility for the upkeep of the family he has left. That is a factor of great value, which will disappear unless this provision is carried into effect.
Let us consider the new act, as it will be, divorced from this provision. Then let us take a case such as the honorable member for West Sydney mentioned. There is no ground for redress there. I can appreciate the honorable member for East Sydney (Mr. Ward) being so concerned about the protection of the child, irrespective of what the faults of the parents may have been. That is the most important factor. In the case outlined by the honorable member for East Sydney, a break in the marriage relationship takes place, but there are no children involved. In a case such as that, I should not like to be the one to decide who was the guilty party. Perhaps, after a period of two or three years, the husband or the wife finds some one else and forms an alliance, as a result of which children are born. The Attorney-General was right when he said that illegitimacy is a brand and a condemnation carried for all time. Would it not be right and proper to give that party his or her freedom, not as a matter of right, but after the court had had an opportunity of investigating the situation? That is what this provision would make possible.
If this provision is taken out of the bill, it will destroy the very principle which makes the bill so important as a piece of nation-wide legislation. That is why I have supported this measure right through. This provision is the finishing touch to a plan that has been laid down on an Australiawide basis for the first time. Its purpose is not to provide an easy way to divorce. It seeks to provide a code which, in my view, will have the effect of strengthening marriage ties throughout Australia by making use of marriage guidance councils, working under the close supervision of the Churches, irrespective of denomination. The marriage guidance councils will also play an important part when either party comes before the court for relief from a condition which he believes is not in the best interests of either or both parties.
This clause does not confer upon an individual an undeniable right to gain freedom. Its purpose is to bring before the courts cases which should be examined by somebody. So far as I am concerned, after a five-year separation a marriage has gone on the rocks. The clause is very clear. Surely none of us would like to create a situation which would prevent an examination being made then, in the interests of the parties concerned. The new paragraph which the Attorney-General has moved to be inserted refers to the parties to a marriage having separated - that is the first point - and thereafter having lived separately and apart for a continuous period of not less than five years immediately preceding the date of the petition, and there being no reasonable likelihood of cohabitation being resumed. We are not dealing lightly with this matter. The term of five years proposed represents 7 per cent, of the allotted span of life of 70 years. If a couple have been separated for 7 per cent, of their full allotted span, and at the end of that period they have come to the conclusion that cohabitation is not possible, then it is time for some authority to examine the situation in the interests of the moral standards of the community. I should not like to be the one to judge who was the guilty party. That responsibility is placed upon the court. The petitioner has to make an application to the court, and the court makes an examination. That is a fact we seem to be losing sight of when we are talking about guilty and innocent parties. If the guilty party is so clear in his or her mind that he or she has a case which will warrant the court, having regard to all these safeguards, granting a decree, and if that party makes application for a decree in the full knowledge that he or she will have to face an investigation, the court should be empowered to grant a decree if it is satisfied that that would be in the best interests of the parties. But without this provision in the legislation, that would not be possible and this problem could not be solved. I have no hesitation in supporting the clause and I hope that the committee will agree to it.
– Order! The honorable member’s time has expired.
.The Attorney-General has, with great vigour and very lucidly, defended clause 27 (m). In the course of his defence he has enumerated a number of conclusions which he has formulated precisely and clearly. Before I refer to those conclusions, may I refer to his stricture upon the Anglican bishops? If the bishops, in error, circulated a submission which was likely to promote a false view of what the honorable gentleman said, then, of course, the position would be completely understood, and I feel sure that no ill feeling would be felt by the bishops.
I should like now to make a few fleeting remarks on the Morton report because I think they are of some relevance. The honorable gentleman said that what was stated in the Morton report was the minority view. That may be perfectly true - no doubt it is - but, at the same time, the honorable gentleman said that the best you can make out of it, or, looking at it from the other point of view, the worst you can make out of it, would be that ten were for the British proposal, and nine were against it. I am speaking now of the British proposal as distinct from the Australian proposal. But in time, one person changed his view. Am I to understand from that remark that the impropriety was changed with the change in the view of one person? I think it is of singular significance that the United Kingdom Government did not legislate on that particular ground.
– But they did not accept the other proposition.
– Admittedly, but I mention this because some people may have been persuaded to the view that the majority report of the Morton committee on this ground attracted to it some measure of propriety to which, in my view, it is not entitled.
Having said that, I point out that the honorable gentleman has maintained throughout that this should be a debate in which there is a great measure of secularism. In other words, to take his own view, the secular authority - the State - has regarded marriage as dissoluble. I should be indebted to the honorable gentleman if he would refer me to an identifiable authority in support of his assertion that the secular authority has regarded marriage as being dissoluble.
– It has been dissoluble for 100 years.
– That is so, but let me quote this important passage from Joske’s “ Laws of Marriage and Divorce “ -
In order to constitute marriage as it is understood in English matrimonial case law, it must be shown that the relationship contemplated is the voluntary union of a man and woman for life to the exclusion of all others.
That, of course, was the conclusion reached two years after the introduction of the State authority in divorce in the United Kingdom.
But if the honorable gentleman wants to maintain that there must be a clear-cut and isolated secular approach to this problem, I think that the committee would do well to notice that the Attorney-General himself recognizes the historical role of the Church in this legislation. I refer the committee to clause 112, which says in clear and precise terms that no minister of religion shall or can be compelled to solemnize a marriage where there has been a broken marriage preceding. I simply cite that as an illustration that you cannot divorce this thing completely from spiritual and ecclesiastical considerations.
Some reference has been made to the fact that this ground, or a ground approximating it, has operated successfully in Western Australia. Let that be conceded. But I venture to suggest that an impropriety does not acquire virtue by dint of practice. There is, of course, a distinct difference between this ground and the Western Australian ground. In the Western Australian ground, there is a complete bar, whereas, in the provision which the committee is considering, there is a discretionary bar. In the course of his defence of clause 27 (m), the Attorney-General said that we have to provide, by way of amendment, a power for the court to determine financial settlement upon a respondent. That is perfectly true. If you take away that financial settlement, we have two other ingredients left. We have the ingredient that is identified in terms of status, and we have the other ingredient which comes under the description of social, and possibly religious conviction. I know that those two remaining ingredients will be identified - and they have been - and described as sheer sentiment.
I do not want to misquote the AttorneyGeneral, but I am sure that the effect of what he said in formulating his conclusions was that the court, in the exercise of its discretion in this matter, if it is sure that an illicit union has proved to be a sound union, will, in effect, overbear sentiment. As I see it, it is tantamount to a choice. On the one hand, you have sentiment compounded out of social and religious convictions and, on the other hand, you have the recognition and virtual approval of an illicit union.
Running on social and religious convictions, you will undoubtedly have, as the Attorney-General himself has admitted to-night, complete innocence in some instances. As has been pointed out this evening, this introduces to the legislature an entirely new approach in its manner of legislating. At this moment, we are considering whether we will place on the statute-book a measure whereby, in a given set of circumstances, a completely innocent person may suffer. I challenge the honorable gentleman to deny that there would exist a set of circumstances in which there would be one individual at least who would be completely innocent. We are being asked to disadvantage that innocent person in favour of the guilty person. That is, in effect, the proposal submitted to us.
Reference has been made to the safeguards provided in the bill. Take the case in which a respondent says to the judge, “ Your Honor, I hold very solemn religious convictions “. If the judge says, “ But, madam, we are quite prepared to arrange an appropriate financial settlement “, and the respondent replies, “ I am not interested in that; I am interested in maintaining the vows that I took.”, it is possible that the judge will say, “ That, madam, is sheer sentiment “. There is a distinct possibility of that developing, and the innocent person would be disadvantaged. I ask the Attorney-General to point to any other statute passed by this Parliament which contains anything of that nature.
– Order! The honorable gentleman’s time has expired.
.- It is my impression that we are bringing too many abstractions and too much obsession with a sense of guilt to bear on our minds in considering this clause. Last year there were some six thousand divorces in Australia. On the Western Australian average that means perhaps 1,200 to 1,500 divorces based on this ground in the ensuing twelve months. This, then, is an important item of release for perhaps about 2,000 people. I do not think there is any particular element in the lives that may lie ahead of these people that makes it important which is the guilty party. I think that in many respects, if we believe all that we have said about ethics and morality and so on, this is one clause whose spirit we may support, because we are not expecting people to produce proof of something which we regard as a guilty act. We act on the conclusion that a marriage has completely and finally failed, and there are only two people who can decide finally whether that is so - the two people intimately involved, the married couple concerned.
I would regard it as lying rather heavily on my conscience if, in the exercise of my powers as a member of this Parliament, I chose to assert some high moral unction on my part over and above the wish and desire for happiness of people themselves. I believe that we ought to be considering all this not so much with an obsession with sex and adultery and the question of guilt, not even so much in regard to the complications which have come from other countries, but on the question of how it will affect the future happiness of people who belong to what we consider the mature, civilized and adult community. T do not believe that hundreds, or thousands, of people will rush off and attempt to break what we consider the healthy ordinary standards of morality in the community. If I do not think that of myself I am not entitled in any way to consider it as likely that other people will consider it. So I think I can appeal to honorable members in regard to this matter.
I know that the sentiments expressed on both sides of the chamber in all cases have been expressed from the bottom of honorable members’ hearts. I know that they have brought to the consideration of this subject a devotion and a dedication which
I have not seen before in my four years in this place. But I particularly request honorable members to think of the individuals involved and see whether we can confer some happiness on people who are people like the rest of us. They live down the street from us, they are ordinary individuals like us, and we should see whether we can give them the opportunity to live full lives with somebody else when a first marriage has failed. I would regard it as a serious departure from our duty to individual human beings rather than to the abstractions I think we are inclined to be obsessed with here, if we did not do so.
– I rise to speak to the clause as proposed to be amended. To-night we have heard a great deal of discussion about guilt or innocence in connexion with a broken marriage. To my mind, most of the grounds for dissolution of marriage which we have been discussing to-night themselves serve as evidence that a marriage has been broken beyond hope of repair. I make that statement fully aware that the honorable member for Fremantle (Mr. Beazley) asked, “ Why don’t you reverse the initiative in respect of other grounds? “ Of course, it is quite obvious that a man who commits adultery does not thereby utterly break his marriage if the innocent spouse is willing to forgive him. It is the repugnance of the offence to the innocent spouse that is evidence that the marriage has broken down.
I think that if the parties agree after five years that their marriage has utterly broken down, that could be accepted by the court as the fact that it is. Therefore, I take no great exception to the element of consent that is implicit in this ground for divorce after a separation of five years. But the consent does not commence at the beginning of the five-year period, because it can be withdrawn at any time. The consent must be operative for the whole of the five-year period, and must be continuing when the matter comes before the court if it is to be a divorce by consent. Therefore, there is a thorough testing, and nobody could say that in such circumstances the marriage had not in fact broken down. It is in the interests of the community, in such a case, to grant relief.
I am particularly impressed by the argument of the Attorney-General who says that people do not go into the divorce courts just to get decrees to paste up on the wall. They usually go through a rather unpleasant ordeal, because they have in mind the contraction of a valid marriage. That, of course, to some extent deals with the argument that the profligate man - the man who likes to form illicit unions - is the man who is going to gain by the inclusion of this ground for divorce. That is not so. He may have sinned once, but it is the man who wishes to form a valid union and who has five years in which to make up his mind on that ground, who may be technically the guilty party.
I accept the fact that there is a certain social stigma attached to people who do not make a success of marriage, and in that sense an innocent woman might be said to suffer. But I ask honorable members what great Christian virtue there is to hanging on to the last shred of respectability when the marriage has gone irretrievably, and that shred of respectability stands in the way of the happiness of other people. Is that a great Christian virtue? Is that the kind of respectability that this Parliament ought to encourage? I do not think so.
I like to look at this ground in conformity with the pattern which has been laid down in the other grounds included in the measure. Each month the divorce lists contain a great number of undefended suits. Would anybody try to tell me seriously that there is not an element of consent, which technically falls short of collusion, in that long list of undefended divorces each month? I would be very surprised if there was not.
– Most divorces are undefended.
– That is so, and mostly there is an element of consent between the parties which is technically short of collusion. We have heard a lot about the qualifying periods of two years and three years and so on in respect of some grounds included in the measure. In these undefended divorces, where persons are anxious to get a divorce quickly, I do not think that this five years separation ground will be used. I think it will be used in the genuine cases by consent, where there is complete incompatibility, and when neither party is willing to have the stigma of committing a technical offence. But where there is any great sense of urgency, where people have no great moral scruples, you will find that, as the position is at present, one party will be willing to give the other party ground for divorce. In that sense it may be said that it had been decided mutually that the divorce shall go through undefended. I do not think that there is any great immorality in that. I think it is far better that people who are incompatible should not be driven to these pretexts.
Finally, there is the other extreme about which everybody has become so agitated - the possibility that completely innocent persons will have their marriages dissolved against their wishes because, in accordance with this provision, the court regards it as in the public interest that the marriage be dissolved.
I think there is a great gap in this legislation. We have tried to cover most cases of hardship where a marriage is, in fact, a true marriage. But there are many cases which I think will be known to honorable members where a man or a woman so conducts himself or herself that technically there is no matrimonial offence. He or she may not be guilty of adultery, but there are other crimes and sins in the calendar. What view do honorable members take of the case of a man who commits adultery once and is never forgiven but is nagged by his vindictive, selfish and cruel wife, who keeps harping on his act and drives him just about out of his wits? Is that the kind of break-up of marriage where the technically innocent party should be protected forever?
– He could proceed on the ground of cruelty.
– There are many aspects of human conduct which technically fall far short of cruelty acceptable to the courts. There are many cases which technically fall far short of constructive desertion, as suggested by the honorable member for Fremantle (Mr. Beazley), and it is such a case which is not covered if this ground does not go into the bill. I suggest that five years gives an additional length of time to prevent abuses under this ground. Where the parties are determined that the marriage shall break up quickly, it should be broken up quickly. I suggest that where marriage has been broken up irretrievably and it has been proved there is no hope of it ever becoming a good marriage again, there is no great virtue in clinging to the last shred of respectability in spite of the cruelty that may be imposed on the other party. I do not think that is the kind of virtue this Parliament ought to encourage.
Finally, I say that in Western Australia since this ground has been in force only slightly more than 20 per cent, of the marriages that have been dissolved in that period have been dissolved under this ground. What does that mean? It means that the rate of divorce is not appreciably higher in Western Australia than it is in other States. It simply means that the parties have been separated for at least five years, whereas in other States they may or may not have been separated for that period. They may have been separated for a lesser period. I believe that that indicates that there is a very great need for this ground to complete what I believe is a good pattern of grounds of divorce to cover most cases of hardship while retaining respect for the institution of marriage.
– We have been taking it for granted that Western Australia is the only place where a guilty party can obtain a divorce on the ground of separation. As I stated when dealing with another clause, legislation was brought down in South Australia to provide as a ground for divorce separation of five years under a court order. When that legislation was debated the objection was raised that the person who was the guilty party when the court order was obtained would be able to get a divorce. Despite all that, the legislation was passed and is in force at the present time. That is why I regard this paragraph, from the point of view of South Australia, as probably the most desirable part of the bill. As I said earlier to-day, if this ground is taken out of the bill, so far as we in South Australia are concerned, this Parliament will cut the throat of the bill. In that event, the bill will not be worth anything to us because it will not have in it one of the main grounds for divorce that we in South Australia have put into our matrimonial legislation.
When we were discussing the previous bill that was broughtin by the honorable member for Balaclava (Mr. Joske), I think honorable members will recollect my saying at the time that if the ground of separation was cut out of the bill I would not be prepared to accept the bill. I hope that this ground will be retained. Another honorable member referred recently to the decent people in the community who are incompatible but are not prepared to go to the court to obtain a separation order. Again, as the Minister for the Interior (Mr. Freeth) stated just now, honorable members have to realize that it is not only the man who commits adultery, or who knocks his wife about who makes her ‘life a misery. Right throughout the communitythere are decent people - both husbands and wives - who just cannot get on together. They cannot live together.
In reference to the statement that has been made that there is no call for a provision such as this,I should like to read a letter which I received from the League of Women Voters of South Australia. It was addressed to me, and I presume the same letter was sent to other honorable members. It is only a short letter and reads -
We have studied the script of the proposed Uniform Divorce Bill, and consider it an excellent piece of legislation.
As you know, we have always advocated a uniform divorce law for Australia, and we trust that you will give this measure your full support.
I have had letters from other women’s organizations. They are not the ordinary women’s political organizations, but other organizations which wrote in a similar manner asking that I support this legislation.
I also received a letter to-day from a man in New South Wales. He is a very earnest man and he makes no bones about my making public what he has told me. He writes -
I would appreciate your action if you would acquaint other honorable members of my particular case.
The letter isdated 12th November; that is last Thursday. I am not going to read the letter right through. He looks upon his case as one of the worst cases that could be found. He says -
I am sorry to say I have not lived with my wife (or even seen her) since 1943 (16 years). She lives with her daughter (now married). It was a mother and daughter complex that eventually split my home asunder irrespective of untold acts which caused dissension in the home over the years despite all my efforts to combat same to keep the home intact.
He goes on -
I am a T.P.I. soldier of World War I, aged 64, married 1923 (1 daughter and 2 sons) all married. Incidentally my wife’s actions have also brought about a position whereby the two sons are also estranged from their mother result of her own actions.
There is only one ray of hope for my future happiness and the attention necessary for health reasons, especially as the years progress, and that is that the clause inthe bill (5 year period, etc.) is not deleted.If it is deleted from the bill, I will be doomed for the rest of my days which would be most unjust in my case. If there had been sincerityof purpose bymy spouse, the present position would not exist to-day. ; if I had been the guilty person I would in that case deserve the consequences, but such is not the case. I was denied peace and happiness in my home.
Sir, it is incredible that a man who loved his home (andwho worked hard over many years to obtain) finds himself in the position (brought about by his wife’s actions) where he has to eke out the rest of his days in the position prevailing to-day, and is unable to re-adjust his position, while his wife lives with her married daughter (in comparative luxury compared to mine).
Here is an actual case of a man who is prepared to go before a tribunal and state that what he has said in that letter is correct. He says in effect that if this bill is not passed he will have no hope. There is more interesting matter in the letter that I do not desire to read. The letter does show that there are people in every State who are in need of a provision such as this. I repeat that this ground is most necessary, because in my own State in particular many cases similar to the one I have mentioned have come to my notice during the last 20 or 25 years.
Every now and then cases are brought to my attention of persons similarly situated to the person who wrote the letter I have just read. I have in mind a man who was a great worker for the Central Methodist Mission inAdelaide. He was living apart from his wife. They had reached the stage at which they could not get along together. They wereutterly incompatible. They had partedcompany, but he was providing money and keeping her. He was prepared to continue to do so, but, he said, “ We will never come together again. We have had twelve or fifteen years apart, and I am prepared to continue to contribute to her support.” This is in keeping with the AttorneyGeneral’s suggestion that proper provision should be made in such cases. This man said to me, “As I am getting older I do not wish to continue to live alone, but I am not prepared to live with another woman unless I can marry’ her.”
We have heard the suggestion that people should not be allowed to obtain divorces except on grounds of matrimonial offences. Many of us have been brought up to believe that marriages should be carried on, almost at any cost. But there are many other persons who do not have such beliefs, and when we find a couple who cannot possibly get along together, what are we going to say to them? The Attorney-General referred to-night to the letter circulated by the Anglican bishops. When I read that letter my reaction to it was this -
THE CHAIRMAN- Order! The honorable member’s time has expired.
Listening to this debate, I am reminded of the story of Rastus in the cemetery. Looking at a tombstone on which was written, “ I am not dead; I only sleep “, Rastus, shook his head and said, “ Brother, you ain’t kiddin’ anybody but yourself “. It is clear that we are kidding ourselves if we think that by continuing the debate on this clause we will change the mind of one single individual in this chamber. Further debate on this subject, whilst it may provide an opportunity for a display of debating ability, can serve no useful purpose. I believe that we have reached the stage at which every one of us has a clear mind on this clause, and that we should take the vote on it.
I have followed the speeches with a great deal of attention, and I am satisfied that what we have done in the debate on this clause is precisely what we did in debating the other clauses of this most controversiall piece of legislation. We have, in one form or another, reiterated what other honorable members have said, pro and con. I repeat that I think the vote should be taken. My mind is made up. I know how I am going to vote, and all the debate in the world will not change my mind. I am going to support the paragraph.
Earlier in the debate the Attorney-General took me to task for what he alleged was a misquotation by me of what he had said. I have had the opportunity of reading the relevant portion of the Minister’s speech, and 1 agree with him that 1 had misunderstood what he said and that when 1 said neither measure seemed to me altogether satisfactory, I referred to the Western Australian legislation and the New Zealand legislation. But let me say that in my opinion this was only a lawyer’s quibble on the part of the Attorney-General, and that it did not alter the situation one iota. I also quoted another portion of the Minister’s speech, and it may be noteworthy that the Attorney-General did not make any reference to this, and did not say that this quotation was inaccurate.
– What are you referring to now?
– I am referring to page 25 of the typed copy of the Minister’s second-reading speech. He said -
I am conscious, however, that this ground could be subject to abuse.
He was referring, of course, to this clause of this legislation.
– No, not at all. I was referring to the clause in the absence of safeguards. Read on.
– Well, I will read on. The Minister said -
I am conscious, however, that this ground could be subject to abuse. It may be said that, knowing of its existence, one party to the marriage may, without conscience and with deliberation, set out on a course which flouts the marriage obligation and insults the feelings of the other partner. Cases might arise, too, where gross and outrageous conduct on the part of a petitioner may so offend our sense of decency that we could not in the public interest, or without grievous injustice to the innocent party, allow such a petitioner to profit by his or her conduct.
How much more does the AttorneyGeneral want me to quote before he admits that that reference was to this bill, this piece of legislation that is before us, and this clause?
Here is a rather interesting point, lt will be noted that the only occasions on which the Attorney-General and this Government believe that a petitioner should not profit by his or her conduct are when the innocent party has suffered grievous injustice. Why the qualification about injustice? Evidently the Attorney-General and the Government admit that under this clause injustice can be done to the innocent party as long as it does not constitute grievous injustice. There is no doubt in the world as to what is intended.
I was rather interested in some of the remarks made by certain honorable members during this debate. I am quite satisfied that those honorable members have nol appreciated what is intended in this clause.
– You quite obviously have not.
– You are too young to know anything about this subject-matter. The honorable member for Wills (Mr. Bryant) has said that there are two people only who can decide whether a marriage has failed and should be dissolved, but what this clause does is to give one party the opportunity to decide that the marriage will end. Strangely enough, the party who can decide whether the marriage is to end is the guilty party.
Let us examine the situation that could arise. I was mentioning it when my time expired on the previous occasion on which I spoke. Take the case of a couple who marry when they are very young. They remain happily married for three or four years and have two or three children. The male partner has been a good husband and father until that time, but then he becomes infatuated with another woman and leaves the home. He may be a working man, as was pointed out by the honorable member for Fremantle (Mr. Beazley), without the financial resources to maintain his new home and the home that he has deserted. His wife regarded him, when they were together, as a good husband and father, and still clings to the idea that the marriage is not completely lost. She hopes that the infatuation will wear off and that he will return to his home.
Some honorable members may ask, “What is the possibility of that happening after five years? “ The point is this: Who is to determine that the woman, or the man, as the case may be, should not have the right to exercise her or his own judgment in the matter? Should the law say that there is no possibility of this marriage being redeemed? This matter directly affects the individual. If the wife is still of the opinion that the marriage can be repaired, no law should take away from her the right to try to repair it. Therefore, I am of the opinion that this is a completely obnoxious provision. If it is not defeated here, I hope that it will be defeated when it goes to another place, where better judgment may be exercised than evidently has been exercised in this chamber.
The honorable member for Corangamite (Mr. Mackinnon) raised a point which I thought was rather good. It was that, if a man or a woman is able to move out into the community and say, “ I divorced my wife “ or “ I divorced my husband “, a stigma is placed on the other party because the impression gained by everybody is that the person who initiated the action and obtained the divorce was, in effect, the innocent party. The point raised by the honorable member for Corangamite should be considered. Even the Attorney-General admits that the provision could be abused and, therefore, the bill provides that the court shall be able to exercise its discretion. This is rather a contradiction of the earlier argument that, if a marriage is irretrievably lost and there is no hope of redeeming it, then a divorce ought to be granted in the public interest. The Government, however, has had second thoughts about this and now says that, if there are special circumstances and if the petitioner is proved to have been guilty of some particularly gross and outrageous act - that is the term that was used by the Attorney-General - the court can refuse the petition. That argument is completely different from the argument originally advanced, and it is rather interesting. We are concerned, for the sake of public morality and in the public interest, to see that where the parties to a marriage have lived apart for five years, a divorce should’ be granted.
I notice that, although the AttorneyGeneral gave a number of reasons why marriages should be dissolved, he declared’ that artificial insemination, where the husband has not been the donor and has objected to the act, is not to be a ground for divorce. All the Attorney-General says is that this matter has been examined elsewhere. I understand that a case was decided by a court in the United Kingdom, which held that an act of artificial insemination where the husband was not the donor constituted adultery. Under this legislation, adultery is a matrimonial offence for which a divorce may be granted. But artificial insemination against the wishes of the husband and where the husband is not the donor, is not a ground for divorce.
Here is a most amusing point. We have been told that, if two people are living under the one roof but are not living as a married couple, that ought to be considered as a ground for ending the marriage. But the Attorney-General stated that, if the husband undergoes an operation to change his sex, that is not to be a ground for divorce. Consider the case of a woman living with an individual who had previously been a man and had undergone an operation to change his sex. Under this legislation they cannot get relief because this is not a ground for divorce. How ridiculous!
This is far from being the perfect measure that it was represented to me by the Attorney-General and his supporters. Why are we now sitting here, in the early hours of the morning, with half the members asleep in the chamber and unable to appreciate the arguments that are advanced? 1 will tell the Attorney-General why this is done. He knows as well as other members of the Parliament know that this is regarded not only by honorable members but by large sections of the community and by responsible people as a most objectionable feature of the legislation. But what does the Attorney-General do?
– Order! The honorable member’s time has expired.
.- I did not intend to speak on this- bill, but, as I have received some letters asking me to oppose clause 27 (m), I feel that I should explain my reasons for supporting it. It has been argued that the inclusion of the clause will cause the divorce rate to rise. This is not borne out by the experience of Western
Australia, where this ground has been available since 1946. The honorable member for Fremantle (Mr. Beazley) objected to the comparison of the divorce rates with population, which is the comparison used by the Attorney-General (Sir Garfield Barwick) in the graph that he distributed. I have seen figures on the divorce rates in the various States over the past fifteen years. They show the number of divorces for each 1,000 marriages which took place ten years previously. The reason for choosing this period is that statistics show that most divorces occur in mariages that took place between five and fifteen years previously. The figures include also the divorces of many migrants, many of whom contracted marriages overseas. As the marriages are not included in the figures, the figures tend to represent the position to be worse than it actually is. Even so, they still show a steady downward trend in the divorce rate in Western Australia.
Opponents of this clause infer, though they do not say so explicitly, that the clause is contrary to the law of God. I do not believe that God condones spite, malice and vindictiveness, even on the ground that these vices can technically preserve a marriage that has hopelessly broken down. In last Friday’s Melbourne “ Herald “ there appears a letter from a lady who stated that her future happiness depended on the passing of this clause. She pointed out that when her nerves were nearly at breaking point through trying to cope with incompatability, she left her husband and took her young son with her. She thereby became, in the eyes of the law, the guilty party. It is now nine years since she left her husband and, as she desires to marry some one who wishes to care for her and for her son, she has tried to obtain a divorce. Although her husband does not want her, he has refused to agree to a divorce and, at the age of 29, she finds herself in the position that she has no future other than to live in sin and either have no children or, if she has children, to condemn them to illegitimacy. Can any one say that that is the way that God wants it to be? I for one refuse to believe that it is.
We are human beings and we have human weaknesses. When marriages have hopelessly broken down - this legislation will not cause them to break down - surely there is no virtue and no Christianity in condemning both parties to go through the rest of their lives without partners. If our present man-made laws make no provision for the remarriage of couples whose marriages have broken down in circumstances such as those existing in the case I have outlined, I am all in favour of clause 27 (m). For the very adequate reasons given by the Attorney-General, I intend to support it.
. I most vigorously oppose the amendment proposed by the Attorney-General (Sir Garfield Barwick). This is one of 56 amendments and is intended to correct the ill-considered proposals presented to the Parliament by the Attorney-General. The honorable member for Henty (Mr. Fox), who has just resumed his seat, said that if marriages are hopelessly broken, they should be terminated. But who is to determine when marriage has broken down? The matter is to be left to the court. We all know that in these situations invariably there is an innocent party, although sometimes both parties are responsible for the situation. The proposal of the Attorney- General provides, among other things, for divorce where the parties to the marriage “have lived apart continuously for a period of not less than five years and where there is no reasonable likelihood of cohabitation being resumed. Only one person can create that situation. One person only can make that situation possible and therefore in such a situation there will always be an innocent party.
Let us think of the type of innocent person involved. I visualize a mother. I have noticed a reluctance on the part of those who support the Attorney-General to face up to the responsibility of the damage to the children of a union of this kind where the mother is trying to care for her children and maintain an air of respectability in a suburb or country town. She wants to maintain her married state. She wants her children to have a father. She wants to feel that she belongs in every way to society. She also has an intense longing in Tier heart and a hope that eventually she will be united with her husband. That being so, I think it would be manifestly unjust and an intolerable situation if that woman could be divorced while she still yearns for the day when she may be united with her husband from whom she has become separated.
There is another important aspect which I suggest should not be dismissed lightly and that is the religion of the woman. On religious grounds she may not want to be divorced. Because of her teaching - what she learnt at school or at her mother’s knee - she may feel that divorce is wrong and that she should preserve the union at all costs. Is it right that the law of the land should be invoked to divorce her? The Attorney-General said that the law would come down on the side of the public good, lt is true that he has introduced certain amendments with respect to financial settlements. He has made arrangements so that in the event of a woman making a contribution to her husband’s fortune and later becoming separated and divorced from him, some financial adjustments will be made. While that is commendable and most desirable, there is something perhaps even more valuable - the fact that that woman treasures beyond anything else her married state and the fact that she is the mother of children.
I join with the honorable member for East Sydney (Mr. Ward) in voicing a vigorous protest against the manner in which this paragraph has been brought to the Parliament. At 1.30 o’clock this morning the Leader of the Opposition (Dr. Evatt), after making a useful contribution to the debate - one that was helpful to the AttorneyGeneral - suggested that honorable members, after a hard day, were fatigued. He said that in order to enable honorable members to give fair and reasonable consideration to legislation, it was a fit and proper time to report progress. The AttorneyGeneral refused to accept that suggestion. I now put it to the honorable gentleman, in the presence of the Prime Minister (Mr. Menzies), that now is a time when this debate should be interrupted and progress be reported so that those honorable members who desire to speak to-morrow will have an opportunity to do so.
Before I rose to speak this morning quite a number of other honorable members were seeking to express their views on this paragraph. Because of the lateness of the hour it was not my desire to rise, but I felt compelled, because of my deep feeling on this matter, to express myself. This matter has not only agitated a few honorable members and caused them to apply themselves with unusual diligence to the consideration of it but has also aroused the feelings of great numbers of people in our community. Who are we to brush aside and disregard the points of view of the bishops of the Church of England? Who are we to disregard the viewpoint of the Catholic Church or the opinions expressed by such people as the Reverend Gordon Powell and the Reverend Alan Walker? Are we in this rarified atmosphere of Canberra unaware of the feeling of the masses? Surely these are important things.
Look at the amendments that have been introduced during this debate. I feel that all we are doing is providing a lawyer’s honeymoon. The honorable member for Wentworth directed attention-
– I did not. I kept quiet.
– The honorable member for Mackellar (Mr. Wentworth) rightly directed attention to the fact that Parliament was vacating this field and was handing it over to the courts. There has been in this Parliament what to me is an extraordinary condition of mind where honorable members feel that they can produce some half-baked piece of legislation, important as this one is, and leave it to a judge and a court to determine, trusting implicitly and confidently in the wisdom of the judge to interpret opinions that have not been clearly expressed in this place. That is not good enough for me. I believe we have a responsibility to write the law. We must see that the law is sound. If this Parliament for the first time in its history is to write a divorce law for the whole of the people of Australia, that should not be done in a fashion such as this.
– Order! The honorable member’s time has expired.
.I can well understand the inclination of honorable members who have already addressed themselves to this measure - Some of them on a number of occasions - not to desire to listen to somebody who at this stage wishes to address himself to it. Nevertheless, I have always taken the view that whatever may be the hour of the night or morning, it is the duty of honorable members to address themselves to matters with the same assiduity as at any other time. It is true that all honorable members have made up their minds as to how they will vote, but does that conclude the matter? It is of some importance that the electors who have sent us to this Parliament should know that we make up our own minds and are not content merely to follow the leader. For that reason, having given very earnest thought to this matter - more earnest thought than I have ever had to give to any issue that has come before any Parliament that I have sat in during the last 20 years. - I have risen in my place at this hour of the morning.
I want to summarize very briefly considerations that have led me to support this clause. I shall state quite plainly the conditions that the clause seeks to remedy, and then I proposed to deal very briefly, very succinctly and, I hope, very clearly with the two principal arguments that have been advanced against it. The AttorneyGeneral was not able to find better words than those contained in the report of the Morton commission to describe the state of affairs that this clause seeks to remedy. A fortiori, I cannot find better words, and though the hour be late I remind the committee that the commission reported in these terms -
We see no benefit to society, to the individual or to the State in maintaining marriages in name which are no longer, and on all foreseeable estimates will never be, marriages in fact and which secure few or none of the purposes for which marriage was designed. There are many persons living together in illicit unions, which have all the potentialities of happy, permanent marriage, who are unable to marry because of a pre-existing marriage which has completely broken down, and because the “ innocent “ spouse from spite, religious scruple or some other reason, is not prepared to take proceedings for divorce. We see in many of these illicit unions, which may have endured for years, all those elements of love, comradeship and happiness in children that make the cohesive qualities of a happy marriage.
That is the case for this clause. What is the case against it ? I said that I would deal with only the two principal arguments. In the first place, it has been stated that unworthy individuals may receive relief; that, in any case, this provision may be unjust to an innocent party. But the clause contains very well-thought-out safeguards. It provides that where it would be harsh or oppressive to the respondent, the court may not grant relief. It provides that where the granting of relief would be contrary to the public interest, it should not be given. It provides also that the court, as a matter of discretion may refuse a decree if the petitioner has committed adultery. On this aspect the Attorney-General, in his secondreading speech, said this- -
At one end of the scale, a court might not refuse a decree when no more than a single act of adultery has taken place, perhaps in circumstances of opportunity or inclination to which the separation itself or its circumstances has or have at least contributed. At the other end of the scale a deliberate course of adultery, particularly one which brought about the definitive separation, might very properly lead a court to refuse a decree. . . .
This, of course, is quite independent of the other factors that might lead a court to regard the granting of a decree as harsh or oppressive to the respondent, or contrary to the public interest. It has been argued that many things which a court might not regard as harsh or oppressive to the respondent could be so in fact. This is the kind of argument that has been advanced by the honorable member for Moreton (Mr. Killen).
What are the motives that might lead a man or a woman to resist a decree? The first motive, and perhaps the most common, is vindictiveness. I think that this must be dismissed as an unworthy motive. The second is religious conviction, a matter that has been raised by the honorable member for Macquarie (Mr. Luchetti). If the respondent, for reasons that must be respected, regards the marriage as indissoluble in the sight of God, he or she will not marry again and his or her conscience need not be offended. Sin, if sin there is, will lie at the door of the other party.
The third reason that has been advanced is the loss of status, say, of the woman. What is the status of marriage for a woman? I think it can be roughly summed up in this way: The right to be known by the community as the man’s wife; the right to have her children by the marriage accepted as legitimate; the right to share her husband’s home and companionship - bed and board; and, finally, certain rights in relation to his property both during his life and upon his death. If the marriage has irretrievably broken down and the parties are living apart, what remains? The woman’s children are still legitimate; her property rights are safeguarded under this clause and other clauses of the bill; the companionship of her husband has gone, and no court and no power on earth can restore it. She is, in short, a wife in name only. She is not a divorced woman. As one honorable member has said, the fact that she is not a divorced woman has some value. I do not deny that, but I must put it in the balance against the advantage to the community to which I referred in my opening remarks. When I put these two factors in the balance, the scale is weighed down in favour of those great advantages that are mentioned in the extract that I have read from the report of the Morton commission.
Let us now consider sentiment. A man and a woman, upon marriage, enter upon a life partnership - for better or for worse, for richer or for poorer, in sickness and in health. Why should one who has done no wrong be divorced by the other? One can only have the profoundest respect for this sentiment. Even if the marriage has in reality broken down utterly, at least the man or the woman may say, “We are still married in the eyes of God, and in the eyes of the law “. The man may still love the woman who has deserted him, or the woman may still love the man. So there is sentiment, which is a very real thing. Yet, without discounting the value of this sentiment in the slightest, when one puts it in the balance as against the lives, including the lives of innocent children, that otherwise inevitably will be ruined, warped and twisted by it, one finds that the scales weigh down in favour of the other factors that 1 have mentioned.
The second broad objection is that in an insidious fashion this provision will tend to loosen the whole fabric of the institution of marriage. It has been said that people may enter upon marriage lightly. I do not believe that to be true. I do not believe that either young people or older people enter marriage lightly. It has been said that because they feel that there is an easy way out of their difficulties a couple may not try as hard as they otherwise would to adjust their difficulties and therefore the marriage is likely to break down. It has been said that although there may be other real grounds for a breakdown of a marriage - grounds that may be pursued in the courts - the parties nevertheless will choose this ground as a respectable way out. I believe that couples will be able to solve their difficulties more from a better appreciation of the moral and religious obligations of marriage than from external compulsions.
– Order! The honorable member’s time has expired.
.- I wish to place before the committee a summary of the recommendations that were made by the United Kingdom royal commission because, on a number of occasions during this debate, the Attorney-General has seen fit to criticise the bishops for the letter which they circulated to all members of Parliament. He said that there were nine members against the proposal that divorce by mutual separation - divorce by consent - should be included. There were nine in favour and there was one who, while he had certain convictions, was inclined a bit each way. The Attorney-General also criticises the recommendations of the bishops because the proposal that they were discussing was not in line with the proposal before the committee. If one were to compare the two word for word, one might be obliged to agree that the Attorney-General was correct, but if one looks at the question from the viewpoint of separation by mutual consent for a certain time, one sees that the bishops’ remarks are indeed pertinent. The Attorney-General, by claiming that nine were in favour of his proposal and nine were against it, has misled the House. Let me quote the conclusions of the royal commission, as set out on page 310. They are -
So I submit that, in fact, only four members of that commission were willing to support, to any degree, the proposal that is embodied in clause 27 (m). I quote further from the recommendations -
Note. - Failing the adoption of this proposal, this member considers that the need for some principle requires that the doctrine of the matrimonial offence should be retained without the new grounds of divorce proposed in (3).
So it turns out that, in the final analysis, ten members of the commission said that the matrimonial offence should be the basis for divorce, and that there should not be any divorce by consent, whether after a period of separation or not. Nine members said that it should be possible for either spouse to obtain a decree dissolving the marriage, provided the other spouse did not object. Four members supported, to some extent, the provision embodied in 27 (m). For the Attorney-General to rise and, not once, but two or three times, criticize the bishops, and say that they failed to say that nine members supported the proposal is wrong. I propose to quote from the bishops’ letter -
We write now to expand our statement on what is called “ the Western Australian Clause “ - 27 (m) - and especially to draw your attention to the views on this matter expressed in the report of the Royal Commission on Marriage and Divorce, 1951-55.
They did not say that it was a majority report; they did not say that it was a minority report. They merely drew attention to the views expressed in it.
To include this provision in the bill means that the Attorney-General is taking a provision similar to that which exists in Western Australia and is making it applicable throughout the whole of Australia. He claimed, in his second-reading speech, that the paramount aim of the bill was the preservation of marriage and the safeguarding of the family. There is an everpresent tendency in the community - both here and elsewhere - to play up the man who is continually breaking away from one partner and taking up with another. Time and time again one finds those people being given the utmost publicity. The honorable member for Fremantle (Mr. Beazley) gave an example of that this evening. The manner in which that particular individual is publicized would tend to indicate that he was public hero No. 1 whereas, in fact, he has been involved in a divorce. He certainly should not be held up as a good example - rather as one whose example should not be followed. When we introduce legislation which tampers with the sanctity of marriage and adversely affects the welfare of the family, we are instrumental in fostering that tendency.
Though, in many instances, the AttorneyGeneral has made a laudable attempt to produce a bill which will preserve the family, and marriage, he has not always taken as his guide what he has himself described as the paramount aim of the bill. Having spoken to this bill half a dozen times, I know that he has no intention of listening to any of the arguments that may be placed before him - whether they come from Church leaders or from honorable members, or are to be found in the recommendations of the United Kingdom royal commission. The recommendations that suit him are in the bill; the others are not. Surely if he accepts some of the recommendations he should be prepared to accept also those which run counter to his personal preference. If this provision is allowed to remain in the bill it will be used, not only by genuine people, but by other people also.
– Order! The honorable member’s time has expired. I would advise the committee that the AttorneyGeneral has moved an amendment to omit paragraph (m) and insert a new paragraph in its place. For the information of honorable members, I would explain that in this case two questions will be necessary. The first is, “ That the paragraph proposed to be omitted stand part of the clause “. If this is negatived, a second question will be put, namely - “ That the paragraph proposed to be inserted be so inserted “. I now put the question -
That the paragraph proposed to be omitted (Sir Garfield Barwick’s amendment) stand part of the clause.
Question resolved in the negative.
– I now put the question -
That the paragraph proposed to be inserted (Sir Garfield Barwick’s amendment) be so inserted.
Those of that opinion say, “Aye”, of the contrary, “ No “. I think the “ Ayes “ have it. (Calls of “ No “ being audible)-
– The committee will divide. (The bells having been rung, and the tellers having been appointed) -
– Order! The honorable member for Reid has crossed the floor. He will return to where he came from.
The committee divided. (The Chairman - Mr. G. J. Bowden.)
Majority . . . . 45
Question so resolved in the affirmative.
Bill returned from the Senate without amendment.
House adjourned at 3.11 a.m. (Thursday).
The following answers to questions were circulated: -
m asked the Treasurer, upon notice -
– The answers to the honorable member’s questions are as follows: -
In the year ending on 31st October, 1959 - 1. (a) County Courts, 101; (b) High Court of Australia, 3. 2. (a) In favour of the claimant - County Court, 47; High Court of Australia, nil. (b) In favour of the Commonwealth - County Court, 54; High Court of Australia, 3. 3. (a) 25. (b) So far costs have been paid in full in two cases and in part in one case.
y asked the Minister for Health, upon notice -
Has any recent research revealed any results which might indicate that a cure has been discovered for epilepsy?
– The answer to the honorable member’s question is as follows: -
There is no indication that a cure has been discovered for epilepsy. However, there have been developed a number of new drugs which taken regularly and continuously in appropriate doses, greatly reduce the number of fits and in some cases prevent them entirely.
Supplementary Rent Allowance.
d asked the Minister for Social
Services, upon notice -
– The answers to the honorable member’s questions are as follows: -
Cite as: Australia, House of Representatives, Debates, 18 November 1959, viewed 22 October 2017, <http://historichansard.net/hofreps/1959/19591118_reps_23_hor25/>.