28th Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Magnus Cormack) took the chair at 3 p.m., and read prayers.
– I present the following petition from 11 citizens of the Commonwealth:
To the Honourable the President and Members of the Senate assembled. The humble petition of the undersigned citizens of Australia respectfully sheweth:
that, to allow true religious freedom, Governments will make no law respecting religion, neither to prohibit the free exercise thereof nor to compel the individual citizen to support the religion of others.
that nearly all non-State schools are church schools which to a greater or lesser degree promote a specific creed.
that, about 80 per cent of church schools are Roman Catholic schools, which Roman Catholic spokesmen explicitly state to be extensions of their church.
that, the use of Commonwealth funds to aid church schools compels every taxpayer to finance the religion of others, whether he wishes to, or not.
Your petitioners most humbly pray that the Senateassembled will restore to the Australian people true religious freedom, which can only exist when Church and State are legally separated both in form and substance.
And your petitioners, as in duty bound, will ever pray.
Petition received and read.
Notice of Motion
– I give notice that on the next day of sitting I shall move:
That, in the absence of any standing order on the matter, honourable senators’ right to question Ministers is limited only by the judgment of the Senate, and that Ministers who seek recognition from the Senate are obliged to answer questions with a promptness and accuracy appropriate to ministerial responsibility.
– I give notice that on the next day of sitting I shall move:
That there be referred to the Senate Standing Committee on Industry and Trade the following matter - the economic consequences of the introduction of a 33-hour working week in Australia.
– Honourable senators, I think it is appropriate that I should make this statement, which I do. My attention was drawn some 10 days ago to a requirement that the Presiding Officer call questioners who first catch his eye by standing up. This was a standing order to which I paid deliberate and close attention. After one day of that practice it was quite apparent to me that I would have to revert to the sort of administrative rule I had laid down for myself and that was to give an opportunity to the acknowledged leaders of the acknowledged parties in the Senate to be first called. After that I try to distribute the call to questioners as best I can between Government senators and senators sitting in the Opposition. However, as question time proceeds - and this occurred under previous administrations - honourable senators sitting on my right tend to drop off, as it were, from the question vine and a sort of freshness of oxygen blows into the lungs of honourable senators on my left. The result is an imbalance that is apparent in Hansard afterwards. It gives the impression that there is not a fair and equal distribution of questions to honourable senators.
I consistently attempt to allot questions on the basis of the rights of senators and to protect the rights of senators in these matters. I propose, notwithstanding the relevant standing order fixed at an earlier time when the Senate had a smaller membership, to continue the practice that I have found to be satisfactory in the past. I hope that honourable senators will concur in that procedure.
– I address my question to the Attorney-General. In view of the Attorney-General’s concern - a concern share’s by the Opposition - that the Australian community should not be subjected to terrorism or even the threat of it, will he advise why he has released the film ‘Skyjacked* which deals with the hijacking of aircraft and which could place the lives of Australian citizens in jeopardy, if the showing of the film Flight to Doomsday’ is any guide? In view of this situation and the protests from all sections of the Australian air transport industry, will the Attorney-General now take steps to reimpose the ban?
– Mr President, the decision in respect to the film ‘Skyjacked’ was made by the Film Censorship Board several weeks ago. I understand that the film has been shown almost all over the world. So far as I can recall, only in Hong Kong has the film not been available for showing. I recall that President Nixon said it was the best film he had seen in all that year. 1 have no doubt that the views of particular groups were taken into account by members of the Film Censorship Board when they made their decision. I have no doubt that they would weigh very carefully the representations that had been made. There is one problem in regard to films when representations in respect of crimes are received from all sorts of bodies. In regard to the film ‘Skyjacked’, I understand that the book on which it is based has been freely available in Australia. In any event, people in the air transport industry have asked to make representations to me and I am seeing them, 1 think next week, to consider whether there should be intervention to overturn the decision made by the Film Censorship Board.
– I ask the AttorneyGeneral whether he informed the DirectorGeneral of Security prior to the raid of the Commonwealth Police on the Melbourne headquarters of the Australian Security Intelligence Organisation on 16th March of the instruction he had given to the Commonwealth Police to seal all safes and containers in ASIO headquarters. If not, why not?
– No, I did not inform the Director-General before I went to ASIO headquarters. I must say in regard to all these questions that the practice of the previous Administration was not to give any information at all about relations with ASIO.
– When did we ever raid ASIO?
– I heard the interjection then by the former Attorney-General. He said: ‘When did we raid ASIO?’ I think that the Senate and the country would have been much better off if the former AttorneyGeneral had paid more attention to ASIO.
– Answer the question.
– I have indicated to the Senate that I went to the Canberra office of ASIO. I have indicated that there I found information which disturbed me greatly. I formed the opinion that it was necessary to do what I did in having sealed the safes and other containers of files in the headquarters of ASIO. I informed .the Prime Minister of the principal information which caused me to do that. I have not only discussed that matter with him but the Cabinet has been informed of the reasons for the disquiet which I felt. I think that the Senate could be assured that I would give as much information as I could about this matter. The concern which the Opposition has expressed on occasions for maintaining the integrity of organisations and of the processes of government ought to be exhibited on this occasion also.
– I direct a question to the Attorney-General. If neither the Director-General nor the Regional Director of the Australian Security Intelligence Organisation refused to give the AttorneyGeneral all the relevant information in regard to the Croat terrorist situation, is he saying now in his answer to Senator Greenwood that this information was refused him and that this led him to take the extraordinary action that he took in going to Melbourne?
– I have said, and I said yesterday explicitly, that I was not refused information. I have said also that I found information which caused me to believe that it was necessary for me to take the action which I took, and that was to preserve and ascertain information at the headquarters of ASIO.
– My question, which is directed to the Attorney-General, has been somewhat anticipated by the Minister. However, I will ask it. In view of the acute concern throughout the nation that there should be a frank disclosure by the Attorney-General of the reasons for his moving in with the Commonwealth Police on Australian Security Intelligence Organisation offices in Canberra and Melbourne and the even graver concern now entertained in all quarters of the nation and finding expression in the media, that the Attorney-General in his statement to the Senate yesterday confined himself to Croatian activities in this country but failed to give any reason for the exercise against ASIO or any details of that exercise and failed to inform the Senate and the people of the purpose and intention of it, will he inform the Senate fully of the exercise involving ASIO, including the reasons for it, and the nature and sources of the information which came into his possession which persuaded him to take the course of action which he took? I ask that, consonant with the preservation of the necessary security, this being in the discretion of the Attorney-General. Will he be prepared to come before a committee of the Senate to provide that and any associated information, again consonant with such protection as is still available to the security service in Australia?
– I will discuss with the Prime Minister whether the appropriate course is for me to come before a committee. The matter has been discussed with the Director-General of Security and with the Prime Minister. I have informed the Senate - and I do so again - that there was good reason for my taking the view that information should be preserved and ascertained, and that was the reason for the action which I took. The matter about which I was concerned at the time was, of course, the matter of Croatian terrorism, in the context of the impending visit of the Prime Minister of Yugoslavia as well as of the information to be supplied to the Senate. I have informed the Senate that the information which I obtained at the Canberra office of the Australian Security Intelligence Organisation was extremely disturbing, and in my judgment then - as I say, this has been discussed with the other appropriate persons - it was necessary to take action to preserve information and to ascertain information.
– I direct a question to the Minister representing the PostmasterGeneral. In view of the control exercised by the Postal Department over the use to which private mail boxes, are put, will the Minister examine the material which emanates from Post Office Box 52, Paddington, and which he studied yesterday?
– Is this a question without notice?
– It does not sound like lt to me. Have you had notice of this question, Mr Minister?
– I have not had notice of the question, but I have seen the material to which Senator Mulvihill has alluded.
– All right.
– Yesterday Senator Mulvihill drew to my attention, as the Minister representing the PostmasterGeneral, information that apparently is being sent through the post from a box number at Paddington. One could describe the information only as being most un-Australian in its character and its characteristics. The material is printed on cheap paper and, indeed, is of a coarsely printed nature. It refers to genocide, says something about a Whitlam-Eichmann-Tito co-operation and then, in an insert form, says something about death to Croatians. I believe that it is material that should be drawn to the attention of the Postmaster-General, seeing that apparently it is being circulated through the Australian post. I certainly will take that course of action and draw it to my colleague’s attention.
– My question, which I direct to the Attorney-General, concerns the documents which were made available to some of us yesterday and which contain allegations of the most serious nature against a number of citizens of the Commonwealth and a number of persons of -Croatian origin in the Commonwealth. As all these allegations have been made under cover of privilege, what tribunal or form of redress is available to any of those citizens who have been so attacked so that they may clear their names?
– If the honourable senator is suggesting that there should be some form of inquiry into these matters, this may be a very useful course for enabling persons who think they have been reflected upon erroneously to put forward whatever they want to put forward. I think an inquiry into these matters may well be a proper course to undertake. I will take into consideration the proposal put forward by the honourable senator.
Senator- JESSOP - I ask the AttorneyGeneral a question. He has said already; in answer to a previous question, that he had not been refused information by the Australian Security Intelligence Organisation. Did he ask ASIO for information”? If so, what sort of information did he seek? Did he discover any information on terrorist activities in Australia from other sources? If so, would he name these sources?
– I have indicated already, in the statement which I made yesterday, that information was obtained from a large number of sources. In the wash-up of it all, if that was what the honourable senator was asking, I think I obtained such information as I sought. Answering the precise question in terms of a refusal, no, information was not refused to me. I am satisfied that, after the actions which I took and after discussions which I have had, I have been able to obtain all the information that was reasonably obtainable. If the honourable senator was referring to the information which I found at the Canberra office of the Australian Security Intelligence Organisation, that had not been brought to my knowledge. It is something that ought to have been brought to my knowledge.
– My question is directed to the Minister representing the Foreign Minister, fs he aware that Rhodesia is seeking migrants by advertisement in Australian newspapers? Can he inform the Parliament whether prospective migrants are being screened by officials of the Rhodesian Information Centre in Sydney? Is the Centre likely to go out of existence in the near future?
– No, I am not aware of what the honourable senator has suggested. I will make some inquiries and let him know.
– Is the AttorneyGeneral aware that some Australian citizens are worried about the fact that the Australian Security Intelligence Organisation will now be isolated from security information from many quarters of the world due to the recent visit, raid or call it what you will, on ASIO headquarters by the Attorney-General? Is he prepared to advise the Senate whether such isolation is occurring and is he prepared to back up his statement by telling the chamber the number of letters and cables which were received from overseas per day prior to the raid and the number received per day since the raid?
– No, I am not aware of what is suggested by the honourable senator, but I will look into the matter to see whether I can obtain the information which he is seeking and see whether it is appropriate to put before the Senate.
– My question, which is directed to the Attorney-General, arises partly out of an answer which he gave earlier today to Senator Greenwood, I think, in which he mentioned discussion with the Prime Minister about the raid on the Australian Security Intelligence Organisation. Did the AttorneyGeneral discuss with the Prime Minister the serious information to which he has referred and which he discovered in the regional headquarters on the night of 15th- 16th March before he went to Melbourne?
– My question is directed to the Attorney-General. In taking the action which he did to protect the safety of prominent Australian citizens, including the Prime Minister, and a visiting dignitary of State, did he have in mind the threats of bombings and the actual bombings which occurred previously in the heart of Sydney last September?
– I suppose that at all times I have had somewhere in my mind, as all honourable senators must have had, the bombings in Sydney, and as I became progressively aware of the position in Australia I suppose my concern for the safety of the Yugoslav Prime Minister was heightened.
– I ask the AttorneyGeneral whether during and subsequent to his visit to the Regional Director of the Australian Security Intelligence Organisation in Canberra, and up to and including the time of the Melbourne raid, steps were taken to prevent the Canberra branch of ASIO from communicating with its Melbourne office.
– Not that 1 am aware of.
– I direct my question to Senator Wriedt as the Minister representing the Minister for Overseas Trade, the Minister for Northern Development and the Minister for Minerals and Energy. Has his attention been drawn to reports that the Australian Government’s action in revaluing our currency has placed in jeopardy plans by Mary Kathleen Uranium Ltd to re-open its uranium mine in north western Queensland? As this mine would be a big overseas income earner for Australia, and as a town capable of housing in excess of 1,000 people has been in mothballs for about 10 years, will the Government see whether any assistance can be provided for the mining company to re-open its mine and so provide jobs for a considerable number of people?
– I have indicated in the past in reply to questions of a similar nature that any persons affected by the revaluation of the Australian dollar are in a position to adopt measures available to them to make representations to the Government. This does appear, on the face of it, to be a slightly different situation from some others. I am not aware of any submissions made to the Commonwealth by the company concerned. I shall inquire of the Minister concerned. If there are special circumstances, I will have them drawn to his attention.
– As the Attorney-General has now stated that he found information at the Canberra regional office of the Australian Security Intelligence Organisation which was disturbing and which led him to believe that further information was required, and in view of the fact that the Attorney-General has admitted that no information was being withheld, why did he not seek the co-operation of the Director-General of ASIO in obtaining further information instead of engaging in activities reminiscent of James Bond?
– I do not propose to answer the question in the terms in which it was put by the honourable senator but I will say, as I have said before to the Senate, that the nature of the information I discovered was extremely disturbing and such as to cause me to take action to preserve and to ascertain information as I did. The Director-General of ASIO is aware of the circumstances of the matter. It has been discussed with the DirectorGeneral and it has been discussed with the Prime Minister. The Director-General of ASIO has made no complaint to me. He has seen the Prime Minister. There has been a discussion of the whole matter with the Prime Minister. The Director-General has no complaint to make to the Prime Minister. I inform the honourable senator that there was information in the Canberra office of ASIO which in my belief, provided justification for my taking action to preserve and ascertain further information.
– My question is directed to you, Mr President. During the course of question time yesterday you referred to the presence of a claque on your right and your left. Was that directed at any particular clerk - the Clerk of the Senate, the secretarial clerks or the clock that hangs on the wall in front of you? If not, did you mean a claque - pronounced c-l-a-c-k in the Oxford dictionary? If so, were you referring to the clacking that went on for H hours during question time yesterday and appears to be continuing today?
– If the honourable senator had read yesterday’s Hansard he would have seen that the word I used was spelt correctly. I generally use a long ‘a’ instead of a short ‘a*.
– I direct a question to the Attorney-General. Was the information he discovered in the Canberra office of the Australian Security Intelligence Organisation that he found to be so disturbing written or oral? If so, was the Director-General of ASIO in any way associated with the document?
– It was written information. I do not know what the honourable senator meant when he said ‘associated with the document’. If the honourable senator is suggesting that the Director-General of ASIO brought the document into existence, I will inform the honourable senator that the answer is no.
– I said in any way associated with it.
– Mr President, may I add to my answer to the question which has been asked by the honourable senator? I do not know whether the purpose of the questioning by honourable senators opposite is to endeavour to destroy the credibility of ASIO. 1 have been careful in my answers to the Senate. I have been taking very great care, as 1 think the Senate would expect me to do, in answering questions. I have indicated that the matter of what I discovered has been not only discussed with the Director-General and the Prime Minister but also referred to in Cabinet itself. I again inform the Senate that what was in the document was extremely disturbing indeed and caused me to take the action which I took.
– Is the Minister representing the Minister for Foreign Affairs aware of reports that a black ban has been placed on the French vessel ‘Descartes’, which is at present moored in Western Port Bay? Is the Minister able to say whether this action is possibly premature in the light of other reports that some understanding has been reached between the French and Australian governments that nuclear tests will not proceed while the matter of further testing is under discussion between the 2 governments?
– I have seen a report of a b ack ban being imposed on a French ship and I have also seen the report to which Senator McAuIiffe referred that there will be no more testing during the negotiations. It must be appreciated that in any international dealings, because of the request of both sides or one side, negotiations are kept at a very confidential level. But I can say that I agree with what the Prime Minister said at his Press conference yesterday that there is a clear understanding that the French will not proceed with tests while they are negotiating with the Australian Government.
– I address a question to the Leader of the Government in the Senate in his capacity as Attorney-General and Minister for Customs and Excise. I refer to his answer today to the question addressed to him by the Leader of the Opposition concerning the proposed exhibiting of the film ‘Skyjacked’. ls it not a fact that his colleague, the
Minister for Transport and Minister for Civil Aviation, and the General Manager of Qantas Airways Ltd have also objected to the showing of the film in the interest of. public safety?
– the Minister for Transport has put certain views to me. 1 do not know whether they amount to as much as objecting to the film being shown. I am trying to answer the honourable senator’s question precisely. I think it is probably fair enough to say that the Minister would prefer that it be not shown. 1 think that is a fair assessment of his views. The Director-General of Civil Aviation has spoken to me. But the situation really amounts to this: I will be seeing a number of representatives of the aviation industry who will be putting representations to me, and I assume that they will be making a request that the film be not shown. I know that some of them will make that request because I have read certain things in the newspapers. I am not quite sure whether they are all of the same view. That is the best answer I can give to the honourable senator’s question. I do not know that the Minister for Transport has made a formal objection to the film being shown.
– Is the Minister for Primary Industry in a position to indicate whether in the course of the visit to New Zealand by the Minister for Overseas Trade, when discussing questions relating to the New Zealand-Australia Free Trade Agreement, he made reference to the damage done to the canning pea industry in Australia as a result of the terms of that Agreement made some years ago? What steps can be taken to invoke the terms of the Agreement so as to reverse current trends which, if they continue, almost certainly will mean the end of the canning pea industry as a substantial Australian primary industry?
– I did have a very brief discussion with Dr Cairns yesterday, after his return from New Zealand. I inquired of him whether discussions concerning the importation of peas were held. He told me that they were. But I have not had time to talk to him to ascertain the detail of the discussions or what may have resulted from those discussions. I shall have to obtain that information from Dr Cairns and supply the honourable senator with it.
– I direct a question to the Attorney-General. In answer to a question asked by the Leader of the Opposition yesterday the Attorney-General stated that as a result of the visit which he- made to the Australian Security Intelligence Organisation headquarters the arrangements for the Yugoslav Prime Minister were tightened. I ask the Attorney-General: Did the visit to the ASIO headquarters have a specific relationship to the visit of the Prime Minister of Yugoslavia? Will the Attorney-General inform the Senate of any details of the information which led him to tighten the arrangements, and advise in what way the arrangements were changed for the personal security of the Yugoslav Prime Minister?
– The whole matter of the visit to the Australian Security Intelligence Organisation headquarters was in the context of the visit of the Yugoslav Prime Minister. It is probably not correct to say that that was the specific reason for the visit to the ASIO headquarters. The matter was tied up with the visit of the Yugoslav Prime Minister and the statement I was to make in the Senate. Naturally there was a concentration by me on those 2 matters. The tightening up of the arrangements for the visit of the Yugoslav Prime Minister went on successively in the light of the assessments which were made at the headquarters of ASIO and after that visit virtually daily or more than daily during the whole period. There was a great deal of activity which took place in my Department and with the officers of the various forces concerned. Throughout the period the tightening of the arrangements was such that the precautions taken were, I think, the most stringent that have ever been taken in Australia to guard a foreign visitor.
– My question is directed to the Attorney-General. I refer to his many answers that he discovered something in the Canberra files of the Australian Security Intelligence Organisation that caused him to take a force of 30 police officers to Melbourne to seal the safes and files, and to his answer to Senator Durack that no attempt was made to contact Melbourne by telephone and order that the files be safeguarded. Does all this mean that the information revealed in Canberra indicated a complete lack of confidence in the loyalty of leading officers or of an officer of ASIO in Melbourne? If not, what does it mean?
– I suppose the easiest way to answer the honourable senator is to tell him that I did not take 30 police to Melbourne.
– Well, 27.
– I did not take 27 police to Melbourne. The police who went to the Australian Security Intelligence Organisation were the police in Melbourne. They were not taken down to Melbourne by me. As I have already informed the Senate, the DirectorGeneral and the Prime Minister are aware of what caused the concern, or the principal cause of that concern. I have, in association with the Director-General, been taking steps and I have endeavoured to act in such a way as not to cause, the damage to the Security Intelligence Organisation which honourable senators opposite are intent on doing. I hope that honourable senators opposite will be ready fairly soon to debate the matter of substance which 1 put before the Senate yesterday so that it can be dealt with.
– My question which is directed to the Minister representing the Minister for Services and Property refers to the fact that 500,000 people will become eligible to be enrolled because of the recent decision to lower the voting age to 18 years. Will the Minister make arrangements for electoral officers to visit all high schools, technical colleges and universities to advise on procedure for voter registration? Will the Minister also give consideration to a nationwide television campaign to ensure that all these new eligible voters are made aware of their responsibility to enrol?
– This is an interesting idea. I shall pass it on to the Minister whom I represent.
– My question is addressed to the Attorney-General. If, as he has told the Senate, the safes and filing systems of the Australian Security Intelligence Organisation in Melbourne were sealed, will he inform the Senate whether they are still sealed? If so, what benefits have accrued to the security of Australia? If they are unsealed, when were they unsealed? Has anything been taken out of those files which has been of benefit to him in his search for the security of Australia.
– I do not think they are sealed. I imagine that they would not be sealed now. I think they probably would be very secure. In answer to the question as to whether anything was taken out of those files which was helpful to me in my actions on behalf of the security of Australia, I say yes, a great deal. Over the last week or so a great deal of very helpful information has been forthcoming. I think it has proved and will prove to be of benefit to Australia and its security.
– My question is directed to the Attorney-General. Mr President, with your indulgence I remind him of a famous statement made late last year by his Leader of the demeaning idea that the Government always knows best, with the unspoken assumption always in the background that only the Government knows or should know anything. In view of the fact that he appears to change his mind will he explain how he overcomes the implication in his responses today that in some way the Director-General of Security could not be trusted? If that is not the implication will he state why he did not inform him before he, with police, took over the premises of ASIO on 16th March?
– I have indicated that the information which was found by me at the Canberra office of ASIO was the principal cause of what I did in taking action to have containers of files safely sealed until such time as I had inspected them. I do not propose to add to that. I have not made in this Senate or elsewhere criticism of Mr Barbour, the Director-General-
– Just a broad smear.
– Listen to who is talking. What about the smearing of the moratorium people? He made his career by smearing.
– That is what he has lived all his life.
- Senator Wheeldon, order
– Senator Greenwood is exposed for what he is - a cheat.
– Order! Senator Wheeldon, I will not permit you to continue to interject after I have called you to order by name. You will oblige me in future, will you?
– I beg your pardon, Mr President.
– Senator Greenwood is making allegations which have no foundation and in fact I would think that what he is endeavouring to do is somehow to injure the reputation of the Director-General. I have had numerous discussions with the DirectorGeneral in recent days and those discussions have been quite satisfactory.
– I direct my question to the Attorney-General and I remind him that both at question time yesterday and during the debate last night I gave him sworn evidence relating to the midnight entry to and a search without warrant by Commonwealth Police of an Australian pensioner’s home. I also drew his attention to the believed presence of a Yugoslav secret policeman at such search and entry. I ask: What steps has he taken to check on’ this Nazi-type midnight doornock and search without a warrant and what does he propose to do about it?
– One thing I do not intend to do is to make up my mind about this matter before I have the full facts, and I do not propose to pre-judge the issue in the way in which the honourable senator has. I will inform him as soon as I can in accordance with the usual procedures. When these matters are raised in the Senate appropriate inquiries are made by the Department and I will inform him of the result as soon as I can.
– My question is directed to the Attorney-General. Is it a fact that the Commonwealth Police took control of the switchboard in ASIO headquarters in Melbourne during the Attorney-General’s raid on the headquarters? If so, why?
– I do not know that what the honourable senator says is correct.
– My question is directed to the Attorney-General. I refer to an answer which he gave me yesterday in relation to an assessment of risks involved in the recent visit of the Prime Minister of Yugoslavia. I ask him: Who gave him the assessment that the danger was so great that the visit should not be held? When was this assessment given, what consultations took place as a result of this assessment and how far did he take it into account before making a decision relating to the visit?
– Answering the last part of the question first, I did not make the decision as to the visit. The decision was made by the Prime Minister. From time to time assessments were made with a great number of persons. A committee was set up and Mr Mahony, the Deputy Secretary of the AttorneyGeneral’s Department, established the procedures and co-ordinated the arrangements to the point at which the operational responsibility was transferred to Mr Davis, Commissioner of the Commonwealth Police. Assessments were being made more frequently than daily as to what was occurring. There was a great deal of information and assessments had to be made in respect of the various quarters from which risk might be anticipated. The assessments did not all agree in the sense that some were expressing an extreme degree of risk, such that the visit ought to be cancelled. Finally the decision was made to go ahead with the visit, although even at the later stage the viewpoint was expressed that the visit was too dangerous.
– In directing my question to the the Attorney-General I remind the Senate that although I have asked questions about the Australian Security Intelligence Organisation over a period of time I have never received answers to those questions. I wish now to ask the Attorney-General about the nature of the information he found and upon which he made his decision. Are we likely eventually to be advised of the nature of that information? If he cannot give us that information at this moment, can he give us an indication of what the effects would be of the release of that information at this moment?
– I wish honourable senators would read the Standing Orders. However, I will allow the question.
– The effect of the release of the information at this moment would be, I think, to injure national security.
– You have already done that.
– I have been advised that it would injure national security. Answering the other parts of the honourable senator’s question, the information is such that it made me believe that 1 should take the steps that I did take.
– It very much disturbed you.
– Yes. It disturbed not only me. It also disturbed all others who were aware of the information contained in the document to which I have referred. There are indications in that document not only of matters to which I have referred especially here today. The document contains other information which means that it simply could not be made public, in any event at this stage.
– I direct a question to the Attorney-General. As he has stated clearly that at no time did the Director-General or the Regional Director of the Australian Security Intelligence Organisation deny to him information he had sought from that organisation, will he now justify his action and fully explain the reasons that led him to raid ASIO offices? Were any political or other matters extraneous to alleged terrorist activity part of the motivation of the raids?
– I think that the last part of the honourable senator’s question, about political motivation, is the easiest to deal with. If he is suggesting that the matter in any way had anything to do with party political matters or that there was anything of that nature, the answer is no. Nor, at any stage, has there been any request by me that any document, file or information ought to be supplied for some party political purpose or that there be any delving into the affairs of political ‘ opponents in any improper sense. I would regard it as imperative that the organisations of government, not only the security intelligence organisation but the police forces of the country, be not used in any such way. 1 would expect that the officers who are in those organisations would not allow them to be used in that way, nor would any Minister permit them to be so used. If that is in the honourable senator’s mind, I would certainly ensure that the Australian Security Intelligence Organisation is not used for that purpose.
As for the earlier part of the honourable senator’s question, I have said before, and 1 repeat, that I was not refused information. I came to the conclusion from what I found that it was necessary for me to take the steps that 1 took to preserve information and to ascertain further information. I did that. I have told the Senate already that whilst information was not refused to me, there was information which I discovered at the Canberra office of which I ought to have been given knowledge and of which I was not given knowledge.
– I direct a question to the Attorney-General. Yesterday Senator Webster asked the Attorney-General whether he would agree to Mr Barbour, the Director-General of the Australian Security Intelligence Organisation, appearing before the Senate for the purpose of answering certain questions. The Attorney-General replied that he would discuss the matter with Mr Barbour. Has he yet discussed the proposal with Mr Barbour? Does he intend to arrange for Mr Barbour’s appearance before the Senate?
– No, I have not discussed the matter with Mr Barbour. I have not discussed anything with Mr Barbour.
– Aren’t you speaking?
– The honourable senator asks: ‘Aren’t we speaking?* Yes, we are speaking, and I can assure the Senate that we are speaking very harmoniously. If the honourable senator is suggesting that the relationship-
– He must be a tolerant man.
– Yes, I am a tolerant man.
– Not you; he.
- Mr Barbour is, no doubt, a tolerant man also. I have had a great deal to do in the intervening time. I can assure the Senate that I have been engaged to the point “ where 1 have not even had an opportunity to speak to Mr Barbour or to attend to a considerable number of other extremely urgent matters to which I ought to attend.
– I ask the AttorneyGeneral: Is it a fact that individual acts of violence have been committed by people who claim to be in the extreme Left of Australian politics? If evidence can be submitted to the Attorney-General indicating that certain members of the left wing of Australian politics have joined in demonstrations where private citizens have been harmed, where police have been violently attacked, where the employees and properties of nations with which Australia previously has had friendly’ relations have been injured or damaged, where police horses have been injured and where those extremists have acted in a manner condemned by the AttorneyGeneral
– What is the question?
– Mr President, you do not volunteer to interrupt the questions of other honourable senators. I hardly think that it is appropriate for you to interrupt my question. I will commence my question again. If evidence is submitted on a variety of points, where obviously extreme violence is committed in concert, where members of the public are involved, in that violence - I refer to instances where citizens are injured - where the flags of friendly nations are burned, which Senator Murphy mentioned yesterday as something of which he disapproves, and where individuals are taken before a court for either kicking or striking police in the face, will the Attorney-General have the Australian Security Intelligence Organisation or the Commonwealth Police produce files on those people and place those files before the Senate?
– In general, I think that what the honourable senator speaks about illustrates one of the problems to which I drew the Senate’s attention. Leaving aside the hypothetical nature of what he said - if there is evidence of extreme violence and so forth - the real problem with extreme violence, no matter from what part of the political spectrum it comes, is that in most cases, even though it appears that it has some national characteristic or component in the sense that it might be directed against a foreign power, there are no Federal criminal laws in relation to this. Such laws as do exist and to which one might turn are almost all State laws. That is the case unless something happens in the Territory itself. This is one of the problems.
– Are you not proving Senator Greenwood’s case?
– I am endeavouring to assist honourable senators as well as I can in respect of cases where we are dealing with the criminal law. Where what the honourable senator describes as extreme violence is committed on members of the public, the ordinary criminal law should be pursued. I think we in this country have to take the stand that we do not want extreme violence and we do not want the kind of terrorism that we have seen, lt should be made quite clear that violence will not be tolerated, whatever may be the political outlook of the persons who are engaged in the violence.
– Mr President, may I ask a supplementary question?
– I do not know why you should get priority over anybody else at the present time. If you feel that your question was not properly answered-
– Then I will not give you the call in preference to anyone else.
– If that is the basis of your ruling on a supplementary question-
– I am prepared to allow a supplementary question when I judge it proper to do so.
– You said a supplementary question-
- Senator Webster, please do not challenge my rulings.
– I ask the AttorneyGeneral: Was the Canberra Regional Director of the Australian Security Intelligence Organisation aware of the existence or the contents of the document which was discovered in the regional office by the Attorney-General and which caused him some concern, the release of which even today would gravely prejudice Australia’s security? If so, was the Regional Director equally concerned as the Attorney-
General about the contents of the document? If the Regional Director was not aware of its existence or content, why was he not aware? Was he asked why he was not aware? If he was aware of it, was he asked why he was not concerned about it? Finally, has any disciplinary action been taken in ASIO against any officer because of incompetence or inefficiency which denied a proper assessment of this information which the AttorneyGeneral said should have come to him?
– There are so many parts to the honourable senator’s question, and they are so complicated, that I ask him to put the question on notice. As to the latter part, about the inquiry, I informed the Senate that the Prime Minister had been made aware of this matter. The matter affected the portfolio for which he was also responsible. An inquiry has been instituted into the matter of the information and why the information was not made available.That inquiry has not yet been completed. The information, or some part of it, concerned not only me as AttorneyGeneral but also the Prime Minister, at least as Minister for Foreign Affairs. I do not tell the Senate that that is all who were concerned in it because it did concern others as well.
– Did the AttorneyGeneral take possession of this disturbing document at the Canberra regional office of the Australian Security Intelligence Organisation? If not, in whose custody did he leave it and with What instructions?
– I have informed the Senate already in answers during a lengthy question time yesterday that I had a photostat made immediately of the particular document and I also caused to be made photostats of certain other documents.
– In whose custody did you leave the document and with what instructions?
– Order! This is a supplementary question. If the Attorney-General wishes to answer it, he may.
– It was a brief question, asked precisely, and I am entitled to a precise reply.
– If the honourable senator would care to listen to the answer, I will give it to him. The document which I inspected was only a copy. I had a photostat made for me. The copy remained in the same custody from which it came. It was left in the appropriate place in the Canberra office of the Australian Security Intelligence Organisation.
– In this painstaking process of dragging information out of the Attorney-General, I ask him a question about this document which we have now found he photocopied at the Canberra office of the Australian Security Intelligence Organisation. I ask the Attorney-General: Did he go to the ASIO office in Canberra knowing or believing the document was there and with a view to getting it, or was it something found on a roving expedition?
– The question which the honourable senator asked is not well based. He said that Opposition members have now found something. I am fairly confident of my recollection that I said something yesterday about the document but I cannot find it in Hansard. I am trying to look through the several dozen questions asked and answers I gave and I cannot immediately refer to it. 1 think I mentioned it yesterday to the Senate. Perhaps the honourable senator may be able to find that I had already referred to a document. There have been so many questions that it is a little difficult to be quite certain. I was not aware of the existence of that precise document before I went to the Canberra office.
– I refer the AttorneyGeneral to the answers he just gave about the nature of this document which he found in the regional office of the Australian Security Intelligence Organisation, and particularly to the answers he gave to Senators Georges and Byrne. In view of the fact that the document was of such a highly important character, so vital to national security and affecting not only his office but also that of the Prime Minister, why did he not immediately draw the attention of the Prime Minister to it and discuss it with him at that stage?
– There was sufficient reason for that. The effect which the document had in relation to the Prime Minister’s portfolio depended as well on other circumstances.
– My question is directed to the Attorney-General and it concerns this disturbing information he received on his visit to the offices of the Australian Security Intelligence Organisation in Canberra and this document. Did this information com cern terrorists? Were they left wing terrorists concerned with matters other than the visit of the Yugoslav Prime Minister to Australia?
– Yes, it concerned terrorists. No, it did not concern left wing terrorists. Yes, it related to matters other than the visit of the Prime Minister to Australia.
– Does the AttorneyGeneral recollect that when Senator Greenwood was Attorney-General, and during the period of office of the previous government, members of the Liberal and Country Parties refused to answer any questions concerning the Australian Security Intelligence Organisation on the ground that it was contrary to the nation’s security? Has he noticed that members of the Liberal and Country Parties apparently now believe that there should be detailed inquiries into the operations of ASIO? Has he received any advice from the Leader of the Opposition or from any of his colleagues as to why it should be that it was contrary to the nation’s security to ask questions about ASIO while Ohe Liberal and Country Parties were in government but it is not contrary to the nation’s interest to ask such questions when Labor is in office?
– Yes, I can well remember the numerous occasions when members of the former Government declined to answer questions relating to ASIO. They went a long way indeed on that. I think 1 have assisted the Senate as much as I can in relation to this matter.
– I hope that is not really accurate.
– I would not regard these affairs as frivolously as does Senator Greenwood, the former Attorney-General I- think that the attitude of the present Government will be, as far as possible, to make clear to Australia what is being done, subject to the preservation of the confidentiality of matters which affect national security. It will be my endeavour to make available to the Parliament as much information as possible about the operations of ASIO. It is important, because of the concern which has been expressed from time to time about it, that ASIO be kept rigidly to its charter, that it carry out efficiently the functions for which it was set up, that it not extend beyond those functions and that it not be used for any party political purposes. If that is done I think there will be a great deal more confidence in and satisfaction with ASIO.
My understanding of the position is that the Organisation itself was concerned about the amount of secrecy which surrounded its affairs, especially when secrecy was not always necessary. It would be a lot better, and in the interests of the whole country, if as much as could reasonably be told, preserving the national security, were to be told about the Organisation. That is why I have announced that I intend to make a full report to the Senate on the structure and operations of ASIO and its relations with the Executive Government and to start to sweep away some of the atmosphere of secrecy where secrecy is not necessary. There may be matters which will have to be kept secret. The nature of the organisation must be kept secret. But I propose as far as possible to dispel that secrecy.
- Mr President, I would suggest to the Leader of the Opposition and honourable senators, in view of what you said yesterday as to the practice to be followed, that, as there has been over an hour of questions without notice, further questions should be placed on the notice paper. I make that request.
- Mr President, I would like to make it clear that I do not agree with Senator Murphy. In fact, if he had been listening carefully to what I said in relation to your statement last night and in relation to the notice of motion I gave today he would know that, whilst the Opposition admits he is quite within his rights to answer questions as he pleases, it does not admit that he has the right to request honourable senators not to ask questions!
– A Minister can refuse to answer a question. He can ask that that question be placed on the notice paper. Honourable senators will recall that I made a statement yesterday concerning the practice of the Senate in this regard and that I ruled that the Minister in charge can ask after a certain time for further questions without notice to be placed on the notice paper. I regard myself as being bound by the ruling I gave yesterday. The Leader of the Opposition has given notice of a motion which he will raise for debate tomorrow and I am certain the Senate will then determine the matter finally and absolutely. But until then I must conform to the ruling I gave yesterday and proceed to the next item on the notice paper.
– May I ask you a question, Mr President?
– Are you aware, in giving and adhering to that ruling, that it is a specific ruling given on the occasion of questions asked on the Australian Security Intelligence Organisation which are of paramount national importance, and that it has the effect of curtailing questions on ASIO?
– The ruling has not been given because of questions asked in relation to the Australian Security Intelligence Organisation. Senator Wright, if you are imputing that I have given a ruling on those grounds and those grounds alone, I take it upon myself to say that I resent it.
– And I take it upon myself to assert that it coincided with it.
– Order! Senator Wright, if you wish to assert the rights of the Senate you are at liberty to propose a motion of disagreement with my ruling. Senator Wright, do you wish to move a motion of disagreement with my ruling?
– I will rise when I wish to.
– For the information of honourable senators, I present copies of statements made by the Minister for Transport in
February with regard to the Australian Transport Advisory Council meeting held in Hobart on 16th February 1973. These statements included:
Commonwealth Assistance for Urban Transport;
Safer Fuel Systems for Trucks;
Increased Controls on Vehicle Exhaust Emissions;
Stricter Tests for Seat Belts; and More Details of Federal Aid for Urban Transport
– Pursuant to section 18 of the Wheat Research Act 1957, I present the 14th annual report on activities under the Act for the year ended 31st December 1971.
– I present the report of the Australian delegation to the 18th Commonwealth Parliamentary Association Conference at Blantyre, Malawi. I seek leave to move a motion dealing with the report.
– Is leave granted? There being no objection, leave is granted.
– I move;
The Senate take note of the report.
The host country of the Eighteenth Commonwealth Parliamentary Association Conference was Malawi. We met at the Kwacha Conference Centre in Blantyre during October 1972. As is the usual practice Australia was represented by 6 delegates from the Commonwealth Branch. There were also 6 representatives from the State branches plus one representative from the Northern Territory Branch. The Commonwealth of Australia Branch was represented by Mr H. B. Turner, Leader of the Branch Delegation and Branch General Councillor, Mr F. M. Daly, Deputy Leader and Alternative Branch General Councillor, Senator P. D. Durack, Mr B. W. Graham, Mr A. W. James and myself. There were in excess of 200 delegates and secretaries in attendance.
Pre-conference tours were arranged by the host branch and although I did not take part in any of those tours most delegates commented very favourably on the arrangements made for their comfort, and my assessment was that an enjoyable tour was had by all. I also feel confident delegates left Malawi with a greater appreciation of the problems exist ing in that country than they had previously anticipated. The people of Malawi are very friendly people and delegates were assured of a welcome wherever they travelled. The Conference was opened by his Excellency the Life President Ngwazi Dr H. Kamuzu Banda on 20th October 1972 and it continued for 6 days during which there were meetings of the Executive Committee, the General Council Plenary Sessions, Committee Sessions, meeting of the Society of Clerks-at-the-Table and the Annual General Meeting. The Life President, Dr Banda, in declaring Conference open dealt rather extensively with the parliamentary system of government in Malawi and the village type of election which had been adapted to the Westminster concept. Developing a theme around the institution of parliamentary government he said that all delegates were at the Conference because they were parliamentarians and because they represented countries which had some form of parliamentary government.
But there was not and could not be uniformity in the parliamentary system of the independent sovereign states of the Commonwealth because parliamentary institutions and practices arose out of varying conditions, circumstances and histories. Subjects for Conference discussions were listed under main headings but were broken up into sub-headings. The agenda items were:
The report of the delegation which has been tabled deals also with meetings of General Council and General Meetings of the Association. I am confident the delegates from the Australian Commonwealth Branch returned home with a greater appreciation of the value of the CPA. Although the Conference of the CPA does not make decisions on subjects discussed the value of the exercise is manifest in the. improved feelings existing between the delegates from the various countries which make up the conference. It is a dangerous practice to single out any individual country or delegate for special mention but I trust I will be forgiven for mentioning the representative from Papua New Guinea, Miss Abaijah. She was a most welcome delegate to Conference.
The Eighteenth Commonwealth Parliamentary Conference was the third CPA Conference I have attended and I say without any fear of contradiction that it was the most friendly and co-operative Conference I have yet attended. I would like to pay a tribute to those who were associated with the arrangements and management of Conference in any way whatsoever. I understand the Kwacha Conference Centre was designed and constructed mainly for the purpose of the Conference and if that is so then the efforts of the Malawi Government were an outstanding success. 1 seek leave to continue my remarks at a later date.
Leave granted; debate adjourned.
PARLIAMENTARY PROCEEDINGS BROADCASTING BILL 1946-1973
Motion (by Senator Douglas McClelland) agreed to:
That leave be given to introduce a Bill for an Act to amend the Parliamentary Proceedings Broadcasting Act 1946-1960.
Bill presented, and read a first time.
Standing orders suspended.
– I move:
That the Bill be now read a second time.
The purpose of this Bill, Mr President, is to amend the Parliamentary Proceedings Broadcasting Act to extend the protection afforded by section 15 of the Act to the territories not forming part of Australia. Section 15 of the Act provides that no action, civil or criminal, shall lie for broadcasting or rebroadcasting any portion of the proceedings of either House of Parliament. Although the only coverage desired of such broadcasts is domestic, reception may . extend to other areas because of variations in atmospheric conditions.
The Bill does not specifically bar any action or proceeding pending or yet to be instituted in respect of a broadcast or rebroadcast made before the date on which the Bill comes into operation. The opportunity has been taken to incorporate minor amendments relating to dates and titles which would have otherwise been included in a proposed statute law revision Bill. I commend the Bill to the Senate.
Debate (on motion by Senator Laucke) adjourned.
Motion (by Senator Kane) agreed to:
That leave be given to introduce a Bill for an Act to terminate Estate Duty.
Bill presented, and read a first time.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Willesee) read a first time.
– I move:
This Bill is a measure to give the force of law to 2 double taxation agreements. One is with Italy and applies only to profits derived from international airline operations. The other is with New Zealand and replaces the agreement concluded with that country in 1960. It covers all forms of income flowing between Australia and New Zealand. The 2 agreements were signed for the respective governments during 1972 but cannot take effect until the passage of enabling legislation. A comprehensive double taxation agreement with the Federal Republic of Germany, which was also signed towards the end of 1972, is at present being considered by the Government.
The limited agreement with Italy provides that each country is to exempt from its tax profits derived from international traffic by the other country’s international airline. In effect, each country will have the sole right to tax profits from international traffic derived by its international airline in the other country. This is the basis for avoiding double taxation of airline profits recommended by the International Civil Aviation Organisation in order to spare international airlines the difficulties raised by the taxation in a number of countries of the profits from a single flight.
It is the basis generally adopted in international double taxation agreements, whether of the comprehensive or the limited type, including Australia’s existing double taxation agreements. Once in force the agreement will apply as from 1966, the year in which the possibility of entering into these mutually convenient arrangements was first discussed between the 2 countries.
The revised agreement with New Zealand brings up to date the agreement concluded with that country in 1960. Basically, the revision was made necessary by changes since 1960 in Australian and New Zealand taxation laws but it also takes account of subsequent developments reflected in Australia’s more recent double taxation agreements, notably those with the United Kingdom and Japan. In particular, the new agreement includes provisions that will resolve cases of unrelieved double taxation that have occurred under the 1960 agreement due to each country claiming to be the source of certain interest and royalty income. The relevant provisions require the country of residence to recognise the other country’s source rules for the income years concerned. They will also prevent cases of this nature arising in the future-
Provisions of the new agreement dealing with income such as business profits and shipping and airline profits will have substantially the same practical effects as those of the 1960 agreement. Other provisions of the new agreement were not included in the 1960 agreement but follow the same lines as corresponding provisions in Australia’s more recent agreements. The tax which may be levied by the country of source on dividends remains generally limited, as in the 1960 agreement, to 15 per cent of the gross payment. Under new provisions broadly equivalent in scope to those in Australia’s more recent agreements, a corresponding limitation will generally apply in relation to royalty income. The tax of the country of source on interest is to be limited to 10 per cent. The limitations will not apply to dividends, royalties or interest that form part of the business profits of a branch that a resident of one country has in the other country, or to interest payments between associated persons.
The agreement introduces provisions that will resolve the residential status of persons who are regarded by each country as resident for taxation purposes under its own domestic law. It introduces a provision - now commonly adopted in double taxation agreements - which exempts certain payments from overseas sources to visiting students. It also includes usual provisions governing the taxation of visiting businessmen, teachers and professors, public entertainers, government employees and pensioners.
Turning to the measures for the relief of double taxation that will apply as a result of this Bill, the country of residence will provide relief, by way of credit for the other country’s tax, in respect of income that would otherwise remain taxable in both countries. Thus interest and royalties derived from New Zealand by residents of Australia, and in respect of which the New Zealand tax is limited to 10 per cent and 15 per cent respectively, will be taxed in Australia with credit being allowed for the New Zealand tax. Dividends from New Zealand received by Australian individuals will be eligible for a tax credit, while those received by Australian companies will remain tax free by reason of the rebate allowed on intercorporate dividends. Other income of Australian residents derived in New Zealand will be exempt from Australian tax if taxed in New Zealand.
On assent being given to this Bill, the agreement with New Zealand will generally have effect in Australia from 1st July 1972, and in New Zealand from 1st April 1972. The agreement also has some back dating to cover the dual source interest and royalty cases that I referred to earlier. In addition, the agreement will continue - for income years commencing before it enters into force - any provisions of the 1960 agreement that give a result more favourable to a taxpayer than the new agreement does. A memorandum containing more detailed explanations of technical aspects of the Bill and of the agreements is being made available to honourable senators. I commend this Bill to the Senate.
– It will be noted that these agreements were negotiated and concluded in 1972 by the preceding Government. Therefore it may confidently be expected that the Opposition will not raise any objection to them, although in passing I would like to make some brief observations about them. In the case of New Zealand we are updating a situation which existed for quite a long time and it is sensible to do so. In the case of Italy we are dealing with an airline situation, in the main, where equality in international air traffic is sought. This condition is recommended by the International Civil Aviation Organisation. It is a wise recommendation and we are prudent to adopt it. Equally we are wise to consider the same situation with regard to Germany. I think that this sort of practice will increase in the world because it leads to a better international flow of money and a better and more adequate sharing of the benefits of what might be called a multi-national situation. Up to date countries such as our own ought to be doing what they are now doing in such cases.
I have quickly been through the second reading speech and I find it quite satisfactory. The Special Minister of State (Senator Willesee) paid me the courtesy of warning me that the measure was coming on rather quickly. It is important to have it finalised by 30th March and we feel that it is wise to do so. An item that might have been stated, but has not, is the reason for the differing dates. The agreement is to have effect in Australia from 1st July 1972 and in New Zealand from 1st April 1972. One would think that something could be said for a common date of beginning in both countries rather than have what is in effect a 3 month interval between the 2 countries. But there is no point in holding the measure up. The Minister may care to let me have an explanatory letter. Once again I have pleasure in referring to the excellent explanatory memoranda produced by the Taxation Office and the Treasury generally for the information of honourable senators who study such measures. The practice could be commended to the whole range of government departments.
I note that in the case of New Zealand the agreement can be terminated at any time after 30th June 1975, and in the case of Italy at any time after 30th June 1973. We think it is sensible to accede to the legislation. If we found ourselves with a problem in respect of negotiating or examining any particular areas of concern the terminating date would give us adequate protection. Accordingly, we support the measure.
– I rise merely to intimate that the Bill has the approval of the Australian Democratic Labor Party.
Question resolved in the affirmative.
Bill read a second time.
– Senator Cotton has raised an interesting point. It arises because there are differing income years. Ours commences on 1st July; New Zealand’s income year commences on 1st April.
– I thought that that would be, the case but it was not my responsibility to advert to the financial year of balancing. I am grateful to have the assurance from Senator Willesee. It saves us delay brought about by asking further questions.
Bill agreed to.
Bill reported without amendment; report adopted.
Bill (on motion by Senator Willesee) read a third time.
The DEPUTY PRESIDENT (Senator Prowse) - I inform the Senate that I have received letters from the Leader of the Government in the Senate (Senator Murphy) and the Leader of the Opposition in the Senate (Senator Withers) nominating Senators Carrick, Davidson, Hannan, James McClelland, Milliner and Georges to be members of the Standing Committee on Education, Science and the Arts.
Motion (by Senator Murphy) agreed to:
That Senators Carrick, Davidson, Hannan, James McClelland, Milliner and Georges, nominated in accordance with a resolution of the Senate, be appointed members of the Standing Committee on Education, Science and the Arts.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Willesee) read a first time.
– I move:
That the Bill be now read a second time.
The purpose of this Bill is to implement the Government’s decision to introduce legislation to repeal section 66 of the Commonwealth Banks Act 1959-1968 as soon as possible after the resumption of Parliament. Section 66 of the Act provides that the amount of a housing loan by the Commonwealth Savings Bank or the Commonwealth Trading Bank to an individual on credit foncier terms under pari VI of the Act shall not exceed 90 per cent of the bank’s valuation of the property on which the loan is secured, or the prescribed amount - currently $9,000 - whichever is i he less. In practice all such credit foncier loans to individuals - that is loans where the principal and interest are repayable in equal periodic amounts - by the Commonwealth Banking Corporation are made by the Commonwealth Savings Bank.
Repeal of section 66 will remove the present limitation of the bank’s ability to determine flexibly and in the light of particular circumstances the maximum amount of a ci rd it foncier housing loan which can be made against the value of a property. The Commonwealth Savings Bank will then be on the same footing in regard to housing loans as the other savings banks subject to the Banking Act. which are not subject to any legislative constraints about the maximum amount of individual loans. The Bill provides for the repeal to come into force on the date of the royal assent. I commend the Bill to honourable senators.
Debate (on motion by Senator Cotton) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Willesee) read a first time.
– I move:
That the Bill be now read a second time
The purpose of this Bill is to obtain parliamentary authority for the appropriation of moneys for new and reconstituted departments as a result of the Administrative Arrangements Order of 20th December 1972. In addition, provision has been made for a further appropriation for the Aboriginal Advancement Trust Account and for an increase in the level of the Advance to the Treasurer. The total appropriations sought in this Bill amount to $56,050,000. Although additional appropriations are being sought, actual expenditure will not exceed the amounts included in Appropriation Bill (No. 1) 1972-73, by $56,050,000. Due to such factors which I will explain it is expected that there will be savings of about $24.4m under previous appropriations which are no longer legally available. However, as a matter of law moneys appropriated by Parliament for specific purposes may only be used for those purposes and savings under appropriations no longer legally available cannot be utilised to reduce to a net figure the appropriations sought in this Bill. Thus I am seeking parliamentary authority for additional expenditure in the divisions, sub-divisions and items set out in the Schedule to the Bill.
The Appropriations sought for departmental salaries of $19,468,400 and administrative expenses of $10,731,600 arise from the establishment of new departments and the restructuring of existing departments under the Administrative Arrangements Order of 20th December 1972. It is expected that these expenditures will be offset by savings of some $24.4m in appropriations to departments now abolished or reconstructed. I should explain why the offsetting savings of $24.4m are so much less than the expenditures of $30. 2m proposed in the Bill. In the first place, there are no existing appropriations to cover the costs of the central offices of several new departments. Their expenditures, which amount to a modest $572,000 are, therefore, additional to the 1972-73 Budget figures. In the case of those departments included in the Bills which have taken over existing services it has been necessary to revise their expenditures and include provisions for existing and additional staff at the latest rates of pay and to provide for an increase in their administrative expenses. These amounts, estimated at $4.5m would normally be included in the additional estimates Bills to be presented to the Parliament in April.
A further appropriation of $10,850,000 has been included in the Bill for the Aboriginal Advancement Trust Account. Of this sum. $7,500,000 will be made available to the States to supplement funds already provided by the Commonwealth to cover expenditures in such fields as housing, education and health. The remaining $3,350,000 is for expenditure by the Commonwealth on its own Aboriginal advancement programs. Eight hundred and fifty thousand dollars of this has been allocated to legal aid for Aborigines. Provision has also been made for an increase of $ 15m in the appropriation for the Advance to the Treasurer. The Advance, for which $30m was provided in Appropriation Act No. 1, is to enable the Treasurer to make advances that will be recovered during the financial year or to make moneys available, particulars of which will afterwards be submitted to Parliament or pending the issue of a warrant of the Governor-General specifically applicable to the expenditure. Twenty-five million dollars has already been issued out of the Advance to meet expenditures incurred, both before and after the Government took up office. Of this amount $10m represents advances made to departments to meet ongoing expenditure pending the passage of this Bill and will be recovered. This will leave $15m for commitments which have to be met before the appropriations from additional estimates become available towards the end of May. It is estimated that the requirements of civil departments in that period will be about $23m and, of Defence Departments, $8m. Details of these expenditures will be included in the additional estimates bills.
Since the revised Administrative Arrangements Order came into effect necessary expenditures for the new and reconstituted departments on salaries and administrative expenses were, as a matter of practical expediency and with minor exceptions, charged to existing appropriations including those provided for departments which were abolished. This ceased at 28th February 1973. The Bill therefore includes clauses validating those expenditures which, for all legal and practical purposes, are deemed as expenditures for the services provided in the Second Schedule to Appropriation Act (No. 1) 1972- 73. I commend the Bill to honourable senators.
Debate (on motion by Senator Cotton) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Willesee) read a first time.
That the Bill be now read a second time.
The purpose of this Bill is to obtain parliamentary authority for the appropriation of moneys for capital works and services for new and reconstituted departments as a result of the Administrative Arrangements Order of 20th December 1972. In addition provision has been made for a special loan to New South Wales and for grants to the States for employment creating purposes. The total appropriations sought in this Bill amount to $67,944,000. Although additional appropriations are being sought actual expenditure will not exceed the amounts included in Appropriation Bill (No. 2) 1972-73 by $61,944,000. It is expected that the appropriations of $21,124,000 sought for capital works and services will be offset by savings of some $21,750,000 in appropriations which are no longer legally available. However, asI explained in relation to Appropriation Bill No. 3, it is not possible to utilise savings under an appropriation to offset additional expenditure in another.
The appropriation of $15m for a loan to New South Wales follows an undertaking of the former Government to provide special budgetary assistance to that State. The provision of $31,820,000 for employment creating purposes will enable the States to proceed with approved projects in accordance with agreements reached with the Commonwealth. As with Appropriation Bill (No. 3) it has been necessary to include in this Bill a clause validating expenditures of the new and reconstituted departments since 20th December 1972 as expenditures for the services included in the Second Schedule to Appropriation Act (No. 2) 1972-73. I commend the Bill to honourable senators.
Debate (on motion by Senator Cotton) adjourned.
Senator MURPHY (New South Wales-
Attorney-General and Minister for Customs and Excise) - Mr Deputy President, I table some documents concerning Croatian terrorism. I referred to the documents during the course of my speech yesterday.
Debate resumed from 15th March (vide page 496), on motion by Senator Wright:
That the amendments of the Matrimonial Causes Rules, as contained in Statutory Rules 1973, No. 8, and made under the Matrimonial Causes Act 1959- 1966, be disallowed.
– Mr Deputy President, the amendments to the Matrimonial Causes Rules which are the subject of this motion are an expression not of one man’s view but of a combined view expressed by those experienced in the field of divorce and matrimonial causes. There has been a synthesis of viewpoints that have been put forward, and the various viewpoints are included in the amendments which have been made.
The rules express reforms advocated by distinguished judges, lawyers and academics. The Rules represent reasonable and well considered reform. The Rules carry into effect 7 reforms. These reforms relate to practice, procedure and costs, all of which are specially entrusted, by section 127 of the Matrimonial Causes Act, to regulations by the executive government. These reforms stand well within the scope and intendment of the Act and within constitutional power. Long before the present Government came to office the general need for sweeping reform of these Rules had been emphatically proclaimed. The Chief Judge in Divorce of the Supreme Court of New South Wales, Mr Justice Selby, said in evidence before the Senate Standing Committee on Constitutional and Legal Affairs:
I would like to see them - the previous Rules - torn up and rewritten.
His Honour referred to the ‘cumbersome nature of the Rules’ and said:
I think the Rules need to be very, very well raked over and cleaned up and tidied up.
His Honour, referring to a conference had by a previous Attorney-General, said:
I think nothing came of it as far as I know, except a lot of paper.
In the case of Fanning versus Fanning, which is reported in 19 Federal Law Reports, His Honour said:
The Act and Rules made thereunder have now been in operation for over a decade. The legislature might be disposed to give some consideration to the improvement of some of the machinery which has been shown to creak discordantly.
Mr Justice Joske, a distinguished and famous authority on marriage and divorce, in remarks which he made and has authorised me to use, referred to ‘complicated legal procedures brought about by top-heavy divorce rules’ and advised:
The Matrimonial Causes Rules are extremely lengthy and could be considerably modified to great advantage.
His Honour said:
It is by no means uncommon for judges when granting decrees to state that the decree is made notwithstanding that all the Rules may not have been complied with.
Further he said:
The failure to comply with them is generally duo to practitioners not having discovered some point of procedure provided in the lengthy obscurity of the Rules.
Chief Justice Bray has referred to the ‘cumbersome, prolix and expensive procedure’ under the former Rules and concluded:
There is much that could be remedied by a simplified procedure.
Mr Justice Else Mitchell of the Supreme Court of New South Wales, in a memorandum to me as Attorney-General on divorce reform, said of the previous Rules:
Procedures for divorce are too complex and consequently too costly. The remedy is not to provide legal aid but to simplify the legal procedures.
The Law Society of New South Wales, in its submission to the Senate Committee, proposed as an immediate suggestion: ‘Review the practice and procedure in divorce with a view to simplification’. The Cairnmiller Institute has stated:
It is our understanding that the aim of the law is to provide justice for both parties but, hopefully, this could be achieved with greater expedition and simplicity and with a consequent reduction of the anxiety many people suffer during that period between their separation from their spouse and the legal dissolution of their marriage.
The purpose of the amending Rules is to simplify procedure and thereby to reduce costs and remove indignities imposed by the former Rules. This purpose is achieved by 7 reforms. The first reform removes from the practice and procedure under the Act and Rules the so-called discretion statement. A discretion statement is a confession of adultery by a party claiming a divorce - or like relief– or custody. The Senate Committee recommended this reform in October 1972; but, although the Rules were amended in November 1972, nothing was done to give effect to the Senate Committee’s recommendation. Rule 32 of the amending Rules gives effect of this recommendation. I refer also to rules 34, 37 and 52 to 54.
The need for this reform was referred to by Chief Judge Selby in giving evidence before the Senate Committee. His Honour described discretion statements as ‘absolute abominations - a throwback to the old ecclesiastical court days’. His Honour said: 1 have not heard a word in favour of them.
His Honour emphasised not only the indignity and the illogicality of discretion statements but also positive abuse arising from discretion statements. The indignity of the discretion statement is obvious. The illogicality of an obligation to disclose only one of several discretionary bars to relief is abundantly plain. His Honour referred to abuses in the following terms:
But although a petitioner is obliged to disclose the name and address of any person with whom he has committed adultery, that person is given no notice of the fact that he has been implicated.
Two cases have come to my knowledge in which the persons thus implicated were entirely innocent of the adultery alleged, one of them having been named by a female petitioner purely out of spite.
The sealed envelope provisions do little to protect the person named in the statement. It is usual for solicitors to retain a copy of the statement and cases have come to my notice of grossly improper use of such copies.
Recommendations by the Family Law Committee of the Sydney University Law Graduates Association described discretion statements as ‘much criticised by both judges and the legal profession’ and recommended ‘urgent action’ for their abolition, asserting: Their abolition can take place without alteration to the present law’. This was explained by Mr Watson, Q.C., in the following terms:
I wrote to the Attorney-General’s Department setting out how the Rules should be changed and pointing out that the changes would not require any change at all in the law . . . It is one of those things that has cropped up not as a result of the Act as such but as a result of the interpretation put on the Act, and the Rules that have been put through under the Act You can get rid of these Rules without amending one section of the Act.
Chief Justice Burbury of the Supreme Court of Tasmania, in a letter submitted to the Senate Committee, said:
Few judges would support the retention of the discretion statement.
– I rise on a point of order. I raise the matter which I have raised several times in the Senate and in respect of which I have not had an answer from you, Mr President. It is tremendously relevant in relation to what Senator Murphy is now doing. I query whether he is in order in quoting from documents which have been submitted to the Senate Standing Committee on Contitutional and Legal Affairs which is inquiring into matters related to divorce. I suspect that he has been quoting already from documents which have been submitted to the Committee and which have not been the subject of public hearing. He certainly has been quoting from the Hansard record of hearings. He is about to quote from a letter written by Chief Justice Burbury of Tasmania to the Secretary of the Committee. I must insist on a ruling as to the propriety of this performance.
– 1 wish to speak to the point of order. I inform you, Mr President, that at a meeting of the Senate Standing Committee on Constitutional and Legal Affairs yesterday there was an express resolution that documents within the custody of the Committee were not to be permitted to the Senate for the purpose of this debate.
– I would like to be heard on the point of order. I submit that it is quite obvious that documents which have been published by the Committee and published in Hansard are, by order of the Senate per medium of the Committee, made public and that they are published to the world at large. I submit that it would be against, not only common sense but the laws of parliament if I could not refer to a document which had been published in Hansard, under the authority of the Parliament, and in many respects in the daily newspapers as a result. So that honourable senators will be clear on what I have done, I - not personally but in each case with a person - have satisfied myself that authority has been obtained from the persons concerned to use the expressions of opinion which they have made. In other words, as often happens, the person who makes a submission to a committee also sends his submission elsewhere and says that that is the submission which he will be making. If there is difficulty about the matter I could put it that way. If it offends the honourable senator
– It offends the Standing Orders.
– If it offends in that it is a reference to what has been submitted to the Committee, I will refer in direct terms and simply say that the person has expressed the following view. I will not make any reference to the Senate Committee’s documents.
– You were about to before this started.
– I think I am entitled to refer to them, when authorised by a person, if it was in the submission. If that will avoid the second point raised by Senator Durack I will do that. 1 submit that I am entitled to refer to documents published in Hansard. If the principle were not to be followed, one would not be able to refer to the Hansard of the Senate or its committees.
– Senator Murphy submitted that he will refer generally to what these persons have said. Obviously that refers to what they have said in a document presented to the Senate Standing Committee on Constitutional and Legal Affairs. I refer to standing order 308, which states:
The evidence taken by any Select Committee of the Senate and documents presented to such Committee, which have not been reported to the Senate, shall not. unless authorised by the Senate or the Committee, be disclosed or published by any member of such Committee, or by any other person.
In my submission, that clearly binds the person who makes a submission as much as it binds anybody else.
– I rise to speak to the point of order. Generally I concur with the view which has bee,n expressed by Senator Durack and which relies expressly on standing order 308, which could not be in more express terms. It states:
The evidence taken by any Select Committee nf the Senate and documents presented to such Committee, which have not been reported to the Senate, shall not, unless authorised by the Senate or the Committee, be disclosed or published by any member of such Committee, or by any other person.
Some point may arise as to whether a select committee is also a standing committee within the terms of the legislative and general purpose standing committees of which the Senate Standing Committee on Constitutional and Legal Affairs is one. Certainly if practice has any application in this area, one would sup pose that a rule which applied to a select committee would apply also to. a standing committee. But there are the resolutions under which the standing committees have been appointed. I understand that the Constitutional and Legal Affairs Committee was appointed by resolution in 1970. I submit that that does not alter the impact of standing order 308. The giving of power to a standing committee to print from day to day such papers and evidence as may be ordered by it and the fact that a daily Hansard shall be published of such proceedings of the committee as take place in public, I think, may be deemed to imply authorisation of the Senate for the material that is published in Hansard to be referred to and used because it is a public document. Subject to that exception. I would have thought that documents which have been referred to any select committee or any standing committee are in the custody of that committee and, unless authorised by that committee or by the Senate, cannot be used by anybody else. I listened to what Senator Wright said. If this Committee has indicated that the documents which it has in its custody - the documents of the earlier Constitutional and Legal Affairs Committee - are not to be published except by order of this Committee, it would be wrong for any senator or any member of the public to refer directly or indirectly to the submissions which have been made.
– lt would be wrong for any officer to use them, by reference hack, for the purpose of this debate.
– I heard what Senator Wright said. I concur in what he said. This is not a light matter. Mr President, you will appreciate that it was not so very many years ago that the Senate reprimanded, for contempt of the Senate, 2 newspaper persons who had published material of a committee which had not reported to the Senate. It is proper and entirely consistent with that approach that the Senate maintain, for all purposes, the authority of the Standing Order if it is open to challenge. I raise these matters only because I think that they are of deep significance and importance to the Senate and to the way in which the Senate is used by those who report our proceedings and who may have felt surprised 2 years ago that action could be taken for a breach of a Standing Order and that persons could be reprimanded for contempt of the Senate. In those circumstances I submit that the point of order raised by Senator Durack is a valid one and that it is up to Senator Murphy in the light of the ruling, if you, Mr President, should uphold Senator Durack’s point, to ensure that he does not breach the Standing Order.
– I must confess that for the past few days I have felt like the proverbial lamb in the Old Testament. 1 have been caught in the thicket, lt seems that 1 have my head in another one. I owe Senator Durack an apology for not dealing with the matter which he raised with me earlier this session. I have not been able to consult either the Leader of the Opposition or the Leader of the Goverment. Senator Durack will recollect that I said 1 would consult them on this matter. The matter has been raised. It is quite clear to me that the Senate Standing Orders Committee must address itself to this area because evidence which is given to so many of the Senate committees is used, prior to the presentation of the report, in subsequent debates - for example, the Estimates Committees. In the circumstances, although I have no knowledge of the documents that are held in the possession of the Committee under discussion at the present moment, I must uphold standing order 308 to which Senator Durack has drawn my attention.
– 1 take it then. Mr President, that I am able to refer to the material which has been published in Hansard and that I should avoid referring to others. I will endeavour to do my best to observe that ruling.
– I rise to a point of order. In the circumstances I think that Senator Murphy ought to indicate what private documents of the Committee he has quoted from already.
– That is up to Senator Murphy. I cannot give any ruling on that matter because I am not aware of any documents in any sequence or description held by the Committee. If you think that Senator Murphy has transgressed by quoting from a document that you think the Committee has withheld, you can draw his attention to it.
– I think it may be fairly said about discretion statements that they have been universally condemned. That is not only in evidence given before the Sen- ate Committee but also elsewhere. The Senate Standing Committee said in its conclusions that discretion statements should be abolished. I think it said that that should be done at the earliest opportunity. They have been described as an abomination of the law and as a throwback to ecclesiastical days. I do not know anyone who would venture a word in support of discretion statements. The decision of the Standing Committee, as I recall it, was unanimous that they should go.
– That was the disposition of the Committee.
– Yes, that was its disposition. This is one of the things that are done. The Committee said that they should go, and a course has been adopted of taking them out of the rules. It is said that by this motion Senator Wright will endeavour to retain discretion statements. In all reason 1 submit that that would be a very retrograde step for this Senate to take. Discretion statements are regarded universally as being inconsistent with the dignity of persons in the ’70s of this century and I think that we ought not undo what was a sensible and wise step in the interests of the community.
– Is not the point that of doing this by rule and not by amendment of the Statute, apart from the principle?
– The provision for the discretion statement was made by rule. This notion that in some way this ought to be done by legislation is not right. I am dealing with the rules covering the practice and the procedure. This was a provision inserted in the rules which should never have got into them. The provisions as to discretion statements should simply be deleted. 1 would hope that the provisions as to discretion statements would never again blemish the law. They are one of the worst features of the law I remember how the provision crept in. When I commenced to practice at the New South Wales Bar they did not have these discretion statements. They crept in by a judges decision. 1 remember that it was Mr Justice Bonney who started to say that they should have these discretion statements. It is extraordinary how these things can grow up over a period. One can relate back to an earlier decision, and to one in England, and gradually these abominations crept into the law. lt is time they were taken right out.
The notion that one should have discretion statements in order to exercise some discretion under the Act is not consistent with the change made from the New South Wales to the Federal jurisdiction. At least when the jurisdiction became Federal there was a power for the court not to be an inquisitor. The court should not be an inquisitor requiring parties to bring such matters before it. Mr Justice Carmichael, of the Supreme Court of New South Wales, in the case of Hutton v. Hutton, rejected any construction of the Act imposing an obligation on the court to conduct an inquisition into bars to relief such as collusion, condonation and connivance. The principle applies similarly in regard to these discretion statements. His Honour held that on the true construction of the Matrimonial Causes Act the Court had no inquisitorial function such as that exercised by the ecclesiastical courts. In His Honour’s view the provisions of the Act for intervention by the Attorney-General were sufficient to protect the public interest in marriage. Indeed, since the decisions of the High Court and Privy Council in the Boilermakers’ case it is difficult to imagine how any court exercising the judical power of the Commonwealth under chapter III of the Constitution could have conferred upon it any jurisdiction to conduct an inquisition. It was therefore proper to remove entirely from the matrimonial causes rules the obligation to confess any bar to relief under the Act.
The second reform introduced by the amending rules shortened the forms of pleading. This reform was given effect by rules, 8- 12, 13-16, 20, 22, 24-26, 32, 46, 47, 50 and 51. The need for such reform was referred to by Chief Justice Selby. He said in evidence before the Senate Committee:
Too much is required to be put into the petition. This often involves the creation of voluminous documents wilh the consequent expense of preparation and typing. A voluminous petition calls for a voluminous answer, and so the expense mounts. Petitions under the State Act seldom spread to more than a page or two in length. Now 20 pages or more are not uncommon.
His Honour further said:
The way the whole scheme of the rules works now is to require a great deal of detail. I think a vast amount of it is unnecessary . . . You get an enormous pile of paper which I think is a waste of time and a waste of money. It would be far better, I feel, if we went back to the old State practice where all that was said was: ‘The petitioner seeks a decree on the ground of cruelty’ and then if the repondent wants to fight it or wants to know what the particu lars are, he can apply for it. and can then be provided with the particulars. That Ls one way in which I feel a lot of time and money can be saved.
In answer to Senator Byrne on the merit of a petition in the greatest detail, His Honour said:
I do not think it has worked. I think it works the other way.
Mr Watson, Q.C., in giving evidence before the Committee, preferred to blame the legal profession. He said:
A lot of the paper work that has accumulated is due to bad professional work.
He added, with refreshing candour:
Most counsel I know - as a junior I was one of them - used to charge by the page and, obviously, if you got 30 pages you charged more than for a simple separation.
In answer to a question by Senator Durack, Mr Watson then agreed:
I think the rules need a great amount of revision in this area.
Mr Justice ElseMitchell of the Supreme Court of New South Wales, in his memorandum to me on divorce reform, said:
Existing procedures for divorce require drastic reform. . . The substance and contents of the petition should be reduced to bare essentials - similar to the form of petition in use under the NSW Matrimonial Causes Act.
Deputy Registrar Nixon expressed his opinion to my Department in these terms:
After 10 years operation I think it can be fairly said that 2 innovations, as far as New South Wales is concerned, made by the Commonwealth Act have been responsible in increasing costs to litigants and to the State. These 2 factors are:
The form of pleading introduced, particularly the pleading of all issues in the one petition;
the hearing and disposal of all issues al the one time. Both these matters, but in particular (1), undoubtedly have been responsible for an enormous increase in the costs of litigation in all suits both defended and undefended. The increase however has naturally been greatest in the enormous number of suits either nominally, or actually defended. . . The alleged adversary system of divorce litigation, particularly in regard to principal relief, does not exist except in the minds of self-interested attorneys. . .
Rule 14 of the amending rules provides for the optional - rather than mandatory - statement in a petition of arrangements for children. The purpose of a pleading, such as a petition, is to raise essential issues. If custody, access or maintenance of children are to be raised as issues they are required to be raised under other rules. None of the rules requiring particulars relating to the real issues - custody, access, maintenance and property - has been touched by the amending rules. Furthermore, the arrangements referred to, whether stated in the petition or not, are required by the Act to be sanctioned by the court. However, the so-called sanctioning has no sanction. Mr Justice Selby, in answer to a question by Senator Durack, quoted Chief Justice Burbury, who pointed out that the sanction ‘has no teeth’. Mr Justice Selby said of the sanction: ‘To that extent it is quite useless’. Mr Justice Else-Mitchell, in his memorandum, described the sanction as ‘an empty formality’.
The third reform of the amending rules removes adulterers from suits, unless they choose to intervene, and requires an application to the court for directions in claims for damages and other unusual proceedings. This reform is given effect to by rules 3, 5, 7, 17 to 19. 21, 23, 27 to 31, 33 and 49. The need for reforms of this nature was referred to by Mr Justice Selby, who, in speaking of claims for damages in the course of his evidence before the Senate Committee, said:
They, are very dangerous because it can be used for extortion.
Speaking of judicial separation. Mr Watson. Q.C.. said:
Time and time again 1 have known of cases where the wife has begun with a petition for judicial separation, and the husband wanted a divorce, and she has said: ‘1 will convert it to divorce when the price is right’.
The unnecessary joinder of adulterers was dealt with in evidence before the Committee by Mr Justice Selby. His Honour said:
Where, in a petition, a party to the marriage is alleged to have committed adultery with a specified person, that person must be made a party to the proceedings, irrespective of whether a decree is sought On the ground of that adultery. This involves the making of an extra copy of the petition, service of a copy on the person named, often an appearance on behalf of that person although the adultery may have no real bearing on the decision of the contested (or uncontested) issues. Even in petitions based on adultery,, occasions are not uncommon in which there is evidence of adultery against the respondent (which is all that is required for the divorce) but no evidence against the co-respondent who is dismissed from the suit at the end of the petitioner’s case at the hearing but cannot, as the Act and rules now stand, be dismissed earlier.
His Honour offered a suggestion adopted by the amending rules. His Honour said:
Under the old State Act, you may remember, there were not women co-respondents but a woman with whom a husband was alleged to have committed adultery was given notice and she was allowed to intervene if she wished and she became an intervener. Possibly if it were done that way, it would be something.
The desirability of removing third parties from matrimonial causes was referred to in the recommendations to the Senate Committee of the Sydney University Law Graduates Association in terms of reducing costs, bitterness, technical problems and grave injustice. Mr Watson Q.C., on behalf of that body, endorsed the evidence of Mr Justice Selby and supported the solution offered, saying of the former provisions:
It does seem that this at the moment is using a fairly large steamroller to crush a fairly small acorn.
The fourth reform introduced by the amending rules removed the necessity imposed by the former rules of having all proceedings heard at the same time and gave a choice of having all proceedings heard together or, alternatively, having the proceedings for principal relief heard separately from ancillary relief - ancillary relief being matters such as custody, division of property and so on. This reform is given effect to by rules 6, 35, 36, 38, 45, 48 and 55. The imperative need for this reform was asserted by Mr Justice Selby in the course of His Honour’s evidence before the Senate Committee. His Honour said: 1 am convinced that great expense would be avoided by a reversion to the superseded State practice whereby the suit is heard and disposed of (except where principal relief is contested) and contested ancillary matters dealt with at a later stags. . . . With the great volume of divorce litigation in New South Wales it is seldom practicable to hear and determine all contested issues in a case at one time. I am satisfied that a reversion to the procedure I have indicated would lead to the creation of a state of mind in the parties whereby, once they were divorced, they would be much more ready and willing to settle their outstanding differences. … A vicious circle is formed, for the longer the hearing of a defended suit is delayed, the greater the number of interlocutory matters which are likely to arise. But the greater the amount of the lime of the court that is taken in dealing with these matters, the greater the delay in dealing with the suit.
– That is only in defended matters. Did he give his mind to undefended matters?
– His Honour concluded:
The majority of defended cases are not fought on the question of whether or not a decree should be granted. The real contest is on ancillary matters.
asked His Honour:
Do you think it would be a good idea if the two issues could be rigorously separated?
His Honour replied:
I have suggested precisely that.
Of the practice under the former rules His Honour said:
It sounds very good and it sounds commonsense but 1 do not think it works.
– Again he is referring only to contested matters, is he not?
– That is the impression 1 got. I do not recall the evidence.
– In relation to the separation of custody from divorce and the requirement under the Act for satisfying the court that proper arrangements have been made for the welfare of the children, His Honour said:
In the majority of cases custody is not an issue. … I have had cases where the custody matter is stood over to be dealt with later. We have been unable to make a declaration under section 71, so the decree does not become absolute. But there are other cases where they have said: ‘This is the present arrangement on custody. This is going to be fought, but this is the arrangement’. I have looked and said: ‘I am not compromising it as between the parties but thai is a satisfactory arrangement. I will make a declaration under section 71 because I am satisfied that the children are going to be all right for the time being’. Then the custody matter is stood over.
The Family Law Committee has said:
The significance of the petitioner’s guilt in ancillary proceedings is becoming increasingly less important … a party against whom a matrimonial offence has been established in undefended proceedings is not estopped from denying it.
Mr Justice Else Mitchell, in his memorandum to me, said:
The prompt making of a decree nisi dissolving a marriage would avoid the legal processes, with their delays and frustrations, being used as a means of blackmail to procure favourable orders for maintenance, custody, access etc.
Other observations to the same effect have been made by a considerable number of learned persons. Deputy Registrar Nixon observed in his correspondence with my Department as follows:
The hearing and disposal of all issues at the one time’ has been responsible for ‘increasing costs to litigants and to the State’.
The same views have been expressed by bodies such as the National Marriage Guidance Council of Australia and so on. It does seem as though a valuable reform has been made here. The fact of the matter is I could not advise that one should go as far in making these rules as His Honour wanted because it could only be made optional under the rules. 1 suppose one thing that ought to be done if that view is accepted is a separation of the proceedings. But at least it is optional. I have gone as far as I could go in proposing that reform.
The fifth reform of the amending rules simplified proceedings for undefended divorces by extending to those proceedings the provisions of the former rules relating to the hearings of proceedings in chambers on affidavit evidence. This reform is given effect to by rules 4, 39 and 40. Such a reform was suggested by the Law Institute of Victoria. The sixth reform removed the-
– I rise on a point of order. We have here another breach of standing order 308 by Senator Murphy in referring to a document which has been submitted to the Senate Committee and which has not been the subject of a public hearing.
– I wish to speak to the point of order. I had the opportunity of hearing submissions from various bodies on the divorce rules, apart altogether from being a member of the Senate Committee. I am aware of the views of various bodies and I have discussed those views with representatives of those bodies. I think I am entitled to express what I know of my own knowledge of the viewpoints expressed by various bodies. 1 do not think that the Senate should be prevented from hearing the viewpoints of persons simply because a Senate committee dealt with all the matters concerned. I suggest that I have not transgressed any ruling.
The ACTING DEPUTY PRESIDENT (Senator Poyser) - I would ask Senator Murphy to adhere to the original ruling by the President.
– Thank you, Mr Acting Deputy President. I am endeavouring to do so. The sixth reform of the amending rules removed the necessity imposed by the former rules for certain witnesses wishing to give evidence by affirmation to declare and affirm their conscientious objection to swearing an oath. Rules 41 and 43 give effect to this reform. Of course, this was a view which was accepted. I think, by the whole Senate in relation to some other regulations which came before the Senate, lt was agreed on all hands that that should not have to be done.
The seventh reform of the amending rules dealt directly with costs. Rule 44 of the amending rules dealt directly with costs by providing maximum limits in proceedings for divorce and judicial separation and by providing for the assessment of costs by the trial judge in other proceedings. Orders for costs in undefended proceedings were abolished. The heavy cost of proceedings under the former rules was the subject of much evidence given before the Senate Committee. Divorce law reform associations had arisen within the community to denounce a public scandal. I think that viewpoint has been expressed in evidence given before the Senate Committee. Chief Judge Selby said:
The heavy cost of divorce litigation has been a constant source of anxiety to me … In a protracted defended case, costs may be so heavy that they involve a lowering of the standard of the parlies including their children.
His Honour said that he was ‘afraid there are many cases where a husband is obliged to go quietly because the alternative is financial ruin’. He referred to a remedial system adopted in New South Wales for assessing costs in a manner similar to that adopted by the late Mr Justice Barry in the Supreme Court of Victoria. Mr Justice Else-Mitchell, in his memorandum to me on divorce reform, suggested as follows:
Orders for costs should not be made except in defended cases; there is little point in making orders for costs against co-respondents for the practice of doing so is analogous to the awarding of damages and overlooks the fact that it takes 2 people to commit adultery and, if fault is relevant, the other spouse is as much to blame as the co-respondent.
– On what experience does the judge base that?
– Senator Wright ought to be aware that Mr Justice Else-Mitchell is a very distinguished judge of long standing in the Supreme Court of New South Wales, and I would think that if the learned judge expresses a point of view it ought to be given respect. The divorce law reform associations have spoken of the dependence of society on the family unit and complained of the destruction of the family unit by oppressive costs, irresponsibly and vindictively incurred, with a consequent increase in juvenile delinquency. In support of his motion, Senator Wright referred to 5 reasons for disallowing the amending rules.
Sitting suspended from 5.45 to 8 p.m.
– Senator Wright, in support of his motion, referred to 5 reasons for disallowing the amending rules. The first reason, relating to absolute bars of collusion and condonation, I have dealt with by reference to the legal cases of Hutton and the Boilermakers. The second reason, relating to the disclosure of the discretionary bar of adultery. I have dealt with by reference to discretion statements. There never has been any obligation to disclose the other discretionary bars of cruelty, desertion or other conduct. This is the anomaly referred to by several of the judges. The third reason, relating to arrangements for the welfare of children, I have dealt with by reference to pleadings and custody. The amending rules do not purport to change or modify any requirement of the Act relating to the welfare of children. The fourth objection, relating to court fees, has been dealt with by way of an assurance by the Prime Minister (Mr Whitlam) that the States will suffer no loss of revenue. The reference to technical and constitutional objections I will deal with when particulars of these are forthcoming. I indicate that I prefer to receive any alternative proposal for rules which will carry out the principles which I have enunciated. I think that there ought to be amendment of the Act.
– Hear, hear!
– 1 am pleased to hear Senator Webster say that. If we are frank about what has happened we must agree that the amendments to the matrimonial causes law brought about by the Barwick proposals, which followed on those suggested by a distinguished ex-member of the other House who is now Mr Justice Joske, achieved this: They made divorce a matter of national law. That was a great achievement. But there was no real move forward in the content of the divorce law. in the procedures. In fact, I suggest that the rules themselves, if judged not only now but also when they were made, were a disastrous ancillary to that Act. What happened was that almost immediately divorce became more costly. We had the indignity still left there. I suppose that all this happened because those who wanted to achieve a national law had to go slow, do nothing, in order to get at least a national law and overcome problems of domicile and separate jurisdictions. They got that, and I am not here to criticise what they did or the compromises they made. The fact is that there was no real advance in the law and in some respects the law went backwards. Then on top of that came these dreadful rules. J have pointed out how they were described by those who have worked under them. The effect was that proceedings became more costly and all the indignities were left there.
I have made an attempt to deal with the problems which were pointed out in item after item. The Senate can see that these are not as was suggested by Senator Wright. He referred to them as the ‘Murphy rules’ as if they were something which I had dreamed up. I have taken honourable senators through each of these reforms which were made and shown how there is heavy substantiation by judges and by other organisations which are concerned with the operation of the divorce law. They are heavily supported. I ask the Senate not to disallow these rules. If there is any objection to any particular rule, that should be dealt with by itself. But to have an in globo motion to disallow rules and to try to retain in some way such evils as the discretion statements and to preserve the situation of scandal in the costs which are occurring in various parts of Australia - mostly in my own State of New South Wales - I think would be a sad thing for the Senate and for the people of Australia. I think that someone on the Opposition side should realise - and I hope more than one will do so - that something is radically wrong when the law in this particular area comes into such disrepute that all over Australia divorce law reform associations are complaining about the state of the law and thousands of people are joining those associations and demanding that reforms be made. I. think there should be a new Act or a drastic amendment of the old Act. But meanwhile these evils which are in the law ought not to be allowed to persist.
I am a member of the legal profession but I tell the Senate that I do not like it when I know that some people have been overcharged by a small minority. These excessive cost charges have meant the ruin of some families. When a family breaks up the money should go to the family and particularly to the children. I do not think it is right that there should be cumbrous procedures which inflate the costs. The costs are far higher than they should be. I do not like it when a tiny minority have been making far more out of this so that in some areas it has been described, and well described, as a racket. This should not be allowed to persist. I make no apology for the fact that I have tried to end what is certainly a racket run by a tiny minority in relation to divorce costs. I think that I am supported in what I am trying to do by the vast majority of the legal profession. I do not intend to stop. If some honourable senators move to disallow these rules it is quite obvious to me what motivates those who have organised the move. If I had gone ahead and recommended changes and not touched the costs these rules would have been welcomed by that tiny minority who are now organising against these rules. They would be called the best rules and the most marvellous rules. But because the costs have been touched it is the economic factor which has led to organisation outside against these rules.
I say that there will be reform in the divorce law. There will be simplified procedures. The dignity of the people involved in divorce is going to be preserved. That will happen. Nothing can stop that happening because it is becoming known to the people of Australia, not merely through the divorce law reform associations but also elsewhere, that this has to stop. The same attitude is being displayed in the United States of America and other places. The community will no longer tolerate this kind of nonsensical procedure in dealing with broken marriages. A broken marriage is a tragedy. When it occurs it is a great tragedy for the people involved. They should be able to solve their problems in a dignified manner and not be subject to the indignities which are involved in this Act. They should not be subject to financial ruin.
Some of the cases that have occurred have been absolutely scandalous. I have done my best; I have followed out as best I could the suggestion and proposals made by judges and others as to how this ought to be done and I would ask the Senate to support what has been done. Whatever is done here I would seek to have something done by legislation in order that we can carry this through. I recognise that all that could be altered was the practice and the procedure and that was within the constraints imposed by the Act. I think there are many features of this Act which are dreadful and the sooner we get in there and sweep away the cobwebs and clean up this law, the better for the community.
We must not end there. I think there are positive steps which ought to be taken and they can be taken through this national Parliament to try to preserve the family. Not enough attention has been paid to that aspect. Steps ought to be taken to see that we start to enhance the factors that will preserve the family. When a family is broken up or when there is a divorce, at least let us enable those people concerned to solve their differences in a decent, humane and dignified way and without their being subjected to this kind of expense which is ruinous to them and which reflects on and injures the prospects of maintenance and advancement of their children.
– I was reminded as the curtain went down on the usual histrionics that it was not only the Attorney-General, Senator Murphy, but Oscar Wilde who said: ‘Please don’t shoot the pianist, he is doing his best’. Indeed, the reason why there is a motion for disallowance is that Senator Murphy has done his best - and upon examination it is a very poor best. Now, Mr Deputy President, I come to the actual subject of the debate. We are debating a motion for the disallowance of Statutory Rules 1973 No. 8 made under the Matrimonial Causes Act 1959-1966. Those rules, made in great haste in the early weeks after an election, were brought in, I think, to operate from 1st February. There were considerable outcries about those rules. Senator Greenwood gave notice by public statement on 8th February, some 6 weeks ago, that unless the Attorney saw fit to make appropriate alterations to the rules we might find it necessary to move for disallowance. Some 6 weeks elapsed, and until we had our second lot of histrionics on the Australian Security Intelligence Organisation, almost every day question after question disclosed great difficulties in the courts and among litigants about these rules, and nothing was done. If Senator Murphy finds it hard now to be facing this motion for disallowance after 6 weeks of absolute neglect to do anything, it is entirely his responsibility. It is 3 months since this Government came to office and in that 3 months had the Government wanted to do so it could have amended the substantive Act and done the proper thing, ft could have brought to this Parliament amendments to the Act and should not have done those things which day after day have been done. Even yesterday with great dramatic passion Senator Murphy condemned the use of the delegated legislation, the use of regulation and rule making process of this Parliament wrongly to alter the substantive law. We ought to put to music the speeches he and others made yesterday about Senator Wood.
– That is untrue.
– 1 will decide what is untrue, Mr Deputy President. What we are debating is a period of 3 months of absolute inactivity on the part of the Attorney- absolute failure to alter the substantive Act and to bring amending legislation into this Parliament. Honourable senators on the other side of the chamber are interjecting. We heard the Attorney in silence; we accorded him that courtesy. Indeed I was reminded of Hamlet: The rest is silence’. And that ought to be his epitaph. Let honourable senators on the Government side know this; I am not the slightest bit deterred by their interjections. There has been over the last 6 weeks, day after day, a request to the Attorney from the public at large and from honourable senators on this side of the Parliament to look to the rules. I do not take offence at the Attorney putting me in select company. He said that a little minority is taking this action for an entrenched interest. I say through you, Mr Deputy President, to the Attorney that I stand here as a non-lawyer with no concern for and no interest in the entrenched interests of the legal profession and no interest in enhancing their costs. Let nobody say that I have; let nobody say I am their servant. I speak for my own independent views. I speak now and I rise here tonight in no sense- (Government senators interjecting).
The DEPUTY PRESIDENT- Order! Honourable senators will remember that another honourable senator is entitled to address the Senate. Courtesy was shown to the Leader of the Government, Senator Murphy, and I expect the same courtesy to be given to other honourable senators.
– I say that I speak here tonight and I support the motion for disallowance because I believe in justice and because I believe that what is being done is a grave injustice, firstly, to this Parliament and to the principles of law making by this Parliament; and, secondly, to the community, the people who are forced to proceed under these regulations, to the judges who are sitting and to the members of the legal profession who are administering these regulations. I remind this Parliament of the responsibility which rests on us. Under section 48 (4.) of the Acts Interpretation Act we have the responsibility and the power to disallow regulations. I remind honourable senators very heavily that this Senate over the years has taken as perhaps its most important responsibility the surveillance of rules and regulations. It tests them in terms of the parent law and makes sure that there should not be an improper use of subordinate or delegated legislation. At page 390 of the fourth edition of Mr J. R. Odgers’ book ‘Australian Senate Practice’ one finds this passage:
The theory of legislating by regulation is that the principles go into an Act and the administrative details necessary to give effect to those principles are left to regulation.
I remind the Senate that a very great Australian and one of our greatest lawyers, the late Professor K. H. Bailey, said this in evidence before a Senate Select Committee in 1930:
It is for the Executive in making regulations to declare what Parliament itself would have laid down had its mind been directed to the precise circumstances.
I remind honourable senators that one of the rules that were designed for the Regulations and Ordinances Committee in 1929 and which were adopted in substance requires that that Committee should see that regulations are concerned with administrative detail and do not amount to substantive legislation which should be a matter for parliamentary enactment. I remind the Senate also that on 14th December 1956 Professor Bailey, in an advice to the Senate Regulations and Ordinances Committee, said this:
The sole question to be asked is whether the regulations are necessary in order to carry into effect what the Act envisages. In Morton’s case (93 CLR. page 410) the High Court said of the regulationmaking power conferred by a statute:
The ambit of the power must be ascertained by the character of a statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned. In an Act of Parliament which lays down only the main outlines of policy and indicates an intention of leaving it to the GovernorGeneral to work out that policy by specific regulation a power to make regulations may have a wider ambit. Ils ambit may be very different in an Act of Parliament which deals specifically and in detail with the subject matter to which the statute is addressed.’
The Matrimonial Causes Act spells out in absolute detail the intentions and philosophy of the Act. I invite the Attorney-General to deny that assertion. I oppose the legislation, and not at all in a mean and petty way, but because it first of all offends the rules of this Parliament. In fact, it alters the substantive nature of the law. Since we are happy to hear quotations tonight I will quote Professor Sackville, Professor of Law at the University of New South Wales. He is on record as saying that the amended rules alter the substantive nature of the law. He also said: ‘lt is essentially inconsistent with the basic framework of the Matrimonial Causes Act’.
After hearing all the heart-rending sentiments expressed tonight it is interesting from an ethical point of view to note something else that Professor Sackville had to say about the present situation. He said:
The present situation can do nothing to enhance the esteem in which divorce law is held . . . Implementation of important changes through the exercise of rule making powers deprives the community of the opportunity for discussion, evaluation and perhaps amendment of proposals before they are actually adopted.
Senator Murphy has no monopoly in seeking an enhanced dignity for those people who find themselves in the sad state of marital breakdown. He has no monopoly in wanting to ensure that the law is speedy where there is irretrievable breakdown and that it should be cheap and just. He has none of that monopoly. I say that he has created rules that do none of those things. In fact they do the reverse and in recent days many experts have said so.
Taking the law first, the Matrimonial Causes Act is an Act that bases as grounds for divorce a series of faults as well as other factors. As Professor Sackville said, it is an Act based on faults. To establish a dissolution of marriage one must establish adultery, desertion, cruelty, or on the other hand, insanity over a period, lengthy desertion, habitual criminality and, I think, recidivism.
– Is insanity a fault?
– Had the AttorneyGeneral listened he would have heard that I said ‘in addition’. I said there were certain faults and certain other factors. I repeat for the slow learners that there are faults - adultery, desertion and cruelty - and other factors which include insanity and recidivism. Perhaps I have been a little more explicit than the Attorney-General has been in his answers to questions in the last few days.
– When you were special adviser to Mr McMahon you hid behind lamp posts in Townsville. I saw you.
The DEPUTY PRESIDENT (Senator Prowse) - Senator McAuliffe, you will cease interjecting.
– I rise to a point of order because it appears to be the only way in which an Opposition senator can have his rights insisted upon. I protest against the constant interruption which comes from Government senators whenever a point of view is being put by the Opposition to which they take exception. It is not an unusual feature in this place. We have heard it time and time again and I have risen to a point of order so that I might insist upon the right of a sneaker to be heard in silence.
– 1 rise to a further point of order. 1 think that points of order should be raised only when our rules or Standing Orders are broken. To raise the question of interruption is a slight upon yourself, Mr Deputy President, implying as it does your inability to preserve decorum in the chamber. Senator Greenwood should have been sat. down because his opening remarks were offensive. He was attempting to get political propaganda out of a point of order and that practice occurs too frequently in this chamber.
– I have been misrepresented.
The DEPUTY PRESIDENT (Senator Prowse) - I do not know whether you were in the chamber when I appealed to the Senate to behave in a proper manner and to obey the Standing Orders. I made that appeal. I will not make it again. I will take the measures provided in the Standing Orders for people who deliberately disobey the Chair. I will give no further warnings.
– As provided in standing order 408 I rise to say that I was misrepresented in respect of the point of order I took. I rose to state and 1 repeat emphatically that Opposition senators are entitled to be heard without a cacophony of sound from Government senators which seeks to drown us out constantly. I will constantly insist upon that point of view under the Standing Orders. It is a point of view which ought to commend itself to any sense of fair play and decency if it exists among Government senators.
– I was making the point that, as a first breach of the rule and the very important rule, that statutory regula tions and rules should not attempt to alter the substantive nature of the law, what has happened, to use Professor Sackville’s words, is that the Attorney-General through his advisers has attempted to graft non-fault rules on to fault legislation. I have made the point that the legislation is designed primarily to establish fault. Let me make it clear that whether the present legislation is obnoxious is not the subject of this debate. I sympathise with those people who say that there are obnoxious features of the present Matrimonial Causes Act. But that is not an argument to alter the rules. It is a compelling argument to alter the substantive law. I appeal for support to every member of this Parliament on both sides of the House who has risen in his place over the years and supported the principle of control of the Senate over the statutory rule making power of this Parliament. The fact is that we have a law which is based on faults, rightly or wrongly, and the rules try to bring in a non-fault system.
I want as a second factor to say that I regard very seriously a radical change from the past. The Act and its rules in the past have always been interpreted to that a decree would not be made absolute unless arrangements were made for the maintenance and custody of children and approved by a court. The essence of matrimonial causes is not simply one cause; that of dissolution. It is many causes. It is custody, maintenance, property, and access. A whole range of factors has to be dealt with. It is not for nothing that the Act was called the Matrimonial Causes Act. Those with long memories will remember the lengthy period when, contrary to the present undue haste, a great lawyer. Sir Garfield Barwick, threw open to the public over many months a public dialogue - open government and not government by regulation. Those who remember that will know that Sir Garfield Barwick invited participation from every organisation - from marriage guidance councils, churches and every other body - in order to enshrine in the Act a cross-section of the feeling of the people of Australia. Everyone who participated said that the Act was not a divorce act; it was a matrimonial causes Act and its supreme aim was to protect the family. That is its primary cause.
I make the point in passing that those who have preached open government and yelped about it over the years have failed to practice it in any way. No attempt was made to get a dialogue in recent months or to invite the churches and marriage guidance councils to make submissions. An attempt was made to bypass the Senate Standing Committee on Constitutional and Legal Affairs. No attempt was made to invite that Committee to meet and to hasten its decisions. I remind honourable senators that this same Attorney-General who today pleads that he sees these great and tragic situations in the law has stated that he never found it necessary to go to the Law Society or the Bar Council and bring his feelings to their notice. After all. that ought to be the first duty of senior counsel, or indeed of junior counsel, and certainly it ought to have been the first duty of one who aspired to be the chief law maker of the nation.
What have we got today? Tonight the Attorney-General made great virtue out of the idea that you can get a quickie dissolution and then the devil can take care of how long it takes to settle custody, maintenance, access, property and all these other things. The simple fact, anybody will tell you today, is that, rather than make divorce cheaper and quicker the dividing of the matrimonial causes into dissolution and then an unending and open ended cost situation in terms of the other causes will create great delays and great costs. You have to remember that this is a confidence trick. In fact, it pegs the quickie divorce as such. But that in itself is not the substance, lt does not peg by some quaint ways which would have been available to taxing masters before, by bringing a matter before a judge, lt does not peg the rest of the costs, which will in future become larger because there will be twice as many petitions, twice as many sworn statements and twice as many pleas as to the nature of things.
Surely it is wrong that a law which sees itself as a Matrimonial Causes Act, which sees as its supreme duty the protection of the family, should have rules made under it which allow a divorce to happen and then, in its own time, deals with all these vastly important things. Any practising lawyer, any judge, will tell you that the fact that the 2 aspects were twinned together in the past was a salutary incentive, a salutary reason to bring the 2 parties to conclude sensibly the settlement on maintenance, custody, access and property. To divorce and separate all the issues - the whole 20 of them - is to create a lawyers bonanza. In fact, that is what the Attorney-General has done. He goes around the community alleging that he has made it cheaper to obtain a divorce. In fact, he has attacked the family and weakened the position of children in the broken family. He has increased costs and has increased the time for a divorce. He says to us of the Opposition: ‘You are very naughty boys. You have a vested interest if you dare to stand up and say these rules should be disallowed.’ I repeat that it is the supreme duty of the court to protect the family and that supreme duty has been destroyed by the rules. Therefore, the rules are wrong and are inconsistent with the Matrimonial Causes Act.
My third ground deals with costs. Much play has been made on costs. The Act, rightly or wrongly, is based on faults. Under the Act, as under any other Act based on faults - whether it is knock for knock, which no doubt the Attorney-General was familiar with in running down cases or whether it is any of other such Acts - costs have been awarded in the past against those who were seen to be those who create the faults - the respondent, the co-respondent. That applied, rightly or wrongly. This was the basis of the Act. What has happened? Provision is made in these rules that in an undefended case costs will not be awarded. That means that a person who launches an undefended case faces the bill for costs. Two points are important here-
– Let Senator Cavanagh stand up and deny that there are ample numbers of married women who have been suffering great hardship because their husbands have deserted them and have been living on nothing and run out of their savings. Let him say ‘they will have SI 50. I do not mind if they pay it’. This is the kind of person who pretends to be helping the poor. What has happened is that in the past there has been some hardship in regard to male spouses, and I think that there needs to be rectification of their position. But what the Attorney-General has done through his unofficial adviser is to transfer that hardship squarely upon the weaker of the spouses. In other words, he has attacked through costs the weakest member of the family - the wife - and this is an outrageous situation. That will not mean that there will be easier access to divorce, because everybody knows that throughout the community today, in every legal practice that handles divorce, divorces are delayed primarily because women cannot afford to pay the $150. This is supposed to be,-
– It can be more.
– Yes. They cannot afford to pay the costs that flow from the divorce, which can be much more than this. Here again, we have a fundamental in which the Act states a philosophy and a rule sets out to destroy that philosophy. As I say, it attacks the principle, it attacks the financially weak in the situation. It is true that it states that you can go to the court and argue out costs for maintenance and custody in front of a judge. All that that does is to increase costs. The Australian Labor Party will find that it does not put a ceiling on costs.
Fourthly, prior to the introduction of these rules, under the Matrimonial Causes Act the petitioner had to drill in a form which disclosed quite a number of things. It not only disclosed the ground of divorce in one or two words but also set out some information. I know that it is wonderful for honourable senators opposite to say: ‘Isn’t that clever! We have reduced to one page what previously took up twenty or thirty pages because some judge has said that’. The test is not speed or the size of the pile of paper. The test is: Has justice been done? That is the only test. 1 invite the Senate, to realise that when a petition is served on a respondent today - male or female - that respondent has absolutely no knowledge, except by a couple of staccato words, what the ground for divorce will be and is denied natural justice. There is an absolute denial of justice if that information is not supplied. Therefore, let us not have Attorneys-General pleading in the Senate that they are clever, that they are reducing the amount of paper. The Attorney-General showed none of that tendency yesterday either with words or paper, and none of the cleverness either. Do not let him come in here and say that. Let him test this by one thing: Does this provide natural justice? The answer is that to deny to a respondent details of the grounds is to deny to that respondent the means by which he or she can make value judgments on a series of things, such as, whether to defend the cause or to let it go over his or her shoulder. I say that is wrong.
Tonight the Attorney-General said, with very great emotional emphasis, that he had got rid of some things called discretion state ments which he thought were evil. I want to see whether in fact he has got rid of these discretion statements. Firstly, the law itself charges the judge with the responsibility of taking into account - and using his discretion in relation to it - misbehaviour of the petitioner. lt is the primary responsibility of the judge to ascertain, and to assess in the light of other things, whether there have been behavioural actions of the petitioner which in themselves, under this faults law, could be regarded as faults and whether, nevertheless, they are mitigated in all the circumstances. The judge is asked to decide this, to make these judgments. He is denied, by the rules, access to that information unless he seeks it in a way which is far more undignified, far more embarrassing and far more soul destroying. Any judge sitting at this moment in matrimonial causes under the Act should in conscience consider what Chief Justice Bray said.
Referring to discretion statements, the Attorney-General has said ‘I have abolished them; they do not matter any more; I have taken away this indignity’, forgetting that they can be made in sealed envelopes and that they are seen only by the judge. 1 am not standing here supporting discretion statements. I am standing here because I will be interested In any reforms that come before this chamber. Under the Act a judge has to make discretionary judgments and he therefore has to know - indeed, the onus is on the solicitor to bring it forward - whether there have been misdemeanours. By removing this provision one provides the means for connivance between a solicitor and client for nondisclosure of vital information before a court, and the day one invites an ethical profession to corrupt itself by breaching principle by hiding is the day one destroys the law that we are here beholden to support. As Professor Sackville said, these rules do not destroy the faults; they merely hide them. Chief Justice Bray said:
Despite the new rule about discretion statements, the allegation in the petition that the petitioner has committed adultery, or seeks the discretion ot the court, notifies me of that fact and it is still my duty under Section 41 of the Act to inquire into the matter and see whether I should exercise my discretion or not. In such cases it will be for counsel to decide how the necessary information is to be put before me and I will not refuse to receive it in the form of a confession statement if that is desired.
In other words, one of the very learned judges, a Chief Justice, has said, and said lately - yet the Attorney-General would say that everyone is supporting him; that the angels are on his side - ‘I am administering an Act under which I have to make a discretionary judgment. If ] do not now get before me a discretionary statement, sealed or otherwise, the onus is on the solicitor to bring it before me’. The implication is that the onus is on the solicitor to bring the discretion statement into open court and to have all the messy details traipsed around in open court. In Fact, this is what Chief Justice Bray has said. What has happened is that the Rules, rather than making the dissolution more dignified, have made it more messy and more public and in fact have tended to corrupt the law and to put the Bench into great conflict of mind and confusion.
Also, the Act itself makes any kind of collusion or condonation an absolute bar to divorce. The Rules remove from the petition the sworn statement of the petitioner, which has had to be made up until now, that there was no collusion and no condonation. So, what these clever fellows have done is to ask the court to administer a law which makes collusion and condonation an absolute bar to divorce and then deliberately, by a rule of Parliament, frustrated it by removing it from the petition. This does another thing: It not only negatives the law and therefore makes it imperative for all those honourable senators who have served on the Regulations and Ordinances Committee to wipe this out, but a’so says to the solicitor: ‘Listen here, you need not worry about your conscience on this at all. Although you know there are messy things, do not worry about them at all, even though the law says that the judge must take this into consideration’. That makes quite a mess of the Rules.
These Rules were drawn up in haste. There is no denial of the fact that they were drawn up substantially by a Sydney barrister without the supervision or the great detailed oversight of the Crown Law Office. They were made in haste without reference to the Senate Standing Committee and without inviting the community to participate in open government or open debate through, one would have thought, the presentation of a White Paper. Of course, the change to the Rules has got the result it deserves. It in fact creates more evils than it seeks to cure. What does it do? It does not abolish the faults: it hides them. This is what Professor Sackville has said, not what I have said. In fact, it is a breach of the statutory rule making power and ought to be thrown out on that ground. It minimises public debate on matters which substantially change the law. That, of course, is closed government. It is the government of tyranny.
In the words of Professor Sackville, these are clumsy Rules. They provide not a more simplified procedure or a more streamlined procedure but, incredibly, 2 legal procedures instead of one. They provide 2 legal procedures with 2 different sets of costs - one somewhat with a ceiling and the other with no ceiling; one perhaps with its time cut and the other open-ended.
– lt might be more than 2.
– Yes, it might be a dozen. A whole series of situations could arise. Perhaps one spouse takes a child and the other spouse has to proceed against that spouse. If the spouse does that and spends money in the recovery of the child, although that spouse is in the right, provided the other spouse does not come to court it is the petitioner and not the offending spouse who pays the bill. This is the kind of principle, the kind of social justice that we are being taught. It is the corruption of justice. We have a situation where, because the Attorney-General wanted to limelight, as he did in the last week, he has sought in undue haste to do something which, as happened last week, has fallen flat on its face. He has tackled things the wrong way. He has sought to alter the Rules instead of altering the law.
If the Attorney-General now says that the disallowance of the rules will cause delay and confusion, let us make it clear that only one person is to blame. The Attorney-General has had 3 months to alter the substantive law. He has had 6 weeks of warning to alter the rules. He has done nothing. So do not let him tell the Senate that the Opposition is delaying or anything of the sort. The Opposition stands for and welcomes the introduction into Parliament of amendments to the Matrimonial Causes Act. Members of the Opposition will be interested to look at them. We hope that the Attorney-General will do what Sir Garfield Barwick did, and that is to invite public debate and get a public dialogue before he introduces amendments. When he introduces into Parliament amendments to the Act he will be on firm ground. He will be seeking to alter a law which the Parliament has the right to alter. He will not be seeking to alter a law substantially by rules which the Parliament has no right to alter. 1 have said that I believe that once we are sure that there is an irretrievable, very tragic, breakdown of a marriage we should try to bring dignity, to act with speed consistent with justice and to reduce costs. There are fallacious arguments concerning the whole situation. The situation is that, unhappily, a marriage breakdown is messy. To establish the grounds of irretrievable breakdown would be to inquire into personal, embarrassing and undignified matters. So we must face that fact. If we can, we must try to minimise it. What we have to do is this: We have to decide one thing - whether we want to proceed by rules to produce Reno quickies with no interest in the children; in other words, the only way in which one can get a totally speedy dissolution of the marriage is the kind of signed Reno quickie. If we charge a court to inquire whether a marriage has failed irretrievably, we place certain desiderata before the court. These are the kinds of things that I have in mind.
Therefore it is no wonder that the debate on this matter has been long and involved. The tragedy is that the actions of the AttorneyGeneral have been short and over-hasty. I hope that in future he does not seek to prefer the advice of the person who gave him this advice rather than any higher opinion because 1 doubt whether this Parliament and this community could take too much more of this kind of advice. I am proud to support the motion for disallowance, on the grounds that I have mentioned. I invite the Government to take action by amending the principal Act to bring about the natural justice which the rules deny.
– This debate is not a debate about the general philosophy of a matrimonial causes Act. If it were I would be at some pains to join issue with Senator Carrick who asserted that the purpose of such an Act is to protect the family. I do not agree with that statement. That does not mean that I am not in favour of the family. I think that the purpose of a Matrimonial Causes Act is to make the dissolution of unions which have broken down as painless, as dignified and as financially cheap as it can be. I do not sug gest for one moment that the breakdown of a marriage can ever be anything but a personal tragedy. I do not suggest that it is something about which any of us can feel indifferent. I suggest that the protection of the family is something which is probably beyond the reach of governments. I do not suggest that we can legislate to make people continue to love each other, to be faithful to each other and to be good to their children. Unfortunately, human beings are so built that most of them will fall short of these ideals. In my view, the role of a Matrimonial Causes Act is to see that when a union docs break down there will be as little pain as possible in the process of dissolution. Wc are not here tonight to debate this large issue. What we are here to debate tonight is whether the rules, which were introduced while the Parliament was not sitting, are justified.
At this point I say that, although 1 have some regard for Senator Carrick, each time I hear him speak I feel that he is asserting a monopoly on righteousness. For instance, he said: ‘I oppose these rules because I believe in justice’. I do not know whether he was suggesting that we on this side of the chamber believe in injustice. In this place I try as much as I can to avoid cliches but, after having listened to Senator Carrick once again, I feel that I have good cause to use one. So I will use one, and it is that justice delayed is justice denied. As Senator Murphy has said, the people who have given evidence before the Senate Standing Committee on Constitutional and Legal Affairs, including the Chief Judge in Divorce in New South Wales, Mr Justice Selby, have said, amongst other things, that the discretion statement is such an abomination and such a blot on our law that it cannot disappear too soon. What has Senator Murphy done by introducing these rules? In effect, he has said: ‘I cannot sweep out of existence overnight all the old rubbish that we have inherited from the ecclesiastical courts but I will do now what I can do now’. Senator Carrick spoke of the need for an amendment of the substantive law on divorce. I notice that Senator Wright said:
Finally, I say that the disallowance in no sense implies opposition to reasonable and well considered reform.
I accept this proposition. I accept that that statement was a sincere statement of Senator Wright’s viewpoint. I accept also that Senator Carrick does not regard the existing law as sacred and eternal. The distinguished witnesses - judges and people experienced in this field - who have appeared before the Senate Standing Committee have said, almost as one voice, that reform of our matrimonial law is urgent and long overdue. We agree entirely that the real reforms in the matrimonial law must be made by legislation and not by alteration of the rules. That proposition is in line with the general proposition that we have maintained in other spheres of law as well, and that is that it is for the Parliament to consider amendments to the substantive law and that amendments should not be made by regulation.
But what is being done by (he alteration to these rules? There is no fundamental alteration of the substantive law envisaged or attempted by these alterations to the rules. I do not think I have heard anybody, even on the other side, rise to the defence of this abomination, the discretion statement. I have heard some people suggest that a discretion statement is something which goes into an envelope and is therefore some sort of a secret which becomes locked in the breast of the presiding judge. As anybody who has had any acquaintance with the practise of divorce law in this country knows, the discretion statement is as well kept a secret as what happens in the party rooms of most political parties. It does not take long for almost anybody associated with the cause to find om what is in the discretion statement. This is something which can cause unnecessary tragedy. Somebody who was involved 30 or 40 years ago with a party to the divorce might find himself or herself mentioned in one of these discretion statements, and great tragedy can ensue. That person might be married to somebody else or might have forgotten the episode that gave rise to the mention in the discretion statement. Everybody associated with the law knows that the only word to describe a discretion statement is abomination. Why should we wait a moment longer to get rid of this abomination? Mr Justice Selby said that it should be thrown out immediately. Senator Carrick suggested that there is no hurry about this.
– On the contrary.
– What do you say, Senator?
– I said that you have had 3 months and you could have done it by now.
– Let us examine that proposition. The Parliament has been sitting for 4 weeks. Does Senator Carrick suggest that divorce reform should have been at the top of the list of the legislation of this Government which undertook such a comprehensive restructuring of our society? Does he suggest that we should have got it through the Parliament by now? But this matter goes further than that. Senator Carrick knows, and everybody here knows, that this Senate has constituted a committee which is examining the question of divorce in depth. Senator Durack, Senator Wright and Senator Wheeldon are on that committee. It is a committee consisting of lawyers except for one member. It currently is examining this question of what should be done about amendments to the Matrimonial Causes Act. Is it suggested by Senator Carrick that the democratic and sensible way to amend the divorce law would be for this Government to rush in with amendments before availing itself of the investigations and conclusions of this committee?
– You did.
– Nothing of the kind. Let me take Senator Carrick through the logic of his propositions. He has suggested that there was something wrong with doing what we did because we could have done everything that we should do by amending the Act. I am saying that we should not amend the Act until this Senate has the benefit of the findings of its committee. But that does not mean that we should not sweep the worst abuses out now, and this can be done in the way that the AttorneyGeneral (Senator Murphy) has done. Do we have to wait? I remind Senator Carrick and everybody else here that the committee of which I am speaking already has introduced an interim report into the Senate in which it said only one thing, really: ‘Get rid of the discretion statement immediately.’ The interim report was presented in September last. The committee regarded the discretion statement as such a horror, such a social anachronism, that it did not wait to conclude its deliberations before saying: ‘Get rid of that at least immediately’.
What does Senator Carrick suggest? Does he suggest that we should wait until the deliberations of that committee are over and we come in with a total restructuring of the divorce law before sweeping this absurd discretion statement out of the way? The Senate committee decided that the discretion statement should go and the Attorney-General, quite sensibly, said: ‘While we are awaiting a final conclusion from the committee about what the divorce law should be, at least let us get rid of this thing now.’ I assume that no Senator on the Opposition side, not Senator Carrick and not Senator Wright, will speak in defence of the continuation of the discretion statement, but if this motion is carried it means that this abomination continues until we get a total amendment of the divorce law, which may be many months away.
I agree that the deliberations of the committee of which I am speaking are well advanced. I hope that it will come forward with some really substantive suggestions for amendment of the divorce law within the next 3 or 4 months but as honourable senators know, even if this is the case, probably we are still at least 12 months off a new divorce Act. Why in the name of everything that is sensible, modern and rational should the people in this community who happen to be involved in the tragedy of the breakdown of their marriage over the next 12 months still have to be subject to this absurd anachronism of having to file discretion statements? If we can get rid of it by an alteration of the rules, why should we not do it that way? Does anybody seriously suggest that there is an abrogation of the sovereign power of Parliament if these rules are allowed to go through? Is anybody suggesting that any injustice is done to anybody if the discretion statement disappears from our law? But if this disallowance motion is carried, that will be the effect, no matter what one might think of any of the other amendments to the rules.
All of the criticisms of the other rules strike me as pettifogging lawyers’ objections, nitpicking objections, objections that do not go to any fundamental question of human justice, or human rights, or humanity or compassion. Even though I accept the sincerity of what Senator Wright said about his reasons for opposing these rules, 1 suspect that the real opposition to them comes from one or other of 2 sources. The first source is that section of the community that really does not want any change; the section of the community that is content with these anachronistic, old-fashioned laws based on fault and the notion that there is some sort of guilt involved in the breakdown of marriage. The second source is the divorce lawyers’ lobby. I refer to those who see in these rules a . threat to the nice cosy racket - I am afraid that there is no other word for it - that they have enjoyed for years. When I say that, I do not mean that every lawyer who ever conducted a divorce case is a racketeer. Nevertheless it is unquestionable that a section of the legal profession, especially in my town of Sydney, really has made a racket of this divorce business. If you get into the hands of a lawyer in Sydney who is part of the racket, he takes over your life and your whole existence, and no matter what you may wish about dissolving your union in a dignified, quiet and reasonably inexpensive way you find that your divorce proceedings have taken on a life of their own under the tutelage and guidance of these racketeers.
I agree, I am afraid, with the AttorneyGeneral, that if he had introduced these changes in the rules but had said nothing about costs, we would have found that the Professor Sackvilles and the academics who do not like the way we have dotted the fs and crossed the fs, who think that a semicolon should be here instead of a dash, would not have been quite so outspoken in their opposition to these rules. I do not say that, I hasten to add, as any sort of criticism of the case made by Senator Wright. I believe that the real impetus for the challenge to these rules has come from those whose living is threatened by an attack on a racket that has lasted so long and flourished so luxuriantly, especially in the city of Sydney.
I do not think that there is anything further I want to add to what has been said in this debate. As I said in my opening remarks, we are not really here to examine the whole philosophy of the Matrimonial Causes Act. I hope and believe that within the next year we will be engaging in that exercise. I hope that the Committee of which I have spoken and of which I am Chairman will come down within the next few months with proposals for making the Matrimonial Causes Act a modern Act - an Act which is consonant with the spirit and philosophy of our age. I hope that I will see during the time, that I am a member of this Parliament a much more humane Matrimonial Causes Act on the statute book. But I can see no reason why we should have to wait for 12 months to sweep away the worst abuses which exist at the moment in our matrimonial laws. T think there was nothing sinister, nothing of a grandstanding nature, nothing reprehensible in any way in what Senator Murphy did in introducing these rules. The motivation for introducing these rules was simply: Whilst we are waiting for the long overdue amendments to the substantive Act let us do by Executive action what can be done to remove the worst, the most obvious and the most reprehensible abuses in the Act. That is what these rules do. Their disallowance will result in the perpetuation or at least the extension until the time comes that the Matrimonial Causes Act is amended of the abuses which these rules seek to extirpate.
– Having listened a good deal to what Senator Murphy had to say yesterday and again today I must say that I believe that he has really missed his proper vocation in life. I believe that his proper vocation would be that of a prosecuting counsel before some star chamber, if one could be found in our country. Mercifully one cannot. Yesterday Senator Murphy spent most of the day vilifying the former Attorney-General and present Deputy Leader of the Opposition in the Senate (Senator Greenwood). Today, in defence of these matrimonial causes rules - the Murphy rules, as they have been known, or Murphy’s law - he spent most of his time and certainly most of his argument vilifying members of the legal profession in regard to costs. I was very disappointed that Senator James McClelland joined him in part of the vilification.
Even if Senator Murphy had been able to find his proper vocation in life - that which I have described - he still would have had to have some evidence on which to act, even before that type of jurisdiction. Having seen the type of evidence he produced in this chamber yesterday, I can see that he would not have been very successful in that regard. In producing these rules Senator Murphy has produced the greatest legal mess that has ever been perpetrated by any Commonwealth draftsman. They are rules which 1 am sure the Parliamentary counsel was not really responsible for drafting. I have a good deal of regard for the Parliamentary counsel and the draftsmen of the Attorney-General’s Department. 1 cannot believe that those highly qualified people would have had anything at all to do with the final form of the rubbish that has been imposed upon those who are seeking a divorce and those who have to assist them as their legal advisers.
Mr Acting Deputy President, if 1 may have your ear and that of other honourable senators, as was accorded to Senator Murphy and other speakers this evening, I would like to deal with some of the major objections to the rules. 1 hasten to say that in my opinion almost every argument in favour of this motion has already been advanced by Senator Wright, who moved it, and Senator Carrick, who indicated this evening his support of it. In speaking, I hope briefly, to the motion 1 would like to recapitulate the main arguments as to why these rules should be disallowed. Firstly, I wish to emphasise the fact that by disallowing these rules we will be saying absolutely nothing al all about the desirability of amending the Matrimonial Causes Act and the administration of our divorce laws. I wish to go on record, as have other honourable senators in this debate, as being highly in favour of major changes to the divorce law and its administration. But these rules have nothing to commend them in that regard. In fact in my view and in the view of almost every commentator upon them, these rules are a retrograde step as far as any proper amendment to and reform of the divorce law and its administration are concerned. 1 do agree with one thing that Senator James McClelland said in the speech he has just concluded, that is, his statement that it would not have been sensible for the Government or any honourable senator to rush in with a new divorce law before the Senate Standing Committee on Constitutional and Legal Affairs had reported. That is a very sensible and reasonable attitude to take. I am only sorry that it is not the view that his Leader in this House takes. I say that because that is precisely what Senator Murphy has done in relation to this matter- he has rushed in like a bull at a gate.
– Another raid.
– Another raid, yes. He is very’ good at this sort of thing. What Senator Murphy was really trying to do by rushing in was to upstage his Leader and Deputy Leader, who had had a wonderful time for a fortnight conducting a 2-man government. Senator Murphy was out in the cold on that occasion. He had to make up for that. He had not had the headlines for 2 weeks, which was a very hard cross for Senator Murphy to bear. It seems fairly clear that he rushed in with this farrago and misuse of word, much less of thought and legal principles and common sense and. in the name of divorce law reform, imposed the rules that we are now considering.
The major objections to these rules are really 3 in number. Firstly, they do effect major changes in the divorce law by the back door method of changing rules rather than amending the Act. They do make, if not nominally, changes to the substantive law. They are constructed in such a way as in practice to make major changes. That argument has been well and truly canvassed during this debate. Therefore I do not think 1 need say much more about it.
– I agree with that.
– But I would like to emphasise the hypocrisy of Senator Murphy and the members of the Australian Labor Party who are supporting him, including Senator Wheeldon, who have in the past taken a holier than thou attitude on these matters. We have on the Senate notice paper today the Australian Capital Territory Evidence (Temporary provisions) Bill, the purpose of which is to validate the laws of evidence as they now apply in the Australian Capital Territory because when the present Labor Government was in Opposition it disallowed in the Senate an evidence ordinance for the sole reason that that ordinance dealt with substantive law which should have been enacted by the Senate and not by ordinance. Now we have a real attempt to change the substantive law by the back door method of rules and regulations. As 1 say, that whole principle has been well and truly canvassed in this debate and I shall say no more about it at this stage.
The other major objection to these Rules is summed up in an article written by Professor Sackville, Professor of Law at the University of New South Wales. That article was referred to by Senator James McClelland, who seemed to suggest that Professor Sackville may have had some financial interest in these Rules. Professor Sackville is Professor of Law at the University of New South Wales and a great exponent of divorce law reform. He could have absolutely no financial interest in the result of the motion before the Senate tonight or in the fate of these rules. But, in the interests of proper administration of the law and of justice, he took the trouble to write 2 articles in the ‘Sydney Morning Herald’ in the middle of last month. In the second of those articles he summarised the objections he had to the rules as follows:
The new divorce rules are drafted very poorly. They are replete with redundant phrases and errors. In at least one case, a rule has been amended so that it reads as a jumble of words. In another, the draftsman has managed to amend a repealed sub-rule.
In other words, he has amended a rule that was already repealed.
– A Murphy buff.
– The Murphy law.
– He introduced another rule.
– I could spend the full time of the Senate tonight trying to explain just that to Senator Cavanagh without success. 1 would like to deal briefly with some of the arguments that have been advanced this evening by Senator Murphy and Senator James McClelland. The one with which 1 would like to deal in particular is on the question of discretion statements. It is true that the discretion statement was the subject of a great deal of criticism before the Senate Standing Committee on Constitutional and Legal Affairs when it was conducting its inquiry last year. The Committee recommended to the Senate that the discretion statement should be abolished. It did not recommend to the Senate that the rules dealing with discretion statements simply be repealed. There were on that Committee sufficient lawyers who understood something about the law, although apparently not all of them did, for the Committee to understand that the abolition of discretion statements could not be achieved simply by repealing a rule; that what would be required to do it properly would be to amend the Act which gives the court a discretion to refuse a decree in the event of the existence of certain facts which include the adultery of the petitioner and other misconduct by the petitioner.
While that provision remains in the Act it is quite impossible to wipe away the so-called abomination, or whatever other elaborate and excitable word is used to describe discretion statements, by repealing a rule. In fact, the Rules themselves go even further in confusing matters. Not only do the new Rules repeal the rules that require the filing of discretion statements, but they put in their place this extraordinary collection of words:
No party to a matrimonial cause being a matrimonial cause within the meaning of the definition of matrimonial cause’-
– What does that mean?
– That is a very interesting and helpful phrase, is it not?
– What is the number of the rule?
– It is rule 32 and it reads:
No party to a matrimonial cause-
I will leave out all the garbage because it only helps to confuse everybody-
It should be borne in mind that the Act itself lays upon the court the duty of exercising a discretion if a petitioner has committed adultery. Many situations will arise in divorce cases in which it will become known to the court, for one reason or another, that the petitioner has committed adultery. The Act says that in that case the court may exercise a discretion and refuse a decree. Yet in a rule - subordinate legislation - we have a clear statement that no party shall have to confess or deny any matter regarding, among other things, his or her adultery. This is a ridiculous proposition. It is nothing short of ridiculous because on the one hand the Act says that a party may be required to do so and here a rule says that he or she is not required to do so.
I have taken the trouble in the last 2 or 3 weeks to listen in to undefended divorce proceedings being conducted in the divorce division of the Supreme Court of New South Wales and in the Supreme Court of Western Australia, because of my interest in this whole matter. I have seen petitioners being required by the judge to come forward and to tell him about their adultery because of its relevance for one reason or another. They have had to go through the indignity, imposed upon them by the Murphy law, of going into the witness box and openly, publicly and orally telling the court and the world about their adultery. I am not defending the discretion statement for one minute. I have been a party to a report which recommended its abolition. But the previous method of admitting adultery was more dignified because it was done privately. The facts were set out in a document which the judge could read. Now, under the Murphy law, admissions of adultery are being made publicly and orally and to the intense indignity of the petitioner. So much for the discretion statement.
There is one other major vice of these rules which I would like to mention. Senator Murphy has made great play in his speech tonight, as he has done in answering questions in this Senate, of the views expressed by the Chief Judge in Divorce in New South Wales, Mr Justice Selby, who was the first witness and, I suppose, the most distinguished witness to appear before the Senate Standing Committee. For once in this Senate Senator Murphy has correctly quoted the evidence of Mr Justice Selby, who advocated the splitting of the hearing of the claim for principal relief from the hearing of the claim for what is known as ancillary relief. I am referring to custody, maintenance, settlement of property, costs and so on. Mr Justice Selby’s view was that this was the former practice of the courts and that it would be a more satisfactory form of administration. I do not want to canvass the pros and cons of that viewpoint but I do want to emphasise the fact that it was a viewpoint which was diametrically opposed to other major evidence which was received by that Committee to which Senator Murphy has never referred. I refer particularly to the evidence of the Family Law Committee of the Sydney Law Graduates Association to which Senator Murphy has referred in other respects. Evidence was given to the Committee by Mr Watson, Q.C. We put to Mr Watson the view of Mr Justice Selby. Mr Watson took the absolutely opposite viewpoint. He is probably the most distinguished practitioner in divorce in this country and the author of the standard text book on divorce. He said that in his view one of the absolute cornerstones of this Act was the fact that it required all these matters to be dealt with at the one hearing.
I am not going to canvass that, but I want this Senate to know that there are 2 highly distinguished views on this matter which are diametrically opposed. But what do these rules do? Do they say that the hearing has to be separate? What they say is not that the hearing should be separate but that the claims may be separate. In other words, one can start off a claim for divorce in one document and then later start off a series of claims. One can have another claim for custody, another claim for maintenance and another claim for settlement of property. Getting back to the cost, it is a $150 limit only to the claim for divorce, but there can be four or five other claims on which there is no cost limit. As Senator Carrick has so clearly pointed out, the claim that divorce is being made cheap by these rules in an utter fraud on the whole of the Australian community.
– It is a con job.
– It is a real con job, certainly. I think it is worse than that. It is a fraud. That is a better word because that is what it is. Mr Justice Selby never at any time advocated that at all. He simply advocated that when one comes to the hearing one should be able to separate the hearing of the divorce from the hearing of other matters. The draftsman of these rules, whoever he was - as I said I am sure he was not the Parliamentary Draftsman or anybody of any capacity in the Attorney-General’s Department - did not understand for one minute what Mr Justice Selby said. He has brought in a rule which enables the claim for divorce to be completely separate from the other claims so that there is this completely evil situation that ali you need to do is to make a claim for divorce with a very few words saying almost nothing about what the claim is for divorce. The other party when served with that document has no idea what the total claim against him will be or what the issues will be. This is what Mr Watson and his Committee severely criticised in a document which I had occasion to table in this Senate a couple of weeks ago. It stated:
By separating the hearing of the divorce from vital matters such as custody, maintenance and settlement of property we revert to the bad old days of trial by ambush and increased litigation . . .
The increase in litigation comes about when a person as a respondent is presented with a petition which says virtually nothing about the claim for divorce. It does not contain anything about the claim for custody, maintenance or settlement matters which could involve respondents in thousands of dollars depending upon the wealth of the respondent. Obviously he is going to defend the claim, whereas if he were presented with the full claim in the original documents he would know where he stood and negotiations could be entered into for a settlement of all these matters, and the probability would be that the divorce would go through undefended. These rules will encourage more defended cases and more litigation. This will be far more costly.
I could go on with similar arguments pointing out how these rules are doing simply the reverse of what Senator Murphy and Senator James McClelland claim for them. I believe that I have given 2 classic examples of how they are operating in a manner which is the reverse of that which has been claimed for them - and, in fairness to Senator Murphy, probably the reverse of what he intended. He had the misfortune to obtain some very bad legal advice. No doubt because he was chasing terrorists under every bush in Australia he had no time to study these rules. Perhaps it was because he was going off to England to break our legal ties with the mother country or because of some other such activity which has engaged him over the last 100 days he did not have time to read them. That is the most charitable explanation which I can give for the fact that a Queen’s Counsel, the Attorney-General of this country, should be a party to such legal rubbish.
– One of the disappointing aspects of the debate which has taken place on the proposed disallowance of the rules under the Matrimonial Causes Act has been the approach which has been adopted by honourable senators opposite. If they had serious arguments as to why the rules should be disallowed in view of the great support which has been expressed for them by bodies such as the divorce law reform associations throughout the various States with many thousands of members, one would have thought that one would have heard some very closely reasoned legal arguments about the specific imperfections which honourable senators opposite allege are contained in the amendment of the rules. But we have not heard that. What we have heard has been a series of personal attacks on the AttorneyGeneral (Senator Murphy). The last effort was that of Senator Durack who clearly hoped to divert attention from some serious troubles in which the Opposition has found itself over the past few days. There has been a total absence of any analysis of the matters upon which honourable senators opposite told us they had such strong views and upon which they had such convincing legal arguments to offer to the Senate. I think it is rather revealing to look at the remarks of Senator Wright when he moved the disallowance of the rules. In conclusion he stated:
Finally, I say that the disallowance in no sense implies opposition to reasonable and well considered reform.
In fact, the impression which Senator Wright would like to give to the Senate is that he is a liberal, forward thinking lawyer; that he is looking forward to speedy, fundamental advances and amendments to an obsolete divorce law. But what really bothers him are some technical imperfections which are to be found in the rules now before the Senate. It is rather curious that the honourable senator should try to give this impression because if one refers to 1965 when some amendments to the Matrimonial Causes Act were before the Senate - amendments introduced by the then Government - one finds that Senator Wright was then adopting the pose of the independent rebel. Some of the more recently appointed senators probably are not familiar with that role. Senator Wright has not always been the light heavyweight champion of the upper dog, the role which he has followed during the time of the past Goverment. There was a time, at least until there appeared to be a vote taking place, when he used to posture a little as some sort of independent, but when he became a Minister he promptly forgot about that role. Senator Wright’s contribution to the debate on the Bill to amend the Matrimonial Causes Act which came before the Senate in 1965 commenced in this way:
I pay tribute to a government -
That was his own Government or the Government of which he was a backbencher- . . that finds time to deal with matters so unimportant as those that are collected in this Bill. I do not disparage it by making that remark. 1 think it is an exceedingly trivial Bill but I suppose it is desirable . . .
In fact, Senator Gorton, as he then was, was handling the Bill in the Senate and he felt constrained to reply to this comment rater. He said:
I must say that I disagree with Senator Wright, both on this point and on other points which have been raised by him, not on legal grounds but on his description of some of them as trivial. Although in the grand sweep of a nation’s problems they may not be very great, they are not trivial to individuals who get caught up in the toils of these matters. They are of great significance to them and their whole lives and these things might well engage our attention.
I agree with what the then Senator Gorton said at that time and I believe that these words ought to be remembered now. These are not trivial matters that come before us in these rules and Senator Wright has shown in the past that he believes that amendments to the law relating to divorce, including amendment to the Act, which was what was being done on this previous occasion, ought to be opposed and derided no matter which Government introduces them. On that occasion one of the propositions which was before the Senate was an amendment to the Matrimonial Causes Act to make provision for periods of reconciliation for up to 3 months. Under the amendment if persons who were separated were to resume cohabitation for a period of no longer than 3 months, this would not preclude them from obtaining a divorce on the grounds of condonation of the matrimonial offence which had occurred before that 3 months’ period of cohabitation. As I recollect it only one member of the Senate spoke against that amendment to the Matrimonial Causes Act - a very advanced amendment to the Act. And who was that one senator who opposed it? It was Senator Wright who now tries to tell us that he is all in favour of divorce law reform but he just does not like the way it was done by these rules.
A great deal of play has been made tonight of the suggestion that this should be done by some sort of amendment to the Matrimonial Causes Act itself, that it should not be done by amending the rules. In fact, Senator Durack has accused the members of the Labor Party of being inconsistent because, he said, there is on the notice paper at present a reference to a disallowance made last year by the Australian Labor Party of the Australian Capital Territory Evidence Ordinance when the Australian Labor Party said that this was a matter which contained substantive law and therefore it ought to be part of an Act of Parliament and not included in the ordinance. Senator Durack said that the Labor Party is inconsistent in now wishing to amend the matrimonial causes rules when last year it said that these ought to be matters of substantive legislation. Of course, the problem which can come as a result of accusing somebody of inconsistency on these matters is that one exposes oneself to a charge of inconsistency. If Senator Durack is now saying it was inconsistent for the Labor Party to insist that the evidence ordinance ought to be the subject of legislation and not the subject of an ordinance then surely it is even more inconsistent for him to have insisted that the new evidence law for the Australian Capital Territory should be the subject of an ordinance and not part of legislation. Yet he tells us tonight that these rules ought to bc amended by legislation. lt seems to me that those honourable senators who have said that this should be done by way of substantive legislation clearly have not understood the nature of the matrimonial causes rules. We are not introducing a whole new set of rules, trying to do by rule or regulation something which is normally done by legislation. There is already a substantial body of matrimonial causes rules. It is said there is something improper in amending the matrimonial causes rules in order to do away with a discretion statement. If it is improper to amend the matrimonial causes rules to do away with a discretion statement, why is it improper to have a provision for a discretion statement included in the matrimonial causes rules? The reason why we are dealing with discretion statements at all is that the matrimonial causes rules at present provide for a discretion statement - and apparently Sir Garfield Barwick and the then Government did nol feel that the matter of a discretion statement ought to be in the Act. Had they done so, surely they would have put it in the Act. The only reason we come to a discretion statement is that at present it is included in the matrimonial causes rules themselves and that we are dealing with a matter which has been dealt with since the original passage of the Commonwealth Matrimonial Causes Act in 1959 by the use of the rules.
It seems that the members of the Opposition Parties are so eager to defeat the Government on this issue - a matter on which they believe they have the numbers - that they do not mind contradicting themselves, and when they do contradict one another they make no pains whatsoever to make any sort of explanation as to how their differences may be reconciled. Senator Durack said that although he does not think that the discretion statement should be removed by amendment of the rules, nonetheless he apparently, as a member of the Senate Constitutional and Legal Affairs Committee, was in favour of the abolition of the discretion statement. Senator Carrick, on the other hand, has told the Senate that discretion statements are essential, that if we abolish the discretion statement we will encourage solicitors to encourage in turn their clients to commit per jury. There is clearly a total breakdown of communication between Senator Durack and Senator Carrick on this point. It would be interesting to hear from some spokesman for the Opposition a statement as to what is the Opposition view on discretion statements. Do Opposition senators support the Carrick view or do they support the Durack view? One says there should not be discretion statements; one says there should be discretion statements.
– Wake up.
– Possibly Senator Wright has the same difficulty understanding his colleagues as he has understanding the Government. However, 1 would suggest to him that if he reads Hansard he will find that Senator Carrick has argued against the abolition of discretion statements in any form whereas Senator Durack has offered argument for the abolition of discretion statements but in a different form from the manner in which it has been done by the Government.
– Perhaps water is not your usual drink.
– I ask for withdrawal of that remark.
– Yes, I do withdraw it. I am sorry.
– If 1 may say so, this indicates the level of discussion which Senator Wright has been introducing into this chamber ever since he suffered his defeat.
The ACTING DEPUTY PRESIDENT (Senator Brown) - Senator Wheeldon, you will direct your remarks through the Chair.
– I am directing my remarks to you, Mr Acting Deputy President. This is the sort of snide, underhand character assassination that one can expect from Senator Wright. I challenge him to make a statement of that kind about me outside this chamber. I refute that allegation. It is an allegation which I certainly have never made about any member of this chamber and it shows how obsessed he is with attacking the Australian Labor Party. His making a comment of this kind in a debate of this nature is completely uncalled for. This is the respect which he has for this Parliament.
– How pure you are.
– Now we hear Senator Greenwood interjecting, he who last night told us how much he deplored the smear - but he would applaud that remark by Senator Wright. He is the man who deplores the smear. I think nothing could be more indicative of what the Opposition Parties are trying to do in this debate. They are not endeavouring to have a serious discussion of the matters that are before the Senate. They are seeking merely to blackguard and traduce the Attorney-General and members of the Australian Labor Party. They do not care how contemptible or inaccurate their interjections and statements are or how much they are in disrespect of the Parliament.
– But would you not-
– I can deal with Senator Wright. We heard him in silence. I can assure you, Mr Deputy President, that Senator Wright would be the last person to worry me. In dealing with the rules Senator Durack said that somehow or other we are imposing an amendment to the divorce law by a backdoor method; that to amend the rules is a backdoor method. I would have thought that any lawyer would have known that a substantial body of law is to be found in rules. I have in mind the rules of supreme courts and local courts and under Acts such as the Matrimonial Causes Act. It is impossible for us in any way to introduce changes of substantive law by amending the rules. All the matters we are amending in the rules are matters which are dealt with by the Act itself when it refers to the rules and concerning which power is given to the Government to act because the original Act of 1959, which was introduced by a Liberal Attorney-General, made provision for certain matters to be the subject of rules. We are not dealing with any matters other than those which were prescribed in the Act of 1959 as being matters which should be subject to rules.
Senator Durack criticised, as a number of other speakers have done, the proposition that there should be a separation of the claim for principal relief and the claim for ancilliary relief. Senator Durack made what appeared to him to be great play of some difference that he discovers in the separation of the claim and the separation of the hearing. Whether he has satisfied anybody in the Senate on that point, I do not know. He has certainly not satisfied me about the distinction. It seems to me to be a distinction without a difference. It may well be that Mr Watson Q.C. and other lawyers oppose separate hearings for the principal relief and matters relating to custody, maintenance and matrimonial property, but there is no doubt that some of the strongest evidence which was given to the Constitutional and Legal Committee on this matter was given by Mr Justice Selby, the Chief Judge in Divorce of the Supreme Court of New South Wales. He is probably the most experienced jurist on matrimonial law in the whole of the Commonwealth.
Mr Justice Selby was quite adamant that one essential reform was the separation of the hearings for principal relief and ancillary relief. The evidence given to the Committee was to the effect that so often hearings for principal relief were cluttered up and impeded because people were not really arguing about the divorce itself but about who owned the house, the car or the BHP shares; that it would be a much better state of affairs to have a hearing in which the divorce was granted - if it were to be granted - and that after that had been done and tension removed, the parties could then reasonably approach questions concerning their property; and that it was much better that they should approach those matters after having been divorced as they were more likely to come to reasonable arrangements once the trauma of the divorce itself had passed.
– I doubt that that is a logical argument.
- Senator Little doubts Mr Justice Selby’s logic. Not many people have those doubts. I think most people who have some knowledge of the law regard Mr Justice Selby as being a very logical judge, a man of great erudition with a very sound grasp not only of logic but also of the questions relating to divorce which come before him. As one who has had some experience in the field of matrimonial law I believe it is clearly a fact that more often than not, when divorce is being contemplated, the parties involved are not arguing so much about whether one of them loves the other or does not, or why the arguments started, but about what is to happen to the refrigerator, to the house, the country cottage and the shares. These matters have cast a blight over divorce proceedings and they are matters which the Government is endeavouring to improve.
As Senator James McClelland said earlier it is quite absurd to say that the changes should have been the subject of legislation. We have seen the obstructive tactics of the Opposition in the period of less than 4 weeks that we have been sitting when we have dealt with matters of legislation. Certainly it would have been an absurdity for us to have said that an amendment to the Matrimonial Causes Act was the No. 1 priority of the newly elected Labor Government. However important it is, it would have to be well down on our list of priorities. But as the Government we do have power in this Parliament to make substantial improvements in the existing body of divorce law by amendments to the rules, by the proclamation of new rules. That is what we have done and what the Opposition is attempting to resist. That is why many thousands of people throughout Australia are becoming stronger and stronger in support of this Government and more and more contemptuous of the Opposition parties.
– As this debate draws to its close it should be said that perhaps the time has passed for any technical dissertation on the implications of the rules. We have had contributions from most distinguished lawyers in this place, from people eminent in their profession and those who are very experienced in this field of jurisprudence. Therefore I think it would be unnecessary for me to go into a technical analysis or dissertation of the implications of these rules. However, a number of things should be said. In the first place, I think (here is a concurrence of opinion not only here in the Senate and amongst political parties but also in the community that many new approaches are necessary to the whole question of matrimonial causes. That the Senate has been conscious of this need was demonstrated by the fact that a reference of the whole question of divorce was made to the Senate Standing Committee on Constitutional and Legal Affairs. That reference is now before the Committee and an interim report, more particularly confined to the presentation of discretion statements in matrimonial proceedings, has been presented.
However, what concerns us in relation to the rules is that there has been such severe judicial criticism and such turmoil and criticism within the profession as to the adequacy of the rules, as to whether they accomplish in any way the purpose which they purport to accomplish and whether in fact by th« method of their drafting and by their form they have not created a situation very much worse than that which they purported to avoid. That is the real crux of the discussion now before the Parliament, lt should not be thought that there is a lack of good will on either side of the House to a more modern approach to matrimonial causes.. I do not think it should be suggested that anybody in this place has a desire to protect the professional income of those associated in the legal profession with matrimonial proceedings. That is not the purpose or intent of anybody in this chamber. Our purpose is to try to reflect in the best possible manner a more modern concept in many of these matters to the advantage of those unfortunately involved in matrimonial proceedings, with particular regard to the welfare of the families and children of parties involved in divorce litigation.
It is because these rules have been promulgated hastily and drafted casually that we find that these purposes have not been accomplished. That is why the Senate and particularly Senator Wright and the signatories to the disallowance motion are concerned that the matter should come before the Senate and the rules should be re-examined. I repeat that already there is a reference before the Senate Standing Committee on Constitutional and Legal Affairs as to the whole matter of divorce. If the motion succeeds tonight and the rules are disallowed, I propose tomorrow to give notice of the following motion:
That the amendments of the matrimonial causes rules as contained in statutory rule 1973 No. 8 made under the Matrimonial Causes Act 1959-66 and disallowed by resolution of the Senate on 28th March 1973 be referred to the branding Committee on Constitutional and Legal Affairs.
I know that Senator James McClelland has suggested that this would imply a very long and undue delay and that injustice could he caused thereby. As I say, already the Committee, conscious of the imposition on parties to divorce litigation through the continuance of the discretion statement, has brought in an intermediate report that the implication nf these discretion statements should be abandoned. I see no reason why this Committee, while having before it the whole question of divorce, and having taken already extensive evidence, should not give priority to this segment of the investigation once this matter is referred to it, bring in an early report and then Government action in pursuance of that interim report dealing with this segment, if it is approved by the Senate and accepted by the Government, could proceed without undue delay; and therefore in a regular and proper way, by legislation and not by regulation, the whole matter could be resolved to the satisfaction of those who are concerned with the proper application of rules in the proper fashion and those who are determined to see that matrimonial justice will be available and will be done at the minimum cost to those who are involved.
One other matter that is of great concern is the suggestion that things have been done in relation to. this matter by regulation and by alteration of rules that should have been done by substantive legislation. 1 think that this highlights something that is of immense danger in the community. I am interested to see Senator Cavanagh sitting at the ministerial table in charge of the Senate at the moment, because for 4 years or more he and Senator Murphy have carried on in the Senate a persistent and even an implacable campaign against the transposition by rules of the rights of the legislature and the doing of things by rules, regulations or exercises of ministerial discretion that should more properly be done by statute. This was a persistent campaign by the honourable senator. I know that from time to time amendments have actually been moved in the Senate to try to give effect to that principle.
Recently, during the period of the interim Administration of Mr Whitlam and Mr Barnard before the full Cabinet was appointed we had one demonstration of this principle that I think is essentially dangerous. It arose in relation to the National Service Act. I am not discussing the rights or wrongs of the National Service Act. What I am saying is this: Under that statute every young man on reaching the age of 20 years was required to register for national service and was then subject to a ballot. That was a statute of the realm. But by one section of that Act it was made possible for the Minister in charge of national service to dispense a class of persons if. in the national interest, he considered it right, prudent and proper to do so. The Act contains words to that effect.
Obviously, the purport and intent of that section was to give the Minister a discretion to exercise if, for some national reason, some particular category, we will say, of employees required protection because their services were still required in civilian life. I think that that is the way the statute was to be interpreted. But, operating that section, the interim Administration lifted the whole compulsory registration provisions of the National Service Act by ministerial order, dispensing every category that might te available for registration from the requirement to register. If that is the position it was, in fact and in law, a repeal of the statute by ministerial order - not even by regulation subject to disallowance in this place, not by statute of repeal, but by ministerial order. That is an extremely dangerous procedure and it is greatly to be regretted that the suggestion can be made in relation to this matter that in the same way matter that should have been done by substantive law has been done by the alteration of rules. Therefore, as I say, the technical aspects of this matter have been canvassed. Senator Wright, in his opening address supporting this motion of disallowance, succinctly, clearly and on a number of specified heads indicated where the imperfections of the rules lay. I do not think there has been any successful refutation of the propositions he put forward. They still stand as a complete condemnation of these rules.
I think that the only thing to do is to disallow the rules, let them be quickly looked at to see whether the principles embodied in them are worthwhile in the light of evidence that will be taken and in the light of evidence already given to that Committee, and then let the Committee bring in a fairly early report on aspects of these rules and let the Parliament itself decide what should be done. In these circumstances I support the motion for disallowance of the rules and indicate to honourable senators that if the motion is carried, as I expect it will be carried, tomorrow I shall move in the terms of the motion I have stated, and the reference will be laid down to the Senate Standing Committee on Constitutional and Legal Affairs with a suggestion that the earliest possible consideration be given to an examination of this segment of the divorce situation so that the position can be remedied insofar as concepts which are embodied in these rules that are worth preserving be embodied in proper statutory form. I support the motion.
– The new rules under the Matrimonial Causes Act were introduced by the Attorney-General (Senator Murphy) some time ago. I have been advised by the Opposition Whip that it is intended that this debate finish at 10.15 p.m. That does not allow me sufficient time to cover the many areas that I wish to cover. There are a number of matters of great importance. Firstly, the introduction and drawing up of these rules were done in a most queer way. It is my understanding from a reading of answers given by the Attorney-General at question time in the Senate that some legal person remote from the Parliament was used as the principal original drafting authority. The Parliamentary Counsel was not used. I believe that Senator Murphy has recognised that there was blatant original fault in the original rules and has, on at least one occasion, altered the rules as he originally put them down.
I make that point because I would be anxious to disclose a great deal of correspondence that has come to me from people who are most involved and interested in this legislation. I believe they have reason to complain that the Matrimonial Causes Act as it existed was unsuitable to our times. The provisions on discretion statements and of legal costs were unacceptable to individuals who had recourse to law. Among those who have written to me are women who have complained of the great costs that had been associated with their causes and appealed to me not to oppose the new rules. The women saw no difficulty in them. Again, 1 spoke personally on the telephone to the President of the Divorce Law Reform Association of Queensland during the week. He could see no fault in Senator Murphy’s divorce rules and asked that they be not opposed. 1 have one or two private solicitor friends in Melbourne. One of them states:
Whilst I concede that perhaps the rules were drafted in haste I must state that it is my view, as a lawyer with a very large divorce practice extending over many years, the intent of the rules is excellent.
Perhaps one could take up that point. It is not my wish, nor is it the wish of my Party, the Country Party, to say that we oppose the general aim of the rules. It would appear that they were drafted hastily. That is endorsed by the fact that the Attorney-General has found it necessary to alter them since they were brought in. Now we have a situation in which, if cases proceed under these rules, certain of the rules are in direct conflict with the principal Act. So there is a doubt as to which should be followed - the rules or the principal Act.
Comment has been made by Government supporters, and there has been criticism by Senator Murphy - which surprised me - and by Senator James McClelland of the high legal costs and apparently the scheming by some members of the legal profession to obtain fees from individuals. I am not experienced in divorce matters, but I have had quite a sound experience in litigation involving commercial matters and also in criminal proceedings. At times one is concerned about the activities of the legal profession and the bill of costs which one might have to pay, but in no circumstance have I found any solicitor who is unwilling to have his bill of costs handed to a taxing master. Anyone who thinks that he has to pay extreme costs, to which Senator Murphy and his legal colleague referred when they criticised their own profession, has the right to have the bill of costs adjudged by an independent person.
I wonder whether Senator Murphy, in his practice as a Queen’s Counsel, or Senator James McClelland, in his legal practice, has ever placed his views before the New South Wales Bar Council and perhaps instanced to that Council those solicitors who are unworthy of the profession - according to Senator Murphy and Senator James McClelland. I doubt very much whether that has happened. But tonight they are saying that these Rules should be accepted because of the high costs charged by solicitors and other lawyers. It is my own view that if one compares the hourly rate charged by someone in the legal profession with that charged by a plumber, who might be considered to be in a more menial field, one will find that the costs per hour are very much equated.
I have a letter from an individual who requests that I make certain points clear to the Government. The letter states: 1 would be glad if you would bring to the attention of the Government Clause No. 8 of the Amendment with reference to the deletion of Part (g) nf Rule 28 - viz. that a Petition for Divorce should state the facts (but not the evidence) relating to the grounds of the Petition. 1 grant that the proposed amendment may achieve its object, which is to spare a few people from embarrassment. However, if you have had any experience of these matters, I submit that to omit the Facts from a Petition which is to be served on the other party is equivalent to getting a warrant to arrest a person without stating any evidence on the charge on which he is to be arrested, whereas a person is entitled to know what the accusations are so that he can prepare bis defence.
I believe that that is an appropriate comment. I am told by people in authority in the legal profession in Victoria that under rules 161 to 164, as amended, which apparently refer to discretion statements, discretion statements shall be abolished and those already filed shall be destroyed by the Registrar. I understand that in the State of Victoria the Rules did not originally cover the conditions created by the existence of some thousands of petitions filed prior to 1st February 1973 which in one respect, would defeat the purpose for which the rules were promulgated, namely, to facilitate the work of courts in all cases and to give relief only in those cases where appropriate statutory law allows relief to be given on the facts as they actually exist and not on only some of the facts, thereby repressing other material facts made relevant by the requirements of the statute.
I believe that the Rules create difficulty, in particular, by requesting proof by affidavit, and in undefended cases I understand it is said that an affidavit generally is suspect in courts because the verbiage used is that of the lawyers and not necessarily that of the lay witnesses. That point could well be expanded. 1 understand that difficulty is experienced in the courts in administering section 71 of the Act, under which the court must be satisfied either that proper arrangements have been made for the welfare of the children of the marriage or that special circumstances exist so that the decree nisi can be made absolute despite the court not being satisfied of such arrangements. Where facts about the petitioner’s adultery may be suppressed and the stability of the petitioner is an important factor in the court’s decision, proof by affidavit, I understand, is quite unsuitable to the courts.
The problems facing the legal profession in presenting divorce cases to the courts are numerous; but, if the question of costs is to be a particularly important matter, I understand that new rules 300 to 304 cause considerable concern not merely because the costs therein would be considered usually inadequate but also because of difficulties in defining the term ‘legal costs’, which expression apparently is defined nowhere. I understand that, if one is to attempt to decide whether legal costs include both party and party costs and solicitor and client costs, then one can escalate this figure of $150. It has been suggested to me that, by placing a limit of $150 on undefended cases and a limit of $500 on defended cases, the situation will arise where either the legal system will have to subsidise cases or cases will go to court undefended by solicitors. It appears ridiculous, to my mind, to place an arbitrary figure on the work that might have to be done in a very difficult case. If provision has to be made for children, the case might become more difficult. I understand that that section of the Rules contains no provision for the tying down of legal costs in this regard.
One most important matter to which I wish to refer is the problem created in attempting to adhere to the very important aspect of the law in maintaining the status of marriage. I understand that the court must take into account Part II of the Act, which refers to marriage guidance organisations, and Part III, which refers to reconciliations, and must seek to uphold the public interest in the institution of marriage. This apparently is creating great difficulty for those who must judge these cases.
I should like to support many of the comments which have been made on this matter by speakers on this side of the chamber, particularly Senator Durack. It is my view that there is great need for divorce law reform in Australia. I will support it. But I believe that rules which have been hurriedly drawn up and which have attracted so much opposition within the community certainly should not be approved by this Parliament. I ask Senator Murphy: Does he find no fault with his Rules? If he can answer yes to that question - an answer which he carefully avoided when he spoke - I would be more satisfied with the Rules.
Debate (on motion by Senator O’Byrne) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Willesee) read a first time.
– I move:
This Bill brings together salaries proposals for members of Parliament including Ministers and office holders, judges, permanent heads of departments and statutory office holders whose salaries are related to First and Second Division salaries in the Public Service. I need not remind the Senate of the sorry history of salaries proposals for members of Parliament. Sufficient to say that when proposed in December 1971, salary increases were overdue and the proposals came at the end of wage adjustments for most other sectors of the community. The 1971 proposals, arrived at after the inquiry of Mr Justice Kerr, now Chief Justice of New South Wales, were not implemented. Members of Parliament have had no salary adjustments since 1968. The same goes for permanent heads. Judges, salaries were last adjusted in June 1969. The measure before the Senate, therefore, is more than timely. The legislation will, if approved, have the effect of amending the Parliamentary Allowances Act 1952-1970 and the Ministers of State Act 1952-1971. 1 turn now to the detail of the Bill. The current salary for members and senators is $9,500 a year. In December 1971, Mr Justice Kerr proposed that the salary should be $13,000 and that there should be a further review soon after the next general election. We have now reached that stage and taking into account the trends over the intervening period, it is the Government’s view that $14,500 per year is the very minimum to which the basic salary for members should be raised. Members receive electorate allowances designed to help them meet those costs which arise from the duties of their office. The Government’s opinion is that the distinctions which have been made in the past between the electorate expenses of members representing city and country electorates and between members and senators are not justified. Accordingly, the legislation proposes that all members of Parliament - senators and members of the other House alike - should receive the same electorate allowance. The amount proposed is $4,100 - the amount recommended by Mr Justice Kerr for country electorates.
Under the previous administration there were Ministers and senior Ministers. In addition to their salaries as members, senior Ministers received $10,500 per annum; other Ministers received $7,500. Mr Justice Kerr proposed that these amounts should be raised to $13,300 and $9,500. The Government has decided that there should not be this distinction between Ministers. We are also proposing that the ministerial salary should remain at $10,500 per annum - the amount paid under the former Government to senior Ministers.
The Deputy Prime Minister will also receive the same salary as his predecessor, $12,500 per annum. Mr Justice Kerr recommended that the Prime Ministerial salary should be raised to $27,000. The Government has adopted this recommendation. As far as the special allowance for Ministers is concerned, the legislation now before the Senate basically applies Mr Justice Kerr’s recommendations. The allowance proposed for the Prime Minister is $10,900 per annum, for the Deputy Prime Minister, $5,200 per annum and for Ministers, $4,875 per annum.
The amendments proposed to the Ministers of State Act will provide for an appropriation to enable the payment of salaries to members at the levels I have mentioned. I add that during the period before the swearing in of the full Ministry - that is, from 5th to 18th December - the Prime Minister (Mr Whitlam) and the Deputy Prime Minister (Mr Barnard) received the same salary as they had received as Leader and Deputy Leader of the Opposition, together with special allowances at the rates paid to their predecessors in ministerial office. Since the swearing in on 19th December, the Prime Minister, the Deputy Prime Minister and the Treasurer (Mr Crean) have been paid the same salaries as were received by their predecessors. All other Ministers have been paid at the one salary level based on an equal apportionment of the remainder of the annual appropriation under the Ministers of State Act 1952-1971. The Prime Minister and the Deputy Prime Minister continued to receive the special allowances which were paid to 19th December, and all other Ministers since swearing in have received special allowances at the lower rate prescribed under the Act.
I do not propose now to list all details in respect of the other office holders of the Parliament. These are contained in the Bill and senators will see that, in the main, a close relationship exists with the figures contained in the Kerr report. To assist senators further, however, I have had circulated a table setting out current parliamentary salaries and allowances and indicating where those rates will be varied by the proposals now before the Senate. I ask for leave to incorporate this table in Hansard.
– Is leave granted? There being no objection, leave is granted. (The document read as follows) -
PARLIAMENTARY SALARIES AND ALLOWANCES
SALARIES AND ALLOWANCES PROVIDED FOR UNDER THE PARLIAMENTARY ALLOWANCES ACT 1952-1970 AND THE MINISTERS OF STATE ACT 1952-1971
– I draw the attention of honourable senators to the item concerning the salary of office and special allowance for the leader of the second non-government party in the Senate, in the document which I have just had incorporated in Hansard. These rates will apply both to the Leader in the Senate of the Australian Democratic Labor Party and to the Leader in the Senate of the Australian Country Party. I add that the Government also proposes that the travelling allowances for members, Ministers and office holders will in future be laid down by regulation and thus subject to the scrutiny of the Parliament.
Before I deal with the other major proposals in the Bill, I want to mention 2 further matters in relation to parliamentary salaries and allowances. The Government believes that machinery should be established for the future regular review of parliamentary salaries. Senators are aware that in the past there have been independent committees making recommendations to the Government and governments putting proposals before the Parliament without independent inquiry. There have also been suggestions that parliamentary salaries should be tied automatically to some index. It is this Government’s view that a tribunal should be established in order to put this whole matter on a regular basis with automatic reviews and in respect of members salaries probably having automatic effect. Legislation to give effect to this intention will be put to Parliament as soon as possible.
The Government will also be bringing forward legislation to amend the parliamentary retiring allowances scheme. The details have not yet been worked out but the legislation will be a considerable improvement on the current scheme - including, 1 would hope, adoption of the principles that, subject to a qualifying period, members should receive in their retirement a retirement allowance equal to half the salary determined from time to time for sitting members of Parliament and this retirement allowance will be increased by 2 per cent per annum for every completed year of service beyond the qualifying period up to a maximum of 75 per cent of a sitting member’s salary.
I turn now to the salaries of permanent heads of Public Service departments. Honourable senators will recall that in 1971 proposals to increase the salaries of permanent heads were introduced into the Parliament but did not go forward. The Government at that time was continuing to give effect to a 2- level approach to the top Public Service positions. We do not believe that such a structure should be retained. The salary proposed for the senior level in 1971 was S29.250 per annum plus SI, 750 per annum allowance. The legislation proposes that these amounts be applied to all permanent heads. The legislation also deals with those statutory officers who are regarded as having a status related to that of First Division public servants. These positions have also been considered and the recommended salaries and allowances for these office holders are listed in the Bill. There is also a group of statutory office holders whose salaries are related to the level of salaries paid to Second Division officers in the Public Service. Bills dealing with these statutory office holders were also introduced into the Parliament in 1971 and 1972 but not passed. It is now proposed to proceed with the salary adjustments which were then proposed, thus retaining the relationship between these positions and the Second Division of the Public Service. The Bill lists these office-holders and the salaries proposed together with any annual allowances currently paid.
Additionally the Bill covers the salaries of Conciliation and Arbitration Commissioners and Deputy Public Service Arbitrators. The new salaries included for them are those which appeared in the legislation in 1971 and 1972. The Government also proposes that Hie salaries and annual allowances for Commonwealth Justices and Judges, including Presidential Members of the Conciliation and Arbitration Commission, should be adjusted - the last adjustment having been made in June 1969. The relevant salary proposals for these high judicial offices are scheduled in the Bill.
The measures which the Government is now putting forward, particularly in respect of parliamentary salaries and allowances, no doubt, will come in for the usual criticism from certain sections of the community. The Government believes, however, that its proposals are reasonable, justified and timely. We make no apologies for recommending to the Parliament and to the people of Australia that members of Parliament receive an adequate salary commensurate with the importance of the task they are elected to perform. I commend the Bill to the Senate.
Debate (on motion by Senator Withers) adjourned.
– Order! In accordance with the sessional order relating to the adjournment of the Senate, I formally put the question:
That the Senate do now adjourn.
Question resolved in the affirmative.
Senate adjourned at 10.31 p.m.
The following answers to questions were circulated:
asked the Minister representing the Minister for External Territories, upon notice:
Senator WILLESEE- The Minister for External Territories has provided the following answer to the honourable senator’s question:
I have not issued a statement on the establishment of a para-military force of 3,500 persons to maintain the security of the Territory of Papua New Guinea in the immediate future.
asked the Minister represent ing the Minister for Foreign Affairs, upon notice:
Senator WILLESEE- The answer to the honourable senator’s question is as follows:
asked the Minister representing the Minister for Social Security, upon notice:
Senator McCLELLAND- The Min ister for Social Security has provided the following answer to the honourable senator’s question:
asked the Minister rep resenting the Minister for Foreign Affairs, upon notice:
Senator WILLESEE - The answer to the honourable senator’s question is:
On 28th January 1973 the Prime Minister made a statement in which he welcomed the coming into force of the Agreement on Ending the War and Restoring the Peace in Vietnam.
Article 5 of the Agreement states that within 60 days there is to be a total withdrawal of all United
Stales and other foreign troops allied with the United States and the Republic of Vietnam from South Vietnam.
Article 12 of the Agreement states that the question of Vietnamese armed forces in South Vietnam shall be settled by the two South Vietnamese parties.
Discussions concerning the implementation of the Agreement are proceeding among the parties in accordance with the relevant provisions of the Agreement. The Australian Government hopes that these discussions will lead to a lasting settlement. It would, however, be neither appropriate nor helpful for the Government, which is not a party to the Agreement, to comment on the particular issues now under discussion.
asked the Special Minis ter of State, upon notice:
Will the Minister, in fulfilment of his answer to Senator Carrick’s second question without notice of 28th February 1973, relating to the Prime Minister’s visit to Indonesia, provide a list of those persons who were present at the discussions with Australian journalists as reported by Mr Alan Ramsey of ‘The Australian’ newspaper and Mr Brian Johns of ‘The Sydney Morning Herald’?
Senator WILLESEE- The Prime Minister has furnished the following reply to the honourable senator’s question:
It is not within my responsibility to provide names of the probably quite large number of persons with whom Australian journalists representing privately owned newspapers might have come into contact or with whom they might have had discussions during my recent visit to Indonesia.
asked the Minister representing the Minister for Foreign Affairs, upon notice:
Senator WILLESEE - The answer to the honourable senator’s question is:
Please see my answer to Senate Question No. 156.
asked the Minister representing the Minister for Foreign Affairs, upon notice:
Senator WILLESEE - The answer to the honourable senator’s question is:
The Australian Government is not a party to the Agreement on Ending the War and Restoring Peace in Vietnam, nor is it a signatory to the Final Act of the International Conference on Vietnam held in Paris. Australia does not, therefore, have any formal standing or responsibilities in relation to compliance with the terms of those Agreements. The Australian Government is well aware of the various reports of violations of the Agreements, including the reports to which the Honourable Senator has referred, and is following these developments with concern. The Australian Government deplores any action whatsoever which harms the prospect of re-establishing peaceful conditions in Vietnam.
– On 28th February Senator Wheeldon asked me the following question, without notice:
My question, which I address to the Minister assisting the Minister for Foreign Affairs, is similar and on a similar subject to 2 questions which I asked during the last session, to which I received answers which could be fairly described as incomprehensible. As a conference of Commonwealth Heads of Government will be held later this year, will the Australian Government seek to have recent events in Uganda discussed at the meeting? If the Governent of Uganda has not by then ceased its present barbaric activities, will the Australian Government take action to have Uganda excluded from the Commonwealth of Nations on the ground of its unfitness for membership, a course of action for which there is precedent in the expulsion of the Republic of South Africa from the Commonwealth of Nations?
I said I would convey the request to the
Prime Minister to see whether he would consider putting this matter on the agenda. He has provided the following answer:
While deploring the recent events in Uganda, the Government considers that the question of whether these issues should be raised at the forthcoming conference of Commonwealth Heads of Government is essentially one to be decided by the African members. As for the second part of the honourable senator’s question, the expulsion of any member of the Commonwealth would be a most serious step and one on which the Government would not wish to take a position without the fullest consultation with other members. The Ottawa meeting will provide an opportunity for such consultation.
asked the Minister for Customs and Excise, upon notice:
Senator MURPHY - The answer to the honourable senator’s question is as follows:
Cite as: Australia, Senate, Debates, 28 March 1973, viewed 22 October 2017, <http://historichansard.net/senate/1973/19730328_senate_28_s55/>.