29th Parliament · 1st Session
Mr SPEAKER (Hon. G. G. D. Scholes) took the chair at 2. 1 5 p.m., and read prayers.
– Petitions have been lodged for presentation as follows and copies will be referred to the appropriate Ministers:
To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The petition of the undersigned citizens of Australia respectfully showeth:
That the plan to obliterate the traditional weights and measures of this country is causing and will cause widespread inconvenience, confusion, expense and distress.
That there is no certainty that any significant benefits or indeed any benefits at all will follow the use of the new weights and measures.
That the traditional weights and measures are eminently satisfactory.
Your petitioners therefore pray:
That the Metric Conversion Act be repealed, and that the Government take urgent steps to cause the traditional and familiar units to be restored to those areas where the greatest inconvenience and distress are occurring, that is to say, in meteorology, in road distances, in sport, in the building and allied trades, in the printing trade, and in retail trade.
And your petitioners as in duty bound will ever pray. by Mr Bryant, Mr Bourchier, Mr Cadman, Mr Cross, Dr Edwards, Mr Garrick, Mr Hewson, Mr Hodges, Mr Jarman, Mr Katter, Mr McLeay, Mr Mathews and Mr Staley.
To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble petition of the undersigned employees and agents of the Australian insurance industry respectfully showeth:
That the insurance industry is already coping with
Your petitioners therefore humbly pray that the House will reject the Bill.
And your petitioners as in duty bound will ever pray. by Mr Gorton, Mr Bourchier, Mrs Child, Mr Chipp, Mr Garrick, Mr Hewson, Mr Lamb and Mr Mathews.
To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble Petition of undersigned citizens of Australia respectfully showeth that the establishment of an Australian Government Insurance Office will:
Your petitioners therefore humbly pray that the House of Representatives rejects completely the Australian Government Insurance Office Bill 1 975.
And your petitioners as in duty bound will ever pray. by Mr Connolly.
To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble petition of undersigned citizens of Australia respectfully showeth that the establishment of an Australian Government Insurance Office will:
Your petitioners therefore humbly pray that the House of Representatives reject completely the Australian Government Insurance Office Bill 197S.
And your petitioners as in duty bound will ever pray. by Mr Ellicott and Mr Jarman.
To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble petition of undersigned citizens of Australia respectfully showeth that the establishment of an Australian Government Insurance Office will:
Your petitioners therefore humbly pray that the House of Representatives rejects completely the Australian Government Insurance Office Bill 1 975.
And your petitioners as in duty bound will ever pray. by Mr King.
To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully showeth that the establishment of an Australian Government Insurance Office will:
Your petitioners therefore humbly pray that the House of Representatives rejects completely the Australian Government Insurance Office Bill 1975.
And your petitioners as in duty bound will ever pray. by Mr McLeay and Mr Macphee.
To the Honourable the Speaker and Members of the House of Representatives in the Parliament assembled. The humble petition of the undersigned citizens of the Commonwealth of Australia respectfully showeth:
That the Family Law Bill 1974 would be an unjust law if passed since the innocent party could be divorced against his or her will after a year’s separation.
That the Bill does not only facilitate divorces but changes the nature of marriage and the husband-wife relationships. Legislation ought to reflect public opinion, not attempt to condition it. Gallup polls indicate 75 per cent of Australians are opposed to the concepts of the Family Law Bill. Therefore Parliament has no mandate from the people to ask such a far-reaching change in the nature of our society.
That children need a stable emotional and psychological environment in which to grow up. This stability is upset by divorce. A high proportion of criminals come from broken homes. Consequently any law which makes divorce easier is harmful to society.
Your petitioners humbly pray that the Parliament so vote as to defeat the Family Law Bill.
And your petitioners as in duty bound will ever pray. by Mr Jarman.
To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully showeth:
In view of the appalling need of millions of people in Vietnam, that immediate aid in much larger proportions than has been given to date by the Australian Government, be sent as quickly as possible. For humanitarian reasons the innocent victims and also defenceless have a right to be fed, receive medical aid and villages rebuilt. We, a land of plenty should not deny help of this kind to another in need.
Your petitioners therefore humbly pray that the Australian Government will act on this matter without delay.
And your petitioners as in duty bound will ever pray. by Mr Jarman.
To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble petition of undersigned citizens of Australia respectfully showeth:
That the proposed’ free’ national health scheme is not free at all and will cost many citizens more, particularly single people and working wives.
That the proposed scheme is in fact a plan for nationalisation of health services which will lead to impersonalised and mediocre standards of medical care, the creation of a huge new bureaucracy, and will limit the citizen’s freedom of choice.
That the present health scheme can be amended to overcome existing deficiencies, and that the proposed scheme is totally unnecessary.
Your petitioners therefore humbly pray that the Government will take no measures to interfere with the basic principles of the existing health scheme which functions efficiently and economically.
And your petitioners as in duty bound will ever pray. by Mr Staley.
-Mr Speaker, I ask for your guidance. Circulated in the chamber is some information from an organisation. Although the organisation certainly is reputable, the material seems to be outside that which normally should be circulated in the chamber. I ask whether the material has been circulated under your direction or with your knowledge. If not, will you please advise the House on what basis it has been circulated?
-The information was not circulated with my permission; nor was any permission to circulate it requested of me. I understand that the material was circulated on Opposition benches. I do not know whether it was circulated on Government benches. . . .
Government supporters- No.
– Order! . . . was circulated by a member of the House. It is not in order for material -
– How does one get one?
-Order! It is not in order for honourable members to circulate material inside the House without the permission of the Speaker. I will advise the honourable member concerned of that. I have only just had the matter drawn to my attention. The material was circulated without my permission.
-I direct my question to the Prime Minister, particularly in the light of the interest he has shown in indexation and the desirability of reducing the money supply. The Prime Minister, of course, will be well aware of the latest edition of the statistical bulletin of the Reserve Bank of Australia which shows that the net change in the Treasury note issue has risen from $162m in 1973-74 to $l,681m in the comparable 9-month period of this financial year. He will be aware that cash balances also have risen by $ 1,107m. Therefore one finds that there has been an extraordinary increase in the money base and consequently in the money supply. Does he realise how dangerous this will be -
-Order! The right honourable gentleman is well aware that he cannot debate the question that he is asking. I suggest that the right honourable member ask the question.
-Will the Prime Minister please give us an explanation of these increases and tell us how he justifies the National Compensation Bill, the Australian Government Insurance Corporation Bill and the Superannuation Bill against the background of this tremendous increase in inflationary pressure and transfer of resources from the public to the private sector?
-Order! Before I call for an answer to this question I point out to the House that if honourable members ask questions which are as wide ranging as the one just asked they will not have much justification for making complaints about the length of answers.
-I do not propose to answer the right honourable gentleman at the length that his question invites. However, perhaps I can make a comment on the 3 Bills which he mentioned. The National Compensation Bill Wl provide a complete cover for people who are sick or injured. It will replace the compulsory forms of insurance which have long obtained in Australia in respect of -
- Mr Speaker, I take a point of order. The Prime Minister is under an obligation to be relevant. I have asked this question in the light of inflationary pressures. I have not asked for an explanation of the Bills which I think I know better than he does.
-Order! I suggest to the right honourable gentleman that it would be difficult not to be relevant to the question that he has asked.
– The right honourable gentleman mentioned the National Compensation Bill. I was pointing out that this Bill will provide complete and, I could have added, immediate compensation for persons who are sick or injured. It will replace the compulsory forms of insurance which have applied hitherto in respect of workers compensation insurance and third party accident insurance. It will cost the community no more than the compulsory forms of insurance which it will replace. It will provide a very much more complete service but it will eliminate the bureaucratic expenditure involved in lawyers, and insurance costs which have applied hitherto.
The right honourable gentleman also mentioned the Australian Government Insurance Corporation Bill. He and I spoke about this last Thursday. The advent of the Australian Government Insurance Corporation might not mean that there will be a very great increase in the amount of money spent on insurance premiums. Rather, I think it would mean that people might have to spend smaller amounts on insurance premiums. The competition provided by the AGIC will mean that people will get as complete cover as it is possible to get- much more complete than one can usually get at present- and will receive it at the most favourable premiums.
The right honourable gentleman then mentioned the Superannuation Bill. I invite honourable members opposite, if they are opposed to the Superannuation Bill, to vote against it. The Government has sponsored the Bill. The Government will not make it a matter of confidence that the Bill should be passed. It is not part of the Budget. It is not part of any of the Supply Bills. If Liberal members wish to put their votes where their mouths are they can reject the Superannuation Bill. However, I am told that in the next few years the expenditure involved in the Superannuation Bill in fact will not be greater than the amount which is required to meet commitments under the present Superannuation Act. The right honourable gentleman has mentioned 3 Bills. These 3 Bills will not create any inflationary demand. It is true that they will eliminate many of the public and private bureaucratic measures which have cost so much over the years. They will provide a complete and a more expeditious cover for insurance and retirement.
– Has the Minister for Social Security seen draft letters circulated by the Australian Mutual Provident Society to its employees urging them to write to members of Parliament attacking what it describes as ‘luxury social welfare programs’? Can he say whether representatives of pensioner organisations visiting Canberra have expressed agreement with this description of benefits paid by his Department? Will he let the pensioners of Australia know where their real friends and their real adversaries are to be found?
– Yes, I have spoken with the pensioners. Last week I met a delegation from the National Conference of the Australian Commonwealth Pensioners’ Federation. Members of the delegation made it quite clear that they did not regard the present system of pensions as a luxury. They voluntarily conceded that this Government has been more generous in its treatment of pensioners than any previous government, but they felt there was room for a lot more improvement. As the son of a woman who lived on the widow’s pension for many years I say that I do not take kindly to the sorts of comments which are being made by the Australian Mutual Provident Society. It is not easy for a pensioner to make ends meet and to raise a family. The sort of gratuitous insult which is implicit in those sorts of comments is deeply offensive to a great number of people who are trying with some difficulty to make their way through our not always easy social system on social service benefits, no matter how much better they are today- and that is incontestable.
So far as matters like national superannuation are concerned, I was a little surprised at the behaviour of the AMP Society. Mr Steel of the AMP Society, as well as many other people in private insurance organisations, is only too well aware that I make myself willingly available for discussions with representatives of the insurance organisations on this subject. In fact, I have an appointment with a spokesman for an organisationI cannot recall the exact one- this week.
Quite frankly, I have doubts of the worth of maintaining appointments with people from these organisations if they are going to misrepresent the purpose of the Government. It has been made abundantly clear that there will be continuing consultation and discussion with the insurance industry as there will be with other interested bodies in the community. Regardless of the pros and cons of the Medibank debate I think there is at least one thing on which we can agree and that is the way in which this Government encouraged and allowed extended debate on this subject and the way in which it made access available to interested bodies in the community.
Finally, I challenge Mr Steel and various insurance associations- I mention Mr Steel because his organisation seems to be giving the main impetus behind the propaganda- to state exactly what they would regard as a non-luxury form of pension for social service beneficiaries in the Australian community. Unlike our scheme, under the sort of scheme which the Opposition proposes pensions would have increased according to price index movements alone. If we had followed that policy since we have been a government the standard rate of pension would be $8.75 a week less than it is now. A married couple would be receiving $13 a week less than they are now. We could have saved $520m. But I am afraid that that is the sort of ‘luxury’ which we are not prepared to impose on these people.
– I ask the Prime Minister a question. If the Commonwealth Public Service superannuation scheme were to be funded as are private schemes, what percentage of the Government’s wages bill would be required to fund it? Is it correct, as has been alleged, that over 25 per cent of the Commonwealth’s wages bill would be involved? If not, what is the figure?
– I cannot give a calculation such as the honourable gentleman asks of me. He has, I notice, asked several questions concerning the finances of the scheme. He has had answers to some, if not to all, of those questions. The actuarial basis of the scheme was reported on by Professor Pollard and Mr Melville. I think Professor Pollard made a report just after my Government came to office on the basis of a commission which he had received from our predecessors, and then we sought a further report from Mr Melville and from Professor Pollard of Macquarie University. These reports have been tabled and have been published. The honourable gentleman has asked questions on notice and he has received answers to some, if not all, of his questions. I cannot give a statistical summary such as he now requests.
-I ask the Minister for Services and Property to tell the House of financial dealings between his Department and the insurance companies of Australia. Is the Minister in a position to give details of properties leased from insurance companies throughout Australia by the Australian Government? If so, what is the amount of space and the cost to the Government, at the latest available date, of such accommodation leased by the Australian Government?
- Mr Speaker, with a remarkable degree of anticipation I thought I might get a question of this nature so I have come prepared for it. I advise the honourable member for Macquarie that the total amount paid by the Australian Government in respect of annual rental to all insurance companies is $14,695,000 for 2 990 000 square feet of space and the amounts paid to insurance companies represents about 29 per cent of the current annual rental commitments of $49.5m. The annual rental paid in New South Wales is $3,444,000; in Victoria $3,159,000; in Queensland $474,000; in South Australia $1,550,000; in Western Australia $332,000; in Tasmania $270,000; in the Australian Capital Territory $4,612,000; and in the Northern Territory $854,000. Of the total amount, that well known company and protector of the people’s rights, the Australian Mutual Provident Society, receives an annual rental from the Government of $5,189,000; the National Mutual Life Association of Australasia Ltd receives $2,503,000; and the Mutual Life and Citizens’ Assurance Co. Ltd receives $3,172,000. Between them the major companies receive $11,841,000 of the $14m. In New South Wales the AMP receives $2,303,609 and the major companies, between them, receive $3,443,666. In Victoria the AMP receives $1,260,800 and the National Mutual $1,459,910. This pattern continues right throughout Australia and the great beneficiaries of the Government’s rental bill are, to a great extent, the insurance companies.
I turn now to the Australian Capital Territory where the MLC receives $2,544,753 in annual rental from the Australian Government and that insurance company houses the central office of the Department of Repatriation and Compensation in Tower Building. It is a wonder the company does not refuse to take the rent- it is so public minded. Even in the Northern Territory the amount paid to insurance companies by the Australian Government in annual rental is $854,033. I suppose it must be the first time in history that the Government is subsidising a campaign against itself. It is important to realise that the amounts I have indicated are not necessarily the absolute total amounts received by the insurance companies concerned in respect of rent paid for space occupied by the Australian Government. The insurance companies may be making more money, for all I know, on the roundabout. To sum up, these great protectors of the people’s rights are doing pretty well out of a socialist government. I put these figures on the record in order that honourable members will know the true situation. I thank the honourable member for Macquarie for his very intelligent question.
– Is the Special Minister of State aware of statements made today by a Commissioner sitting on the Australian Industries Commission inquiry into the superphosphate bounty- statements which strongly suggest that this Commissioner’s view on agriculture in Australia and the use of superphosphate would make it difficult for a completely objective report to be brought forward? If the Minister is not aware of these statements, would he arrange for them to be examined and their implications for the present inquiry?
-I am not aware of any statements made today and I will have the matter investigated. Of course, any superphosphate investigation would involve evidence being taken and, as has been said here in a number of debates, many people have different views. It would be unfortunate if it were thought that a commissioner’s view was already formed without evidence having been submitted. I take note of what the Leader of the National Country Party has said and, if possible, will give him an answer during this week.
-I ask the Minister for Social Security whether he is aware that a group of Hobart medical practitioners is planning to challenge Medibank in the High Court of Australia on the ground that there are differences in Medibank refunds among the States although tax scales are uniform. Is it not a fact that fees for medical services vary between the States and that if the New South Wales refund, for instance, were paid in Tasmania there would be no patient moiety to which the Australian Medical Association is so strongly committed? Which is more important, the absolute amount of refund or the relationship which it bears to the schedule fee? Can the Minister say whether there is any likelihood of the challenge succeeding?
– I have noticed the newspaper reports that some Tasmanian doctors, unnamed, propose taking the case to the High Court of Australia because of the different money rates of refund between Tasmania and other States. However, the refund is calculated- the law provides for this- on 85 per cent of the schedule fee. It has been a long standing practice for a number of reasons, including the difference in cost of maintaining a practice in the various States, that different money fee levels are established for each State. One might well ask why doctors in Tasmania want to impose a higher patient charge or moiety- that is, the amount the patient has to pay in addition to the refund or the difference between the refund and the actual schedule fee- on the people in Tasmania. The Australian Medical Association has consistently submitted claims to various tribunals and arbitration systems the Government has set up based on differential fees between the States. As to the success or otherwise of such an appeal, my. advice is such that I am confident that it would be unsuccessful.
– My question to the Minister for Services and Property relates to the purchase of approximately 60 acres of land from Leyland Motor Corporation of Australia Ltd. What price was paid for this land? What arrangements were made in regard to the improvements on it? What Minister negotiated the sale? What were the unimproved capital value and the improved capital value at the relevant date? If he is not in a position to give the details now, will he make them available to me later this week?
– As I am not a walking encyclopaedia I cannot answer that question off the top of my head. I suggest that the honourable member put his question on the notice paper and I will be pleased to answer it.
– I ask the Minister for Labor and Immigration: Is he aware that the statistics of unemployed published by the Australian Bureau of Statistics for the month of February, the latest statistics available, showed the total number of unemployed persons seeking full time work to be approximately 70 000 fewer than the total number of such persons recorded by the Commonwealth Employment Service for the same month? In view of the fact that the Bureau’s figures are collected on a basis that conforms closely to that recommended by the Eighth International Conference of Labor Statisticians for measurement of unemployment and as they purport to cover all genuine unemployed whether registered or not, can he inform the House why his Department’s figures of registered unemployed are so much higher than those obtained by this internationally accepted measurement of unemployment?
– It is true, as the honourable gentlement states in his question, that the Australian Bureau of Statistics survey shows that the number of people registered for employment with the Commonwealth Employment Service is very much higher than the number of people out of work.
– Do you think that you have been taken for a ride?
-No, we have not been taken for a ride.
– Order ! The honourable member for Gwydir should not ask supplementary questions from his seat and the Minister should ignore any such questions.
-They are 2 different types of statistics. The Commonwealth Employment Service statistics have never purported to be accurate statistics of the number of people out of work. They have never purported to be any more than representative of the number of people who have registered for employment. It is not illegal for a person who wishes to change his job to hold on to the job he has, register for employment and remain registered until he can get another job that is nearer to his liking than the one he has already. There is nothing to prevent a person who had 2 jobs and who has lost one of them from registering for employment so that he can get another second job or a part time job. That is being done all the way through.
It is because I was aware of that factor that very early in the period of my membership of the ministry I ordered a special advisory committee to be set up on Commonwealth Employment Service statistics. It was headed originally by Professor Isaacs and later by Professor Hancock. Professor Hancock’s report recommended strongly to me that occasionally we ought to ask the Australian Bureau of Statistics to conduct surveys similar to the one that had been conducted in 1963 under the Liberal-Country Party Government. That was the last survey to be done. It was recommended that we should have surveys more often than once every four or five years. I ordered one for last year. It was completed last October. I propose to have these surveys carried out annually if it is possible for the ABS to spare the staff to do them. I think that one very interesting factor about the survey conducted last year compared with the one conducted in 1963 is that 63.8 per cent of the registrants who responded last year were in fact unemployed whereas only 53.9 per cent of those who were registered for employment in 1963 were unemployed. So the position is improving, but it is not improving fast enough.
I have already asked my Department to try to find ways of making the CES figures more realistic than they are at present. One of the proposals that we intend to embark upon is the proposition of requiring some form of identity to be carried by people. I suppose that the day will come eventually when every civilised country will have to require the use of identity cards. That will stop illegal migrants and will stop people from cheating the Government in more ways than one. But if anyone were to suggest it now the first people to reject it would be the members of the present Government. I think that everybody else in the community would reject such a proposition now, but the day will come nonetheless, after a few more people have used their anonymity to escape the rigours of the law, when all civilised countries will be forced to accept it. America has a form of identity card now. That is one of the reasons why it catches up more quickly than we do with illegal migrants. I think that one day we will have to do the same thing, but it would never be agreed to as at this time.
-I ask a question of the Minister for Minerals and Energy. The Minister will recall that on 27 September 1973 this House carried a private member’s motion moved by the honourable member for McMillan requesting a joint Victorian Government-Commonwealth Government appraisal of the production of oil from coal. Can the Minister tell me what steps have been taken to carry out a feasibility study? Has his Department had any contact with the Victorian Government? If so, what progress has been made? Is the Minister still keen to assist in the proposition for the production of oil from coal as a national project?
-It is a matter of the utmost importance. I am very anxious to do the best that I can in that regard. At the present time different world technologies are being examined. At the moment there is no technology that will give a better thermal efficiency than 60 to 65 per cent, which is not good enough. The residual char that is left needs to be disposed of and the routine method of disposal is for it to be burned in power stations specially constructed for that purpose. The alternative is gasification which has about 80 per cent thermal efficiency. Recently I met what I think is the best of all deputations I have received. It was from the East German Republic, a country which is able to utilise brown coal in full. I am in the process of arranging for my Department to contact the East German Republic.
– Will the Minister for Housing and Construction indicate whether there is any form of discrimination in the manner in which accommodation is allocated in government hostels in Canberra or in other places in Australia?
-It has recently come to my attention that, in keeping with policy of many years standing, preference is given to people other than blue collar workers- putting it the other way, blue collar workers are excluded from eight of the nine government guest houses in Canberra. Preference is given to salaried public servants, teachers and their equivalents in the statutory authorities. I understand that out of about 3000 guest house beds in the Australian Capital Territory fewer than 400 are available to blue collar workers. Those beds are at the Ainslie guest house, which can probably be described as the least pretentious of government hostels in Canberra. I regard this discrimination as indefensible and very much in need of correction. I have already initiated action, with the cooperation of those of my colleagues who are responsible, to redress this situation.
-My question is directed to the Minister for Labor and Immigration. It refers to an issue raised earlier by the honourable member for Gellibrand. When did the Minister learn about the survey carried out by the Australian Bureau of Statistics in about September last year, which indicated that about one-fifth of those claiming the unemployment benefit were not entitled to it? When did he start taking action to stop this abuse? What action has he taken so far?
– I learned about this matter on 18 April this year. I scribbled a note- it is a confidential document and the honourable member will have to take my word for it, of course- which states: ‘This report must be made public’ Shortly I will give the honourable member a copy and the report will be made public. I first learned about it on 18 April 1975. The report does not show that anyone is receiving unemployment benefit who is not entitled to receive it. The report does show, however, that the Australian Bureau of Statistics in carrying out its survey discovered that some people had used addresses at which they were not in fact living. I am referring to people who had registered for employment and who had given a certain address. They were not necessarily getting the unemployment benefit but they were not in fact at the address they had given. It is possible- indeed, it is probable- that some of those people were receiving the unemployed benefit when they should not have been receiving it. That has always been the case since unemployment benefits were introduced.
The survey itself did not establish that. Speaking for myself, I have no doubt that there are some people in Australia who are receiving unemployment benefit to which they are not entitled. We will be prosecuting some of these people in the courts, I think, next week or the week after. I talked to the Minister for Social Security about this matter. It is true that when the Australian Bureau of Statistics survey was undertaken the Director-General of Social Security believed that it would breach the confidentiality of his Department’s work to give the names of people who were in receipt of unemployment benefits for the purpose of matching them against anything that the survey might reveal. I mentioned this to the Minister for Social Security and I am very pleased to say that, typical of that gentleman, he has given immediate instructions to his Department that it must co-operate fully with the Bureau of Statistics in any surveys that it may be undertaking to assist in determining what number of people getting unemployment benefit are not entitled to it.
I have never sought to protect people who are sponging on the rest of the community. I have never sought to protect people who will not work. I have never sought to protect the professionally unemployed person, and neither has the Government. The work shy can please themselves what they do in their own time. I do not care whether they work or not, but if they choose not to work they have no right to expect the rest of us who do work to pay taxes to feed them.
-I rise on a point of order, Mr Speaker. In accordance with the Standing Orders, I ask the Minister for Labor and Immigration to table the paper he has just referred to.
-Order! The Minister has already indicated that it is a confidential document and therefore it cannot be tabled.
– I address a question to the Treasurer. By way of very brief preface, may I remind the honourable gentleman that in February 1972, speaking in this Parliament on the Australian economy, he said:
An Australian Labor Party government will never permit inflation or unemployment to become established in Australia. We have the power to prevent these things. We will use that power.
I ask the honourable gentleman: Does he still hold to that opinion? If so, when may we expect him to pull the switch?
-I do not know whether that statement has been quoted in or out of context. Like everyone in this House, I imagine, three or four years ago I underestimated the difficulty of dealing with inflation and unemployment in present circumstances. Let me admit that frankly, and I should be very glad if some honourable members on the other side of the House would agree with me about it.
– I address my question to the Attorney-General. Has his attention been drawn to secret instructions the Australian Mutual Provident Society is issuing to members of its staff asking them to write to their members of Parliament? Is he aware that the AMP has asked the employees to express in those letters opposition to the establishment of the Australian Police Force? Is this instruction in any way related to any legitimate concern of the insurance industry -
– I rise on a point of order, Mr Speaker. Surely if this question were being asked by somebody on this side of the
House you would have stopped him long ago. The question is out of order.
– I ask the honourable gentleman, if he rises to a point of order, to tell me what the point of order is.
– The question is out of order on the ground that it has nothing to do with the Minister if a company of any description requests its staff members to write to anybody. That has nothing whatsoever to do with the Minister, nor is it his responsibility.
-The Attorney-General is responsible for the administration of Commonwealth law. The question had hardly started when the honourable member raised his point of order. I will determine whether or not the question is in order when I have heard it.
– Is the Attorney-General aware that the AMP has asked employees to express in these letters opposition to the establishment of the Australian Police Force, which is the Attorney-General’s responsibility? Is this instruction in any way related to any legitimate concern of the insurance industry or is it clearly yet another example of the massive political bias against the entire Australian Government program on the part of the source concerned?
-My attention has been drawn to the circular to which the honourable member refers. Indeed, it was the subject, in a different way, of a question asked last week. One wonders what that great corporation, the Australian Mutual Provident Society, is concerned about in the proposal to amalgamate the Australian Capital Territory Police with the Commonwealth Police, the Northern Territory Police and perhaps 50 or so gentlemen who do narcotics work in the Department of Police and Customs. One of the most distasteful aspects of the whole exercise was the request to members of the staff who received the document to write to their member of Parliament, but not on the company letterhead. In other words, the invitation was to deceive members of the Parliament.
Opposition members- Oh!
– I put that to honourable members. It was being put to the staff that honourable members should be deceived; that they should receive letters as though they came with a spontaneity about them which was not the case; that the letters should come without revealing the influence and the source of the influence that led to their being sent. One wonders again what on earth that corporation is concerned about. One sees the list of subjects mentioned- the corporations and securities industry, which I think was the subject of the question last week; a national companies Act; a national compensation Act; and indeed’ the Australian police. They have little in common in many ways. The overwhelming inference that I suggest honourable members would draw is that this is just a net thrown at large over all the recent initiatives of this Government taken over the last few months. The AMP Society invited its employees to write attacking the initiatives, no matter what the subject, and to criticise them as in some way being wrong.
– I rise on a point of order, Mr Speaker. With all due respect, Sir, the question asked I believe was out of order, first of all, because it did not ask for an interpretation -
-If the honourable gentleman makes that assertion I will sit him down. If he takes his point of order I shall listen to him.
- Sir, I have to say this to try to state the point of order. I do not believe that the question asked for an interpretation by the Attorney-General of a legal point. The answer of the Attorney-General supports my contention because he is giving an opinion, not a legal interpretation.
-The only requirement in the Standing Orders in relation to answers to questions is that they must be relevant. I do not believe the question asked for a legal interpretation of anything. I suggest that the AttorneyGeneral -
– It should be noted, Mr Speaker, that the honourable gentleman -
-Order! I suggest that the Attorney-General might wait until I have finished talking before he starts. The AttorneyGeneral should confine himself to the subject matter of the question, which is the Australian Police Force.
-The final question adverted to by the honourable member for Eden-Monaro was: Was it just a blanket attack on Government policies? The answer to that must be yes. But the honourable member for Lyne, who interjects -
-Order! The AttorneyGeneral will resume his seat.
– I ask my question of the Minister for Labor and Immigration. I mention by way of short preface that I bear in mind that the Minister was the chief architect of the wage indexation case; so I thought he might be able to help this
House understand that decision better. Does the decision mean that unions have to go to the Conciliation and Arbitration Commission to obtain indexation and that they must abide by the conditions laid down by the Commission in order to get it? If it does mean that, is it not a great opportunity for the Government to support the decision to the hilt and thereby restore the authority and standing of the Commission in the area of wage determination? If that be so, will the Government take steps to give the Commission that kind of support?
-Yes, the honourable gentleman is quite right. I can say that I am the architect of the wage indexation system of dealing with the wage cost effect upon inflation. After a rather long and lonely crusade I eventually gathered remnants of support from the trade union movement and from others and eventually it became Government policy, and very good policy it was too. The honourable member asked whether unions have to apply. The answer is that they do not. The 3.6 per cent increase for the March quarter will go to all unions and will be applied in full to all wages, regardless of level. The Commission has said that when the figures for the June quarter are known it will apply whatever increase is shown for that quarter to all rates unless some applicant or some person appears before it to give reasons why such increase should not be applied.
The Commission also will decide at the June hearing whether the movement in the June quarter will be applied in full right up the range. Tentatively, it has decided that only the first 2 per cent of the June quarter movement will go to all salary levels and, unless somebody appearing before the Commission in July, when the figures for the June quarter will be known, can give some reason why that principle ought to be altered, that is what the Commission will do. The Commission also has decided that where the movement is less than 1 per cent in any quarter no one will receive any increase but that the amount of increase short of the required 1 per cent will carry over into the following quarter, will be added to whatever movement occurs in that quarter and will be applied on the basis that the Commission will decide in its July hearing.
The Government, of course, supports wage indexation. Given indexation of price movements for wages up to average weekly earningsthat covers people receiving up to about $150 a week- given the annual review on productivity which the Commission has decided shall apply, and given the right at any time to prove anomalies or by work value studies to prove that there has been a change in the nature of the work, an increase will then be granted and provided of course that transitional anomalies are removed after they are proven, we believe that this is the only rational way of organising wages. Workers will be infinitely better off by having their wages increased every quarter to compensate for price movements than by going on strike every second quarter in support of wage demands based upon expectational beliefs as to price movements which usually become selffulfilling.
We believe that, if the unions do not miss this golden opportunity to have wages settled by an orderly process, a scientific means by which no one will receive any less and no one will receive a cent more than the amount he is entitled to receive as a result of price movements, this will make a major contribution towards dealing with the inflationary spiral. Until that is done we will never be able to guarantee full employment, because employment, inflation and wage costs are all interacting one upon the other. If we do not control one, we cannot control the others. If inflation continues to climb to the level it has reached already in Britain or in many of the European Economic Community countries, then it will be impossible for industry to provide full employment. People will not invest money in the form of risk capital when they can get more by putting their money into short term loans. It is as simple as that. Employers do not employ anyone for the sake of providing employment; they employ people for the sake of making profits. That is one of the rules of the game, and while the game is played according to those rules everybody who is in it has to accept the rules as they are.
– For the information of honourable members I present the report of the Committee for the Review of the Tertiary Education Assistance Scheme, dated May 1975.
– Pursuant to section 5 ( 1 ) of the Parliament Act 1 974 1 present documents relating to a proposal for the erection of 4 police guard boxes within the parliamentary zone. On the next day of sitting I propose to give notice of a motion seeking the approval of the House to the proposal under the terms of the Parliament Act 1974.
Bill returned from the Senate with amendments.
– I wish to make a personal explanation.
– Does the Minister claim to have been misrepresented?
– I do, on 2 separate occasions in the ‘Daily Telegraph’ newspaper. On 30 April an article appeared in the ‘Daily Telegraph’ saying:
Doctors banned from Medibank gala opening.
It was claimed that I had issued a directive to the Department of Social Security not to extend invitations to members of the medical profession to attend openings of the Medibank offices in the capital cities. Among other false claims in that article it was claimed that invitations had been sent mistakenly to the South Australian branch of the Australian Medical Association and, because of my hard line directive, the invitation had to be withdrawn. The article also went on to make the silly claim that the openings were to be champagne parties paid for out of the $1.5m of tax money earmarked to promote Medibank.
Having written this completely fictitious article the Sydney ‘Daily Telegraph ‘ of the same date went ahead with a rather vigorous criticism of me for what is termed ‘really arrogant’ behaviour. If there were any truth in the articles I would agree. The facts are that no champagne was provided. However, that is a trivial point. What is important is the mischievous nature of the article. Invitations were extended to the AMA and the Society of General Practitioners as well as to other medical bodies. In fact invitations were sent to medical practitioners in Adelaide and received by them before the article appeared in the Sydney ‘ Daily Telegraph ‘.
I would have been prepared to have allowed the article to go without comment in this House because I had drawn the attention of the newspaper to the misrepresentation and in a very minor way it referred to it in a printed comment. But on 19 May the ‘Daily Telegraph’ contained an editorial headed ‘Dole is too easy’. The completely unwarranted conclusion was expressed as a statement of fact:
It seems incredible that the Government should have been unaware that more than 65 000 people were receiving social security hand-outs to which they were not entitled.
The editorial also said:
The 65 000 or more people who have been obtaining dole money by false pretences must swiftly be weeded out and dealt with as harshly as the law allows.
-Order! The Minister is now going beyond a personal explanation.
-I make the point that it is the administration of my Department, and I am misrepresented because there is no warrant to support this conclusion.
-Order! The point is not valid. The Minister cannot make a personal explanation on a matter of misrepresentation of his Department. He may make a statement by leave.
-I seek leave to make a statement on it.
– Why not? Do you not want this dishonest statement exposed?
-Leave is not granted.
Assent to the following Bills reported:
Social Services Bill 1 975
Repatriation Acts Amendment Bill 1975
Environment Protection (Impact of Proposals) Bill 1975
Tasman Bridge Restoration Bill 1975.
Consideration resumed from 9 April.
-In accordance with the resolution of the House of 15 May 1975, consideration of clauses I to 47 of the Bill will be postponed and a general debate will first take place on clause 48 and any circulated amendments to that clause. The time allowed for the debate is 5 hours. At the conclusion of that time or such earlier time as the debate may conclude I shall put successively questions on the circulated amendments which are capable of being put and also such other questions as are necessary to conclude consideration of the clause. It will not be necessary for honourable members to move the amendments which they have circulated to clause 48.
I take this opportunity to bring 2 other matters to the attention of honourable members. In the first place I should point out that during the consideration of this Bill I shall, as far as possible, propose the question on amendments in the form: ‘That the amendment be agreed to’. I also wish to advise honourable members that at the conclusion of consideration of clause 48 I intend to suggest that it may suit the convenience of the Committee to postpone consideration of clauses 1 to 20 until after consideration of clause 21 which deals with the creation of the Family Court of Australia. My reason for suggesting that course is that a decision on clause 21 will have a bearing on more than 50 consequential amendments to other clauses, a number of which precede clause 21.
In proposed new sub-clause ( 1 ) omit ‘ 12 months’, substitute ‘24 months’. (82aa) (Mr Ellicott)-( Amendment to proposed amendment 82):
In proposed new sub-clause (1) omit all words after ‘based’, substitute ‘on the grounds that-
Omit all words after ‘based’, substitute ‘on the grounds that-
Omit all words after ‘ based ‘, substitute ‘on the grounds that-
having regard to the behaviour of the parties the marriage has in fact broken down irretrievably’.
that the parties separated and thereafter lived separately and apart for a continuous period of not less than 3 months immediately preceding the date of the filing of the application for dissolution of marriage and the parties consent to the making of the decree. ‘.
the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent providing that such ground shall not be available if the parties have lived separately and apart for a continuous period of not less than 1 year.’.
having regard to the behaviour of the parties the marriage has in fact broken down irretrievably. ‘.
having regard to the behaviour of the parties the marriage has in fact broken down irretrievably. ‘.
– It is nearly 6 months since I moved the second reading of the Famiy Law Bill in the House, on 28 November 1974. The debate in Committee commences with clause 48, the core of the legislation. The opposition to the Bill has concentrated on an assault of this clause. In this clause we are not just dealing with time limits but with the underlying concept of the legislation. The whole purpose of the Bill is to enable the law and society to face reality- the reality of a broken marriage and the futility of perpetuating a broken marriage. There is no point in pretending that a marriage which has failed for a year is likely to survive in any meaningful sense or that it is more likely to survive if it has failed for 2 years. Those who want to extend the period of irretrievable breakdown are really saying that a marriage which has failed for 2 years has a better chance of being saved than a marriage which has failed for one year. That seems to me to be not only heartless but also absurd.
Let us keep in mind that marriage is essentially a human relationship between 2 people. It takes 2 people to make a marriage but it takes only one to break it. Idealists might wish that it were otherwise, but it is not. It is time society acknowledged that simple fact. We have no right to condemn 2 people to live together in misery and suffering for a moment longer than necessary. Ultimately the only test of a marriage is whether both parties agree to maintain it. If one party is unwilling to maintain it the marriage has broken down. I do not believe any reasonable person would suggest that 12 months is not sufficient time to prove that a marriage has broken down. The one-year period is favoured by the majority of the members of the Senate Standing Committee on Constitutional and Legal Affairs, by the special committee of the Law Council of Australia and by the Australian Council of Marriage Guidance Associations. In the vast majority of divorces granted in Australia husbands and wives are in agreement about their divorce. About 95 per cent of cases are uncontested, and in about 80 per cent of those cases the parties have agreed on a divorce. I do not believe that society has the right to make their divorces more difficult or protracted. People do not resort to divorce lightly or irresponsibly, they turn to it as a last resort. In such an extremity it is no business of anyone but the parties to determine what course their lives should take or to place unnecessary obstacles in the way of their decisions.
There are excellent provisions in this Bill to encourage reconciliation where reconciliation is still possible. It is difficult to argue that reconciliation is more likely to succeed in the second year of separation than in the first. All the evidence suggests that after a year’s separation there is little chance of reconciliation occurring. If we extend the period of separation to 2 years we are really saying to a couple: ‘You have made your decision, you have made the break, but you have two years to wait’. Faced with such a prospect, couples will be less likely to seek a genuine reconciliation because they know that the difficulties of obtaining a divorce will be doubly formidable if their efforts at reconciliation fail. Those who seek to prolong the period of separation are evading the purpose of the Bill. The separation period is not the cause of the breakdown of the marriage; it is the evidence of the breakdown; it is the result of the breakdown. If we treat it in the same way as the traditional grounds for divorce- cruelty, adultery and the like- if we insist that the grounds must be harder to obtain, we are simply refusing to face reality. We are condemning couples whose marriages have broken down to further hardship and humiliation. Few marriages would be saved from divorce by conceding the longer period. More marriages would end in greater bitterness and unhappiness and, what is worse, some would survive a year or so longer in greater bitterness and unhappiness.
-Mr Chairman, you have ruled that it is not necessary for me to read out the sub-clause which I wish to substitute by way of an amendment to the clause which is now before the attention of the Committee. I would like to explain my philosophy to this Bill and, consequently, to the most important clause of the Bill. I repeat what I said in my speech during the second reading debate on the Bill, namely, that I believe that everyone has the right to happiness and the right to enjoy his life. If that involves the necessary termination of his marriage and the ability to marry someone else who will give him or her the prospects of a better life then, as long as it does not result in the sacrifice of the interests of any other persons, I believe that not only the Government but also the Church authorities should not obstruct or stand in the way of that fulfilment of a happy, successful and, I hope, an enjoyable life in cases where the marriage has broken down irretrievably.
I point out to the Committee one or two basic provisions of the Bill or the philosophy behind the Bill. The first philosophy behind the Bill is that under certain circumstances you should be able to prove that a marriage had irretrievably broken down and that the proof of that should be 12 months separation. It so happens that from the point of view of the churches, the Archbishop of Canterbury’s Commission- that is, the Archbishop of the Church of England in the United Kingdom- said in 1966 that marriage should be dissolved if it has irretrievably broken down. It went further and recommended that in such cases the court should sit like a coroner’s court. That proposition was rejected by the Law Commission in the United Kingdom and it introduced 4 grounds of proof or 4 causes, providing that if they were effectively proved, they would be sufficient grounds on which a divorce decree should be made- adultery, intolerable conduct, desertion for 2 years or separation for 2 years with consent, and irretrievable breakdown.
The clause now before the Committee attempts to say that irretrievable breakdown should be proved if the parties have in fact separated for a period of 12 months and providing the other conditions of clause 48 are proved. I agree with the Prime Minister (Mr Whitlam) that we are looking at a very small percentage of cases. Of the cases that go before the courts, 95 per cent now are not contested. We are therefore looking, at the most, at 5 per cent of the cases. Of that 5 per cent, 60 per cent are on the ground of adultery or of intolerable conduct. Of the various cases of intolerable conduct that now come before the court, most are concerned with adultery or other types of intolerable conduct such as violence. Therefore we are looking at only 40 per cent of 5 per cent. I cannot believe that we would want to reject the most important clause in the Bill because of that very small number of cases. And once separated they seldom return. The other philosophical base of the Bill is to eliminate the concept of fault.
I go a stage further. The point that I intend to convey here is this: We have had the bad practice, I believe, of introducing fictions into British and Australian law to the extent that we follow British law. We say in this clause that the irretrievable breakdown of marriage can be proved by separation for a period of 12 months immediately preceding the date of the application. Irretrievable breakdown is a fiction. The real ground is 12 months separation. I believe that all we ought to prove-give away the fiction- is that there has been 12 months separation. I believe in honesty in the presentation of our case. I believe that we should present the real cause in proper and clear language. Therefore I hope that the Committee, in its wisdom, will ensure that the sole ground should be that the parties have separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application. And not continue to live with the fiction of irretrievable breakdown in an Act of Parliament.
– I will not speak at any great length to the amendment which has been circulated in my name. I rise principally to support the clause in its present form. It provides that there should be 12 months separation as evidence of an irretrievable breakdown of a marriage. I put forward the amendment in my name as introducing an essentially important additional feature of divorce law; and that is that adult people should be given the credit and the dignity of being able to make decisions for themselves. That involves an element of responsibility that has laid deep in our criminal law and in all branches of our law in the past, apart perhaps from the law of divorce. In my view it should find a place in the law of divorce. I say that it applies only if there are no children or if the parties have made proper arrangements for the children. That is an essential requirement which is written into the other requirements as well. Everyone assumes that. So I simply say that if the parties are adult, and they have to be, and if they are responsible, and they have to be, the parties are entitled to say: ‘Our marriage is at an end. It is a matter for us’. The best possible evidence of an irretrievable breakdown is that the parties, as adults, have decided that the marriage is finished. If there are no children to be considered society has little interest in the matter. The matter is one for the parties. The clause provides that 12 months separation is evidence of an irretrievable breakdown. I believe that that is the best way. It is simple, it is honest and it avoids any attempt to bring fault or blameworthiness back into the law. That is the fault with each of the other amendments to clause 48. I say that with great respect to the learned gentlemen who have put them forward- the honourable member for Wannon (Mr Malcolm Fraser), the honourable member for Wentworth (Mr Ellicott) and the honourable member for Lilley (Mr Kevin Cairns)- because each proposition relates to the behaviour of the parties. Reflect on what behaviour of the parties means. One party must say: ‘I want a divorce’. No particulars need be given. The situation will revert to the lengthy petitions of 25, 30 or 50 pages stating why one person says that the other person’s behaviour justifies a divorce. The whole purpose of this reform is to make divorce simple and cheap.
While the clause remains in its present form it is possible for an application form, which takes the name of the old petition, to be perhaps on threequarters of a page. It will set out the simple facts that are relevant. One of the great disadvantages of the present law is that because petitions must set out the particulars of cruelty, say, which relates to the behaviour of the parties, the petitions go for page after page- 25 or 30 pages. Eminent counsel are employed to settle them because they lead to suggestions of provocation, whether there was some background circumstance which led to the behaviour and who was really to blame.
We cannot consider one person’s behaviour except against the backdrop of the other person ‘s behaviour. Is the single act of adultery behaviour which would bring into play this law? With the uncertainty that would result, there would be a far worse situation than under the present law. At least the present law states that adultery is a ground for divorce. Behaviour can mean anything. If in the opinion of my wife I go to the pub too often and she wants to allege that that is behaviour that entitles her to bring the marriage to an end, am I to argue that 4 times a week, not 5 times, is enough? Is that what the courts are to be concerned with? What I put to honourable gentlemen is that once an attempt is made to bring in behaviour, worded however it might be, you bring back fault. You bring in the situation where the parties recriminate against each other. Guilt springs into existence again. It affects employers, neighbours and the children themselves. It affects everything and discolours the whole problem of trying to wind up marriage, where it has to be wound up, with a certain sense of dignity.
– I have certain amendments that will provide 3 grounds for dissolution. Shortly stated they are: First, separation for 24 months; second, genuine consent to dissolution after separation for 12 months; and third, a ground enabling the court to dissolve the marriage where it is satisfied, having regard to the conduct of the parties, that it has broken down irretrievably. This latter ground will not be available where a decree can be granted on one of the earlier 2 grounds or where the only conduct relied on is lack of cohabitation.
We are in the course of redefining the rights and obligations attaching to the most personal and fundamental relationship that can exist between 2 people. They are trite, familiar words but ominously true. The Bill in clause 43 recognises this and commits both Parliament and courts to the preservation of marriage and family. It is essential that in our redefinition we have an ear not only to the fundamental nature of the institution of marriage but also to the needs and demands of a changing society and to basic principles of justice. It is with these in mind that I have drafted my amendments. They have also been drafted having in mind that there has been much difference of opinion in the debates and in an attempt to present a consensus which I hope will find support from a substantial majority of this Committee.
Many honourable members, including the Attorney-General (Mr Enderby), have expressed the view that the present clause is inadequate. I find it so for 2 main reasons. First, it will inevitably lead to injustice to those who are entitled to say that their marriage has broken down irretrievably even though they have not been separated for 12 months or at all. This is a serious intrusion on people’s fundamental rights. Even though these people may be few, the rights of the few are as important as the rights of the many. Second, it is an artificial and arbitrary test to adopt as the sole criterion for measuring the irretrievable breakdown of marriage. It is a dangerous assumption to make that even in the great majority of cases a year’s separation indicates that the marriage has broken down irretrievably. The present clause therefore fails to achieve the fundamental object of the Bill, namely, to support the family. The period of separation which indicates irretrievable breakdown should be longer. These reasons have prompted my amendments.
I have chosen 2 years separation because it is beyond reasonable doubt that a marriage of parties apart for so long has irretrievably broken down. It sustains the institution itself. A large number of honourable members have supported a ground for divorce by consent after 12 months separation. This recognises the fact that a marriage may well have broken down after such a period but requires the consent of the parties to its dissolution. The ground in paragraph (c) of my proposed new sub-clause is to provide for dissolution in cases where parties are still living together or have not been apart for a sufficiently long period, but where nevertheless the marriage has clearly broken down. Parties do not have to wait for 2 years.
Let me make it clear that this ground, contrary to what the Attorney-General has said, does not reintroduce fault. It requires the court to consider the state of the marriage and to decide whether it has broken down irretrievably in fact. Under this ground a party would not necessarily prove the traditional matters such as adultery, cruelty or drunkenness. Under this ground a course of conduct which did not amount to a ground for dissolution under the present law could suffice. The conduct would however have to be serious enough to satisfy the court that the marriage had broken down irretrievably. Under this ground a so-called guilty party could obtain a decree for dissolution as he or she could under the first 2 grounds in my amendment. What the AttorneyGeneral says is a complete exaggeration. It is, therefore, not true to say that it reintroduces fault. Of course, it looks at behaviour. So does the court under other provisions of the Act. This ground will enable justice to be done in appropriate cases. I would add only that opinions have differed greatly on this clause. All seem agreeable to amending the existing law. We have a free vote and we probably represent a true cross section of society. This is one of those rare occasions when we should try to legislate by consensus and produce a law, relating as it does to society’s fabric, that finds favour with a great majority. I would therefore ask those honourable members who have hitherto supported the present clause to see my amendment as an opportunity for us to speak with one voice.
-The members of the Committee may recall that during the second reading stage I indicated to the House that I was minded to introduce an amendment to clause 48 to put it on all fours with the British Act. I tell the Committee with candour that I have been tremendously impressed by the argument that has been pressed upon me by my friend the honourable member for Wentworth (Mr Ellicott) and I have agreed to support his amendment. I believe that his amendment is the essence of sense. I excuse myself from agreeing with the Attorney-General (Mr Enderby) when he says that proposed clause 48 relieves people from all forms of distress. I press upon the honourable gentleman the contrary, that proposed clause 48, as it now stands, could well visit very great anguish and distress upon certain people. May I give the honourable gentleman one simple illustration. I cite the case of a couple who have been married for, say, 12 years and during that time the wife of the marriage has suffered outrage after outrage by dint of intoxication or cruelty. Mr Attorney-General, please do not tell me that that does not happen. There are some brave and magnificent souls, both male and female, who are minded to see things through to the very utmost, but then something happens and the woman says: ‘I can stand this no longer. I feel that I must, for my personal respect and health, obtain relief.
– What about an injunction?
– The honourable gentleman’s only answer to this problem is the injunctive process. If the honourable gentleman accepts the circumstances that I have presented, surely that woman is entitled to secure her relief instanter or virtually instanter. There are many places in this country today where, from the time of the presentation of the petition, assuming that the solicitors will attend to their paper work immediately and will accept process from the various parties, a decree can be given within three or four months. That is a view which has been given to me by judges who practise extensively in this jurisdiction in a number of places throughout Australia. That is the first objection that I have to the proposed clause. The proposed amendment offered by the honourable member for Wentworth would enable people thrust into the circumstance that I have just outlined to say to the court: ‘Please, I need relief. I can stand this no longer’. Regrettably, the Attorney-General has failed to deal with that specific argument. He said words to the effect: ‘What about the injunctive process?’ Why should a person who has been brought to that moment of utter exasperation be then obliged to say: ‘I will submit myself. I will make application for an injunction to restrain the man who has outraged and belted me, who has done unspeakable things to me for a long time’. Those of us who have seen something of the misery of human life in the divorce courts will realise that that is happening all the time. Frankly, I do not think that the proposal, allied with the injunctive process, is sufficient to meet the difficulty that I have outlined.
The other aspect to which I want to refer is that which has been referred to by my friend the honourable member for Wentworth. This society and this Committee of the House of Representatives cannot run away from reality. Fault is a part of real life. Example after example of this is found in the parts of the Bill which deal with custodial proceedings. I venture to say that it is fantasy itself to suggest that any judge attending to the matter of custody will not turn his mind to a consideration as to where fault lay. If some person behaves in an outrageous fashion obviously that person would have slender opportunity of being given the custody of young children, and to the extent that that process is conducted there is a determination as to where fault lies.
-This clause is indeed the central part of the Bill and we need to make up our mind on it. We have several alternatives. For my part I bring the alternatives down to two, the proposal in the Bill and the proposal put forward by the honourable member for Wentworth (Mr Ellicott). The amendment of the honourable member for Wentworth, in the forms of the House, operates as a proposed amendment to an amendment proposed by the right honourable member for Lowe (Mr McMahon). I think that you, Mr Chairman, will be able to clear the way for honourable members to see the 2 proposals as I think they ought to be seen, that is, a choice between the clause as contained in the Bill and the amendment of the honourable member for Wentworth.
Curiously the Attorney-General (Mr Enderby), in putting forward the proposal contained in the Bill, argues that it should be supported on the grounds of its proper liberal approach for the relief of people from a marriage which can no longer subsist in any sense of morality as between the 2 parties. The curiosity is, I think, that the proposal in the Bill is less liberal than the proposal made by the honourable member for Wentworth. The reason why this comes about is that whilst I think the majority of honourable members would propose that there should not be fault finding as a ground for dissolution of marriage nevertheless some element of fault must be established when the sole ground of divorce is that the marriage has broken down irretrievably. If it has broken down irretrievably there must be established circumstances, such as perpetual drunkenness, commitment to prison or adultery, which show that to be the fact. An element of fault is involved in that proposition.
I do not want the process of fault to continue. I should like a single ground but I do not believe that a single ground, as proposed in the Bill, would achieve what the majority of honourable members, I hope, would want to achieve. This can be done only by separating it out as the honourable member for Wentworth has done. He proposes that divorce can be based on the parties living separately and apart and remaining separated for 2 years. Whether the 2 parties have separated and remained apart for 24 months is an objective fact to be shown. If the grounds are shown, a dissolution can be ordered. The honourable member has an additional proposal- that if the parties are irreconcilable and both agree as an objective fact that they have been separated for 12 months the divorce can be granted.
That brings us to the third part of the proposal of the honourable member for Wentworth, which I think is most important. In paragraph (c) of his amendment lies the allegation of fault. A statement of behaviour is required. An application can be brought forthwith, and in those circumstances it will be necessary to show why it has been brought forthwith, that is, that the behaviour of one of the parties demonstrates that the marriage has irretrievably broken down. The important thing is that there is no need to wait before the application is brought. Can anything be more stupid to put to this House than that a marriage must subsist for 1 year or 2 years in order to prove a separation for 1 year or 2 years?
It is a piece of absurdity to suggest that if a man or a woman finds, after marriage, that he or she has married a homosexual and there is total incompatibility, the marriage must subsist for 2 years to prove separation for 2 years in order to dissolve it. If a woman has put up with cruel beatings for 5 or 7 years, must the marriage be sustained for another 2 years or one year in order to bring an application for divorce? It is a piece of absurdity beyond belief that this Parliament could impose such a situation upon people when we are trying to resolve issues of great social consequence, not just in the broad social consequence, but as it applies to each individual living in a relationship such as the closeness of marriage. I believe that the proposed amendment of the honourable member for Wentworth should be supported. It will do 2 things: Firstly, it will provide objective fact for divorce, if it is a separation for 24 months, or not less than 12 months with the consent of both parties, and secondly, and most importantly, it will not commit this Parliament to the absurdity of requiring people to live together in intolerable circumstances merely so that they can prove that they have been separated in marriage for 2 years. Let this -
-Order! The honourable member’s time has expired.
– I am opposed to all the amendments that seek to amend this clause. I think the premise that we should have a Bill that has a no-fault concept is the correct concept. Contrary to what the previous speakers have said, I see it as difficult to apportion the blame in any way to one party or another in many of the cases of divorce. I see that the mechanisms of the law are there, and adequate at present, in the injunction system for the cases which have been mentioned. I cannot see the necessity to change this clause, this simple concept, even by the amendment moved by the right honourable member for Lowe (Mr McMahon) or by the other amendments in total which have been moved. All the first amendment seeks to do is to take out the philosophy of irretrievable breakdown of marriage. I believe it is an important concept. It is a concept in which the magistrate can take into consideration the provisions contained in clause 14 of the Bill. I think the clause should remain in the Bill. I think the clause was adequately canvassed in the Senate. The Senate had the priority on this Bill, as it was introduced first into that House. The Committee of the Whole in the Senate went into the Bill in great detail. Many people who are legal practitioners in that House looked at this Bill and decided to leave this clause in the form in which it is now presented to the House of Representatives. I believe the clause is simplistic. It is the appropriate clause. If the amendments were adopted, one wonders what cases might be brought before a magistrate with regard to the type of behaviour involved. Each honourable member in this chamber appreciates a different type of behaviour as being suitable to dissolve a marriage than maybe would another person.
Some cases have been mentioned, such as the person who is an alcoholic and beats his wife. But the majority of marriages break down because of the interrelationship between people. I believe that the 12 months period is the suitable period in which people may decide their future. It would be interesting to find out precisely what happens in many cases where there is acute behaviour on the part of one of the parties. Very often we find there is reconciliation between the parties, and that this extreme type of behaviour which takes place still means that the parties come back together. This is what the Committee here should be concerned with- trying to reconcile people, to get them back together in their marriage to try to work out their problems with counsellors and to try to overcome the problems that beset them and which make them think that their marriage cannot work. I support the clause in its original form. I think it has been well and truly dealt with in another place and I think that it should stand as it now is.
– I think in fairness to the Committee, I should point out that if no honourable member rises, I am obliged to put the question in each instance.
-I support the amendment moved by the honourable member for Wentworth (Mr Ellicott). It seemed to me that the Prime Minister (Mr Whitlam), the right honourable member for Lowe (Mr McMahon) and the Attorney-General (Mr Enderby) had not really reached the point of this Bill and of this amendment. They all agreed that most divorces were by consent; 80 per cent or more were by consent. For those divorces which are by consent the amendment does preserve the 12-months period of separation; it does not attempt to shorten it. But there are many cases in which divorce is not by consent and in which perhaps it is not more likely that the reconciliation would take place in 24 months than in 12 months, but there is some likelihood of it taking place after 12 months and before 24 months has elapsed. For those cases, there should be some kind of consideration by this House.
The other day I received a pathetic letter from a lady who is known to most members of this House. I will not name her. She has been deserted by her husband, as happens very often when a man becomes infatuated with a younger woman. A period of 12 months has elapsed, but she believes that he could come back to her. She pleads for this extra 12 months. There are many cases like that. Also, we have had the very reasonable point put forward by the honourable member for Moreton (Mr Killen) and the right honourable member for Bruce (Mr Snedden) that the reality of fault is not removed by trying to write it out of the Bill; it comes back into the Bill in clause 75. We do need, I think, to maintain the concept of fault which may in itself be a reason for the preservation of many marriages.
Let me put one point which seems to have escaped the notice of the people who drafted this clause. The honourable member for Moreton and the right honourable member for Bruce spoke of the wrongs of a woman who could not obtain instant relief. What about the possible wrong to the man? In all cases, 12 months is to be waited. What about the case in which the wife has committed adultery? It is well known that the period of gestation for the human female is 9 months. Under this Bill, although a man knew his wife was having a child that was not his, he would be unable to divorce her and he would find under the provisions of this Bill that he would have to adopt as his, as it would be born in his marriage, a child who was not his at all. This is an absurd case. The situation is absurd. No man should be put in that situation at all. I suggest that, for that reason, if for no other, the concept of fault has to be maintained in the Bill so that in this kind of case there could be instant relief. It does not help the child and it does not help the relief of bitterness that a woman should be able to say to a man: ‘This child will be yours in terms of our marriage. You know that it is not yours. But you are going to take the responsibility for it’. This is something which I believe is avoided by the very reasonable amendment put forward by the honourable member for Wentworth, which I support.
-The choice between a period of separation of 24 months and one of 12 months in the end can be only a matter of judgment. The Prime Minister (Mr Whitlam) was quite wrong when he suggested that the only reason for proposing the longer period was the few marriages which might be rescued in the second 12 months. In fact, there is another reason and it is a much more important reason. The law itself must be acceptable not just to the majority of the community but to the vast majority of the community. If it is not, the law will suffer from a backlash that will lead the law into difficulties. To a minor extent, such a situation will reflect upon all law. It is for this reason that, for the time being at least, I believe that we should settle for the longer period. It can be reviewed in some years’ time. Then, if the law is proceeding well, we may well opt for the 12 months period.
I wish to speak to paragraph (c) of the new sub-clause 2 proposed by the honourable member for Wentworth (Mr Ellicott). It reads: having regard to the behaviour of the parties, the marriage has in fact broken down irretrievably.
I concede that I was at first strongly attracted to this proposition. However, when I weigh its benefits against its costs I come down against it. I have no doubt that I would support the proposition if, as has been suggested, a party to the marriage would have to live in intolerable circumstances. However, I do not believe that that is the case. The injunctive powers assure to either party to the marriage relief that is in all circumstances similar to the relief that he or she would obtain from a divorce except that the parties will have the assistance of the guidance provisions of the Bill and that they cannot remarry. The only way in which these injunctive powers might be in any way weaker than a divorce is related to the state of mind of either party, namely that it might be just a little more difficult to enforce an injunction if the party whom the courts have ruled against feels that he has some fundamental right. He may insist on turning up at a household where he has been denied entry. But, in fact, he has no legal right there and can by law be thrown out. He could, of course, turn up at the household after the divorce.
Against this small weight in favour of the granting of immediate relief by divorce we must weigh the fact that we are introducing this ground of fault inevitably, that it will be taken before the courts by people seeking a quicker divorce. However the courts rule, it will not stop people taking forward cases claiming that the other party has acted in an intolerable manner, accusing the other party to the marriage of all and sundry offences. This sort of action could result in the sort of dirty procedures that we have tried to avoid. For that reason, on balance- but strongly on balance- I have come down against reintroducing any ground that refers to behaviour or fault.
-The Bill and the amendments before us basically deal with 3 types of divorce- 3 types of circumstances. I shall not list the 3 categories in order of frequency but in the order in which they appear in the amendment of the honourable member for Wentworth (Mr Ellicott) and my own. Firstly, there is divorce possibly imposed on an innocent party. Secondly, there is divorce by consent where both parties agree that a divorce should take place. Thirdly, there is divorce resulting from intolerable behaviour by the party not wanting the divorce. Let us see how the different amendments deal with those 3 types of cases. Firstly, I refer to the imposition of a divorce on a so-called innocent party by the other party who wants a divorce and has moved out. The Bill proposes that there be 12 months separation and the amendment moved by the honourable member for Wentworth, and supported by some other speakers, proposes that the period should be 24 months. I support the provision of a period of 12 months in that case.
Secondly, there is the question of consent. There is nothing at all in the Bill dealing with the question of consent. We have 3 propositions. We have the proposition advanced by the AttorneyGeneral (Mr Enderby) that divorce can be obtained 3 months after consent is given. We have my proposition that a divorce can be obtained 6 months after consent is given. We have the proposition advanced by the honourable member for Wentworth that a divorce can be obtained 12 months after consent is given.
Thirdly, we have the question of intolerable behaviour by the party who does not want a divorce. If both parties want a divorce they can obtain one under the consent provision, but if one party behaves in an intolerable way- as far as I am concerned, basically that is physical assault- and does not want a divorce, what does the other party do? There is no provision for that in the Bill. The Bill makes the assumption- I consider it to be a middle-class assumption drafted by lawyers- that it is easy for one party to move out where the other party’s behaviour becomes intolerable. I do not think that that is always possible. I am certainly middle-class, but for many years before I became a member of this Parliament I was a medical practitioner in working class areas and I was aware of the sorts of problems which arose where a wife, in most cases, was the so-called innocent party- innocent in the sense that she had been assaulted. I am not saying that she was innocent as far as the breakdown of the marriage was concerned, but she could not get a divorce, and she cannot get a divorce under the proposals in this Bill because the Bill requires separation. Even though the Bill does not necessarily require physical separation, I take it from the way clause 49 is worded it means that if a husband assaults his wife frequently, provided he still enjoys sexual relations with her- or still has sexual relations with her, because the question of enjoyment does not come into it, as has been pointed out by the Minister for Tourism and Recreation (Mr Stewart)she is not entitled to a divorce. In many cases she could not prevent sexual relations from taking place because pure physical force would enforce the husband ‘s insistence.
I believe that the way the Committee feels at present it will reach possibly the sort of compromise proposition that has been advanced by the honourable member for Wentworth. I appeal to the Committee to think deeply about this matter. There is a tendency for people- the so-called trendies- to support the legislation as it has been introduced. There is a risk of doing that sort of thing, saying ‘This is an improvement on the present legislation’, as happened some years ago when the South Australian Government introduced legislation on abortion law reform. In fact the legislation in South Australia is much stricter now than is the legislation in New South Wales or Victoria. Obviously I have not time to go into that now, but those honourable members who know anything about it would be aware that that is a fact.
These are the sorts of arguments that are being used by people who, often, have not read the Bill- certainly by people who have not studied the Bill. We who are prepared to support the civil liberties of the parties and to say that they ought to be able to get a divorce under certain circumstances, do not let us take the risk of making it tougher for parties to get a divorce than is the case at present. Therefore, I appeal to members of the Committee to think carefully about the amendments which have been proposed by the Attorney-General, by the honourable member for Wentworth and, of course, by me.
– Initially I had better apologise to the Committee because I was the culprit who prior to question time circulated the sheets of paper to which reference has been made by honourable members on this side of the chamber. I did not think to intrude on honourable members opposite. I took the view that the National Marriage Council of Australia would be both objective and knowledgeable in these matters, and there are problems with an open vote. If I have caused any offence to honourable members I certainly apologise.
I stated in my speech during the second reading debate that I was attracted to the proposition that divorce can be obtained 12 months after the consent of the parties is given and also that I would be interested in an amendment that would bring up unilateral applications for divorce to the 24-month period. Insofar as that is so, I intend to support the amendments to clause 48 of the honourable member for Wentworth (Mr Ellicott). I find that this is a reasonable attitude to take. I am not quite so sure about sub-clause (c) of his amendments, as the honourable member for Moore (Mr Hyde) stated a few minutes ago. I find several problems involved. First of all, I invite the Committee to look at the problem of collusion in relation to sub-clause (c). I regard it as being a vehicle whereby parties could get together in collusion to the disadvantage of the intent of sub-clause (c).
Let us take an easy example. Maybe one or both parties to a marriage have got themselves otherwise involved with other people. I accept that that would amount to an irretrievable breakdown. But let us say that they want to hasten the divorce proceedings and not wait for the full 12 months of living separately and apart. They might decide in relation to arrangements involving property, money, houses and that sort of general concept that they would make a deal by establishing that the behaviour of one of the parties to the marriage had caused that marriage to break down irretrievably. That situation makes me hesitate to support sub-clause (c). Before I continue on that aspect another matter concerns me and I do not know whether it properly conforms to this clause. The following situation has been put to me in South Australia: What protection is given to a wife living in a house, with another female living in that house, and the husband- how can I put this delicately? servicing the two of them, in a situation in which the wife does not seek a divorce, loves her husband but has a mental blackout on this thing and does not want to recognise that it is so. What protection does she have under the legislation? If the Attorney-General (Mr Enderby) will answer that question later I shall be very pleased to hear him. As long as there is a 12-month or 2-year period in the desertion aspect I think there are difficulties involving that wife who might not want a divorce. Short of taking out an injunction because of the behaviour of the husband, what protection would that wife have under those circumstances? By and large, talking purely to the amendment of the honourable member for Wentworth and because of lack of other arguments to the contrary, I support the first 2 subclauses of the amendment but at this stage my attitude is to treat sub-clause (c) with grave doubt.
-I strongly support and commend to everybody in this chamber the proposition put by the honourable member for Wentworth (Mr Ellicott) in his amendment. He suggested that, as far as possible with legislation of this nature, we should endeavour to arrive at some consensus as to the widely held views of people in the community in relation to what our divorce laws should state. His amendment has within it the closest approach to a consensus view of the central issue in a divorce law, and that is the ground for divorce, which has yet been presented during this debate. There has been a lot of humbug during the debate about the issue of fault. Those who drafted the Bill initially left considerations of conduct and fault out of the Bill entirely. They were obliged to admit that those considerations had to be included when one looked at the welfare and custody of children and appropriate amendments to that effect were made during the course of the Senate’s deliberations on the Bill.
I therefore do not think it is departing from the central element- the main thrust- of this Bill to concede the evidence of some conduct or behaviour and what some people would call’ fault’ in a very small degree when looking at the ground for divorce. I want to emphasise that sub-paragraph (c) of the amendment moved by the honourable member for Wentworth (Mr Ellicott) will permit consideration of conduct and behaviour in a very limited number of cases. The reason why that sub-paragraph has been included is that, if it is not included, a large number of people who presently can obtain divorces quite quickly will have to wait a period of 12 months. In fact, if the amendment of the honourable member for Moore (Mr Hyde) is successful, these people will have to wait a period of 2 years.
I put to honourable members the case- unhappily it is not entirely uncommon- where a marriage is never consummated and parties still endeavour over a period, sometimes of 12 or 18 months, to live together- -cohabitating according to the law- in an attempt to make their marriage work and, after a period of 12 or 18 months, they find that the marriage can never be consummated. Under the existing law- the so-called harsh, repressive, matrimonial causes law- after they have decided the marriage will not work one of the parties can petition immediately for a divorce on the grounds that the marriage has never been consummated. Under the Bill which the Attorney-General (Mr Enderby) has introduced, that person who would have to wait a further period of 12 months. The parties, after having struggled for 18 months in the most distressing circumstances to make their marriage work, would then have to separate physically for a further period of 12 months before a petition could be lodged. Sub-paragraph (c) of the amendment moved by the honourable member for Wentworth has been included to cover categories of cases such as that.
In this regard I commend the remarks of the honourable member for Prospect (Dr Klugman). I thought he made a very proper remark in saying that much of this Bill has been drafted on middle-class assumptions of mobility of partners to a marriage. There is a greater incidence of divorce these days often because people can afford to live separately and apart, whereas a generation ago they could not. Women are more economically independent, therefore they no longer have to tolerate the situations to which the honourable member for Moreton (Mr Killen) referred. Indeed, if the sort of proviso which is inherent in sub-paragraph (c) of the amendment of the honourable member for Wentworth ‘s amendment is not included in this Bill we will, in many respects, be turning the clock back.
This Bill has been hailed by its protagonists as being a step forward- an enlightened piece of legislation to sweep away bitterness, frustration, legalities and technicalities. But in an overadherence to the concept of abolishing fault and the relevance of conduct entirely, greater injustice will be done to some people in the community than is being done at the present time. Above all, legislation of this nature must cater for the spectrum of community views on divorce and marriage. A strong community view exists that marriage is an important institution and that therefore there should be a 2 year proviso which pays respect to that institution. A strong view also exists that when, after a reasonable time parties to a marriage are agreed that their marriage ought to be dissolved, it should be dissolved and that therefore there should be a 12 months proviso where both people want a divorce. A strong view also exists that, in a limited number of special cases, it is intolerable to ask a party to a marriage, be it the man or the woman, to wait even for a period of 12 months before commencing proceedings.
– Honourable members who have spoken during this Committee stage of the Bill seem at have acknowledged that this clause- clause 48- is the core of the Bill. Proponents of this clause have introduced a great deal of emotion into the debate on the clause. On 28 November 1974, in his second reading speech, the Prime Minister (Mr Whitlam) said: . . . to have the marriage dissolved without having to be put to the additional distress of making formal, undignified charges against the other party that that party’s cruelty or adultery or wilful desertion was the cause of the breakdown, and because of it that party deserves to be divorced.
In his speech today the Prime Minister again used such words as ‘hardship’, ‘humiliation’, ‘bitterness’ and ‘unhappiness’, yet admitted that 95 per cent of divorce cases in Australia are uncontested and in approximately 80 per cent of those cases the 2 parties have agreed to a divorce. I ask the Committee: Where is all the humiliation, bitterness and unhappiness under the present law? I suggest that in undefended suits it is the procedure, which it is necessary to go through in seeking a favourable settlement, and the nature of divorce itself which cause the humiliation, bitterness and unhappiness. In undefended cases I do not see that there will be any alteration to that situation if this Bill is passed as it stands.
In defended divorce cases the Family Law Bill will not eliminate humiliation, bitterness and embarrassment even if we accepted the quite unwarranted assumption that under the new dissolution proceedings no such feelings will be suffered by the party who is divorced against his or her will by a spouse whose action or conduct ended cohabitation. It remains certain that if the Family Law Bill is enacted the type of bitter exchanges which evoke such feelings will be merely transferred from the dissolution proceedings to the custody and maintenance proceedings. Clause 48 will not clear up the difficulties of divorce. In foreign affairs language, unilateral declaration of independence is a dirty expression but in the case of families a unilateral declaration of independence can be made under this Bill by either spouse whether either or neither of them is guilty. If in international relations the expression ‘unilateral declaration of independence’ can be considered so dirty, surely that same attitude must apply to a contract of marriage.
In the Committee debate so far and during the second reading debate there has been mention of the great publicity that is given to some divorce cases. Clause 121 authorises the court to restrict the publication of anything that is said and provides the right to prosecute any breach. In the conciliation and counselling provisions- great play has been made of these- the court has no authority to compel a disagreeing party to accept counselling. If one party decides to go to the Family Court to apply for the assistance of the counselling facilities of the Court there is no provision in Part III of the Bill, as I see it, which enables the Court to insist that counselling take place. So I come back to the point that clause 48 is the core, the Achilles heel, of this legislation. In another place more than 190 amendments were accepted, but clause 48 was not amended because the proponents of this Bill disguised its provisions by speaking about the counselling, maintenance and other provisions. The real effect of this law before us is to make divorce easier and I ask honourable members to look at the figures for the United Kingdom and the United States of America where provisions such as those proposed in clause 48 apply.
– I have risen to speak to this clause of the Bill because I gave an indication when I spoke to the motion for the second reading of the Bill that I would move an amendment of my own. I wish to make it clear that in voting on this clause I will be supporting the amendments moved by the honourable member for Wentworth (Mr Ellicott). I am concerned about this clause as it reads and as it is intended to operate for a number of reasons. I wish to make those reasons abundantly clear. Firstly, when one looks at this clause one sees that it deems that a marriage shall be dissolved upon one party to it making an application to a court on the basis that the court is satisfied that both parties have separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for dissolution of the marriage. Coupled with clause 49 (2) it becomes abundantly clear that that can be satisfied notwithstanding the fact that the parties have continued to reside within the same residence or that either party has rendered some household services to the other. I think that the couching of this clause in such wide terms could lead to considerable difficulty being experienced by the court in satisfying itself that the parties have genuinely lived separately and apart, particularly when one looks at the way in which they can live. They can live together continuously in the same residence and can continue to render household services to each other.
I want to mention to the Committee the reasons why I believe that we ought to allow a period of 12 months separation to operate only on the basis that the parties consent. If there is a 24 months provision I believe that there is a possibility in a unilateral situation of some fraudulent approach being taken by the parties by using clause 49 (2) as they might to deceive the court. I believe that that would be evident if we had a single provision which led to a divorce only after a separation of 24 months. That is the reason why I support the lesser period of 12 months with consent. But I support a greater period than 12 months in a unilateral situation largely for the reasons outlined in a very pertinent letter that I received from a constituent. I do not intend to name the woman concerned because she is personally involved. In the letter she has set out 2 reasons why a period of separation of one year is insufficient. She wrote:
What if a husband is on the verge of a breakdown through overwork, business stress, etc. and will not get medical help? Without assistance … all agree it takes longer to recover without help. Certainly longer than the would be statutory one year. The wife is then in a helpless state . . . worrying about his health, finances, their family . . .
She went on as a second point about the little spoken-of subject of male menopause. She wrote:
How can a wife prove this? He can go through excessive bouts of gambling, other women, alcoholism, drenching work, stay away for a year and then divorce his wife. Why? She may be waiting . . . and loving and hoping for this stage to pass. Most times he will come out of it but it takes X number of years. Certainly one year, without help, would not be the average.
She went on to say:
I implore you to work for more than the 92 amendments already made: Some of the above is happening to me and my family.
I think it is clear that we cannot see a situation arising in which a period of 12 months separation will not operate in all circumstances satisfactorily in a unilateral case. Similarly we cannot see a situation arising in which a period of 12 months separation will be sufficient. I go back to the comments I made in my speech on the motion for the second reading of the Bill in which I mentioned- there has been mention of this matter in the debate which has taken place today- the situation in which one of the parties to a marriage is homosexual and the marriage has not been consummated. I believe that it would be unconscionable in a situation in which that is discovered for a party to the marriage not to be able to obtain some immediate relief. There is also the situation in which there have been children to the marriage and a party has stayed in the marriage believing, notwithstanding the substantial cruelty that has occurred, that relief may be sought at a time when the children are independent. I believe that there ought to be another course of action in such a situation in which the party has been unable to get that immediate relief because of the children.
-I wish to support the amendment moved by the honourable member for Wentworth (Mr Ellicott) on the understanding that I will be supporting later the insertion of a new sub-clause which will state:
The Court shall not grant a decree based on paragraph ( 1 ) (c) where the only behaviour relied upon is lack of cohabitation or where on the facts before it the Court could grant a decree based on paragraphs ( 1 ) (a) or (b).
In effect, that means that a decree shall be granted after one year’s irretrievable breakdown of marriage, where no fault is involved, upon consent of both parties. A decree shall be granted after 2 year’s irretrievable breakdown, again where no fault is involved, on the petition of either party. A decree shall be granted on the basis of the behaviour of the parties for any period from zero up to 2 years, provided- this is the important point- that it shall not be granted on the basis of behaviour if a decree is available under either proposed new sub-clause ( 1) (a) or (b), that is, one year’s irretrievable breakdown, where no fault is involved, with the consent of both parties, or 2 year’s irretrievable breakdown, with no fault involved, on the petition of either party.
This means that the question of behaviour applies only in exceptional cases where there is not the opportunity for a decree to be granted under proposed new sub-clause (1) (a) or (b) because of exceptional circumstances that enter into it. When I spoke in the debate on the second reading of the Bill I mentioned that whilst personally supporting the second reading of the Bill I supported something along the lines that a divorce could be obtained in such cases as, for example, when the partners had been separated for less than a period of one year, where the marriage had not been consummated or where there was a genuine desire on the part of the partners that a child be born in wedlock. The period of less than 12 months would take account of the 9 months gestation period in respect of which there is no provision in the legislation before the House at present.
I support such a proposal on the grounds that divorce should not be made so easy that couples enter into marriage without a realisation that it is a contract which cannot easily be broken. If the contract of marriage is made too easy to break I do not believe enough consideration will be given to the entering into of that particular contract. For example, I believe that sometimes it is too easy to get married. When it becomes too easy to get married people adopt the attitude that the marriage contract can be easily broken.
For those reasons, I support the amendment moved by the honourable member for Wentworth on the understanding that in the event of it being successful a proposed new clause will be inserted which will state:
The Court shall not grant a decree based on paragraph ( 1 ) (c) where the only behaviour relied upon is lack of cohabitation or where on the facts before it the Court could grant a decree based on paragraphs ( 1) (a) or (b).
I think this is a reasonable proposition. It removes the aspect of fault, which I believe should be removed wherever possible. I believe it should be removed because it is a far more humane approach to the problems of people whom we all have to represent.
– I rise on a point of order, Mr Chairman. In a private conversation with you a moment ago you indicated to me- and I should like you to indicate the same to the Committeewhat the procedure will be. Apparently the amendment moved by the honourable member for Wentworth (Mr Ellicott) has now become an amendment to the amendment moved by the right honourable member for Lowe (Mr McMahon). If that amendment were carried, then no further amendments could be moved unless special leave of the House were obtained. My amendment is obviously an amendment to that moved by the honourable member for Wentworth. It appears that if the so called Ellicott amendment is earned then my amendment just will not hit the deck, unless I obtain special leave from the House to move it as an alternative amendment. Apparently the same thing would happen with the amendment proposed by the honourable member for Chifley (Mr Armitage). The Clerk of the House has advised me that it is now too late to circulate an amendment.
– No, that is not so. Perhaps I can take some of those questions in order. In the first place, circulated amendment No. 85 submitted by the honourable member for Wentworth -
– I rise on a point of order, Mr Chairman. I have reason to believe that the House passed an amendment to the Standing Orders. During the debate on the motion to amend the Standing Orders there was an opportunity for these questions to be raised. Prior to the commencement of this Committee stage you made a statement, Mr Chairman, about the procedure that should be followed. I have no objection to your answering the questions raised by the honourable member for Prospect, but I do submit very sincerely that you are out of order.
– I cannot uphold that point of order. Nothing that was agreed to in the House stage of the debate has any bearing on the order in which proposed amendments or subamendments will be put. As I understand it, that is the basis of the question put by the honourable member for Prospect. I was pointing out to him that although he referred to the original proposed amendment of the honourable member for Wentworth becoming a proposed amendment in another place, that did not in fact occur. The Committee now has 2 proposed amendments from the honourable member for Wentworth- one listed as No. 85, and the other listed as No. 82aa which has been circulated separately and has been drafted to operate on circulated amendment No. 82 submitted by the right honourable member for Lowe. There is nothing to prevent any other honourable member from circulating amendments worded in a similar way. The caution given by the Clerk to the honourable member for Prospect was not meant to imply that that was not permitted but that there could be a question of time running out if the debate did not carry on long enough to allow the mechanical procedures for circulation to be met.
-I feel that everybody should have an opportunity to express an opinion on this matter and I will express my opinion very sharply and shortly by saying that I disagree entirely with the amendment moved by the honourable member for Wentworth (Mr Ellicott) and I agree entirely with the Bill. The amendment moved by the honourable member for Wentworth seems to me to make the worst of every possible consideration to be examined. I speak as one who put through the existing Matrimonial Causes Act some years ago in the Senate. Paragraph (b) of the amendment contains these words: the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months . . .
In regard to 90 per cent or 85 per cent of people, this is a retrograde step- one which the BUI takes but, having taken it, the Bill then stops. It is a retrograde step because now many divorces are taking place within that period of i2 months. But we are asked to require a period of separation of 12 months. The existing law provides- I think the honourable member for Lang (Mr Stewart) referred to this- a great number of grounds for divorce, including cruelty, adultery and incessant intoxication. None of these grounds exists under the BUI as it is at the moment. Whether or not these things can be examined in a family court, they cannot be brought forward as a reason for divorce, and therefore that is better. But, after making it worse for 85 per cent, sub-paragraph (a) of the amendment proposes that a divorce shall not be granted unless the parties separated and lived apart for a continuous period of not less than 24 months- 2 years. The clear intention of this is to reduce the present period of 5 years separation, where one party does not agree to the divorce, to one of 2 years. What we are giving up in return for that is that the parties cannot be divorced unless they have been married for one year. So it seems to me, as it seemed to the Senate which examined this matter, that it is simpler to say- it is not ideal, but it is simpler- that all marriages can be dissolved at the request of one party after 12 months living apart and to leave it at that. That is the position for which I propose to vote.
– I shall take up a couple of points raised by the right honourable member for Higgins (Mr Gorton). At one stage he seemed to contradict his own logic. He said that most divorces take place within a 12-month period. Indeed they do. I think the strength of the amendment circulated by the honourable member for Wentworth (Mr Ellicott) is that the court is obliged to consider the behaviour of the parties in camera. Under the amendment one party or the other may choose, for a number of reasons- drunkenness, cruelty, incest or whatever- to lodge a petition within the 12 months. They can do that under the amendment circulated by the honourable member for Wentworth. It seems that they cannot do that under the BUI at present, and that is a weakness. I could not understand why the right honourable member for Higgins supported one aspect and not the other. The amendment circulated by the honourable member for Wentworth has a number of advantages, for the reason I have just outlined and also because it makes a divorce available upon the consent of both parties after they have lived separately and apart for 12 months and it allows divorce on the application of one party after the parties have lived separately and apart for 2 years, but in unusual and perhaps pressing circumstances a divorce would be available under subparagraph (c) of the amendment, in which case the court can consider the behaviour of the parties in camera.
I think it is worth reiterating the point made by the mover of the amendment, namely, that the court in fact would be considering behaviour and not apportioning blame. I think the reason why he did not mention the specific grounds which are present in the existing law is that he wanted to have the court in a position where it was not considering the question of fault on the old grounds. In fact a judge will look at the state of the marriage and will not apportion blame. He will do it in camera and not in public. Therefore it seems to me that a genuine safeguard is built into the situation by which we preserve the best of the existing law. It is no good throwing out the baby with the bath water. We should not slavishly follow the Bill which has been given to us and allow divorce on the basis of 12 months separation as the only ground for divorce and throw out all the safeguards of the existing law which allow divorce in less than the 12-month period or beyond it. I think the amendment preserves the best aspects of the law, yet takes away the fault concept. The court needs to look at the state of the marriage rather than to apportion blame or fault. As the proposer of the amendment has pointed out, the so-called guilty party who petitioned a court for a divorce could be granted a divorce on the basis of the state of the marriage although the state of marriage may be due to solely to that party’s behaviour. So I believe that the amendment is a good compromise. Not only is it a compromise but it is superior to the proposition encompassed in clause 48 of the Bill because under that clause during a period of less than 12 months a party to a marriage has no recourse other than to go to a court perhaps to get an injunction against the behaviour of the other party. But injunction proceedings are not held in camera; they are in public In such cases the behaviour of the parties must be taken into account. Obviously a person cannot seek an injunction to restrain the other party if that person cannot talk about the other party’s behaviour, so behaviour is raised in injunction proceedings.
Behaviour or fault is talked about in custody cases. As most marriages are marriages with children behaviour needs to be considered in determining which person is to be awarded custody of the child. So in injunction cases and in custody cases the court considers behaviour. Under the amendment of the honourable member for Wentworth there is a period of 12 months for consent divorce and a period of 2 years separation when the application for a divorce is made by one party, but there is the overriding behavioural aspect which applies only in extenuating circumstances. The honourable member has built into his amendment a check and balance to provide that the behavioural aspect of the clause cannot be used in cases in which the other 2 provisions are applicable. It seems to me that this is a sensible compromise and a sensible proposition, and I think it ought to be carried by the Committee.
-I would strongly oppose the amendment and support the Bill. Might I say at the outset that I have always been opposed to any groups of people in a community who try to impose their will and wishes on to everybody else whether they be religious persuasions, or social or political convictions. This has not to my knowledge happened in respect of this matter, although some of the representations that I have received from both sides of this subject have smacked of that objective. This Bill does not make it compulsory for those people who cannot get on together in marriage to have a divorce. What it does do is to facilitate 2 people separating within the law when they find they cannot live together or do not wish to live together or have come to a decision to separate legally.
In social questions I am motivated a good deal by the teachings of the old liberals, and I am reminded of a great liberal- one of the early ones- who said that the only time the state is justified in interfering in human behaviour is when the actions of a person can damage others. In this respect when one looks at the institution of marriage one is in a dilemma. It could be argued that the action of 2 people who decide to dissolve their marriage at will is not hurting the rest of society and therefore we as parliamentarians have no right to intrude into that contract of marriage and we should let them go ahead. But we must consider the proposition that our whole society is built upon the fabric of marriage. It is an institution on which our society as a Western society is built and we must not forget that a product of marriage is children who are human beings and who can be hurt by the irresponsible behaviour on the part of parents. Therefore there is justification for us coming into this matter. If marriage could be dissolved at will in the way it is in some countries according to some religions by pointing a finger two or three ways or nodding a head two or three times I believe that our society would be poorer because of the way in which we live.
In Western style democracies where a feeling of so-called romantic love is normally the only motivating force that leads to a contract of marriage, unlike Eastern countries and philosophies, and where the wishes, advice and even the dictates of the parents are not only ignored but deplored, situations may arise in which 2 people find after the so-called romantic love attraction has worn off that the union is anathema to both of them. I believe that those 2 people are entitled to make a decision to break that contract, but it has to be done responsibly, with the minimum of hurt to society and to children. Therefore, as I think the honourable member for Moore (Mr Hyde) said early in the debate, it is a question of judgment. My judgment leads me to vote against the amendment of the Attorney-General (Mr Enderby) which would provide that, if there is mutual consent, the marriage may be dissolved after 3 months separation. I think that that would lead to irresponsibility. My judgment leads me to oppose the amendment of” the honourable member for Prospect (Dr Klugman) for divorce by consent after 6 months separation.
I come now to what is contained in the Bill. I am opposed vigorously to the kind of philosophy behind the amendment of the honourable member for Wentworth (Mr Ellicott)-that is, the reintroduction of fault. Nothing could drag us back more surely to the dark ages, to bitterness, acrimony and the worst things in human behaviour between a man and a woman who are married than the reintroduction of fault. I suggest that honourable members look at clause 114 which provides for wounded parties, in the circumstances which the honourable member for Wentworth described, to seek some justice. May I remind the Committee that under his amendment, even if a husband is bashing his wife there is no provision for the wife to leave her husband. While the petition is being lodged she continues to live with him and continues to be bashed. Such an amendment brings back the worst of all the old legislation and does not really improve anything. Therefore I am opposed to the amendment.
-It is a trite saying that you cannot make a silk purse out of a sow’s ear, and it would be exceedingly difficult to make a good law out of the present bad law and almost impossible to make a good law out of the Bill at present before the Committee and introduced by the Attorney-General (Mr Enderby). I believe that with the machinery of government, the machinery of consideration of law, however fine and useful the Committee system has been it is almost an impossible task to draft a law in this fashion which will meet all the needs and requirements of our people. The correct course would have been to have a commission of inquiry so that people responsible in matrimonial and child care matters could prepare the framework of a law for the consideration of Parliament. Numerous amendments are before the Committee for consideration. One vote may well decide all the amendments, including the proposal of the Attorney-General himself. All of these matters could be disposed of by one decision.
I personally believe that marriage is a permanent, mutual, contracted union. It is a Christian philosophy and belief that marriage is permanent, mutual and binding. Yet we have heard speaker after speaker in this Committee debate putting forward the view that if one person deserts another that is a reasonable way to end a marriage. Would the same honourable members be prepared to say that any other form of contractwhether it be for the purchase of a block of land, a home or a motor car, or an industrial agreement- could be ended by one person saying: ‘I will not have anything to do with it in the future ‘? Yet we have heard speaker after speaker saying that 2 people cannot live together. In the Bill before us it is not a question of 2 people not agreeing to live together. It is a question of one deserting the other and bringing about a state of affairs in which a divorce will be decided by the court because there is no alternative. The honourable member for Hotham (Mr Chipp) made this point without any reason for it does not meet the circumstances in any way.
The right honourable member for Higgins (Mr Gorton) talked about the simpler way of doing things- living apart for a period of 12 months. Is the mere living apart for 12 months enough? For my part, it is not enough. While I am called upon here today to make a decision on what there should be and what there should not be- the type of law that we should have in the future- I will say quite frankly that the present law is not good enough, that the law proposed by the Attorney-General is less favourable than the existing law, and that if I have to make a judgment I must come down on the side of supporting the amendment of the honourable member for Wentworth (Mr Ellicott) because it tries in some way to meet the requirements of 3 categories of people. It meets the requirements of those who agree that they should divorce and by consent they live separately and apart for a period of 12 months; it meets the requirements of those who are still contesting the issue and for whom, under this amendment, the period before which the divorce will be granted is 24 months, and it also meets the requirements of those who might go to a court concerning a matter of conduct or blame in which cases a lesser period is stipulated.
For those reasons I support the amendment of the honourable member for Wentworth for I believe that at this time it represents the only possible hope of retrieving something from this unfortunate situation brought about by the proposal presently before the Committee.
-The amendment of the honourable member for Wentworth (Mr Ellicott) is very similar to two other amendments which have been proposed, one by the honourable member for Wannon (Mr Malcolm Fraser) and one by myself. I will be supporting the amendment of the honourable, member for Wentworth for obvious and very cogent reasons. I am also attracted to his additional proposed amendment which indicates that if a decree is not granted by the court upon the ground of consent, separation or the conduct of the marriage it shall not be granted otherwise. I suggest that some cruel injustices will creep in under the present proposal if it is passed. I will merely indicate them.
It has been said that the only time the State should intervene in matters as between persons is when the behaviour of one damages others. In a marriage situation we are concerned as between a fair go and a sense of justice between the 2 partners to a marriage. Unless grounds exist which enable a marriage to be terminated as quickly as possible the greatest cruelty and the greatest injustice could be wreaked upon what would otherwise be the innocent party. Some of these have been mentioned by the honourable member for Wentworth, by the honourable member for Moreton and by other speakers in the debate this afternoon. Those circumstances will exist whether the marriage has existed for a short time or whether it has existed for a long time. No honourable member can gainsay and put aside that proposition in all cases in which grounds exist for a quick divorce, whether those grounds be based on behaviour, fault, incest, cruelty or failure to consummate. If we do not allow a ground which will allow for instant divorce or an immediate filing of proceedings, we are saying to the innocent party on every occasion: ‘You can serve out time. You serve out your 12 months or your 24 months’. If one has a finely developed sense of justice and a developed sense of fair play as between 2 partners, can one ignore that situation? Ought we to ignore that situation? I believe that we ought not to ignore it. We ought to be willing and game to make a decision.
It is nonsense in the circumstances that I have nominated to say that the parties to a divorce can engage in a number of injunctive procedures. A party cannot engage in an injunctive procedure without providing evidence as to fault or as to wrong doing. The process involves that, and those who are skilled in the law tell me- I understand it is correct- that an injunctive procedure can be one of the most expensive procedures that exists within the law. What is being said then in relation to all of these cases where there is an innocent party, whether the marriage has been a short one or a long one and whether there are many children or no children, is this: ‘We will commit you to injunctive procedures which are complicated, which are tenuous and which can be very expensive’. Is that a fair summary? Is that a fair judgment of what can be regarded as being in a fair go for the partners in a marriage? I believe it is not. When the proposition is put around this country that a quick divorce will no longer be available under the proposals of this Bill and that those who are otherwise the innocent parties will be condemned to serve out time, it is appropriate for this Parliament to say: ‘We will intervene in that situation and preserve the rights of what may be an innocent party’. One cannot just ignore the proposition.
Earlier in the debate I gave the example of a woman who could be in a position where her husband desires to separate from her and, under the cohabitation procedures contained in the Bill, with which I agree, where she could be expecting a child in four or five months’ time but the computer says that the marriage is over. Does that constitute a sense of fair play? Is that a fair sense of justice? I believe that the crucial elements in the amendment proposed by the honourable member for Wentworth desire to be supported. They desire to be supported because they are balanced and because they take account of most situations which will arise under reasonable circumstances where the dissolution of the marriage is an important procedure that ought not to be entered into lightly or lightheartedly.
– The amendment which has been circulated in my name meets, I believe, with the majority viewpoint of this Committee. Many people in the Parliament believe that the 12 months separation period is wrong and many people in the Parliament believe that it should be extended to 24 months when only one partner to the marriage is seeking divorce. That is a fairly common view in this chamber and it is a view which is contrary to that expressed in the provisions of the Bill as it now stands. But there are members of the Parliament who are totally opposed to the reintroduction of the blame concept. If ever it was to be confirmed in my mind that the amendment standing in my name is correct, it was after listening to the remarks of the honourable member for Lilley (Mr Kevin Cairns) who preceded me in the debate and who claimed that sub-clause (c) of his amendment was very much like that moved by the honourable member for Wentworth (Mr Ellicott). I do not intend to resort to personalities but those honourable members who are proposing the amendments which the honourable member for Lilley acclaimed and embraced are the people who constituted that one-third of the members of this House who did everything they could to block the passage of the Bill a few weeks ago.
– On a point of order, Mr Chairman, I would ask that that statement be withdrawn. It was -
-Order! The Minister cannot make a request of that nature. There has been no personal reflection. That is the only basis on which such a request can be made.
-Even if it does not apply to the Minister - =
– I suggest that he does not make accusations like that.
– Order! I ask the Minister for Tourism and Recreation to resume his seat. I call the honourable member for Griffith.
– Thank you, Mr Chairman. This is a very emotional subject for some. As I said at the outset, there are many honourable members who believe that portion of the amendment moved by the honourable member for Wentworth deserves acceptance but, as the procedures of the Parliament dictate, we must accept all of his amendment or none of it. I believe that the proposition he is advocating in an effort to increase from 12 months to 24 months the period of separation necessary when only one partner to the marriage wants a divorce is very good. It would be a pity to lose that improvement through the continuation of the blame concept.
I believe that I speak for the vast majority of Australians when I say that they want to see an end to blame. The honourable member for Lilley, the honourable member for Wentworth, the honourable member for Bennelong (Mr Howard), the honourable member for
Macquarie (Mr Luchetti), the honourable member for Blaxland (Mr Keating), the honourable member for Moreton (Mr Killen) and the honourable member for Mackellar (Mr Wentworth) want to see the continuation of the blame concept. They are going to great lengths to have it continued. They argue the ground of a woman or a man who has acquired a partner who has developed or who possesses homosexual tendencies is required to continue that marriage for at least a year. Other speakers have pointed out that clause 1 14, the injunction clause, gives the type of protection which is necessary to see out the 12 months if the partner say: ‘O.K., it will not work. We will obtain a divorce ‘. The other partner may say: ‘There is no divorce until the law forces it upon us. You take me as I am ‘.
I believe that this amendment is the amendment to settle the problems. I challenge the earlier comments of the honourable member for Blaxland that the amendment of the honourable member for Wentworth was a good compromise. Surely, in a Bill of this nature, we should not be simply seeking a compromise so that both sides have honour. What we are doing today will determine the life style and life pattern of people for years to come. It is a vital issue. I reject the concept of a compromise.
-I support the amendment of the honourable member for Wentworth (Mr Ellicott). I do so because, like my friend the honourable member for Griffith (Mr Donald Cameron), who has just resumed his seat, and like 95 per cent of Australians- that is the figure which he gave, but I would say the figure is higher than that- I would like to see the concept of fault in divorce proceedings eliminated. I stressed that in my speech during the second reading debate. I said that is an admirable and humane objective and is greatly to be desired. I urge members to accept the viewpoint that the amendment of the honourable member for Wentworth seeks to do that so far as it can be done consistent with the requirements of justice.
Other honourable members have instanced cases in which there are grounds for immediate relief. Also there are cases in which it is not feasible or practicable to separate. I refer, as one instance, to the circumstance raised by the honourable member for Prospect (Dr Klugman). So in this legislation there must a ground for divorce other than separation; hence proposed sub-clause (c) in the amendment of the honourable member for Wentworth.
It is in any case concerned with behaviour, as the honourable member for Blaxland (Mr Keating) pointed out, and not with apportioning fault. In this connection I would add that it is not justice that the position of a woman who is, say, being subjected to constant beating and who has come to the point of seeking relief, can be ‘settled’ by an injunction under clause 114 of the Bill, and yet not by the granting of a dissolution of marriage. It is not justice to assert that an appeal to section 114 will satisfy this matter. Given proposed new paragraphs (a) and (b) of the amendment, the seeking of divorce under proposed new paragraph (c) would be resorted to much less than is now the case. I am sure that the incidence of undesirable fraudulent practice in divorce proceedings would be reduced, hopefully to a negligible level.
I commend the 3-part amendment. The first part relates to the 24 months separation where divorce is sought on a unilateral basis. I commend it because in the absence of consent by both parties there is that much extra time, you might say in some cases incentive, to achieve reconciliation and sustain the marriage. The 2 year period, as a matter of judgment, gives proper respect to the institution of marriage, as I believe the majority of Australian people would require and as clause 43 of the Bill requires. The amendment also provides in paragraph (b) for divorce after one year if there is mutual consent. That is obviously something desired by a large number of members of this Parliament. I have already put the case for proposed new paragraph (c). I urge honourable members to accept this tripartite amendment, not as a compromise, but as a constructive approach to a very difficult problem. When the Ml is passed by this Parliament, as I hope it will be, I believe we will have the most advanced legislation in the world in the field of marriage and divorce.
– I rise to support the amendment moved by the honourable member for Wentworth (Mr Ellicott). Some of the arguments I support have been put already by other honourable members, including the honourable member for Berowra (Dr Edwards), who spoke last. A fundamental point that must be considered is that the Bill must give justice to all. I submit that if proposed new paragraph (c) is deleted we will debar some members of the community from justice. It was pointed out in the second reading speech that when alterations are made to most Acts of Parliament existing rights are maintained. I think that is the core of paragraph (c). Under the Bill the right to obtain a divorce immediately will be removed if paragraph (c) is deleted. Unfortunately there are certain circumstances, though not in the majority of cases, where immediate divorce is desirable and almost necessary to safeguard the rights or even the lives of people concerned, if you like to take it to that extreme. As I see it, paragraph (c) is an important part of the Bill.
The other 2 parts of the amendment are, as has been mentioned, a matter of judgment. They relate to the time which should elapse before a divorce is granted. In legislation passed by other parliaments-for example in the United Kingdomthere has been a much wider difference in time between the situation in which parties agree to a divorce and the situation in which there is no agreement between the parties. I believe that principle too should be upheld. Surely it is reasonable that people who are entering the institution of marriage must have some respect for the rights of the other party. If they can come to an agreement that there has been an irretrievable breakdown of marriage, the proposed amendment allows for a divorce after a separation of 12 months. But its intent is to protect the rights of the party who is not agreeable to a divorce and who may quite reasonably believe that the passage of time could bring about a reconciliation of the parties. Whilst some people might argue against the likelihood of that happening, I believe that the important point is that there should be justice for all. I believe it would be reasonable to allow the other party of that marriage that extra opportunity.
If we do not allow a reasonable opportunity to parties to a marriage who are not satisfied that there has been an irretrievable breakdown of marriage, surely it is reasonable to give them time over and above that which will be allowed to parties who have come to an agreement that there is an irretrievable breakdown of marriage. We ask only that the 2 people engaged in a marriage contract who have undertaken to try to preserve that marriage contract should be given at least the most reasonable opportunity to preserve that marriage. The Bill states that the desire is to maintain marriage. I believe that the proposed amendment sets out what the great majority of the people in Australia would like to see- a responsible and reasonable approach to divorce with justice for all.
-One of the features of the original Bill which appealed to me was the elimination of fault, not only because of the bitterness which is engendered by fault being brought into a divorce but also because of the publicity and embarrassment which comes with it. However, I did feel that the period of 12 months separation, as contained in the original Bill, was too short. I think all honourable members agree that it is a matter of j judgment whether it should be 12 months or 24 months. I agree with the amendment of the honourable member for Wentworth (Mr Ellicott) which provides for 24 months separation, and 12 months separation when there is mutual consent. I was concerned, and I am still concerned, that paragraph (c) of that amendment will reintroduce fault. I believe the honourable member for Griffith (Mr Donald Cameron) also pointed out this matter when he spoke. I think there should be a clause which, without involving an injunction, allows people who, between one day and 12 months, find that due perhaps to bashings or to some other reason they cannot continue living together to petition for divorce.
Paragraph (c) of the amendment of the honourable member for Wentworth makes provision for this situation. Therefore, I feel that it would be right and proper if it were retained in the amendment even though I do not like the reintroduction of fault into the Bill. I am assured that the proposed provision will operate in a small minority of cases only and I am also assured that the hearings of these cases will be in camera. As the hearings will be in a closed hearing, the publicity and most of the embarrassment that could result from fault being proven, will be eliminated. I support the amendment of the honourable member for Wentworth and will vote accordingly.
– I believe that the amendment moved by the honourable member for Wentworth (Mr Ellicott) is a rather cynical effort to undermine the whole bill and to bring us back to the situation we were in before. I hope that the majority of honourable members will not fall for it. Members of the House who, at the second reading stage of the Bill, were requiring the permanent upholding of marriage in the interests of what they believe community standards ought to be are now crying tears of blood about how there ought to be instant grounds for divorce if somebody finds himself in an intolerable situation. If this amendment is passed we will be back to the situation of a 24 months waiting period- a period which is quite unnecessary and quite intolerable for most people- with 2 letouts. One let-out deals with consent and would enable the waiting time to be reduced from 24 months to 12 months; the other gives virtual instant divorce on grounds of fault.
What would happen in the case of consent? If somebody agrees to consent, the period of separation required can be reduced from 24 months to 12 months. It is likely that the consent will be given, but it is usually given with conditions. Honourable members may want to know by whom the consent is given. The deserted party in a marriage usually would consent if it were just a question of ending the marriage, because very rarely does the deserted party want to preserve the marriage anyway; the argument is all about the settlement of property, custody and maintenance, and the question of consent could be introduced only as a bogus factor. The deserted party might say: ‘I will agree to consent, provided of course that I get all the house, all the property, and that the maintenance conditions are subject to my vetting and are completely satisfactory to me ‘; in other words, intimidation and arm twisting. Therefore, consent as a condition for shortening the period of separation would, I believe, be completely unsatisfactory. In fact, I would say that the condition of consent always applies if people really are concerned only as to whether the marriage should be dissolved or not. The deserted party, in actual practice- except possibly in the most rare of rare cases- does not really desire to preserve the marriage.
I refer now to the question of fault. We are asked to reintroduce the whole question of fault because people can find themselves in an intolerable situation. Clause 1 14 of the Bill provides that an injunction can be obtained for relief from an intolerable situation- perhaps when somebody is married to a wife-beater, when somebody brings his mistress home and puts his wife into the spare room, or something like that. If we pass the Bill in its original form this fault provision will not be introduced as a phoney ground for divorce. What worries me is that if the period of 2 years were agreed to it would be such an intolerably long time that people would look around for an escape clause; they would drum up phoney conditions, such as the consent one or the fault one, and we would be back to the situation of perjury, conspiracy or all sorts of phoney things which would be used to get around this intolerable waiting period of 2 years. This is not reasonable. I am waiting for somebody to give examples to show that 12 months separation is not enough to establish that a marriage has irretrievably broken down, and that 2 years is. I know that the honourable member for Parramatta (Mr Ruddock) mentioned one case. Perhaps that is one hypothetical case. But should we penalise 99.9 per cent of people just because of the 0.1 per cent of people who might be the exception to the rule? I believe that if we pass this amendment we will be back to an intolerable situation. I hope that the Committee will throw it right out.
– I wish to give my support to the amendment proposed by the honourable member for Wentworth (Mr Ellicott) because I feel that it will enable parties whose marriage has broken down to use the law in the way which is best suited to their own particular circumstances. It introduces an element of fairness and reasonableness into this difficult area of human affairs. We ought not to forget that what the Family Law Act will do, as the Matrimonial Causes Act which the Bill intends to replace already does, is establish the legal rights of parties to a marriage upon the dissolution of that marriage. The law must also establish the grounds upon which those new legal rights are to be created. It comes down very largely to a matter of judgment in the conduct of human affairs as to whether the breakdown of a marriage is to be shown by the objective test of 12 months separation or by some other ground.
One thing that we have found as a common thread running throughout this whole debate is that society, as it is reflected in this House and as it is outside this House, believes that divorce today should be based upon the breakdown of the marriage. So it does become a judgment of what the law should recognise as evidence of that breakdown. I do not think that 12 months separation alone can be said in all circumstances to amount to proof of irretrievable breakdown of marriage; nor do I think that in all circumstances that would be fair to the parties whose marriage has broken down. I think particularly of the innocent husband or wife who, at the whim of the other spouse, finds that the marriage is put at an end and, at the whim of that other spouse, the innocent party’s legal rights can be broken. It is said that that person’s rights are protected by other provisions of the Act. Nevertheless we must turn all the time to this central provision.
What I feel has happened amongst the protagonists for the provision for 12 months separation is that in their pursuit of the admirable goals of simplicity and cheapness of removing wrangling and legal complexity from divorce they have denied to persons what ought to be regarded as some of their fundamental personal rights. They have denied also the reality of life- that marriage breakdown is brought about by the behaviour of the parties to the marriage. The law must recognise the realities of life. It cannot hide itself away in language which says that a marriage shall be dissolved if, and only if, there has been an irretrievable breakdown of the marriage and that can be established if, and only if, there has been a 12 months separation. That is, as has been pointed out in the second reading debate, a legal and social fiction.
Many of the protagonists for a 12 months separation period have turned to the injunction provisions. They have said that the provisions give to an innocent party all the protection required. If, as the injunction provisions say, that that is available for the personal protection of a party to the marriage or for the protection of the marital relationship, then I say to those persons: ‘Why ought not the law give to the innocent party the ultimate protection which the law can give? That is, the dissolution of the marriage when the party who is hurt wants it’. I cannot think of anything more illiberal than to deny to that innocent person the right to go to law to dissolve the marriage and to re-establish his or her legal rights under the provisions of the law. We could go into a classification of the different kinds of conduct which can cause matrimonial harm and which ought to be protected by injunction. But whatever that classification might be, we can apply it equally to conduct which ought to allow a party to go before the court and obtain a dissolution of the marriage. The amendment which is proposed speaks in terms of behaviour of the parties which has in fact resulted in the irretrievable breakdown of the marriage. So it appears to me that fairness and justice in divorce law ought to give to all parties to the marriage the right to go to the court when it can be shown as a fact that the marriage has broken down.
-I have listened to this debate over the considerable length of time in which the Bill was considered at the second reading stage and now in the Committee stage. I must say that I have been in somewhat of a tortured mental conflict as to the attitude that I should take. I do not imagine there are a great many of us who have not had some qualms about just what specific approach we should take in respect of this Bill. However, at this stage, I have come to the conclusion- it will remain my view unless I am persuaded otherwise- that I should support the amendment of the honourable member for Wentworth (Mr Ellicott). As my words would indicate, I cannot be dogmatic in my attitude. I can see a lot of virtue in the arguments that have been put for retaining the Bill as it is. In fact, I supported the second reading of the Bill. But I did not do so with the intention of not moving or supporting amendments which I would regard as improving the contents of the Bill. It has been said already that about 95 per cent of divorce actions are uncontested and that, therefore, we are dealing with only 4 per cent or 5 per cent of divorce cases. But I would remind the Committee that what we are dealing with here is the situation as it exists under the present law, and as it has existed over recent years. The situation could be quite different with a change of that law. One of the main reasons why I am persuaded to support the proposition for a separation period of 2 years- this is in the case of unilateral action where one party to a marriage wants a divorce and the other party does not want a divorce- is that the hope might well still be there that there could be a reconciliation.
This Bill does provide some noble improvements. That is one of the reasons why I supported the second reading of this Bill. I will not bother to outline those improvements now as, otherwise, I would not have the time to say what I really want to say about this amendment. The second reason why I support the separation period of 2 years rather than one year in a unilateral action is that I think that one year is insufficient time to establish or to maintain the type of psychology in the community by which people expect a marriage to be a lifelong union. The reduction of the separation period from 5 years to one year would produce the sorts of results that we have seen occur in other countries, possibly due to that cause, in which marriage takes on the concept of being something that one can put on and take off like a shoe. There is a notion that it is not of a permanent nature. Therefore, I am concerned not only with the individual cases but also with the general psychology that pervades the whole of our community in relation to the marriage relationship.
I am one of those, old fashioned if honourable members like, who still think that the perpetuation of the family unit is the bulwark of our society. Anything that takes away from that ideal, I think, can be adverse. I am supporting- I am quite happy to support with a little reluctancethe second part of this amendment which provides that dissolution of marriage after one year can occur where there is mutual consent to the divorce. I somewhat even more reluctantly support the third element of the amendment which provides that where there is just cause arising from the behaviour of one of the partners of a marriage the other partner should be able to seek the dissolution of that marriage under a period of one year’s separation. But, essentially, I support the amendment because I think it might do something to retain that psychology, if I can put it that way, in the community that gives force to the perpetuation of marriage as an institution to be preserved.
– I support clause 48 as it now stands. I support it because it is simple and straightforward. We will never get a perfect law. I believe that clause 48 as it now stands will give maximum justice for all concerned. I believe that we owe a great deal to the joint party Senate Standing Committee on Constitutional and Legal Affairs which has made the Bill essentially what it now is. There is some superficial attraction in the proposal of the right honourable member for Lowe (Mr McMahon) but I do not believe that it improves clause 48 as it now stands.
The matter of fault has been well canvassed and it is a remarkably non-controversial issue. I think that some people will be attracted to the amendment moved by the honourable member for Griffith (Mr Donald Cameron) because it seeks to eliminate paragraph (c) of the amendment to sub-clause (2) of the Bill proposed by the honourable member for Wentworth (Mr Ellicott). But I would suggest that the amendment of the honourable member for Griffith is still too harsh. It is harsh because it proposes that even after one year marriage may be dissolved only when each party genuinely desires that the application be granted. There is a world of difference between genuinely desiring and not being opposed to the dissolution of marriage when one party genuinely desires it. I think that this is a very important point. The prospects for reconciliation are remote after a couple have decided to separate and after they have actually been separated for one year. Sub-clause (3) of clause 48 in fact gives a measure of protection to those who have any prospect of reconciliation left to them.
The virtue of clause 48 apart from eliminating fault, is that it eliminates the quickie divorce and the collusion that goes with it. Reference has been made to this today. It is important that we eliminate all those unsavoury aspects of our current law. I believe that everyone can afford to wait one year before commencing divorce proceedings. These people do not have to live together or under the same roof. However, it would be harsh if some people had to wait more than one year. I believe that it would be harsh to make them wait for 2 years. There will also be fewer rebound marriages if people are obliged to wait for one year instead of taking the quickie divorces of which we have heard mention.
In regard to unilateral decisions, there must be other provisions in this Bill to protect people who suffer hardship as a result of divorces at the behest of their spouses against their will. It is a question of a clause by clause consideration to see whether the other provisions in the Bill are adequate to protect an unwilling spouse. The basic purpose of this Bill, and of this clause in particular, is to dissolve marriages with as much dignity and compassion and with as little social disruption as possible. I believe that clause 48 as it now stands does achieve that. I believe that the proposed amendment of the honourable member for Wentworth in fact will introduce legalism which is most undesirable. Legalism has crept into the administration of the English Act which contains the so-called objective tests. Objective tests may not in their ideal have a fault connotation but in their implementation they do. In any analysis of human behaviour I believe that the amendment would allow legalism to creep in which the present clause 48 avoids.
Mention has been made of marriages which have not been consummated and marriages with homosexuals. We find that couples marrying today usually know more about each other’s sexuality than has been the case in days gone by. Homosexuality is not as shocking to people today as was the case previously. Judging by some of the interjections being made, it may still shock some of the older generation. I think that today fewer homosexuals are marrying than was the case before. I find it hard to believe that a couple in those circumstances would not be satisfied to wait for a period of one year for a divorce. The same consideration applies to cruelty.
I agree with the views expressed by the right honourable member for Higgins (Mr Gorton) and the honourable member for Hotham (Mr Chipp) that the question of the waiting period is one of judgment. It is my experience and the experience of social workers in the field that clause 48 provides as near a perfect answer to our problem as we are likely to find in this Committee.
-In my speech during the second reading debate on the Family Law Bill I intimated that I would move an amendment to clause 48 which would seek to do a number of things. In fact, I find that my honourable and learned colleague, the honourable member for Wentworth (Mr Ellicott), has an amendment very similar to the one that I had intended to move. Therefore, I will support his amendment. I think it is important that we all should give the reason we adopt the attitudes that we do. My reason for supporting the amendment to this clause is that I believe that the clause as presently defined is too restrictive in part. In this debate other honourable members have outlined just how unfair this can be to certain parties. The honourable member for Lilley (Mr
Kevin Cairns) spoke, I believe, very eloquently about the need of this Parliament to preserve the rights of the innocent party in any marriage dissolution.
I believe it is not realistic to state that separation is and should be the only test of a marriage breakdown. If one looks at the real world one see that this tends to be artificial. There are many causes of marriage breakdowns. Of course, not the greatest number of them would come under the definition of intolerable conduct. This is where I believe that the clause, as presently defined, is too restrictive. I do not believe that parties to marriages who are suffering from what can be described as intolerable conduct should have to wait one year, as proposed in the legislation, before they can get a divorce. That intolerable conduct should be determined by the judge. I reject the somewhat cynical attitude of people like the honourable member for Kingston (Dr Gun) towards the ability of courts to take a realistic stance in these matters. We all know some examples of intolerable conduct- adultery, cruelty, drunkenness and assault- which could be put forward. This should be determined by the judge. An aspect of this question of intolerable conduct which has led some people to oppose the amendment of the honourable member for Wentworth is that they are frightened that reports of the intolerable conduct will be splattered throughout the newspapers. As I understand the Bill, these matters will be heard in closed court. If intolerable conduct is included as a ground for divorce it will give some justice to the injured party in any divorce situation, and I think that this is important and should be kept in mind.
I believe also that the law has 2 functions. One is to provide the legal framework by which the individual lives of our citizens are carried on. Certainly, and more importantly, the law has the function of outlining, initiating and strengthening a community attitude. Why do we pick any one period for separation? What is so sacrosanct about one year, 2 years or 3 months? If we reduce the argument right down, why should not a divorce be granted immediately in all cases? Obviously this is not done because we want to preserve the institution of marriage and we realise the responsibility of the law to do just that. Not only have we in this Parliament the responsibility to bring about a fair and equitable law which deals with the dissolution of marriage; we have also the additional responsibility to introduce a law which will provide an acceptable framework to the community in respect of successful marriages or in respect of the responsibility incumbent upon people when contemplating marriage. This matter was raised in this debate by other honourable members when they said that if we introduce a too easy divorce system or too short a period for divorce, we could bring about the position in which people would entertain marriage lightly and inadvisedly. I am sure that none of us in the Parliament would like to be responsible for the introduction of a law which would have that effect. In looking at the legislation as presented to the Parliament I believe that the amendment of the honourable member for Wentworth gives the best opportunity for a successful result.
– I support clause 48 of the Family Law Bill. I oppose the amendments which have been proposed. I oppose the amendment which seeks to extend the period of separation, when applying for divorce, to 2 years in most instances. I put it that way because after a great deal of thought and after discussion with the honourable member for Wentworth (Mr Ellicott) I am not convinced that this is a sound amendment. In fact, I am quite concerned that it will have a contrary effect. There is an ironic twist to a number of arguments which have been used today. I have found in many instances that those who spoke in such a condemnatory way of quickie divorces have suddenly discovered elements of bestiality and called for quickie divorces to be introduced. They have found in this amendment the mechanism by this might be done. I fear there is an ironic twist in that.
Some honourable members have referred to the second part of the amendment. It allegedly provides for divorce by consent. This is not correct. In fact, it may well lead to a sort of legal bargaining or plea bargaining and, if I may say so, to the utilisation of pressure of financial means to bring about a conclusion. Those of us who have practised law know only too well that suffering parties will suffer more in certain circumstances when another party exerts financial pressure. Sub-clause (b) of the amendment in relation to a divorce being sought by the parties after 12 months separation contains the words: . . . each party genuinely desires the application to be granted.
How do we know that the parties genuinely desire the application to be granted? After living apart for 12 months one spouse may genuinely believe that the other desires this. But on instituting proceedings that party may find, when the matter comes on for hearing, that there is no genuine desire for the application to be granted and the proceedings fall to the ground. Furthermore, my cynicism in this area is such that I fear a little greasing of the palm with a certain amount of money may bring about the alleged genuine desire for the application to be granted. I feel that 12 months is sufficient time for separation and for divorce to be granted. No one can prove this. No one knows. It is a question of judgment. I cannot stand before this chamber tonight and prove beyond reasonable doubt or on the balance of probabilities that 12 months is the best period. I simply say that I genuinely believe, over a period of time of taking an interest in these matters- I note that persons in the Senate after an exhaustive investigation concluded the same way- that in the majority of circumstances it is the second year of separation which leads to so much bitterness, divisiveness, heartburn and breaking asunder of families. So I opt for a 12-month period.
I am gravely concerned about the ramification of persons allegedly genuinely believing that the marriage has broken down and genuinely believing that an application can be made. I am concerned about the reintroduction of fault in this area. If persons in fact are suffering from intolerable burdens they have the injunctive powers under clause 114. I make a final point. My friend the honourable member for Bennelong (Mr Howard) made this point an hour or so ago. I know he put it in good faith. He suggested that the endeavour being made by this clause was to bring about a consensus view. I do not like the idea of a consensus view in matters of social reform such as this. It seems to me that consensus views, if that is the aim of legislation, could well lead to a destruction of the major impact and the major remedies in areas such as this. Legitimate aspirations could be torn asunder. In other words, it is not done to clarify the legislation; it is not done to alleviate the sufferings of persons; it is done to resolve some degree of antagonism by certain groups in the community. That is not a reason for support of this legislation. My belief in the fundamental importance of marriage remains. My antipathy to the exacerbating situation of a breakdown in human relations also remains. Therefore, I oppose the amendments and support the existing clause.
– I rise to place on record my support for the clause in its present form and to say a few words about the amendment. It is said that politics is the art of compromise. If that were the case this amendment, in art form, would be like ‘Blue Poles’very flaky. It is unfortunate that so many honourable members have now sought a compromise to the Bill as it was presented to us from the Senate. I think it is a Bill which represents truly the views of the vast majority of people in this country. If people want to know why a period of 12 months is so sacrosanct, it is because there is no evidence to suggest that reconciliation comes about after 12 months.
Of course, we cannot put up a Bill which will be 100 per cent perfect for all the people in this country. But it is far better to do what is now presented in clause 48 than to try to play around in the manner we are by way of these amendmentsby reverting to a period of 24 months and ensuring that people ‘genuinely desire ‘ a dissolution of marriage. As the honourable member for Kooyong (Mr Peacock) quite correctly asks, how do you get people who genuinely desire something? Of course, as the honourable member for Kooyong quite rightly said, one can grease people’s palms and then they will genuinely desire a certain set of circumstances. Not one speaker, in supporting the amendment, has put forward any statistics which would support the argument in favour of 2 years, or which would suggest that there has been a great deal of reconciliation between the 1 year and 2 year period which is recommended in the amendment.
Some honourable members support the reintroduction of the concept of fault as a ground of divorce. It is a wonder we try to pass the Family Law Bill at all if we are, in fact, going to reintroduce fault as a basis for the dissolution of marriage. No honourable member has argued against the multiplicity of documents and voluminous figures which have come before us on the manner in which marriages are dissolved in Australia at the present time. Honourable members will see from the figures which have been presented that the area where the blatant decree of fault is available is the area which is growing faster as a means for dissolution of marriage than the areas of, say, desertion and separation. Those honourable members who have looked at the documents sent to them will see that the cases of adultery and cruelty are growing at 4 times the rate of, say, separation or desertion. No one argues against these figures. People are looking to exploit the fault clause; and we all know what that means in a society. I say quite genuinely to the House that no argument at all has been put forward as to why this House should adopt any amendment to clause 48.
-My intervention in this debate will be brief, first, because of a very heavy bout of influenza and also because I think it is obvious to all honourable members in this Committee stage of the Bill that the main elements of the Bill, the clauses which are before the Committee, have been in fact subject to ample clarification on both sides. In speaking during the second reading debate on the Bill on 12 February 1974, 1 said:
The 12-month separation provision as the sole ground for divorce enshrines an entirely new principle in marriage law. It is, in effect, declaring that henceforth a marriage is a union which can be terminated at any time at the whim of one party, subject to the 12-month procedural delay which the Bill provides. By this legislation, a party to a marriage, no matter how much he or she has been mainly or wholly responsible for the breakdown, can declare that the marriage is ended. That is, the subjective opinion of one party becomes in effect the determinant, provided 12 months separation is established since the filing of the application for divorce.
It is in the context of that comment that I strongly support the amendment which has been moved by my colleague, the honourable member for Wentworth (Mr Ellicott). It appears to me that the amendment which he has moved is a responsible, constructive and commonsense approach to what is a very difficult and controversial clause. The amendment, as other honourable members have made clear, deals with one of the central issues of the whole Bill. It is the core of the Bill. I refer to the grounds available for dissolution of marriage.
As it stands, the clause allows for divorce proceedings to be initiated by only one of the parties with a virtual guarantee of automatic dissolution after the passage of 12 months technical separation. It allows no consideration for the wishes of the other party. This, I believe, is a particularly invidious provision in the case of a newly married couple where one of the parties does not consider that the marriage has irretrievably broken down or where he or she considers that they have had insufficient time in which to approach a reconciliation. Under the present divorce law there is a bar to the institution of divorce proceedings within the first 3 years of marriage except in special circumstances. I believe that the extension of the time period to 2 years where one party is against the divorce is desirable, particularly where young children are involved. My colleague, the honourable member for Kooyong (Mr Peacock), put this problem very fairly and responsibly when he said to the Committee in a speech recently:
No one can prove whether in fact it ought to be one or two years, but basically it is essentially a question of judgment.
In that sense I opt for the judgment of 2 years and I believe I am putting my view responsibly to the Committee in saying that if there is doubt in a matter which concerns the family unit in such a fundamental way, in a matter which concerns the whole fabric of Australian society, this House has a direct and important responsibility to hasten slowly. It is for that reason that I strongly support the concept of a 2 -year provision which in enshrined in the amendment which the honourable member for Wentworth has moved. Because of the problem of influenza- and I see that time is running out- I do not canvass the argument any more. I strongly support the amendment of the honourable member for Wentworth as commonsense, responsible and constructive, an amendment which is in no way cynical and one which, I hope, will receive the majority support of members of this Committee.
-There being no further speakers, the debate is concluded. In accordance with the resolution of the House of 15 May I now put the questions on the amendments which have been circulated. The first amendment is that of the right honourable member for Lowe- amendment No. 82 in the schedule of proposed amendments- and to this amendment the honourable member for Wentworth has circulated amendment No. 82aa to omit certain words and to substitute other words. I now put the question that amendment No. 82AA circulated by the honourable member for Wentworth to the amendment moved by the right honourable member for Lowe be agreed to. (The bells having been rung)-
– Order! In view of the unusual complexity of the procedures, I propose to put the amendments in full again. The first amendment is that circulated by the right honourable member for Lowe, which is amendment No. 82 on the schedule of proposed amendments. To this amendment the honourable member for Wentworth has circulated amendment No. 82aa, which seeks to omit certain words and to substitute other words. The question now is: ‘That amendment No. 82AA circulated by the honourable member for Wentworth to the amendment moved by the right honourable member for Lowe be agreed to’.
The Committee divided. (The Chairman- Mr J. M. Berinson)
Question so resolved in the negative.
Sitting suspended from 6 to 8 p.m.
The Committee divided. (The Chairman- Mr J. M. Berinson)
Question so resolved in the negative.
Question resolved in the negative.
Question resolved in the negative.
Question resolved in the negative.
Question resolved in the negative. . The CHAIRMAN- The question now is that the amendment proposed by the Leader of the Opposition (Mr Malcolm Fraser), amendment No. 84, be agreed to. Those of that opinion say ‘ aye ‘ to the contrary ‘ no ‘. I think noes have it. Is a division required. Ring the bells. (The bells having been rung)
that the parties separated and thereafter lived separately and apart for a continuous period of not less than 2 years immediately preceding the date of the filing of the application for dissolution of the marriage;
that the parties separated and thereafter lived separately and apart for a continuous period of not less than one year immediately preceding the date of the filing of the application for dissolution of marriage and the respondent does not oppose the making of the decree; or
the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent providing that such ground shall not be available if the parties have lived separately and apart for a continuous period of not less than one year.’.
The clause in question is clause 48. Amendment No. 84 is listed on pages 1 1 and 12 of the schedule which has been circulated. I think I should make it clear that it will not be practical to read in detail the terms of all further amendments. The question now is ‘That amendment No. 84 proposed by the Leader of the Opposition be agreed to’.
The Committee divided. (The Chairman- Mr J. M. Berinson)
Question so resolved in the negative.
That amendment No. 85 be agreed to.
The Committee divided. (The Chairman- Mr J. M. Berinson)
Question so resolved in the negative.
The Committee divided. (The Chairman- Mr J. M. Berinson)
Question so resolved in the negative.
That amendment No. 86a, as circulated by the honourable member for Prospect, be agreed to.
Question resolved in the negative.
That amendment No. 87, as circulated by the honourable member for Mackellar, be agreed to.
Question resolved in the negative.
That the clause be agreed to.
The Committee divided. (The Chairman- Mr J. M. Berinson)
Question so resolved in the affirmative.
-There is an amendment in my name that seeks to delete clause 21.
– Order! That amendment has been circulated as an indication of the honourable member’s intentions, but it is not in order for him to move the amendment. The correct course is simply to oppose the agreement to this clause.
– We had numerous speeches, of course, on the Family Court of Australia during the second reading debate on the Family Law Bill. We have also had a debate in this House on the Superior Court and we are all very familiar with the arguments. One of the most difficult aspects of setting up a family court in Australia at the Federal level is the fact that the Constitution requires the judges to be appointed for life. It is suggested in a recent document circulated by the Attorney-General (Mr Enderby) in relation to the Family Court of Australia that the Court would be staffed by judges who are ‘ by reason of training, experience and personality .. . suitable … to deal with matters of family law’. In other words, what the legislation proposes is a family court which will have to be composed of judges appointed for life, judges who will sit in that Court at perhaps, say, 80 years of age. It is proposed that these will be the people, who ‘by virtue of training, experience and personality’, will be suitable to deal with matters of family law.
We know that for many years the State courts have dealt with the matrimonial causes jurisdiction. We also know that the Federal jurisdiction in relation to divorce has been dealt with since 1945 by State courts and it has been dealt with in no other way than satisfactorily. This Bill seeks to establish 2 sets of courts alongside one another. There would be a Federal court and a State court, certainly for an interim period. Those 2 courts would be in competition against one another.
At the moment a building is in the course of erection in Sydney which will house both Federal judges and State judges. The building will be divided down the middle, and if this clause goes through a litigant in divorce will be able to choose a State judge or a Federal judge to deal with the petition. I suggest that this is unthinkable. The Attorney-General in his circulated statement also said:
None of the existing courts . . . from the Supreme Courts down to the magistrates ‘ courts, is staffed or equipped to deal adequately and sympathetically with family law matters. Few of the judges or magistrates have had wide experience . . .
That is a libel, at least on the judges of the State court of New South Wales. The State court was concerned with the following number of petitions for the last 6 years: 1968, 5000-odd; 1969, 5800; 1970,6500; 1971,7700; 1972,7913; 1974, 11000; 1975, an estimated 14 000. These 6 judges are judges who apparently are supposed to be incapable or not properly equipped to do divorce work. I suggest that the AttorneyGeneral’s statement in that regard is a complete libel of the judges of the State from which he comes. In that State a family law division has been set up and it has been working very well.
I therefore suggest to honourable members that the jurisdiction in relation to divorce can well stay where it is at present. The proposal under clause 41 of the Bill is that the jurisdiction should go to the State courts. I suggest that if we find ourselves with another 6 Federal judges and perhaps 13 or 20 Family Court judges we will have a surplus of judges in Australia. What sort of judges will we have? I will not attack those judges who have been appointed recently, but some of those appointments certainly raise the eyebrows. I wonder whether this Family Court will be used for that purpose. I do not want to say any more than that about it.
– You have said too much already.
– Yes, perhaps I have.
– I am sorry, but I cannot succumb to the beckoning influences of constraint that consume my friend the honourable member for Wentworth (Mr Ellicott). Of course, he has not got the advantage of having Irish blood in his veins. Of all the daisy in the dell descriptions, surely this is it- a Family Court to deal with a matter that has absolutely nothing to do with the family at all, other than to disrupt it. For the Attorney-General (Mr Enderby) to come in here and to press upon the Committee of the House of Representatives the description of Family Court of Australia, almost as though it will be a court to deal with matters in some clinical, detached, dispassionate way, was one of the aching forms of separation.
– Not hysterical like you.
– It is all very well for the Minister. He resorts to the pyrotechnic of language when it suits him. He is very seldom encouraged ever to resort to reality. Let me just deal with this Family Court of Australia.
– Put a bit of zip in it.
-Oh, dearie, dearie me; if I did that my friend I fear that you would not be able to survive the distance. The point about the Family Court of Australia was admirably made by my friend, the honourable member for Wentworth. Is it seriously suggested that every judge appointed to this court should be appointed for life- until he reaches the age of 82 or 85 years? I know some grand people of that age, but how rarely is it given to those of that age to keep themselves in touch with what is happening? Would the Attorney-General be able to say at the age of 82 or 85 years that he represented the insouciance of youth? I have my doubts as I look at the honourable gentleman. I ask him to reflect upon that. If there is to be any sense of realism regarding this matter, the Committee will come to grips with what is involved and, that is, that if there is to be a Family Court- I think this is a completely unnecessary proposal- there should be an effort to secure that those who sit upon it, if I may say so with infinite respect to age, should have a more gentle understanding of the problems of contemporary society than those swept into the state of octogenarianism. I hesitate to reflect upon the prowess or staying power of the Attorney-General, but I do not think that that will be one of his accomplishments.
I put to the Committee as a practical problem that at present the Supreme Courts of the States exercise this jurisdiction. It has been described by a very great Australian jurist- one of the greatest jurists of all times- Dixon, as the autochthonous, expedient conferment on State Supreme Courts of Federal jurisdiction. The Attorney-General shows scant regard for the immense distances involved in this country when he says of a Family Court that it will, as a display in perambulation or as a peripatetic court, wander around the great State of Queensland in the same way as the Supreme Court does. It is a matter of common knowledge, certainly to me and to many fellow practitioners, that judges of the Supreme Court go to Mt Isa and Cloncurry and that they hear petitions involving matrimonial relief. They do so regularly. Does my friend the Attorney-General seriously suggest that judges of the Family Court will be able to turn in a comparable performance at least in terms of regularity? I invite my honourable friend to reflect seriously upon that simple, practical problem. Let us put to one side what I have said about his inchoate weaknesses in terms of time. I invite my friend to reflect earnestly upon the practical problem of members of the Family Court giving the same sense of service to people as do the present justices of the Supreme Courts of the States.
– I am rather astonished at the way in which my 2 colleagues from the other side of the House, the honourable members for Wentworth (Mr Ellicott) and Moreton (Mr Killen) have assaulted the court system of Australia and, I suppose at least by implication, the High Court of Australia. The implication that because somebody is appointed to the bench for life he will bring to his judgments a doddering senility and all the rest of it falls ill from their lips. I am certain that this clause is one of the contributions which this Family Law Bill will make to matters associated with divorce and the dissolution of marriage. I rise to say a word in defence of those people who have recently been appointed to courts by this Government. They are of great distinction and integrity. They have the same kind of skill as have any others who have been appointed to the courts. I cannot understand the sneers which the 2 honourable gentlemen have hurled at this suggestion of a Family Court, at the people who may be appointed to it and at the probability of people who are appointed to the Federal jurisdiction being able to carry out their duties. I think that to this extent the honourable members have sullied the debate.
There is another factor to be considered. There are the 2 territories of the Commonwealth which require the same kind of systems and institutions in this field as those of the States. I simply make the point that there can be no retiring age for judges unless we are prepared to take steps to amend the Constitution. I can quite imagine what honourable members would do if we proposed that for a referendum. Unless we are prepared to take steps to do something like that we have to accept what is in the Constitution and all its implications. I do not like the way in which honourable members have spoken about the people who are presently sitting on courts, but I am quite certain that there is a necessity for a Federal court. Until we find some alternative to the solution of problems which arise between people involved in the dissolution of marriage, it will be difficult to go past the experience of courts in handling human problems. Therefore I hope that the Committee will reject the specious arguments put by the 2 gentlemen opposite.
– I am opposed to the amendment which has been moved. I shall discuss some of the matters raised by the 2 previous speakers in favour of the amendment. The honourable member for Wentworth (Mr Ellicott) said that this year the New South Wales court would probably deal with 14 000 cases. These cases would be dealt with by 6 judges of the court. If my mathematics are correct, allowing for a few public holidays and a reasonable working day, that means that probably it will take half an hour for each case to be dealt with. I hope that judges of the Family Court which is proposed in this Bill will give a lot more time than half an hour to each case in this involved and complex matter. The judges will be charged with a responsibility to deal with people’s lives and associations, so they should be in a position to give a lot more time to each case. If those figures are correct I think there is every reason in the world for a family court to be established. This does not bolster up the argument that the States should handle the matter. I am afraid that this gets back to a States rights issue. The Government Party some time ago decided to support the establishment of a Superior Court which, of course, incorporated the family court concept. I believe that there are matters which the States can handle probably better than a central government but there are also matters that the central Government can handle far better than the States and, in respect of this uniform law which will affect all the States and all the people of Australia, I suggest it is to the advantage of the people who will have to come before this Family Court to have a uniform court with uniform ideals and with people who are working in the same direction and under the same direction. I think that is the lynchpin of this whole legislation.
It is no surprise to me that certain honourable members are opposed to this clause because in fact they opposed the purpose of the Bill by voting against the clause dealt with in the last division. It is no wonder they do not want to see the Family Court concept accepted. If this Bill is to function in the way we hope it will, and if this law is to be the law we hope it will be, the Family Court has to be established in the way it is proposed in this Bill, otherwise the whole purpose of the Bill is lost. I urge honourable members, and especially those on the Government side who made a conscious decision to support the Superior Court concept in Australia, to support the establishment of the Family Court because without it the proposed law is virtually useless.
– I wish to refer to some of the points raised by my Queensland colleague, the honourable member for Moreton (Mr Killen), who made continuing reference to the age of our judges and to the possibility of judges sitting in judgment on matrimonial cases for many years.
He referred to 82-year-old judges. I cannot recall the honourable member in this Parliament having advocated a change in our Constitution to remove the problem which exists in the High Court of Australia whereby judges, according to our Constitution, do not have to retire because of age. If he sees this as a problem a lot of Australians would agree with him. Mr Justice McTiernan who is well into his eighties is generally loved by his legal colleagues. He is a living example. One honourable? member has suggested in some instances it is virtually life after death, and we can equally; apply that argument in respect of judgments which come from our High Court. Yet there are few people in this Parliament who advocate a change in our Constitution by way of referendum to overcome this problem. In the past I have constantly advocated an age barrier in our Constitution to force High Court judges to retire at 70. So in my mind that argument is not valid. If judges of the High Court are allowed to continue to sit as judges that should apply also to judges of the Family Court. On the other hand, my very strong personal view is that all judges should retire at about 70 years of age regardless of whether th_ey.be judges of the Family Court, the High Court or any other court.
The honourable member for Moreton made reference to the difficulties in Queensland, and as a Queenslander I am very much aware of them. I recall my opposition in this Parliament to the Superior Court of Australia Bill on the ground that federal judges would have- great difficulty getting into the far outback of Queensland. However, in South Australia a Family Court such as is proposed by this Bill is already, in existence and works well. In respect of the State courts, the honourable member for Moreton advocated that matrimonial matters be left in. the hands of State judges. When one looks at the- background of some of the existing judges One has grounds for seriously questioning their ability. to adjudicate in the arena of family law. They are steeped in the tradition of either criminal law or other aspects of the law. Suddenly would be thrust upon them the job of adjudicating upon the questions which would be raised in a family court. The disappearance of this clause from the Bill would mean that most of the concepts incorporated in the Bill would be rendered useless. Far be it for me to say that the members of this Parliament who are totally opposed to the Bill have employed every measure and means to try to lessen its effectiveness. I would not say that. But that has crossed my mind in- relation to a number of members of this -House. Therefore reluctantly, while still adhering to the principle that I advocated and held in relation to the establishment of a Superior Court, I find myself on the side of the Attorney-General (Mr Enderby) on this occasion. I suggest that a lot of the opposition to the establishment of a Family Court is nothing but sheer and utter humbug.
-The question of whether a Family Court should be established is a matter about which I am not entirely dogmatic. I concede that some very forceful arguments can be advanced in favour of it. I have been drawn into this debate by some of the extraordinary arguments that have been advanced during the course of it by the protagonists in favour of the establishment of a Family Court. An extraordinary contribution was made to the debate by the honourable member for Cook (Mr Thorburn). He said, as best as I can recapitulate his remarks, that on an average the judges of the New South Wales courts who administer the matrimonial causes jurisdiction spend about half an hour on each case and that, of course, is just not enough time to spend on each case. Leaving aside for the moment whether he has his mathematics precisely correct, the fact remains that one of the arguments that has been consistently and at times mischievously advanced by the supporters of this Bill is that its aim is to reduce the cost and the delay in divorce proceedings. Therefore I find it rather extraordinary that somebody who has consistently voted to put this Bill into law should use as an argument against one of the amendments the proposition that at present judges are not spending sufficient time on administering the law.
I remind the honourable member for Cook and any other honourable member who does not agree with the amendment moved by my colleague the honourable member for Wentworth (Mr Ellicott) that the law of divorce has been uniform since 1959. The Family Law Bill does not establish uniformity in divorce law. The Commonwealth has had a jurisdiction in marriage and divorce since Federation. That jurisdiction was taken up in 1959 by the present Matrimonial Causes Act. The proposition that has to be examined is whether circumstances exist at present to justify the creation of a separate elaborate court structure to administer this Bill. If for no other reason than our present economic circumstances, I think it is extraordinary that a proposal should be made for the establishment of an elaborate, expensive structure which will undoubtedly cost a large amount of money and which will undoubtedly cause considerable administrative confusion insofar as the inauguration of the court is concerned. On that argument alone the establishment of such a court is barely justifiable.
The honourable member for Griffith (Mr Donald Cameron) also advanced a very extraordinary argument, that is, that what is wrong with the existing court structure is, of course, that all of the judges who have been appointed to the State courts that are exercising the matrimonial causes jurisdiction were without experience in divorce law but were steeped in criminal law and in other specialties of the law unrelated to the divorce law. I think the honourable member for Griffith in making that statement manifests a total ignorance of the situation. If he is going to advance sensible arguments in favour of the proposition of his friend in this debate, the Attorney-General (Mr Enderby), he ought to draw at least on some experience with which he has had acquaintance. The fact of the matter is that to categorise judges of the State courts who perform the duties in matrimonial causes as being inexperienced, as being old fogeys, or as being inadequate to perform the task is at very best an unkind remark and at worst is a total slur on their performance and their professional dignity. I hope that if the honourable member for Griffith intervenes again in this debate he will bring to that intervention a degree of expertise greater than he brought to the clause we are discussing. He displays no knowledge of and a total ignorance of the facts of the situation.
The question of whether or not we should have a Family Court can be decided only on balance. I do not deny that there are some arguments that can be advanced in favour of it. It was not until my friend the honourable member for Wentworth moved the amendment that I was entirely persuaded I should support it. I do think that on balance the amendment moved by the honourable member for Wentworth ought to be carried by this House.
– I welcome the fact that some life is coming into this debate. I must take the opposite view entirely from the honourable member for Bennelong (Mr Howard) because I think he has totally missed the concept of the Family Court. If ever a remark led me to suppose that what I am about to say is true, it is the remark of our friend, the lawyer, when he referred to the legality of current courts. The total concept, surely, in relation to many of the clauses contained in this Bill is that the Family Court concept should not be riddled with legality. It should not be riddled with lawyers’ views. It must be totally different from the High
Court, totally different from the Supreme Court and totally different -
– You are living like Alice in Wonderland.
– The honourable member for Moreton should concentrate on submarines. Surely the whole concept of this Bill is to take away the past methods of assessing such matters. Let me turn to the South Australian Family Court about which I am not entirely lacking in knowledge. The Family Court in South Australia is not set up as an Act of law. It is purely attached to the local Court. For want of a better expressionperhaps this is a wrong use of the word- it is an appendage of the local Court in that State. It has no constitutional standing. It is doing a very good job in spite of many difficulties. Not only does the Family Court have to use the resources of the Supreme Court, most of which are either inadequate or not competent in this particular field- I back up my friend, the honourable member for Griffith (Mr Donald Cameron)- but they are also having to drag on the resources of local courts, marriage guidance counsellors and on all sorts of areas.
That is entirely the opposite of my understanding of the concept of this Bill. My understanding of the concept of this Bill is that the Family Court should be something quite different from the courts of law. It should attract people to go along to seek help from its counselling service. It should be informal. The man in the king positionwhatever that may be- should not wear a wig. In fact, in the very definition of the appointment of judges in this court honourable members will find- this is one of the good points I like about this Bill- that not only has a judge to be competent in the area of law, to satisfy my friend the honourable member for Moreton (Mr Killen), but more than that, he has to be competent and experienced in human fields and human understanding. That is referred to in the definitions, if honourable members care to look at them, and it points to its value to the community, to the average man who feels that he is in trouble and wants to be able to go along and discuss these things. If that is not to be the case, then we are not going to attract the people who need help to come along and discuss their problems.
Another matter which has been mentioned and which I should like to discuss in the few minutes I have left relates to the age of judges. I can comment on this a little because I was a member of the South Australian State Parliament at the time it conducted negotiations with certain judges, who then agreed to take their superannuation at a certain age, contrary to the Constitution and contrary to the High Court concept in this nation. Running on from that argument, I accept that, in general, anything would be better than the current situation in Australia, and if State Family Courts can be set up throughout Australia operating in the image of the South Australian court, it will be a good thing. But we must have competent people, properly screened, not only appointed to the position of judges of that court but also operating particularly in the field of guidance and counselling. I see no point at all finishing up with a series of State courts having no correlation, no uniform approach to problems, no access to the sort of information that can flow through from the Federal Court in this field. I am sorry that the Government has not stuck to its original position in relation to clause 41 and has agreed to go along with the amendment moved in the Senate by Senator Missen.
-(9.27)-Like the honourable member for Bennelong (Mr Howard), I was spurred to rise in this debate by some of the earlier speeches. I was spurred particularly by the remarks of the honourable member for Cook (Mr Thorburn) because, like the honourable member for Bennelong, I was concerned about the figures given by the honourable member for Cook relating to the work done by judges of the New South Wales Supreme Court in exercising the court’s matrimonial causes jurisdiction. I was concerned at the comment that the average amount of time spent by judges in dealing with cases is in fact of a very limited nature. Although the Committee has not seen any regulations giving effect to the provisions of this Bill, it is my understanding that we might very well see a situation in which parties will not be required to go before the courts at all and that many of the matters that previously were required to be established by evidence will be put in the form of affidavits. If that were so, I imagine that the time required by courts to deal with the matters would be very limited indeed. Certainly when one looks at the matters in clause 48 that have to be proved to the court, they are of a very much more limited nature than the matters that formerly had to be evidenced to the court to enable it to grant a decree. One would expect, therefore, very much less time to be spent in dealing with matters that have to be established under this Bill. Consequently, I fail to see the relevance of the arguments advanced on this question by the honourable member for Cook.
I ask the Attorney-General (Mr Enderby) to clarify to me the way in which he envisages the
Family Court of Australia, and those family courts that are to be established pursuant to clause 41, will operate. It is my view that one would not be able to pick and choose the judge before whom one wanted one’s case to be brought. The explanatory memorandum states that the Family Court of Australia has jurisdiction in any matrimonial cause instituted or continued under the Bill, any proceedings instituted or continued under the Marriage Act and so on, and other matters are mentioned. It seems to me that the clauses do give to the Family Court of Australia the possibility that it will be hearing not just matters on appeal but matters of first instance. If this means that where courts are established pursuant to clause 41 a party could choose the court before which he wants to initiate his proceedings with a view to coming before certain judges and not other judges, it would concern me.
I should like the Attorney-General to indicate how he envisages these clauses would operate before I would vote in favour of the establishment of a Family Court of Australia. I make that point. Generally speaking, I was in favour of a family court that would exercise an appellate jurisdiction and that would enable the various courts to be established under clause 41 to exercise jurisdiction in a similar way. I would not like to see courts going off on their own tangents which could not be brought together by the appropriate use of the appellate jurisdiction. This was the view that I had when I saw the proposal for a family court. I thought that the structure of it was such that it would give rise to this form of appeal and this situation where the judges would essentially be implementing the law in the same way.
I was very surprised at the comments of the honourable member for Angas (Mr Giles). It was my view that the Commonwealth, when it seeks under clause 41 of the Bill to institute agreements with the States, would be able to establish courts that would exercise jurisdiction in the same way in which he envisaged the Family Court of Australia would exercise jurisdictionin other words, that the judges would exercise their jurisdiction in the same humane way, taking cognisance of the same human factors, and that there would be appointed judges having the same variety of experience that he saw in judges appointed under the parts of this Bill dealing with the Family Court of Australia. I should like the Attorney-General to clarify very clearly to the Committee how he envisages that these clauses will work together.
-My feelings are very much in line with those expressed by the honourable member for Parramatta (Mr Ruddock) a moment ago. It seems to me that the Bill confuses the issue and does not meet it clearly. When there is a contest between 2 citizens in any matter they must have available to them the proper processes of law and unhappily that must mean legal representation ana a proper court. But surely there should be a place for a family court whose first objective must be to explore the possibility of reconciliation in a matrimonial matter and which would have the function of dealing with those matters where there is consent, where there is no contest in the court between 2 people. The family court should be able to make an order without the apparatus of law if there is that kind of consent between the 2 parties, and in a matrimonial cause there are 2 parties. It should be able to operate entirely informally and without paid lawyers to settle the matter.
After all, we were told by the Prime Minister (Mr Whitlam) this afternoon and by other speakers that more than 80 per cent of matrimonial cases could be concluded with consent. If this is done and if there is a proper apparatus towards this objective, if we can have a family court which is not half informal- as this kind of hybrid court is- but an entirely informal court without the function of being able to judge between 2 people who are opposed to one another but with the function of registering an agreement which they have made in accordance with law and after the satisfaction of the criteria laid down by the Bill, I think we would have something sensible. But this hybrid thing is neither one thing nor the other, it is a court and yet it is not a court. It is a counselling service and yet is not a counselling service.
I have put forward a series of amendments which will stand or fall together. It seems to me that the family court which we create by this Bill should be quite different from the kind of family court which is envisaged by the Bill itself. As I have said, I would like to see reserved for those people who feel they have a contest, one with the other, the right to go to a proper court of law; but, for those 80 per cent or 90 per cent of people in this jurisdiction who reach agreement by consent after the proper delay, I would hope that there would be some kind of arrangement under which no lawyer would be involved. This would be better because before agreement is registered the primary function of this ‘court’- put that word in inverted commas if you like, because it is not a real court- should be to reconcile, to see whether there is some way, without the contention of paid lawyers on one side or the other, in which the 2 people can be brought together to reconcile their differences and to proceed with their marriage. It does seem to me that this hybrid court does not properly fulfil that kind of function.
– I support the concept of a family court. Divorce is a traumatic experience for the parties involved and courts of law are frightening places even for the most hardened criminals. I think that if a family court is able to deal with the problems of marriage and of family life that is sufficient reason to establish such a court. Whether it is a court in real terms or whatever it is, if it is a court which takes some of the trauma out of what couples in this situation have to go through it is well worth while. If such a specialist court can help in reconciliation, I think it is well worth while establishing it. If such a court reduces the trauma experienced in a divorce situation, I think all the arguments about costs should be forgotten and should not be regarded as valid propositions against setting up this sort of court. That is why I support the establishment of the Family Court.
– I thank the honourable member for Deakin (Mr Jarman) for his contribution to this debate. It is in line with my own thinking on the subject. I also congratulate the honourable member for Griffith (Mr Donald Cameron) on his understanding of the problem. I lament the sense of outrage that was directed at the honourable member for Griffith by some of his parliamentary colleagues who are lawyers. It is true that the honourable member is not a lawyer. The lawyers in this chamber do themselves a great disservice when they spring to the defence of some aspects of legal procedures in the way they do. With great respect to my good and learned friend the honourable member for Wentworth (Mr Ellicott), I suggest that he tends to forget how clients see the legal process. Lawyers love it. For us it is the best of all worlds, but clients often see it through quite a different window. It is that sort of thinking that has led to the move to create a Family Court.
– When were you a client in the divorce court?
– I will tell the honourable member afterwards, if he wants to know. This proposition that there should be a Family Court of Australia finds opposition from people who either defend the law because it is the best of all possible worlds or take some kind of extreme
State rights position; but the reality surely is, as was put by the honourable member for Deakin, the honourable member for Griffith and the honourable member for Angas (Mr Giles) on the Opposition side, that much needs to be done to improve the situation. The changes that we have proposed to the law are substantive changes. They will make it possible for divorce and family matters to be resolved in a simple way, an easy way, an informal way and a way that removes the cant, the hypocrisy and the terror that in the minds of some people are associated with the legal process. Do I have to remind my legal colleagues of the trappings of the law for a simple undefended divorce- witnesses staying outside, wigs and gowns, counsel, all the paraphernalia that puts terror into the minds of ordinary people when they go in there? That is not the way it should be done. The experience of South Australia, as was put by the honourable member for Angas, has been a beacon for Australia in this regard.
– A few people have been wrecked on false beacons, too.
– The honourable member protesteth too much.
– Nautilus again.
– He protesteth too much. The honourable member for Angas, speaking as a non-lawyer, knows of the success of the family court in South Australia where informality reigns, where people are able to go and have their family problems adjusted and assisted, and where divorces are given when they are required in a civilised and dignified way. May I remind honourable members of some of the features of the Family Court set up by this Bill. By reason of training, experience and personality, the judges of the Family Court have to be suitable persons to deal in matters of family law. Let me put this to honourable gentlemen opposite: The average barrister who is appointed to a divorce jurisdiction in New South Wales has little experience of this sort at all. He is an adversary advocate. He specialises in the adversary techniques, and that is what it is all about. He knows now to crossexamine, he knows how to lead evidence and he knows how to do it very well if he is good at his trade. He is not good at conciliating, and this is what we are after. This is what the Senate Standing Committee on Constitutional and Legal Affairs had in mind. The idea that there should be a family court came as a non-party measure. It came not from the Government. It came after a lot of study in the Senate. It was thought that there must be a better way, and it is written into the legislation.
Those who are supporters of States rights, like the honourable member for Moreton (Mr Killen), forget in their hysteria clause 41, which requires the government of the day to try to reach agreement with the States to have the States set up their family courts. Surely that is the answer. It would be only in the absence of agreement or something of that sort that the Family Court of Australia would function in this exclusive way.
– Is that an undertaking?
-Genuine efforts will be made to reach agreement, and that is in the Bill as it is now before us. One feels a sense of outrage on the part of the lawyers present that this best of all possible worlds is about to be taken away from them, that this best of all possible worlds is about to be changed. It was changed half an hour ago when the grounds of adultery, and cruelty; condonation, connivance and collusion; and discretion statements were all removed, as were petitions 50 pages in length for which eminent counsel charged hundreds of dollars. That has gone; and good riddance.
– Order! The AttorneyGeneral’s time has expired.
That clause 2 1 be agreed to.
The Committee divided. (The Chairman- Mr J. M. Berinson)
Question so resolved in the affirmative.
Clause 1 agreed to.
Clause 2 agreed to.
Clause 3 agreed to.
Family Court’ means the Family Court of Australia; matrimonial cause ‘means-
Mr Peacock- Mr Chairman -
– Before the honourable member for Kooyong proceeds, is it the intention of the honourable member for Wentworth to move his amendment, which is No. 3? I should point out that so far as possible the Chair will call on amendments in the order in which they would appear in the clause. Does the honourable member for Mackellar intend to pursue his circulated amendment No. 4?
– Yes. It is purely a matter of form.
– I call the honourable member for Mackellar,
-Mr Chairman, you will notice that the provision for the appointment of Director of Counselling and Welfare does not appear until clause 37 of the Bill whereas reference to him is made in clauses 14 and 15 of the Bill. It is purely a matter of drafting. I suggest that the Attorney-General (Mr Enderby) might consider it.
– I might say, to assist the honourable member for Mackellar (Mr Wentworth), that I will be moving an amendment to the same effect when we get to that clause.
-I take it that the honourable member for Mackellar is not pursuing the amendment.
– I accept the assurance of the Attorney-General. It is purely a formal matter of drafting.
– Does the honourable member for Deakin wish to pursue amendment No. 6 in his name to clause 4?
-In the circumstances I am quite happy to allow it to lapse.
– Since the honourable member has ony one opportunity to speak, does he wish to pursue his circulated amendment No. 7?
– This amendment is to omit ‘in circumstances arising out of a marital relationship’ and substitute ‘with respect to the personal protection of a party to the marriage or of a child of the marriage, or the property of a party to the marriage, which are in relation to any matrimonial cause then before the court’. This amendment was moved because I felt that the maintenance procedures should be limited to protecting a party’s rights and should not be brought just for the purpose of protecting a party’s point of view. I would be interested to hear the views of the Attorney-General (Mr Enderby) on that matter. I would just like to make sure that the clause may not be used to protect a party’s point of view rather than a party’s right. I assume that this point is covered. Can the Attorney-General advise me on that?
– I am not sure I understand the honourable member.
– Order! We will very quickly get into difficulties if the AttorneyGeneral seeks to answer questions as they are put to him. He is restricted as are other honourable members by the alteration to Standing Orders. I now put the question: ‘That amendment No. 7 as proposed by the honourable member for Deakin be agreed to’.
Question resolved in the negative.
– That disposes also of circulated amendment No. 8, which was in terms identical to circulated amendment No. 7.
-My amendment is circulated amendment 8a which relates to clause 4 ( 1 ). It seeks at the end of paragraph (a) to add certain words and deals with the definition of the term ‘matrimonial cause’. Under this definition the Bill lists in paragraph (a) to (f) a variety of matters that come within the meaning of ‘matrimonial cause’. My amendment is to paragraph (a) which states: proceedings between the parties to a marriage for a decree of-
dissolution of marriage; or
I am seeking to add: or (iii) judicial separation;
I wish the Bill to provide for the continued recognition of judicial separation. Although I am strongly in favour of this Bill, this amendment from which a series of other amendments will flow is one which I strongly favour. I recognise that within the community there are those who, because of religion or faith, under no circumstances can feel that this Bill can apply to them. I speak particularly of members of the Roman Catholic faith who hold very dearly to their faith and regard marriage as being for life and who cannot condone divorce under any circumstances whatsoever.
If there is a breakdown in marriage it is true that lawyers could advise members of the Roman Catholic faith to utilise clause 1 14 of the Bill and apply for injunctive relief. It has always been my view that an injunction is for a shortterm benefit but for a long-term relief there is no solution unless judicial separation is recognised. It will be recalled that in the old ecclesiastic courts judicial separation was a form of judicial sanction to the separation and was not in the same category as divorce itself. If practising Roman Catholics do not feel that they can bring themselves to utilise the provisions of the Family Law Bill, under my proposal they could at least live apart from one another protected not merely by the injunctive provisions of the Bill but also by a recognition written into a variety of clauses in this Bill.
Indeed, wherever reference to ‘dissolution of marriage’ occurs the words ‘or judicial separation’ would be put, thereby providing for those who feel that they cannot utilise the very real benefits of the Family Law Bill by permitting them at least to be separated, to have the various custody, maintenance and other provisions applying and not to break their deep-seated religious faith. In that way I think that by this excellent Bill, of which I am strongly in favour, we can provide for those who cannot bring themselves to seek relief under the Bill as it stands at present by defining ‘matrimonial cause’ as not merely dissolution of marriage or nullity of marriage but also as judicial separation. This would provide a very real area of coverage for a group of persons who will not be satisfied by this very worthy Bill other than by seeking relief as I interpret it under clause 1 14, which is an injunctive provision which normally at law will apply in the short term.
– I do not share the exuberant and elaborate description given to the Bill by the honourable member for Kooyong (Mr Peacock) but nevertheless I support his amendment. A mere handful of people are involved but I believe they are entitled to our consideration and our solicitude. I am informed that the number of people who applied for a decree of judicial separation in 1968 was 18; in 1970 it was 16; in 1971 it was 12; in 1972 it was 3; and in 1973 it was 7. It may be the inclination of the Committee to say: ‘There are few people involved. Why should we be concerned?’ I think that is a rather pitiless approach to the deeply held views of a number of people, albeit a very small number of people. I would trust that the Committee would acknowledge that in our community there are still people with very strong and robustly held views with respect to marriage and who, despite the fact that significant differences of opinion have arisen, nevertheless do not want to abandon the undertaking that they gave.
I do not think it is asking very much of the Attorney-General (Mr Enderby) to acknowledge that that is the case. I do not think the amendment will characterise the Bill as illiberal. I do not think it will expose the honourable gentleman and those who support him to the charge that they have succumbed to the blandishments of those who conduct the rearguard action in our society. This is a simple but nevertheless very important consideration. I hope my friend will not resist the compassion which he is invited to display.
– I shall speak very briefly because my learned friend the honourable member for Moreton (Mr Killen) invites me to do so. The question is not one of compassion. Judicial separation largely has fallen into disuse over many years. It is just not used today. I do not speak for the Government on this measure; it is not a Government proposal, as honourable members appreciate. What is proposed is completely inconsistent with what we have done to date, and properly so. If we are to have irretrievable breakdown after 12 months separation, one can hardly write in at the same time a provision for a decree of judicial separation. That seems to be absurd. Under the existing law- I think I am correct in saying- a number of provisions require people to institute a petition for principal relief if they intend to seek ancillary relief. Perhaps one of the reasons why those 7 people began proceedings for a judicial separation was that they were looking for ancillary relief. That provision is no longer part of this Bill; it is not now necessary. I oppose the amendment- that is all I can do- on the basis that the injunctive form of relief is intended to take care of the situation.
– As a longer term matter?
– I would have thought so. It can be done. Why should one spouse be able to say to another, as presumably is in the honourable member’s mind: ‘You shall not have a divorce. Because of some religious view I hold I will not allow you to have a divorce. I will keep you married to me. ‘
– But the two agree to it.
– Oh no, and it can be used for blackmail, more often than not.
– Not now.
– I think it can be used in that way. This amendment seems to go right against the spirit of what we are trying to do. We are trying to remove the antagonism which arises because the law can be used in that way. In other words, if the whole thrust of the proposal is 12 months separation, marriage could be put to rest in a civilised, decent way. This amendment is completely inconsistent because it says, in effect: ‘You shall not dissolve the marriage. You shall continue the marriage when one person wants to ‘. I argue that that attitude is completely inconsistent. It goes back to an earlier period in our history, a period of time that we have long left behind us. It would not be a productive measure at all. I oppose it.
– I intend, in a moment, to call the honourable member for Mackellar, but I think this is an appropriate point at which to raise a matter of difficulty as regards our procedure. On a number of clauses honourable members have listed more than one amendment for consideration. Under the Standing Orders, as amended for this debate, honourable member would be prevented from having more than one amendment moved before the Committee. Where this position arises I propose, at appropriate times, to request the Committee to grant leave to permit the member concerned to move formally any further amendment but without his having the right to speak to it. I call the honourable member for Mackellar.
– I do not follow you, Mr Chairman. I shall require the right to speak to one of my amendments later on. Do I lose that right if I speak now?
-The position is that any member can speak only once. It will be open to him, on that one occasion, to refer to any listed amendment under that clause, but he will not have another opportunity to speak.
-Perhaps I can take the opportunity now, to say, firstly, that I do not quite follow the Attorney-General (Mr Enderby) in this. If a party to a judicial separation feels aggrieved- that is, the party who does not have the strong feeling against divorce after a year’s separation- he will be able to move on the ordinary ground and the other party, who may be the wronged party but has a reluctance towards divorce, would not be in a position of initiating. I think that is important and I think it may have been overlooked by the Attorney-General. I just want to say that one of my amendments is the same as that to be moved by the AttorneyGeneral, and I shall not press it. The difference between our amendments is one of drafting. The amendment to be proposed by the AttorneyGeneral in regard to the definition of ‘welfare officer’ seeks to insert after ‘children’, the words ‘being an organiation that has been approved by the Attorney-General ‘. As I said, I shall not press my amendment.
Again on a drafting matter, I refer to subclause (3) which relates to the definition of the domicile of a party to a marriage. There is confusion in the drafting of this part of the clause. Again I think it is only a matter of drafting and not a matter of substance. One will see that paragraphs (a) and (b) of the sub-clause are in conflict one with another. One has to be made subject to the other. Paragraph (a) states: a person’s domicile . . . howsoever acquired, shall be deemed to have continued . . .
Paragraph (b) states: the domicile of a woman who is, or has at any time been, married shall be determined as if she had never been married; . . .
These 2 paragraphs obviously are in conflict because howsoever acquired may mean acquired by marriage. It is purely a drafting matter to insert the provision that paragraph (b) be subject to (a). Again I put this matter not as one of substance but purely as one of drafting. There is a logical confusion at the moment between paragraph (a) and paragraph (b) of sub-clause (3).
– Before the honourable member for Mackellar resumes his seat I point out that it was not clear to me whether in the course of his comments he actually moved one of his amendments. It is necessary for him to do so.
-Yes, Sir, I moved both of my amendments. I shall not speak to the first amendment because I understand that the Attorney-General is accepting it, or moving in the same terms. My amendment No. 12 to subclause (3) has been moved and I have given the reasons for moving it. Again this is purely a drafting amendment because there is a logical conflict between paragraphs (a) and (b) of this sub-clause.
– I should like to draw the attention of the Committee to an error on my part. I should not have invited the honourable member for Mackellar to move that amendment at that stage. It has been drawn to my attention that the amendment moved by the honourable member for Kooyong (Mr Peacock) has not been disposed of. Accordingly the question now before the Chair is that the amendment, namely amendment 8a, moved by the honourable member for Kooyong be agreed to. The question before the Chair Will not preclude a cognate debate on any other amendment listed on the schedule.
-When speaking during the second reading debate on this legislation I dealt with the concept of judicial separation. I think it is the responsibility of members of Parliament to look to the needs of all people of our country. They should look to the thoughts, the views, the feelings, the religious considerations and all those matters that help to make us a community. For some considerable time past judicial separation has been an important feature of matrimonial matters. The amendment proposed this evening, which seems a most proper amendment, has offended the AttorneyGeneral (Mr Enderby), who said that it conflicts with what we have already done. Of course we have already declared without any equivocation that a separation of 12 months is automatic grounds for divorce. The decision on this matter is complete and nothing can be done to alter that situation. But if 2 people feel in their own consciences and in their own religious beliefs that they want a judicial separation- not because they want to flout the high motives and the morality of the Attorney-General- should this Committee by its decision say that course should not be available to them? I think that it is an affront to a substantial section of the Australian people to say that a judicial separation will be denied.
It is true that only a very small percentage of people who have sought a dissolution of marriage or who have come before matrimonial courts have sought a judicial separation, but irrespective of who the people might be or what religion they might follow or what their thoughts might be on these important social and human issues, surely it is the responsibility of the Parliament to take into consideration the requirements of those people. It is not for the AttorneyGeneral or for anybody else to say: ‘This is the package deal you are going to have whether you like it or not ‘. I put it to the Committee this evening that in order to meet the conscience of a substantial body of people in Australia, a judicial separation should not be denied by the steamroller tactics of the Attorney-General The concept of a judicial separation ought to be accepted by the Committee as a reasonable, just and proper one.
- Mr Chairman, I have listened very carefully to the debate on the proposal that we are considering. At the beginning I felt that there was a lot to be said for the proposal because I was of the view that if the Bill did not contain a provision to cover this kind of a situation, something ought to be done about it. But when I looked more carefully at the Bill and had an opportunity to see what the Senate did about this matter when it was debated at great length in that chamber I found I was satisfied that the amendment would be quite pointless. Provision for this sort of situation is already made in clause 114.
– That is not so.
-Yes, it is. Under that clause a person can get an injunction to keep the parties apart, where that is what is needed. There could be a situation where a wife is genuinely afraid of a husband breaking in and interfering with her, or whatever a husband does when he breaks in, or there could be a situation where a wife could break in on a husband- I do not know what she could do, but it could happen. Both parties require some protection which a judicial separation gives. Clause 114 gives that protection.
– You do not understand.
– If the learned, honourable and gallant gentleman contains himself for a moment he will see that it is quite pointless to support the amendment, as he does, because no grounds are provided for getting a legal separation. What seems to have been overlooked-: -
– I will write in the grounds as we move through the Bill.
-What the honourable gentleman seems to have overlooked is that this matter was debated at great length by the Senate. All these points were put by the Senate.
– They cannot write in the grounds -
-Order! The honourable member for Kooyong cannot make a second speech by way of interjection.
-This is not the last half second of a Melbourne Cup race. I ask the honourable member to try to be calm and collected about the whole thing. Already in the Bill there is provision for legal separation. I did not understand this until I took counsel on it. I find that in the Bill there is provision for legal separation. If people want a legal separation they can get it by agreement. As I said, the Bill provides for that. Provisions in clause 114 provide for injunctions, which have the same effect as a legal separation. It seems to me that what the honourable member for Kooyong is trying to do or pretending to be doing- in fact, he will not do it- is to create a state of euphoria so that people will believe that this amendment might give them some relief. If the amendment is carried these people will be neither married nor divorced. They will be in a state of suspended animationif it is possible to be animated in such circumstances. That is about all they will get out of the amendment. In reality, they will have had nothing at all beyond what is provided in the Bill. The Senate looked at this matter at great length. It did not gloss over it. This is not something which the learned senators did not notice in the course of their debate. They did notice this. They are just as smart as we are.
– It came before the Senate only once.
– They did notice it. They took cognisance of it. I repeat that I have taken counsel on this matter. I would not have risen and made the speech which I have just made merely relying upon my lay knowledge of divorce laws. Let me tell the honourable member for Kooyong (Mr Peacock) that I know more about divorce than he does. I am not talking from guesswork.
That the amendment (Mr Peacock’s) be agreed to.
The Committee divided. (The Chairman- Mr J. M. Berinson)
Question so resolved in the negative. Consideration interrupted.
Alleged Confidential Statisticians Survey on Unreported Crime- Election of Union Official in South Australia- Arts Grants for Film Production- Wool Industry
– I propose the question.
That the House do now adjourn.
-In the debate this evening on the motion for the adjournment of the House I wish to raise an issue concerning an article contained in last weekend’s ‘Sunday Mail’. The article was written by a respected senior reporter of that newspaper. The article was titled: ‘Secret federal check on Queensland police’. The article went on to suggest that federal police are visiting Brisbane’s massage parlours and contacting prostitutes in a search for background information which they hope will harm members of the Queensland Police Force. This matter relates to a survey that is also being conducted by the Commonwealth Statistician. Apparently a survey is being conducted into unreported crime. I am rather amazed at the attitude of the Federal Government, which has been made known through the statements referred to by Mr Alan Underwood when he questioned the Statistician as to the contents of the survey. My friend the honourable member for McPherson (Mr Eric Robinson) and my colleague the honourable member for Wentworth (Mr Ellicott), on whose side I am once again to be found, and others expressed concern during a recent debate on the role of the Statistician at the area into which censuses are being conducted and Government officials are probing. Mr Underwood asked Mr May, a Queensland officer of the Commonwealth Statistician, for details of the survey. Mr May said:
The survey documents are confidential. I cannot disclose the questions.
I confess to not having informed and advised the Treasurer (Dr J. F. Cairns) that I intended to speak on this subject, which I should have done because the Australian Bureau of Statistics comes under his control. But in view of the goings on in the House today I failed to raise it with him. I express deep concern at the fact that the Statistician is now conducting surveys in relation to which the questions being asked are described and classified as being confidential. I ask: What right has the Government to instigate these surveys when it is unprepared to make public contents of the questions which are being asked of members of the public? The practice of conducting surveys is growing. I hope that this short contribution tonight will be recognised as one in which a member of this Parliament is speaking out not only for the rights of the individuals but also for the rights of a nation.
We know that some surveys are compulsory and that persons who refuse to answer the questions can well be subjected to a line. If this is the case, and it is the case, what right has the Government to withhold the content of the surveys from the public or even from the Press. It is totally wrong. I hope that this speech will be drawn to the attention of the Treasurer and that, if he agrees with my sentiments, he will take the necessary measures to ensure that the cloak of secrecy which has been placed on this survey, at a time when the Labor Government boasts of open government, is torn away.
– I wish to draw the attention of the House to an election in a trade union in Adelaide which will be taking place this week. I am referring to the election of office bearers of the Australian Government Workers Association. I understand that the ballot papers for the election are being posted out probably today or tomorrow. I should like to draw the attention of the House to circumstances which existed within this particular union in South Australia last November. Mr Thomson, General Secretary of The Australian Government Workers Association, as it is called in South Australia, was suspended by the State Council of the Association. This union is a quite significant union in our State. It covers more than 8000 workers. These workers are all employed by the State Government. To that extent, they are being paid by taxes levied on those of us who pay taxes in South Australia. Last year Mr Thomson was suspended by the State Council for certain activities in connection with the anti- Vietnam War moratorium demonstrations. At that time he said his union’s prison officers would not process any union members sent to gaol because of the demonstrations. People in that union describe the situation in it at that time as being in turmoil- I am referring to a report in the Press of 22 November 1974- and turmoil really did exist in that union with many staff changes, including the Secretary, the Assistant Secretary, several organisers and office staff. I believe that a number of office girls have left since January this year. That is what happened in November last year.
What is really of more concern is what is happening in this month of this year. Once again, this union is having its election of office bearers. In effect I suppose I am speaking not only to the people of Australia but also to the people who run that Association. It is about to elect new office bearers. It seems to me incredible that one of the candidates for the position of organiser in that union, a Mr George Young, is permitted to nominate. In April last year the Engineering and Water Supply Branch of the Australian Government Workers Association carried a resolution requesting that the election of an organiser be delayed until there be conducted, to quote the minutes of that meeting: … a thorough and exhaustive inquiry into the credentials of a candidate for the position of Organiser, namely George Young.
It seems that Mr George Young has a long criminal record in New South Wales including breaking and entering, stealing, arson, larceny and assault. In 1965 this person was declared an habitual criminal. It seems to me that if these facts are true and it is the same person, then surely the voting members of the Association, which is an important union in South Australia, should know about them. If the facts are untrue then this gentleman deserves an apology. I claim that the State Council of the Australian Government Workers Association has no right to cover up these charges- certainly not if they are true. Furthermore, it has no right to expect its members to make the charges and expose themselves to possible retaliation, because if the charges are true then the sort of person who would be guilty of them would be the sort of person who would retaliate against a member or members who had sufficient courage to bring the matter up at a union meeting. If the union cannot ensure that persons with a record of thuggery and violence are not prevented from controlling the union, it seems to me that the Government should step in. If any members on the Government side wish me to table the documents that provide evidence of these charges I shall be happy to do so. The South Australian Government and the Federal Government are governments which penalise thrift, destroy incentive and reward indolence. They also subsidise smut. In the few moments remaining to me I should like to mention another matter that has concerned me for some time. There has been no other opportunity to bring it to the attention of the House. It relates to the recent approval by the Prime Minister (Mr Whitlam) for large sums to be made available in this country for the arts. I refer to a report in the ‘Sydney Morning Herald’ of 26 February- I am sure the report would be accurate- of grants made by the Government and approved by the Prime Minister for the arts in Australia. At that time, the amount of approved grants totalled nearly $3m. One particular grant that interests me and to which I draw the attention of the House is the grant of $2,322 made to a Mr Martin Fabinyi on the recommendation of the
Film and Television Board. It so happens- I believe I am not doing this person any discreditthat this is the same Mr Martin Fabinyi who was convicted in Adelaide as a result of offences committed there during the Festival of Arts. I quote portion of an article which appeared in the Adelaide ‘Advertiser’ of 26 June 1974, which states:
Martin Fabinyi . . . film maker … of Darlinghurst, NSW, pleaded not guilty before Mr 1. E. Cameron, SM … to having . . . aided and abetted a 17-year-old girl to behave in an indecent manner while visible from a public place, Elder Park.
The sergeant who prosecuted said: . . . two police officers attached to the CIB vice squad had seen a large tent, bearing a sign ‘RAGA Arts’, at Elder Park during the Adelaide Festival of Arts.
I am sure that the honourable member for Adelaide (Mr Hurford) will remember the incident. It happened in January or February of last year. The article continues:
Inside, they had seen about SO men and women and about 15 children around a TV screen on which they could see a girl dancing.
The article goes on to describe what had happened on the television screen and continues:
The police officers had then moved to another part of the tent and had seen the girl committing the act behind a screen.
Fabinyi had been pointing a TV camera at the girl.
I do not want to go into detail, but what happened was an example of what I believe to be quite unnecessary obscenity in connection with the Festival of Arts. The person who produced the film and showed it on television in the presence of young children as well as adults was subsequently prosecuted, convicted and sentenced to 28 days imprisonment in the Adelaide Jail. All of these things may seem to you, Sir, to be irrelevant but what is not irrelevant is that the same person earlier this year received a grant from the Labor Government to produce more films without any control over what these films are to be. I believe that this is a gross misuse of public funds. In fact, the Labor Government is subsidising the production of pornographic and obscene film material.
– And you would be the one to go and watch it.
-The honourable member for Prospect, who takes an excessive interest in these matters, says that I would be the one to go and watch it.
– Look who is talking about it.
-He says: ‘Look who is talking about it’. It seems to me that he should be concerned with the morality of spending public funds to produce pornographic material. That is typical of this Government. I repeat that it penalises thrift, destroys incentive, rewards indolence and laziness and subsidises-
-Order! The honourable member’s time has expired.
– I did not know that the honourable member for Boothby (Mr McLeay) was going to raise these matters and I am completely unprepared. I am not suggesting in any way that he should have warned me because I am not involved in any way, but as I am in the chamber I would like to comment on both the matters. He said that I should remember a particular case. In fact, although the name Martin Fabinyi did not mean anything to me, I now remember a case in the courts of South Australia as the honourable member for Boothby described it. I think that it is completely unfair of the honourable member to suggest that the Labor Government is giving this person money directly. It is not giving this person money directly for any purpose whatsoever. The Australian Labor Government has set up to make recommendations an independent committee of people who are universally respected in their particular fields. I would not know whether those experts knew of the conviction of the person concerned at the time the money was made available to him. Perhaps they did. Perhaps those experts who recognised the art of this man considered that it was important that he be forgiven and having already taken his punishment for his previous misdemeanour should be forgiven and encouraged in a particular field of activity, a field which I do not know but perhaps the honourable member for Boothby does know. If he does, he has not told us tonight.
I leave that case and turn to the case of the Australian Government Workers’ Association merely to say that neither I nor the honourable member for Hawker (Mr Jacobi), who is a previous secretary of that great union in South Australia, knows anything about Mr George Young and his history. We would like the honourable member for Boothby to table the documents regarding this case so that we too can become acquainted with it. In the course of his remarks the honourable member made some charges, which I suspect are wild charges, against the council of the AGWA suggesting that it is covering up some of the history of Mr Goerge Young, if indeed he has a history. I am sure that the council of that union would be following the rules of this association which were properly surveyed and examined by many learned people before they were registered at the court. The council would follow those rules to the letter before it would accept a nomination; it would not accept a nomination from anybody whom as not qualified to be accepted under the rules.
If I am wrong, of course the honourable member is quite proper in bringing it up in this House, but I would have preferred that he had done his own investigations and had been absolutely certain before he dragged the name of this person before the House. I notice that a reporter from the Adelaide ‘Advertiser’ is present. He was probably told that this matter was to come up so that it would be spread on the front pages for the people in South Australia tomorrow. I would have preferred it if the honourable member were certain of the facts before calling a thug this person who is a candidate. The honourable member did not indicate to the House that he was certain of the facts. I would have hoped that he would be certain of the facts before he spoke. If he is proved to be correct of course these facts should be known to all who are taking part in that election. I trust that somebody will now have the opportunity to make these investigations before parliamentary privilege is used in this way and this man’s name is dragged before the public of South Australia in this way.
– I rise to speak in this debate as a result of a statement made recently by the Minister for Agriculture (Senator Wriedt) in which he warned the wool growers of Australia that in no circumstances must they allow the price of wool to go too high as to do so would be dangerous. I think many wool growers would agree with that statement, provided the price of wool was set down. The true value of wool is always a contentious subject, but on this occasion the Minister did not tell us exactly what he thought the price should be. He only warned us that the price should not be too high. We can agree with him on that. The point is: What is a reasonable price? That is the burning question. It is also rather interesting to note from Press reports that the Minister is to place before Cabinet a submission that we should continue to have as a reserve price 250c per kilo for 21 micron wool, clean. It is rather interesting to note that even though the price appears to be reasonable, it is completely uneconomical so far as wool growers are concerned because even today we are informed that the latest price for wool is running in the vicinity of 270c per kilo, not 250c per kilo. I am not an expert on the wool industry but I can assure the House that 250c per kilo is not a payable proposition. Indeed, those wool growers who believe that they have a reasonable income are biting into their capital.
I am indebted to the Wimmera shire municipality which has supplied me with the results of a survey it carried out recently. I do not have sufficient time in this debate to give the House the full details, but because of the difference in opinion as to how much profit there is to be made in primary industry today the Wimmera shire carried out a survey for the years 1972-73 and 1974-75. In a nutshell, that survey proved that the average farmer in that shire, leaving aside his investment, finished up with a profit of $6,839 for the year 1972-73 and last year that profit was reduced to $3,346. The average value of these properties would be in the vicinity of $100,000 plus. If one were to take into account the interest on that sort of money it is obvious that these people are not getting anywhere near 1 1 Vi per cent on their investment. Probably they would receive 1 per cent or 2 per cent and they would be working for nothing.
As to the price of wool, it is interesting to note that the survey covering 1972-73 showed that the average price per kilo was $2.64 whereas last year the figure was down to $1. 1 give the House these figures because I believe there are many people who are under the misapprehension that 250c per kilo today is a reasonable price. I am sure that many wool growers would agree with me that the price is not high enough.
-Order! It being 1 1 p.m. the House stands adjourned until 2.15 p.m. tomorrow.
House adjourned at 11 p.m.
The following answers to questions were circulated:
asked the Minister representing the Minister for the Media, upon notice:
When will the Minister answer my question No. 235 which first appeared on the Notice Paper on 1 6 July 1974.
– The Minister for the Media has supplied the following answer to the right honourable member’s question:
The question was answered on 14 May 1975 (Hansard, page 2296).
SEATO Naval Exercise (Question No. 2241)
asked the Minister for Defence, upon notice:
– The answer to the honourable member’s question is as follows:
asked the Minister for Social Security, upon notice:
– The answer to the right honourable member’s question is as follows:
Master of Sociology
Master of Social Administration
Master of Arts
Bachelor of Science (Honours)
Bachelor of Arts (Honours)
Bachelor of Social Studies
Bachelor of Arts
Diploma of Social Studies
Secretary Level 1
Director Class 10
Senior Project Officer
Class 9 (6)
Senior Executive Officer
Project Officer Class 8(6)
Direct Control and Co-ordinate the Operations of the Commission’s Office. Formulate Policy Recommendations for consideration by the Commission
Direct and Control Project Staff, prepare submissions and briefing papers
Plan and undertake research programmes required to serve the Commission’s functions and liaise with statutory bodies, universities and voluntary organisations concerning social planning and research programmes
Direct and oversight the Operations Section
As directed, undertake research associated with projects initiated by the Commission and/or assist with programmes undertaken on behalf of the Commission by Universities, Government Departments and other organisations- Act as Secretary/Convenor to working parties and committees established by the Commission
J. D. Davidson
H. E. Evans
A. M. Brennon
A. S. Podger
R. G. Bell
J. C. Van Beurden
K. A. Louttit
M. A. Gleeson
asked the Minister for Defence, upon notice:
– The answer to the honourable member’s question is as follows:
asked the Minister for Defence, upon notice:
In view of the possible phasing down of operations at the Woomera Rocket Range in South Australia, have any investigations been carried out to see whether the facilities at Woomera can be utilized for other governmental activities.
– The answer to the honourable member’s question is as follows:
All possible additional uses of Woomera are being examined. The Armed Services are keeping the special characteristics of Woomera in view for training and trials purposes. Australian Government Departments and Authorities in the non-defence sphere have been made aware of the facilities and capabilities of the area and have been invited to consider possible uses. To date, however, no firm proposals have emerged.
While Woomera remains operational, it will continue to be made available from time to time for projects conducted on behalf of other Governments.
Political Detainee in Indonesia (Question No. 2415)
asked the Prime Minister, upon notice:
– The answer to the honourable member’s question is as follows:
asked the Prime Minister, upon notice:
– The answer to the honourable member’s question is as follows:
asked the Minister for Housing and Construction, upon notice:
– The answer to the honourable member’s question is as follows:
asked the Minister for Health, upon notice:
– The answer to the right honourable member’s question is as follows:
Community Health Program
Community Mental Health, Alcoholism and Drug Dependency Program
Family Planning Program
Home Nursing Subsidy Scheme
Grants to Community Agencies engaged in Mental Health Activities in the Australian Capital Territory
Health Services Planning and Research Program
Community Health Program
Community Mental Health, Alcoholism and Drug Dependency Program
Family Planning Program
Home Nursing Subsidy Scheme
To be eligible for subsidy, an organisation must:
Grants to Community Agencies engaged in Mental Health Activities in the Capital Territory
Year ended Grants Received 31 March 1974………. 21 31 March 1975………. 16
Year Ended 31 March 1974 …. Approx. 30 per cent 31 March 1975 …. Approx. 44 per cent.
asked the Minister representing the Postmaster-General, upon notice:
– The Postmaster-General has provided the following answer to the honourable member’s question:
asked the Minister representing the Postmaster-General, upon notice:
– The Postmaster-General has provided the following answer to the right honourable member’s question:
asked the Minister representing the Postmaster-General, upon notice:
– The Postmaster-General has provided the following answer to the honourable member’s question:
Tentative programmes for the next two financial years provide for the following numbers of exchanges to be converted to automatic operation:
The relative fall off in conversions achieved and planned is a reflection of the need to allocate resources to the high growth areas.
asked the Prime Minister, upon notice:
– The answer to the honourable member’s question is as follows:
Cite as: Australia, House of Representatives, Debates, 19 May 1975, viewed 22 October 2017, <http://historichansard.net/hofreps/1975/19750519_reps_29_hor95/>.