23rd Parliament · 1st Session
Mr. SPEAKER (Hon. John McLeay) took the chair at 2.30 p.m., and read prayers.
– I desire to ask the acting Minister for External Affairs a question that follows upon another question asked last week in relation to Laos, in reply to which the Minister said that he would give the House further information on the matter. Is it a fact that negotiations affecting Laos are at present in progress, and are to some extent being conducted by the Secretary-General of the United Nations, Mr. Hammarskjoeld? Can the Minister inform the House whether there is a prospect of peace in that area arising from any arrangements between Laos and her neighbours? In addition, what action is being taken, or has been taken, by the Australian representative who, I understand, is in Laos in connexion with that matter?
– It is true that Mr. Hammarskjoeld, in his capacity as Secretary-General of the United Nations, has been to Laos in order to inform himself of the situation there. So far as I am aware he is not conducting any negotiations, nor has any situation arisen in which we, as the Australian Government, have to make up our minds whether we should take part in any negotiations.
– Will the Minister have a further look at the matter?
– I shall keep it under close scrutiny.
– I direct a question to the Leader of the House, and I preface it by pointing out that there has been some expression of concern outside this House that, as we approach the close of the current session, a harsh legislative timetable will be produced by the Government. With a view to reassuring public opinion and those honorable gentlemen who are in need of reassurance, will the right honorable gentleman state clearly that in no circumstances will a harsh legislative time-table be drawn up for the remainder of the current session, and that the legislation that remains for consideration by the House will be considered in a leisurely and proper fashion?
– I think that the honorable member for Moreton knows that I am not a harsh man by temperament; nor could the House draw any such conclusion from the manner in which its business has proceeded over the last few years. I hope, Sir, that with the cooperation of honorable members on both sides of the House we shall be able to deal with the remaining legislative programme and the business of the House in an orderly fashion. I think that we all recognize that in a House of more than 120 members it is not practicable for every member to speak on every bill. What is important is that representative viewpoints be expressed and that individual members of the Parliament have some consideration for the rights of other members by addressing themselves as concisely as possible to the matters before us.
– If we cannot get free speech here where can we get it?
– The honorable gentleman is the worst offender in this place against the rights of free speech. If there were 120 members like the honorable member for East Sydney, this Parliament would be unworkable. In fact, there would have been a revolution long ago against the processes of democracy. I can assure the honorable member for Moreton that it is not the intention of the Government to carry on a kind of process of legislation by attrition. There are some major bills, in point of size, awaiting our consideration. However, I am sure that it is the wish of both sides of the House that the benefits - which were announced in the Budget speech in broad terms - to be derived from those bills by members of the Defence Services and the Public Service, and by other employees engaged by the Commonwealth, should come into effect as early as possible. Those measures could be given a somewhat more leisurely consideration in the autumn session, but, for the reason I have given, the Government is hoping that they will be passed in the course of this sessional period. I assure the honorable gentleman again that every consideration will be given to the state of health and mind of members of the Parliament, as well as of those who assist us by carrying out their duties around the House.
– I ask the PostmasterGeneral: In view of the marked superiority of video tape, at present being used by private television companies, in retransmission work, why is it that the national stations do not also use video tape for this work?
– I do not know why there is this difference in practice between the commercial stations and the national stations, but I do know that the programmes that I have seen presented by the Australian Broadcasting Commission compare very favorably indeed with those presented by the commercial stations.
– I direct a question to the Minister representing the Minister for Civil Aviation. Some time ago a proposition was advanced that all seats in civil aircraft in Australia should be made to face towards the rear. Can the Minister say whether it is the Government’s intention to enforce such a requirement?
– I am not up to date on this matter, of course, and I must convey the honorable member’s question to my colleague in another place. I know of the honorable member’s interest in this matter, and, indeed, in everything connected with civil aviation and aircraft, and T will see that he gets a reply as soon as possible.
– I ask you a question, Mr. Speaker. Are you aware that your predecessor, the late honorable member for Barker, said that the Speaker of the House of Commons in the United Kingdom Parliament regarded it as his duty to ensure that there was no inordinate delay by the
Ministry in answering questions on notice? I ask you, Sir, whether you have investigated the matter of the celerity or otherwise with which questions on notice are answered by the Ministry here, and whether you regard ensuring that such questions are answered speedily as one of the ways in which you can defend the privileges of this House. Will you consider the matter of questions on notice which are discharged, unanswered, from the notice-paper when the Parliament is prorogued, sometimes after they have been on the notice-paper for three months?
– I will undertake to consider the question raised by the honorable member. Any obligation I have towards this House will be carried out.
– My question is addressed to the Minister for Primary Industry. 1 ask the question because of the low prices at present being received by primary producers for fat lambs. Can the Minister give the reason for these low prices? Can he say when further consideration will be given to the payment of a bounty to increase the return to the producers? If it is decided to pay a bounty, to whom will it be paid, and for what purpose?
– I think the forced sales taking place in some districts because of drought conditions, and also an oversupply of lamb on the United Kingdom market, have brought about the reduced prices. With regard to deficiency payments under the fifteen-year meat agreement, the Australian Meat Board considered this matter at its September meeting and chose to make no recommendation that such deficiency payments be made at present. The board decided that those payments would be made, commencing with the lamb season next year, should it be necessary. Of course, if deficiency payments are made, I presume that they will be made on the basis adopted for beef producers; that is, the payments will be made to the exporters.
– Will the Prime Minister tell the House of the progress made with him by the Premier of
South Australia on the question of the railWay line from Broken Hill to Adelaide? Is it true that, compared with the activity of Government members from Queensland regarding the Mount Isa railway scheme, Government members from South Australia have shown practically no support for South Australia’s claim?
– If I may answer the second part of the question first, I am bound to say for the South Australian members of the Parliament that they lack nothing in vigour in presenting the case for South Australia. As to the first part of the question, I am, after some correspondence, having a personal discussion with the Premier of South Australia quite shortly.
– I ask the Minister for Trade whether any action is being taken to exploit the opportunities that exist for the export of Australian wines to the West Indies.
– I understand that there is a market in the West Indies which the Australian Wine Board and the Australian Trade Commissioner in Trinidad have been examining and have decided to exploit. I understand that last year our exports of wine increased by some 2,000 gallons, and that four importing firms in the West Indies have accepted agencies for Australian wines. On the trends reported to me, I think we can expect our trade there to develop, particularly in the lighter dinner wines.
– I direct my question to the Prime Minister. Is it a fact that the right honorable gentleman, during the week-end, said that the flow of foreign capital into Australia was growing at an almost fantastic rate? Is it a fact that the figures issued in the latest Annual Bulletin on Overseas Investment 1957-58, show that the new capital inflow from the United States of America and Canada-
– Order! The honorable member is now seeking to give information. He must ask his question.
– Is it a fact that 23.7-
-Order! The honorable member will ask his question.
– Is it a fact that in 1954-55, 23-
– Order! The honorable member will resume his seat.
– I ask the Minister for Trade whether it is a fact that the United States Government has agreed to give India about 3,000,000 tons of wheat. Can the Minister say whether-
– On a point of order, Mr. Speaker. I submit that the honorable member is now giving information.
– The honorable member is in order.
– Can the Minister say whether opportunities have been preserved for commercial transactions with this traditional importer of Australian wheat?
– Yes, recently the United States administration agreed to make available to India about 112,000,000 bushels of wheat during the current financial year. It has been announced that this quantity will be made available under what is known as Public Law 480. Payment is to be made by the Indian Government in rupees - not in dollars - and a good deal of the money paid will be re-lent to the Indian Government for developmental and other purposes in order to strengthen the Indian economy and help India’s balance of payments problems. But within this arrangement the United States Administration has, in accordance with the Eisenhower Food for Peace Conference, recently stipulated that 15,000,000 bushels or 400,000 tons of wheat is to be bought commercially by India during the period. I am sure that is accepted all round as a very fair reservation. Australia will enjoy a substantial share of that market. Whereas last vear Australia sold to India only about 1,500,000 bushels of wheat, the Australian Wheat Board has already sold about 4,000.000 bushels this year and I am sure that we will have our full competitive share of the 15,000,000 bushels that is to be bought by India.
– My question is directed to the Minister for Health and concerns the recent lifting of the embargo on the importation of landrace pigs from Northern Ireland and the Republic of Ireland. I ask the honorable gentleman: What circumstances prompted the lifting of the ban? Will the Minister please inform me whether there is any limit on the number of pigs which an importer may import, and is any time limit imposed with regard to the present relaxation on imports?
– There has been a ban on the importation of pigs, not only landrace pigs but other breeds as well, because of the danger of introducing swine fever into Australia. As there has been no case of swine fever for a considerable period in either Northern Ireland or the Republic of Ireland, the ban has now been lifted in respect of those countries. There is no limitation on the number of pigs that may be brought in from those countries, but there are certain quarantine requirements that must be fulfilled. The pigs must, on arrival in Australia, be quarantined for a short period and they must be accompanied by a certificate from the chief veterinary officer of either Northern Ireland or the Republic of Ireland guaranteeing that they come from an area in which no cases of the disease have occurred. If that certificate is not forthcoming the ban is, of course, automatically re-imposed. There is no question of a time limit. This matter is decided in the light of quarantine requirements. It would be quite impossible to lay down any period for which a quarantine ban would operate, because its operation depends entirely on the health of the animals in the country from which they come.
– I ask the Minister for
Primary Industry whether it is a fact that most beef producers agreed more than two years ago to pay a levy towards beef research. Is it a fact that that levy is being held up because of a disagreement as to the representation of various primary producing bodies on the research organization? What steps has the Minister taken to overcome this disagreement and when does he expect the research organization to begin operations?
– It is some time since the Graziers Federal Council of Australia submitted a proposal to my department for a beef research scheme. Obviously, before that scheme could be taken any further it had to be investigated. There was some disagreement between the various bodies concerned as to representation. Beef research ‘has been furthered through the activities of the Australian Agricultural Council in which State Ministers for Agriculture and myself are working in unison to achieve the right approach to the matter. The chairman of the sub-committee handling this matter has had some conferences with various organizations, and I think that some progress has been made. I hope soon to be able to give further information to the honorable member.
– I preface my question without notice to the Minister for Supply by referring to a reported statement by the Right Honorable David Ormsby-Gore that a hydrogen bomb had been tested in Australia. As assurances have been given that only atomic tests would be held in Australia, can the Minister give any information about the kind of tests that have been conducted in this country, and can he give the terms of ‘Mr. Ormsby-Gore’s actual statement?
– I was myself a little concerned about the alleged statement of the Right Honorable David Ormsby-Gore in relation to this matter which appeared in the press a few days ago. Quite a number of honorable members have consulted me about it. In 1957 the Prime Minister gave an assurance to the Parliament, and to the people of Australia, that only atomic tests would be held in this country, and I can assure honorable members that that, in fact, has been the situation. However, because of the confusion in the minds of the people, I have obtained the actual statement that was made by Mr. ‘Ormsby-Gore at the United Nations General Assembly in New
York on 5th November last, and I should like to read it to the House. It is in these terms -
Mr. Moch has made it clear that the French experiments will be concerned with what is commonly called the atomic or A’ bomb.
Great as is the force of such a weapon, it is a mere fraction of the force of a thermo-nuclear weapon, commonly called an H bomb. An H bomb is something which projects a large quantity of radio-active matter high into the stratosphere. We are not concerned with that here. We are dealing with the A bomb. This makes profound differences.
As the committee is aware, my country effected a number of nuclear weapon tests at Maralinga in Australia. We can therefore furnish some information which will perhaps help to put the extent of any danger there may be into proper perspective.
I would point out to honorable members that a thermo-nuclear bomb is a hydrogen bomb, and a nuclear bomb is an atom bomb. The United Kingdom Government did, in fact, explode a hydrogen bomb at Christmas Island in the Pacific Ocean, which is British territory and not to be confused with Christmas Island in the Indian Ocean, which is Australian territory.
– Has the right honorable the Prime Minister received a request or requests to convene a meeting of the Commonwealth and States concerned to discuss the building of the proposed Marraboor weir near Swan Hill, Victoria? Irrespective of whether or not he has received requests in relation to this matter, is it his intention to convene such a meeting?
– I appreciate the honorable member’s interest in this matter. I have had a communication from the State or States concerned, to which I will be replying within the next day or two. I think that, following my usual practice, I should allow time for my reply to be received by the Premiers before saying anything about it in the House.
– I direct my question to the Postmaster-General. Is it a fact that the Commonwealth Bank has vacated the temporary structure that has been erected on land owned by the Postmaster-General’s Department in Bunnerong-road, Matraville, which is in the Kingsford-Smith electorate? Is it the intention of the PostmasterGeneral’s Department to move its activities from the antiquated building, which is now doing service as a post office, into the tem porary structure that has been vacated by the Commonwealth Bank? If so, can the Postmaster-General advise me when his department intends to build a modern post office on this valuable site, thereby satisfying the postal needs of the long-suffering residents of Matraville?
– I shall obtain the information asked for by the honorable member and give it to him at an early date.
– My question is addressed to the Minister for Primary Industry. Can the Minister say what is happening to the proposal by the Australian Meat Board that it be given power to promote the sale of lamb in Australia?
– Permission has been given for a donation towards the cost of advertising lamb to be made by the Australian Meat Board from the trust fund in which certain accumulated moneys have been held. I am investigating the question of giving additional powers in this regard to the board. No action will be taken this session, but I hope to be able to give the honorable member some information next session.
Annual Council Meering
– I desire to ask the Prime Minister a question. Is it a fact that the convention of the Liberal Party of Australia which is now meeting in Canberra, and which the right honorable gentleman has attended over the past two sitting days, was attended also by two foreign diplomats, and that these two diplomats were from the Russian Embassy?
– Order! The honorable member is giving information. Is his statement based on a newspaper report?
– Order! The honorable member for Watson will speak for himself. Is the honorable member’s statement based on a newspaper report?
– No. I continue the question: If so, can the Prime Minister think of any good reason why the Ambassador of the
United States of America, the Acting High Commissioner for the United Kingdom, and other diplomatic representatives from the democratic West, boycotted the proceedings of the political party of which he is the national leader? Finally, can the right honorable gentleman explain why the representatives of Soviet Russia are able to feel so much at home among the top brass of the Liberal Party?
– I am greatly indebted to the honorable member for conveying this information to me. He may not be aware that the leader of the parliamentary party - to wit, myself - is invited to open the Annual Council Meeting of the Liberal Party of Australia when that meeting occurs. The meeting is open to the public and to the press. I was so concentrated on what I was saying that I did not take time to discover whether any members of the public arrived, though I gathered by subsequent events that some representatives of the press were there.
I wonder whether I am to understand that the honorable member suggests to me that we should have excluded the public. I must say that, if the public are to be admitted, we do not go through a process of censorship at the door. This is something from which the Australian Labour Party is happily free, because, first of all, it does not invite the public, and secondly, if it did, nobody would be sufficiently interested to go.
– My question is addressed to the Minister for Health. Is the honorable gentleman in a position to confirm that a partially blind British migrant pensioner who, before leaving the United Kingdom, received free medical treatment, can find himself ineligible for the benefits of the pensioner medical service in this country owing to the Australian means test and the 1955 rule? If this is so, will the Minister endeavour to have this anomaly rectified?
– I have no knowledge of this case, but, if the honorable gentleman will give me the particulars, I shall have it investigated.
– I direct a question to the Prime Minister or the acting Minister for External Affairs, depending on which of them deals with the matter. Is it a fact that a representative of a new Australian organization announced that the 4,000 members of this organization would demonstrate against the recent Australian and New Zealand Congress for International Co-operation and Disarmament, in Melbourne? Did demonstrations take place on Saturday, 7th November, in which police and a young married woman were assaulted? Following upon this, was the organization advised that the Government was disturbed at its activity, and that it should take no further action? Is it a fact that no new Australian demonstration of any kind took place after the giving of this advice? Is there a well organized new Australian storm troop, responding quickly to discipline, and in close contact with those who make arrangements between government services and private citizens?
– I know literally nothing of this. It sounds to me like a piece of arrant propaganda.
– I ask the Prime Minister whether it is the practice for him first to secure the consent of the person who is considered for appointment to the position of Governor-General before submitting the name to Her Majesty the Queen for her consideration. When was the name of the Governor-General designate first proposed to Her Majesty? Is it a fact that the Governor-General designate was first approached regarding the matter by the Australian High Commissioner in London on 27th October and given 24 hours to make up his mind? If this is a fact, how does it fit in with the Prime Minister’s statement that he had discussed the filling of the vacancy with Her Majesty, the Queen, during his last trip abroad and that the Governor-General designate was his No. 1 choice?
– I regret to say that the honorable member has it all muddled up. I did have discussions with Her Majesty the
Queen when I was in London. We passed in review a number of qualifications and some possible names. I agreed with her that when she had returned from Canada I would conduct correspondence with her on the matter, since we already understood what each of us had in mind as the qualifications for this post. Subsequent to her return from Canada I wrote to Her Majesty, after considerable reflection on this matter, and proposed a few names in their order of preference from my point of view. The No. 1 person was the Right Honorable W. S. Morrison who, as I had then learned, was proposing to retire from the office of Speaker of the House of Commons. It is not my practice - and I hope it would not be anybody else’s - to go around asking people whether they would be willing to have their names considered. Her Majesty expressed her warm approval of my nomination. I then, for the first time, through the High Commissioner, communicated with Mr. Morrison, asking him whether he would be agreeable to my formally nominating him for the post. It sounds like a shotgun affair when the honorable member says that Mr. Morrison was given 24 hours to make up his mind. On the contrary, he very properly said what I would have said in his place - that it was a matter that he would like to discuss with his wife. That, I think, was very sound. Having discussed it with his wife he then communicated with the High Commissioner who then advised me that Mr. Morrison was willing to accept. I then nominated him to the Queen, indicating that he was willing to accept the nomination. The Queen then announced the appointment.
– Did he not ask what the salary would be?
– He did not ask me anything. I had no personal communication with him.
– How did you dig him up in the first place?
– I had no personal communication with the Governor-General designate on this matter at all. I would like to add, since some crude remarks are being made, that the Leader of the Opposition and I both agree on this point: We have said, in this House, that he is a very distinguished man and a man who will add some honour to this post.
– My question is addressed to the Minister for Social Services. In line with to-day’s enlightened attitude towards the diagnosis and voluntary treatment of mental illness, will the Minister consider taking steps to remove from the Social Services Act the distinction drawn between pensioners who enter a benevolent home to be cared for, and pensioners who, because of the nature of the treatment needed, enter a mental hospital to be cared for?
– I will be happy to give consideration to the proposal put forward by the honorable member, but I direct his attention to the fact that mental hospitals in all six States of the Commonwealth are under the jurisdiction of the States and, to that degree, my authority in the matter is strictly limited.
– My question to the Prime Minister relates to the Queen Elizabeth Fund for Mothers and Babies and is addressed to him because of the interest he took in the proposal at the time of Her Majesty’s coronation, some six years ago. Will the Prime Minister have inquiries made as to the delays which have occurred in bringing to finality plans for the construction in Canberra of a home for the care of mothers and babies, a project for which locally-raised funds equalled the Australian Capital Territory allocation from the general fund? In particular, will the Prime Minister inquire whether the efforts of the Canberra Mothercraft Society have met with either indifference or frustration from representatives of any of the Commonwealth departments concerned in the project?
– I will be very glad to make inquiries along the lines indicated by the honorable member.
– I ask the acting Minister for External Affairs whether the Australian delegate at the United Nations General Assembly abstained from voting on the resolution concerning France’s intention to test an atom bomb. Does this mean that his Government does not care whether the United States of America, the Soviet Union and Great Britain resume the nuclear tests which they all suspended just over a year ago, or that his Government does not care whether France and other powers commence tests of atom bombs for the first time?
– I do not know whether the honorable member informed himself of the precise terms of the resolution, but if he had, he would have observed that the resolution, on the one hand, suggested that France should not test a bomb for the reason that, of necessity, the test would result in deleterious fall-out. We felt, as a government, that we did not want to subscribe to the view that, of necessity and under all circumstances, the testing of such a bomb would result in deleterious fall-out. On the other hand, we as a Government, have made it quite plain that we do not favour the emergence of a fourth nuclear power and that we did not want to show any differentiation as between one power and another seeking to be the fourth power. Consequently, we were not willing to vote on that side which might have encouraged the emergence of a fourth nuclear power. In the circumstances, due to the form of the resolution and the manner in which it was expressed, we felt that our most consistent and logical course was to abstain, giving reasons much as I have given them to the honorable member.
– Is the Prime Minister in a position to assure the House that his long-promised statement on defence will be made to the Parliament before it goes into the Christmas recess?
– I am full of hope on this matter. I can assure my friend that we have already had several Cabinet meetings on it, and we are proposing to have at least one more in the course of this week. The reason for pressing on with this matter is that I am very anxious that whatever statement is to be made should be made in the House before the current sessional period ends.
Acoustics of Chamber
– I direct a question to you, Mr. Speaker. During your recent absence from the House on parliamentary duties I raised with Mr. Deputy Speaker the question of the acoustics in this chamber. This particular part of the chamber suffers from the defect of having behind it the messengers’ lobby. Could the lobby be treated in the same way as the broadcasting box, and enclosed? I ask this because it would be a national tragedy if the words of wisdom that come from this part of the chamber were lost to posterity.
– I shall have the honorable member’s suggestion examined to see whether it is practicable. However, I think that it would be a very great help if, during question time and at other times, honorable members refrained from audible conversation while another honorable member was addressing the House.
– I address my question to the acting Minister for External Affairs. Is the Minister aware that there is a great deal of public concern about Australia’s action when the votes were being taken at the United Nations recently in relation to two matters - that which was mentioned by the honorable member for Werriwa, concerning atomic weapons, and that concerning the position in South Africa? Will the honorable gentleman, before the House goes into recess, make arrangements to enable the House to discuss these matters and give vent to opinions opposed to those held by him and the Government?
– I am not aware that there is any alarm among informed opinion in Australia on this subject, and I do not see any need for an opportunity to be afforded for a discussion before the recess.
– My question is to the Treasurer. I ask: ls the right honorable gentleman aware of the aims of the Murray Valley Development League and of its great importance to Australia? Will he consider providing that donations to this league be allowable deductions for taxation purposes?
– 1 must confess to knowing only in a general way the publicspirited objectives of the Murray Valley Development League. The question whether donations to that body should be deductible in the manner suggested by the honorable gentleman is, of course, a matter of policy which would normally be examined when the items to be included in the next Budget are being reviewed. I shall see that the matter receives attention at that time.
– I ask the Prime Minister: Does the Government claim that the flow of foreign capital into Australia is increasing at an almost fantastic rate? If so, how does the right honorable gentleman reconcile this claim with the known fact that the actual inflow of capital from the United States and Canada is only 25 per cent, of what it was in 1954-55?
– I am quite clear that the percentage given by the honorable member is wrong. However, there is a very easy way to put this matter at rest. I will endeavour to obtain from the Treasury the figures, so far as they can be worked out, indicating the rate of capital inflow, but I can say now that it has been quite remarkable, and continues to be quite remarkable. I think that we have all had considerable satisfaction out of that, because it indicates confidence among investors in the future of this country. However, as the honorable member is interested in getting some tabulation of the figures I will see that that is obtained for him.
– Can the acting Minister for External Affairs say whether it is a fact that a report has been issued by the United Nations following upon the investigation of circumstances in Laos? If so, will the honorable gentleman indicate to the House the substance of that report?
– At the last sitting 1 undertook to lay an abstract of this report - which at that time was all I had - on the Library table. Since then I have received the report and have given it to the Library to be placed on the table there. I have also supplied the Leader of the Opposition with a copy of it.
– In accordance with the provisions of the Public Works Committee Act 1913-1953, I bring up the report relating to the following work: -
Proposed construction of a Technical High. School at Darwin, Northern Territory.
I am sure that most honorable memberswill welcome this report as a forward step in the provision of modern technical education facilities in Darwin. It may be recalled that the proposal for a new high school in Darwin was first discussed in 1947, but that, on the ground of the inadequacy of the site then reserved, and because of financial difficulties, the proposal was set aside. Unfortunately, the delay has served only to accentuate overcrowding in the existing sub-standard school buildings, which are completely unsuited to a tropical climate. Under the present conditions in Darwin there are mixed primary and secondary schools, and the grounds and the buildings themselves are divided by a busy thoroughfare.
The committee believes that Darwin should have schools that are the equal of schools provided by the Commonwealth elsewhere, and so confidently seeks the approval of the House for the present proposal. During the course of its work the committee had before it a study of population trends in the Northern Territory. Estimates on population inevitably vary, because the rate of population growth will be conditioned by the rate of development in the Northern Territory and by the amount of money available for that development. Two things are clear, however. One is that 500 children must be provided for almost immediately. The other is that in the second stage of the proposals a further 300 to 500 children will have to be provided for in the not very distant future.
Thought is also being given by educationists in Darwin to the fact that the establishment of a university college there would not be out of the way as a proposal for completion by about 1970. However, only time and the development of the Northern
Territory will provide the answer to this aspect of the question.
The area set aside for the school is at Vestey’s Hill, which is properly known as Bullocky Point. The old Vestey buildings have been demolished, and the area offers a suitable location both from the point of view of access and of the future development of Darwin. It is more than adequate for the present and for the needs of future development. There is room for playing areas, and I think that the setting aside of a site of this kind will obviate the mistake so often made of providing small areas for schools which ultimately become cramped. The building will be on a prominent point which takes advantage of what there is of scenic beauty on Darwin’s harbour side. For that reason, although town planning has not progressed to the point where the future development of Darwin is clear, the committee believes that there will be a need to provide road access to the harbour front, and perhaps some landscape treatment. Therefore the committee recommends that the boundary of the school should be placed not less than 250 feet from the cliff edge.
The buildings proposed will provide light and airy classrooms up to modern standards. The classrooms will be in a threestory block, with two upper floors supported on columns, and linked with the manual training block by a single-floor administrative wing. The plan, which provides for a building standing on piers, will give a considerable area of covered play and assembly space, essential in the Darwin climate.
As with several other recent proposals, the committee had to consider the need for airconditioning the projected building. It gave proper consideration to the matter of costs. The question was looked at in thorough detail, and, on balance, the committee believed that air-conditioning was completely justified if the children of this tropical area were to have conditions reasonably comparable with those provided for children of the southern areas, with whom they are in competition, at least as far as examinations are concerned. The committee has, therefore, recommended that the building should be air-conditioned.
Another matter of great concern to the committee was the provision of an assembly hall. From the evidence it was clear that both the Administration and the South Australian Education Department, which is responsible for the conduct of education in the Northern Territory, took the view that provision for assembly was an integral part of modern education facilities. The committee had in mind the fact that the construction of the building previously proposed had been deferred largely on the ground that the Territory’s budget was not unlimited and there was a great need for other types of development. However, the committee was aware that the decision with regard to this building would ultimately rest with the Department of Territories and, after considerable debate, which is recorded in the report, the committee recommended that an assembly hall, suitable for 1,000 children, be included in the school project.
There may be some question why an assembly hall for 1,000 children should be recommended, while the school itself is to cater for only 500. As I said earlier, by the time the first unit of this school building is completed there will be a demand for a second block, to house perhaps another 500 children, and, knowing very well that once such jobs are completed and attention is focused elsewhere, money being devoted to other needs, it is very difficult to get them started again, the committee believed that if an assembly hall was to be provided for the first unit - and it thinks that it should be - then the hall should be adequate for the number of children who will finally be accommodated in the school. The proposed assembly accommodation will ensure adequate provision for all pupils, and the cost will be less than would be the case if a smaller hall were built in the beginning and added to later.
Without the recommended assembly hall, which is estimated to cost about £100,000, the estimate for the building is, in round figures. £455.000. Having regard to the cost of air-conditioning and Darwin building costs, which are generally presumed to be about 60 per cent, greater than those in, say, Melbourne, the committee believes that the cost is justified and recommends the acceptance of the proposal. It also suggests that the evidence justifies urgency.
Ordered to be printed.
The following bills were returned from the Senate: -
Without amendment -
Appropriation (Works and Services) Bill 1959-60.
Without requests -
Appropriation Bill 1959-60.
Assent to the following bills reported: -
Loan (Short-term Borrowings) Bill 1959.
Customs Tariff Bill (No. 3) 1959.
Customs Tariff Bill (No. 4) 1959
Customs Tariff Bill (No. 5) 1959.
Excise Tariff Bill (No. 2) 1959.
Excise Tariff Bill (No. 3) 1959.
Appropriation Bill 1959-60.
Appropriation (Works and Services) Bill 1959-60.
Motion (by Mr. Harold Holt) - by leave - agreed to -
That leave be given to bring in a bill for an act to amend the law relating to Income Tax.
Bill presented, and read a first time.
– by leave - I move -
That the bill be now read a second time.
The main purpose of this bill is to include in the income tax law provisions enabling non-resident investors to meet their liabilities for Australian tax on dividends by means of a withholding tax.
Oversea investors have, from time to time, pointed out that the present methods of collecting Australian tax on dividends lack the simplicity and certainty of liability that are features of withholding tax systems, and in many instances result in confusion because of the necessity for them to comprehend the Australian law and comply with it.
The present Australian system, based upon annual returns of income and the making of formal assessments, applies to non-residents and residents alike. The system unavoidably results in doubt on the part of the absentee investor as to his responsibility to furnish returns to the Commissioner of Taxation in Australia, and in a considerable lapse of time between the receipt of income and the forwarding to him of a notice of assessment notifying his liability for Australian tax. Finality is reached only with the subsequent payment of the tax.
Investors in other countries are familiar with a system that imposes a flat-rate withholding tax on dividends flowing from one country to another. The tax is withheld from the dividend at the time the dividend is payable, and there is accordingly no delay in establishing the amount of tax payable or in obtaining finality of the taxation position. In the generality of cases, the system does away with the furnishing of annual returns accounting for the dividends. The Government recognizes the advantages that a withholding system has over the existing Australian procedures. The bill accordingly provides for a withholding tax on dividends paid by Australian companies on or after 1st July, 1960, to non-residents of this country.
The availability of this basis for meeting Australian tax on dividends will obviate a position that has been viewed by oversea investors as a deterrent to investment in Australia. There will, however, be circumstances in which the amount of withholding tax exceeds the tax assessed under the present law. For example, a non-resident individual whose Australian taxable income does not exceed £104 at present pays no tax in Australia, but a corresponding exemption is not available under a withholding tax system. In such circumstances a withholding tax that does not permit retention of the present assessment basis may discourage investment in Australia. This may be most noticeable where investors live in a country that does not allow against its tax a credit for Australian tax.
To meet this situation, the bill provides that non-resident investors may elect in relation to any year to have the assessment basis applied. Where this course is followed, a refund will be made of any excess of withholding tax over the tax ascertained on assessment. This will ensure that the ultimate liability of the investor will be no greater than it would be if withholding tax had not been introduced.
Regard has been had to exemptions from tax at present provided in respect of the income of various organizations and institutions such as religious and charitable organizations, superannuation funds for the benefit of employees, &c. Dividends paid to these exempt bodies will not be subject to withholding tax and the present freedom from tax will not be disturbed. Correspondingly, withholding tax will not extend to certain dividends at present exempt under specific provisions of the law. For example, the existing exemption of dividends paid from exempt mining profits will be continued.
The rate of withholding tax proposed is 6s. in the £1. Nevertheless, residents of the United Kingdom, the United States of America and Canada may be assured that effect will be given to the provisions of the reciprocal taxation agreements Australia has made with those countries. Withholding tax at 3s. in the £1 will be payable by investors in those countries, where this is appropriate under the terms of an agreement. In any consideration of the incidence of this tax on the person receiving the dividend it should be remembered that as a general rule the profits out of which they are paid have already borne company tax at the rate of 7s. 6d. in the £1.
Provision is made in the bill for the withholding of tax by companies and other persons who may pay dividends to nonresidents. The amounts withheld will be remitted to the Commissioner of Taxation and applied against liability for tax. If, for any reason, the amount withheld exceeds the amount of tax payable, a refund of the excess will be made. The rate at which tax is to be withheld from dividends will, like instalments from salary or wages, be prescribed by regulation. It will not, however, be necessary to withhold deductions from dividends that are exempt from withholding tax.
Looking at the overall effects of the withholding tax proposals, it will be seen that a simple, but effective, basis of taxing dividends will be provided for investors in other countries. For those who favour present procedures, the assessment basis will remain available. The Government believes that its proposals to bring our taxation laws more closely into line with the systems in oversea countries will en courage the flow to Australia of capital to assist our national development.
I turn now to the taxation of earnings on the short-term seasonal securities to be issued by the Commonwealth. These securities carry no interest, as such. The difference between issue price and redemption value takes the place of interest and it is proposed that earnings on the securities be subject to income tax. An amendment to ensure this result is included in the bill. It will apply to earnings on the seasonal securities whether they be taken up at the time of issue or acquired during their currency. Amounts taxed as a result of the amendment will carry the usual taxation rebate of 2s. in the £1 available in respect of Commonwealth loan interest included in taxable income.
Special reference is also made to the premiums that will be payable on the redemption of special bonds held until dates specified. A provision has been included in the bill to ensure that these premiums are not treated as income for the purposes of the income tax law. An exception to this general position will apply where special bonds are redeemed by a person whose business extends to trading or dealing in the bonds,
The bill includes other provisions of a relatively minor nature and I do not propose to comment on them. An explanatory memorandum relating to this bill and to associated measures is, however, being made available to honorable members.
Debate (on motion by Mr. Crean) adjourned.
In Committee of Ways and Means:
– I move -
That, in this Resolution, “the Assessment Act “ mean the Income Tax and Social Services Contribution Assessment Act 1936-1959, as proposed to be amended by the Income Tax and Social Services Contribution Assessment Bill (No. 3) 1959.
That the Assessment Act be incorporated and read as one with the Act passed to give effect to this Resolution.
Imposition of Income Tax and Social Services Contribution.
That the tax known as income tax and social services contribution, to the extent that that tax is payable in accordance with section one hundred and twenty-eight b of the Assessment Act, be imposed, and be levied and paid, upon income to which that section applies.
Rate of Tax.
That the rate of income tax and social services contribution imposed by the Act passed to give effect to this Resolution be thirty per centum.
Section 221VB of Assessment Act.
That, for the purposes of sub-section (3.) of section two hundred and twenty-one yb of the Assessment Act, the Act passed to give effect to this Resolution be not deemed to be the Act declaring the rates of income tax and social services contribution payable for the financial year commencing on the first day of July, One thousand nine hundred and sixty, or for any subsequent financial year.
The purpose of this resolution is to declare the rate of income tax and social services contribution payable in the form of a withholding tax on dividends. Under a measure associated with this resolution, it is proposed that the withholding tax apply in relation to dividends derived by nonresidents on or after 1st July, 1960.
As indicated in my Budget Speech, it is proposed that the general rate of withholding tax on dividends paid by an Australian company to overseas investors be 6s. in the £1. In this connexion, it will be recalled that Australia has entered into reciprocal taxation agreements with the United Kingdom, the United States of America and Canada. These agreements contain provisions placing a limit upon the rate of tax that residents of those countries may be called upon to pay on dividends paid by Australian companies.
In the generality of cases, the rate of withholding tax from dividends paid to residents of those countries will be 3s. in the £1. This matter is governed by the provisions of the agreements and of the Income Tax (International Agreements) Act that gives the force of law to the agreements. For this reason, it is unnecessary to specify in this resolution a special rate of withholding tax on dividends flowing to countries with which Australia has concluded agreements. The resolution accordingly declares only the general rate of 6s. in the £1.
The introduction of withholding tax on dividends will not affect the taxation of profits out of which the dividends are paid. Those profits will continue to bear the ratesof tax declared by the Parliament.
I submit the resolution for the consideration of the committee.
M’otion (by Mr. Harold Holt) - by leave agreed to -
That leave be given to bring in a bill for an act to amend the Income Tax and Social Services Contribution Act 1959.
Bill presented, and read a first time. Second Readings
). - by leave - I move -
That the bill be now read a second time.
Consequent upon the introduction of a withholding tax on dividends, this bill proposes a drafting amendment to the act declaring the rates of income tax and social services contribution for the 1959-60 financial year. As the withholding tax is technically income tax and social services contribution there will, on the imposition of the withholding tax, be two acts declaring rates of income tax and social services contribution. It is necessary to clarify in the act imposing the general rates of tax that the income tax and social services contribution levied by that act does not include dividend withholding tax.
This bill will achieve the necessary clarification.
Debate (on motion by Mr. Crean) adjourned.
Motion (by Mr. Harold Holt) - by leave agreed to -
That leave be given to bring in a bill for an act to amend the Income Tax (International Agreements) Act 1953-1958.
Bill presented, and read a first time.
– by leave - I move -
That the bill be now read a second time.
This bill proposes drafting amendments to the existing legislation giving the force of law to reciprocal taxation agreements entered into by Australia for the purpose of relieving double taxation on incomes flowing between Australia, on the one hand, and the United Kingdom, the United States of America and Canada, on the other.
For the purposes of these agreements it is necessary to ascertain the amount of Australian tax payable on dividends and also to allow rebates of tax to give effect to the agreements. The relevant provisions of the present law have operated satisfactorily, but with the introduction of dividend withholding tax it has become necessary to ensure that the effect of these provisions is not disturbed. Amendments proposed by this bill achieve this objective.
A further amendment is also proposed consequent on the reduction of 5 per cent, in the income tax and social services contribution payable by individuals for the 1959-60 financial year. The reduction in tax will be effected by the allowance of a rebate and a lower average rate of tax will accordingly be payable. This bill includes a provision that will enable the rebate to be taken to account in determining the average rate of tax payable on dividends. The amendment will maintain the principle upon which the amount of Australian tax on dividends has been ascertained in the past. T commend the bill to honorable members.
Debate (on motion by Mr. Crean) adjourned.
Motion (by Mr. Harold Holt) - by leave - agreed to -
That leave be given to bring in a bill for an act relating to the classification of certain motor vehicles for the purposes of sales tax.
Bill presented, and read a first time.
– by leave - I move -
That the bill be now read a second time.
The sole purpose of this bill is to take legislative action to prevent partial avoidance of rr.)°s tax which his arisen from a marketing procedure adopted by a number of manufacturers of the station wagon type of motor vehicle. The existing law requires payment of tax at the rate of 30 per cent, in respect of motor cars designed primarily and principally for the transport of persons, including station wagons, estate cars and vehicles similar in design to station wagons or estate cars, but not including delivery vans. The latter bear tax at the rate of 16J per cent., which applies to commercial type vehicles.
A number of manufacturers have adopted the practice of selling a vehicle which is usually described as a station van or an estate van. Although these vehicles have the external appearance of a station wagon or estate car, they differ from the station wagon or estate car in varying degrees, but generally in the following respects: -
These vehicles are sold ostensibly for commercial use, but they are readily convertible into station wagons, by means of a conversion kit which is separately marketed for that purpose. In the case of some makes, all the vehicles are converted, and, taking into account all of the makes involved, there is evidence that no less than 85 per cent, of the vehicles sold are converted. In some instances, it is understood, the conversion is effected by the user of the vehicle, but in most cases it would be done by a retail motor car service station.
It was found necessary to acknowledge that, at the time of the sale upon which the sales tax liability arises, these “ station vans “ are not within the categories to which the rate of 30 per cent, applies. Tax has, therefore, been paid on them at the commercial vehicle rate of 16$ per cent. only. The conversion kits used in transforming the vehicles into station wagons have also borne tax at 161 per cent., that being the rate applicable to parts for motor vehicles generally. When the conversion is effected for an owner by a person in the motor vehicle trade, tax at the rate of 30 per cent, has been payable only on the charge for the service of conversion.
By these means, it has been possible to obtain a fully finished station wagon subject to considerably less tax than is intended to apply to such vehicles. The difference in tax on some models has been as much as £188 and it is estimated that the loss of revenue has been of the order of £300,000 per annum. If legislative action is not taken on the lines now proposed, it is understood that the larger manufacturers, who have not yet engaged in this marketing practice, will fall into line with their competitors. This would cause such an increase in the number of vehicles affected that the revenue loss could rise to £3,000,000 per annum.
As I previously mentioned, the convertible vehicles are basically station wagons, and are of a type which does not lend itself to the carriage of goods generally. Thus there is no substantial demand for the vehicles for commercial use, and most business people who desire vehicles for the delivery of goods find their needs much more satisfactorily met by the use of a commercial vehicle such as a panel van or delivery van, with its greater space and more utilitarian finish.
It is understood that production of the convertible type of station wagon will be discontinued by all except two of the current manufacturers when the bill becomes operative, but as suitable other types of delivery vehicles are readily available, it is not expected that any inconvenience will be suffered by the business community.
As the convertible vehicles are basically of the station wagon type, and are intended for conversion into that type of vehicle, it is the view of the Government that they should bear tax at the passenger car rate of 30 per cent, in the same manner as fully finished station wagons and passenger cars. This is the effect of the present bill, which I commend to honorable members. The amendment will be operative in respect of vehicles sold by wholesale on or after 14th December, 1959.
Debate (on motion by Mr. Crean) adjourned.
Debate resumed from 12th November (vide page 2713), on motion by Sir Garfield Barwick -
That the bill be now read a second time.
Upon which Mr. Luchetti had moved by way of amendment -
That all words after “That” be omitted with a view to inserting the following words in place thereof: - “ the bill be referred to a Select Committee of this House “.
.- Mr. Speaker, the Matrimonial Causes Bill is unique for two reasons. This is the first time a government has had the courage to bring down and to support a uniform divorce bill in 58 years of federation. Secondly, this is the first time that such an important measure is to be voted on not on party lines but according to each honorable member’s conscience.
I want to make some general comments about the bill. If this bill is passed - I prophesy that it will be - we will have one divorce law for the entire Commonwealth. In my opinion that will show that Australia has come to maturity on a very important issue. The passage of this bill will also show that the fathers of the Constitution have been listened to at last. Section 51 of the Constitution, dealing with powers of the Parliament, states -
The Parliament shall,-
That is, the Federal Parliament - subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -
And placitum (xxii) states -
Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants.
That is the basis of the bill that has been introduced by the Attorney-General (Sir
Garfield Barwick). The Commonwealth has the power to enact such laws, and this is the first time in 58 years that a law of this nature has been presented to the Parliament. One must admire the foresight of the fathers of our Constitution who, with multitudinous matters on their minds, thought of the need for a uniform divorce law for the Commonwealth in 1901.
The next matter to which I should like to refer in general comment is that when this bill becomes law the laws of the States will be rendered null and void. At present there are six separate sets of State laws. This causes great inconvenience, and even hardship, for some people, and a means of escape for others who move from one State to another. If and when this legislation becomes law, there will be one divorce law for the Commonwealth.
Marriage laws also should be brought up to date because marriage laws are complementary to divorce laws. In fact, in actual practice marriage laws should be considered before divorce laws. I have received an interesting letter that has been addressed to both the honorable member for Braddon (Mr. Davies) and to myself by a Mr. Gordon Dennis, who lives at Howth, in the Braddon electorate. Mr. Dennis states -
There are some points that I think should be clarified.
The relationship of marriage laws to divorce laws, which in some instances do not agree.
The words “obey” and “death “ in relation to marriage. The word “ obey “ no doubt dates back to the days when a man owned his wife as he owned his cattle. He either took her, bought her, or she was given to him, sometimes with a dowry, property or talent. But now it is a matter of mutual consent, by choice. The word “ death “, probably in ancient times meant civil death, the entire loss or forfeiture of civil rights which followed the attainture of felony or treason. Formerly a man was considered civilly dead when he retired to a monastery. Death in mythology has still another meaning. But the christian meaning is given as a release from bondage, or a change from misery to happiness which is sometimes achieved by divorce. I cannot think of anything much worse than two people having to live together when they become dead to each other, or when they agree to disagree on certain matters for as long as they both shall live.
There was the case of the man lost at sea and presumed dead. His wife married again in Melbourne, and after five years he returned from the dead and claimed her as his wife. But, she claimed, as far as their marriage was concerned he was dead.
I think the marriage and divorce laws should be considered together and amended to agree, not to make divorce easier but to make it lawful and give some people a clear conscience. I am unable to find “ until death do us part “ in the Bible.
I agree with him; it is not in the Bible. He goes on -
I think the age limit for marriage should not be altered because minors cannot be married without parents’ or guardian’s consent or the consent of a magistrate. In some cases girls are mature at a very early age. To my knowledge some have been advised by doctors to get married very young for health reasons.
That is an interesting letter which illustrates the thoughts of ordinary men about the marriage and the divorce laws.
Another matter of note is that amendment will be a relatively simple matter should weaknesses in the legislation be revealed. We in this Parliament will be able to amend the law as it applies to the entire Commonwealth. That is an important advantage. At present, any amendment to a State law affects only that State. I have not heard of an amendment of any consequence in State divorce laws for many years, but if and when this bill becomes law, it will be our bounden duty as a Parliament to correct any mistakes that have been made. That is democratic and proper.
Another aspect is the need to limit the legal content of divorce laws and extend the human element. In my opinion, the bill which was introduced in May, 1957, by the honorable member for Balaclava (Mr. Joske) was too legalistic and lacked humanity. The bill now before us has a moral and spiritual content. We are dealing with sacred and intensely human personal relationships, and humanity should be a very important ingredient of this legislation. I congratulate the Attorney-General for not having overlooked the human aspect. This legislation is shot through and through with that element.
The United Kingdom royal commission on divorce, which operated from 1951 to 1955. heard evidence from 67 organizations and 48 individual witnesses at 102 meetings held in London and Edinburgh. One of the great features of the report of that commission was the stress that was laid on the humanities of divorce as distinct from the legalisms. I am glad that this aspect, which was overlooked in the previous bill, has been included in the one that is now before us.
I am glad that some one has had the courage to do the right thing in relation to the divorce laws, and I hope that the proposals will be implemented without procrastination. This bill has been discussed throughout the Commonwealth by all interested parties. Its faults have been noted; the churches have had their say, and we have read their comments. Now that the bill is before us we should have the courage to do the right thing for the people of Australia who are affected by the tragedy of divorce. After all, 7 per cent, of married people are involved in divorce. The remainder do not need divorce laws because they are happily married and in other cases the marriages are lasting for the reason that the parties concerned are prepared to let them last.
I hope that this bill becomes law. I do not believe that it will increase the number of divorces, because the number of grounds have been reduced from 30 to fourteen. I have studied the bill as carefully as one can study a document of this kind, and I think that it tidies up the divorce laws of the Commonwealth. Any honorable member who studies carefully the proposed grounds for divorce cannot disagree that they are just causes for separation. Only the necessary grounds have been included in the legislation. Others have been omitted.
The majority of the churches in Australia favour uniform divorce laws, irrespective of their criticism of individual clauses. I stress that majority decision. In a perfect society, conducted by perfect men and women, we would have perfect marriages, but unfortunately we have not reached that stage in human relations. We still have with us the imperfections of human nature, and we must face the grim reality of daily breakdowns in marriages. Fortunately, in Australia only about 7 per cent, of marriages end up in divorce. That is perhaps the lowest percentage of any country in the world. The total number of divorces, I think, is approximately 6,500 a year, or less than 7 per cent. That is bad enough, of course, but the fact that we have not the highest rate in the world is cause for some degree of satisfaction.
The reasons for divorce, which is the ultimate end of the tragic road of a marriage gone wrong, are many. At times, it seems incredible to us that a marriage contracted with reverence in a church in the midst of all the joy - and the tears - the happiness and the hope may end in a divorce court in five years. The majority of divorces in Australia are obtained after five years of marriage - between the fifth and the tenth years. The reasons for this disastrous ending after such an encouraging beginning are to be found in wrong motives, adolescent love, infatuation, weaknesses of character, spiritual starvation, incompatibility, sheer self-will and selfishness - in fact, blatant selfishness - of the wife or the husband or both, domination of one over the other, lack of forbearance, infidelity, the fact that both are working in order to boost the family income, emotional instability, women’s new-found freedoms, addiction to drink, financial insecurity, and even wrong beginnings. These are some of the reasons why marriages go wrong, and only a change of heart - a complete change in human nature - can wipe out those causes of this tragedy. They cannot be removed by mechanical means or even by legislation. Men and women have to be changed deep down in their own personalities before these reasons for divorce can be removed.
How many couples marry in a church, however, because it is fashionable and because it is considered the right thing to do? This may “ fashionalize “ the “marriage, if I may use such a word, but it does not spiritualize it. The marriage vows are taken too lightly and without conviction by the group I am speaking of. True spirituality. Mr. Speaker, is not an outward cloak, but an inner condition of the heart which is apparent in dedication of motives and in character. If young people do not have these great spiritual qualities in their own hearts before they reach the altar of their own church, the recital of certain vows and prayers in a brief service will not suffice to give them what they do not have already.
– Where did the honorable member get that from?
– It comes from my own experience. I was formerly a Methodist minister, and I have conducted about 200 weddings.
– How many of those marriages have ended in divorce?
– I am happy to say that I have not heard of any. The seeds of betrayal and disaster are so often sown before the wedding day and are merely pushed out of sight for the time being in the emotional experiences of marriage in its early years. The Church is ever seeking to prevent these characteristics from showing themselves and to impress upon young people that their use of the church for their wedding should not be just for show or because church weddings are the fashion. How often has the church been used in this way through the years? Proof of what I say comes, first, from my eight years’ experience as a Methodist clergyman, secondly, from my experience in conducting nearly 200 weddings, and, thirdly from the fact that the disaster of a divorce rarely is seen in a true Christian marriage of young folk dedicated to God and therefore to each other. That is proof of what I have said about starting right - building on the right foundation. You hardly ever hear of true Christian marriages ending in the divorce court, Mr. Deputy Speaker. The people who make a show of the church and use it for their own purposes are mainly the ones whose marriages break down.
Divorce is abhorrent to all of us, especially when one thinks that the children are usually the worst sufferers. But, granted that, in extreme cases, divorce is necessary, the task of every one - the Parliament, the courts and the churches - is to see that justice and humanity are done to the real victims of this- human tragedy. Those who believe that divorce is not right in any circumstances will vote against this bill, and they have a perfect right to do so. In the face of this great tragedy of divorce, what is the Parliament’s responsibility? The Parliament has a responsibility to make divorce laws uniform. This measure will do that. We have to continue only those grounds for divorce that experience has shown are necessary and just. We must humanize the divorce laws as much as possible and safeguard the innocent - especially the children - by providing means for reconciliation. This bill will do that. The Parliament cannot take the place of the churches, but the Parliament can so humanize the laws governing this tragedy in our national life as to make it easier for the churches to help those people who are stricken.
What is the responsibility of the church in this matter? In my opinion, Mr. Deputy Speaker, the church is a factory which produces Christians. That is the main purpose. It is a factory for producing Christian wives, husbands, leaders, businessmen, unionists, teachers, doctors and parliamentarians who will give guidance to young people before and after marriage, who will give Christian fellowship and a sense of community to young married people and who will stress the sanctity and the sacredness of marriage.
What is the responsibility of the courts?
It is the responsibility of the courts, Mr. Deputy Speaker, to interpret the law humanely, to create a climate of understanding, to provide every chance of reconciliation and to protect the children of broken marriages. In this bill, all those facets of the courts’ work have been emphasized, and they will become a feature of the work of the courts when this measure becomes law.
The main features of this bill that impress me are, briefly: First, the provision for the work of marriage guidance councils, and the Government’s recognition of their work of reconciliation, even to the extending of financial help. On 22nd May, 1957, I spoke during the second-reading debate on the Matrimonial Bill 1957, which had been introduced by the honorable member for Balaclava. Referring to marriage guidance councils and those who participate in their work, I made this comment -
They are a self-sacrificing group of people, interested in bringing together the broken threads of marriage and human life. I believe that the Government should assist these councils, financially, because if we are humanitarians and Christians, reconciliation must be our first consideration - how we can unite a broken home; how we can bring the husband and wife together again.
The point that I wish to stress is that I felt at that time that the Government should financially assist marriage guidance councils, and this bill will provide for that very thing, lt is a long step forward in the fight by marriage guidance counsellors to mend broken marriages and prevent them from going to the divorce courts. That is the purpose of marriage guidance. I have not time to emphasize this point any further. I commend these people and organizations for their great and self-sacrificing work in improving human relations and helping young people to solve the problems that sometimes break a marriage. If the right people can get the young marriage partners together at the right time the marriage can probably be continued on a happy basis.
The next good feature of the bill is its emphasis on reconciliation, in Part III. A little more than one page of the measure is taken up in stating the provisions for reconciliation. At the court level, particularly, this bill will perhaps create a new race of judges - men with a complete new outlook on this vital matter, men who will find themselves acting as conciliators and not just giving judgments, because they will be getting couples together in their own chambers, prior to or at any stage of proceedings right up to the final stage, in order to prevent marriages from going on the rocks. These men will need to be of a special type. They will need to be humanitarians and I think that they should be Christians as well because this legislation will place on their shoulders a great responsibility.
The provision for the securing of maintenance money by a deserted wife and children is a splendid feature of the bill. As members of Parliament, we all know of many cases in which a deserted wife, who is supporting two, three, or more children, cannot get money from the deserting husband even after a court maintenance order has been made. He goes to another State and the position is hopeless. He runs out on her and the children. This bill will enable the wife to garnishee the wages paid to the husband by the employer. The money will be paid to the court and, from the court, to the wife and children who have been deserted. I only hope that the employers will carry out the spirit of this legislation as the Minister intends it to be carried out. If the employers do not do that, the purpose of the legislation will be defeated. This is an excellent provision.
The bill further provides that the welfare of the children shall be safeguarded. Children are the real and innocent victims of broken marriages. The husband and wife may be in middle life, perhaps in their thirties or forties. The children are the innocent victims of the crack-up and they need to be looked after. This bill does everything that is possible by legislative action to see that a judge can make sure that the children are looked after by way of maintenance, court orders and the like.
I also support the restriction which is placed on press publicity. I feel that the press has sensationalized the serious tragedy of broken marriages and has caused a lot of heartburning to relatives as well as to the parties concerned.
I should like to make three or four comments concerning clause 27 (m). The experience in Western Australia in this respect was dealt with on Thursday night by the honorable member for Moore (Mr. Halbert). He said -
For example, in 1947, there were 814 divorces in Western Australia - one for every 625 of the population. In 1958 there were 536 divorces - one for every 1,316 of the population. And these are the figures for a State in which divorce is said to be easy! It is really laughable. Since 1950 - after the effects of the war period had subsided - the drop in divorces in Western Australia had been 8 per cent, greater than in any other State of the Commonwealth. Further to confuse the critics, the total numer of defended cases on the grounds of the five years’ separation in the last two years has been twelve - an average of six per year, or less than 5 per cent. This proves that this provision is seldom used by one party to force an unwanted divorce on the other.
Those words are very impressive, to my mind. Clause 93 provides for “the enforcement of maintenance orders. The provision for the attachment of both earnings and property of a husband or wife will be one of the greatest deterrents to the abuse of divorce laws ever put on a statute book. This means that a judge will be able to make an order against a husband to give his wife his house and property and so much maintenance per week, should he proceed with a divorce at the end of the five-year period. A divorce is not granted automatically at the end of five years. It is only granted under certain conditions which arc laid down in the bill. These safeguards cover the whole aspect of divorce under clause 27.
Finally. I would like to say this: This bill does not make divorce easier. I know from my own experience and study of the matter over many years, working as a member of Parliament and as a minister of religion, that this bill will not make divorce easier.
It will regularize divorce proceedings. It will give justice where now there is no justice. It will protect the stricken family. It will ensure further amendments to a uniform law, as experience of its workings indicate the need; The bill presupposes that when human nature defaults and a marriage is wrecked, a chance to start again will be given under an acceptable law and with due regard, to humanity. It stresses the overriding importance of happy family life as the bulwark of our nation. The AttorneyGeneral has said that over and over again. Those who say that this bill will wreck the family do not know what they are talking about. The- Attorney-General has stressed time and time again that the family is the basis of our democratic way of life and that the happy family is the bulwark of any nation. Finally, this bill vividly illustrates the moral disaster that threatens the nation by the break-up of marriages and families.
No one who reads this legislation or the Minister’s second-reading speech can say that it must be a great thing to go through a divorce. On the contrary, a study of the legislation will only emphasize the disaster which comes to a community, a country and a nation, through the smash-up of married life. For these reasons, and after careful consideration, I propose to vote for this bill as the best piece of legislation on this subject that has been put before this Parliament in 58 years.
.- I want to start on this legislation where the last speaker left off. 1 think that the most important paragraph in the Minister’s speech introducing this legislation was that in which he said -
One of the great foundations of our national life is the family, and in turn the family is founded on marriage. National interest is best served and family life is best nurtured when marriage is truly life-long. The prevalence of broken marriages does threaten our strength and imperil our future. The ideal society would know no occasion for divorce.
That, to my mind, is a proposition to which the attention of every member of this House should be directed. This is the whole basis of this legislation - the preservation of family life. After all, divorce is no new measure that we are introducing. It has been part of the pattern of our community life for a century. I do not propose to cover all the clauses and principles of this legislation. We know that there is a general acceptance of the approach of the AttorneyGeneral (Sir Garfield Barwick) and of the Government to this problem. The objective is that the tragedy of broken marriages shall not be felt by the children, or that the least possible damage will be done to the children. I think that that part of the bill has general acceptance. But there is opposition to the provisions of the bill concerning grounds for divorce. I should like to give my attention to the basis of that opposition. Why is there opposition, always, to divorce law? To my mind, it is an instinctive act of society which realizes that marriage is the foundation of society. Whether knowingly or unknowingly, society reacts against any attempt to weaken marriage. That is going back into dim history, before Christianity. Among the pagans and those who practised other forms of religion some instinctive protection of marriage pertained in every class and condition of men. On this ground I think the importance of federal uniformity gives some security in public thinking, but I think on that ground alone this bill is justified.
The second point of opposition was based on religious grounds. I, personally, have tried to live a Christian life. I am not a nominal Christian. I profess my faith, I go to church and support my church. But many people in Australia and throughout the world to-day are nominal Christians. I approach this matter not only as a member of Parliament but also as a professing and practising Christian. However, I do not propose to enter into a theological discussion or dispute on this matter but rather on Christian principles as they affect human relations. This has always been the basis for a proper evaluation of human transactions.
We are guided quite clearly in Christian principles and, where there are transgressions that offend social life, by clearly defined commandments. For example, there is nothing to debate about the commandments “ Thou shalt not kill “, “ Thou shalt not steal “ or “ Thou shalt not bear false witness “. When one goes through the Christian commandments there is little to be debated; they are as clear as crystal. But on marriage, the greatest of all human experiences and the fulfilment of life, there is no strong definitive command, unclouded by apparent ambiguity. This is something which guides me in my approach to this problem. I believe that the church’s blessing and the church’s responsibility to marriage is of the utmost importance. Indeed, our early life in the church is directed to the final fulfilment of human relations, which is marriage. But where the problem case arises and the continuation of the state of marriage offends one’s natural sense of justice, then I believe that the exercise of that justice will not run counter to Christian principles.
When one examines the present marriage situation in Australia one finds that divorces are becoming fewer; therefore we can be somewhat proud of our morality in Australia. Statistically, divorces are decreasing although our population is increasing. I would remind the House that the greatest period of national immorality was at a time when there were no divorce laws. One has only to go back into history to see that. Therefore, any argument that the prevalence of divorce laws has lowered the standard of morality is not borne out by facts.
When a marriage is irretrievably broken and either or both of the parties believe that the marriage cannot be dissolved, they will start to develop an ugly, unchristian attitude towards each other. That is an important consideration in view of the intentions of married life. A question which one might ask oneself in dealing with this great problem is, do harsh divorce laws preserve morality? We have to remember that in this matter we are dealing with human problems, human reactions and human relations. After all, we are human.
If it is a fact that marriage is indissoluble will that maintain marriage? That is an argument on which I would like to satisfy myself. As I see it now, it does not. If there is a contract between two people which cannot be dissolved, then the result will be to discourage the estranged parties from attempting reconciliation. So long as one or other has the force of the contract to support his or her stubborn approach to this marriage question there will be no relaxation to allow of reconciliation. I am trying to look at this from the point of view of human relations. If, on the other hand, there is an avenue through which the contract can be dissolved - an avenue with ample safeguards - then I am inclined to think that the parties would be much more willing to make reconciliation and so bring about a more constructive approach to preserving the contract. After all, this bill is an attempt to preserve marriage. If there are two people who feel that they will not surrender or attempt to make necessary adjustments in their married life, then I am inclined to think that harsh divorce laws will be responsible for a possible increase in divorce.
Clause 27 (m) has been criticized. This is the clause which, I feel, provides the avenue for divorce. In this bill there are ample safeguards to prevent abuse of this provision. If there were not those ample safeguards I would not support it. Let us see how it has worked where it has been practised. In Western Australia, where it has been in operation, the number of divorces has been falling more than anywhere else in Australia. I feel that fact is due to this provision which contains the element that has hitherto been lacking in other States in that it provides an avenue for reconciliation with proper safeguards - safeguards that eliminate what has been called “ divorce by consent “. It opens the way for reconciliation between stubborn parties. Nobody approaches marriage without a prospect, of greatest importance, that it will lead to the best thing in life - a happy marriage. Sometimes it has been argued that this clause would allow an innocent party to be sacrificed by an offending party. I wonder whether that party is an innocent party. I will take the case of two people one of whom is firmly - fanatically - convinced of the sanctity of marriage and believes that there can be no dissolution of the marriage bond, but the other party is not bound by those beliefs. I am not talking about anybody who has a careless approach to marriage. I am speaking of two decent people but incompatible, and one denies the other the greatest fulfilment in life, that of happy married life. If one person feels that he or she cannot accept divorce, then the sufferings that will have to be endured is of that party’s own making.
Although I am an Anglican, I believe that the Anglican bishops were wrong in their recent resolution. They based it on a minority report of the British royal commission; and further, their recommendations were based on a secular document. I do not think they were right in that. Everybody has a right to his opinion, but so far as I am concerned I feel that they are in error. Other prominent clerics say that this new divorce law will increase divorces. That is their opinion, but statistics have shown that that is not the case. Another clause which has been brought to my notice and which has received criticism is the one taken from South Australia making cruelty for one year a ground for divorce. Either party to a marriage who has been asked to suffer cruelty for one year is entitled to have the marriage dissolved.
I wish to reply to the statements of some honorable members who criticized this bill. The honorable member for Melbourne (Mr. Calwell) has suggested that poverty and lack of social justice is one of the causes of divorce. Later he referred to the prevalence of divorce in the United States of America. I believe the honorable member has misinterpreted the facts on which he has to arrive at a judgment. America has the highest standard of living in the world, yet there are many more divorces there than in other countries. The honorable member’s argument that misery and poverty create divorce is therefore not borne out in fact. If any country really needed a uniform divorce law, I should say it is the United States. The different American States have so many extraordinary clauses which allow the evils of easy divorce to wreck the nation’s morality; and America should have a uniform federal law of divorce such as is proposed in this bill. One may be sure that the Federal Government of America would not tolerate some of the extraordinary grounds for divorce which exist in the various States of that country.
The honorable member for Mitchell (Mr. Wheeler), who approached this problem with great sincerity, opposed the limitation of press reports. He said that quite a number of marriages were maintained, instead of ending in divorce, because the husband and wife feared to have their domestic troubles dragged through the divorce court and featured in the press. I cannot think that that is a sound basis on which to preserve a marriage. The Attorney-General is wise in including the provision for the limitation of press reports. I believe that to-day the press is sinking to low levels in battening on divorce tragedies in order to sell newspapers to the kind of people who delight in reading about such things. So I support very strongly the provision for limitation of reports.
Although I disagree with those who oppose this bill, I respect their views because, after all, this is a matter in which each person must express his own opinion. The Attorney-General has done a very fine job on the bill. The work has not been lightly done. It has been done in consultation with the very best opinion available, opinion that was sought to help the Attorney-General to come to the correct conclusion. In addition, every effort has been made to give the most complete freedom to members in relation to the bill, and the greatest opportunity for discussion here. There has been no coercion of members. Every honorable member who agrees with me should wholeheartedly aline himself with the Attorney-General’s proposals. Honorable members are always facing political repercussions from outside this place, coming from people who do not agree with them. In the present case there are bound to be some repercussions; but I say now that I propose to aline myself fully with the Attorney-General. I believe that he has set out to achieve the objective that T mentioned at the start of my speech - the preservation of married life. Before they cast their votes on the bill honorable members should ask themselves the following question: Will this legislation preserve married life? After all, happy married life is the greatest strength of this nation, and T believe that the measure will help to pre”ve ‘<<. Therefore. I propose to vote for t*»» Vfl! in its entirety.
.- The contributions to the debate from both sides of the House, Mr. Deputy Speaker, make it abundantly clear that there are very wide divergences of opinion, and mixed feelings, as to the wisdom of certain of the grounds for divorce provided in the measure. The need for uniformity in divorce law in Australia is, according to the latest gallup poll. recognized by an overwhelming majority of the Australian people, and also, I believe, by most members of this House. However, the need for uniformity is of secondary importance. The salient and crucial point emerging from the debate can be stated in the question: Are all of the grounds for divorce provided for in the bill acceptable to the community as a whole? I submit that not one honorable member could answer that question with any degree of confidence or certainty. An answer could be based only on mere guesswork.
There are two provisions in the bill that I find unacceptable, and to which I shall refer later. Before discussing them and the various grounds for divorce, however, I wish to say that this Parliament should devote more attention to analysing some of the basic causes of divorce. Having done so we should then ask ourselves a simple question: Are we doing everything possible to keep the divorce rate at the lowest possible figure? I sincerely believe that the answer to that question is a definite, “ No “. I shall endeavour to point out where we aTe falling down on the job.
Let us put the matter in its true perspective and examine it. Police traffic experts issue warnings and advice to road users and pedestrians on ways and means of keeping down road fatalities and accidents. Commonwealth and State health authorities issue warnings and advice to the general public on ways and means to defeat disease and illness. In both cases these authorities work on the sound basis that prevention is better than cure. Having that in mind, Mr. Deputy Speaker, I claim that inadequate housing is one of the principal contributory factors in the breaking up of marriages to-day.
In substantiation of that contention I shall read an extract from the illustrated weekly magazine “Pix”, which quotes the view expressed by Mr. Justice Dovey, who is probably the most experienced divorce jurist in Australia. The “Pix” report of Mr. Justice Dovey’s remarks reads -
Giving judgment in the N.S.W. courts recently, Mr. Justice Dovey, one of Australia’s most widely experienced jurists in divorce, said, “ It’s a sad thing to have to say, but of all young couples whose marriages break-up in the first three to five years, sooner in some cases, the fact that they have been living with one or another of their in-laws is responsible in the great majority of cases “.
The tragedy lies in the fact that, in most cases, neither party is directly to blame. Both the host parents and the newlyweds are forced to cope with economic circumstances, accommodation problems and psychological developments with which neither, generally, is emotionally or psychiatrically schooled to cope. The result is frustration, pinpricking incidents, mounting tension that almost inevitably ends in a breakdown of what, under normal conditions of marriage, would have been an affectionate, companionable relationship.
I accept, without qualification, the view expressed by Mr. Justice Dovey, which shows quite clearly that our divorce rate could be greatly reduced if proper housing were available to people who require it. It is therefore in our power to tackle the problem of divorce in one of its causes by allocating more loan money to the States and by using the financial resources of the Commonwealth Bank to overcome the housing problem. Thereby we would be offering a preventative instead of a cure.
I turn now to clause 27 (1) which provides that insanity shall be a ground for divorce. At present insanity is a ground for divorce in every State except New South Wales. It does not necessarily follow, however, that New South Wales is in error in not including insanity as a ground in its divorce legislation. In fact, I believe that the attitude of New South Wales in this regard is correct. It is interesting to note that, to the best of my knowledge, no move has ever been made in a petition, or by public outcry, for the inclusion of that ground in the New South Wales divorce law.
Insanity is an illness like any other ailment or disease. It is an affliction for which the unfortunate sufferers are entirely without blame. It seems strange to me that a person can obtain a divorce on the ground of the insanity of his partner when other serious afflictions are not grounds for divorce. Let me give an illustration. The wife of a personal friend of mine has been bedridden for many years. Sometimes she is fortunate enough to be able to sit up in a wheelchair. Her husband is denied the rights of normal and happy marriage from both the physical aspect and from the aspect of freedom to engage in sporting activities such as golf or tennis. That man may not apply for a divorce, because his wife’s affliction is not a ground for divorce.
Yet, if the wife were in an asylum, the husband could sue for divorce under the proposed measure, or under the existing provisions in States other than New South Wales. It appears to me very strange that a man living in those circumstances, and probably in many cases much worse off than a husband whose wife is in an institution and being treated with all the care and tenderness which he cannot provide for her himself, should be denied the right to petition for a divorce.
I believe, Mr. Deputy Speaker, that the ground of insanity for divorce is a very dangerous one in many respects. For instance, no medical authority in Australia would venture an opinion as to what progress medical science will make in the next twelve months or two years, or in the near future. Who could have envisaged, twenty years ago, a day when we would master pneumonia or when we would so control tuberculosis that most of the institutions for the treatment of that disease in New South Wales would be closed down? Operations are now being performed on children who, a few years ago, would have been doomed to certain death, but who now have excellent chances of recovery. Another great advance has been made in the treatment of Parkinson’s disease, the dreaded palsy. A new technique has been devised which has caused people afflicted with this terrible disease to hope that they may be cured in the very near future.
Who can say, with any degree of certainty, that the cure for insanity, or even for cancer, is not just around the corner? A person might be divorced on the ground of insanity, then later be cured because of some great advance in medicine, be discharged from an institution and then find that he is permanently separated from his family through no fault of his own. No medical authority in Australia could suggest that a particular person will be incurably insane for the rest of his life, because advances in medical science may later provide a possible cure. I believe, therefore, that it is a tragedy for people to be divorced on this ground.
In conclusion I would like to make it perfectly clear that I am not opposed to uniformity of divorce law, but, having waited 58 years for this bill to be presented to the Parliament, surely we can wait an other twelve months or two years, and then-, make up our minds after having had proper evidence presented to us from people whomay know more about divorce and the causes of it than we do. I believe it is right and proper that we should support the amendment of the honorable member for Macquarie (Mr. Luchetti).
.- My voice is raised in this important debate,, not as a member of the legal profession,, but rather as a layman of the community, of the church and of this Parliament. The merits of this bill have been undoubtedly clouded by the emphasis which has been placed upon its divorce provisions. In my opinion the bill is primarily designed to protect and preserve marriage. In this connexion I refer to an editorial published on 28th September, which, I think, states the position very soundly -
Although one of its purposes is to make Australia’s divorce laws uniform, the Matrimonial Causes Bill is aimed, first of all, at keeping as many people as possible happily married. An untangling of the crazy quilt of conflicting State divorce laws is, of course, desirable and necessary, but, as Sir Garfield Barwick has explained to the Marriage Guidance Council, the bill is concerned just as vitally with the much more important problem of keeping married people away from the divorce courts.
We should, I think, underline the many provisions designed to preserve marriage in this piece of legislation, and put the matter of divorce into its correct perspective. If this is not done, we, as members of this honorable House, shall be guilty of robbing our people of an admirable piece of social legislation, which has already received a vast amount of praise throughout the nation.
It is fortunate, of course, that we are not here to debate whether divorce is right or wrong. But to clarify our path of responsibility, to try to see just where we are heading, it is essential, in my opinion, to make certain observations. I believe, as I hope does every other honorable member of this House, that it is the intention of God that marriage should be permanent. “Whom therefore God hath joined let not man put asunder.” Is it not true, Mr. Deputy Speaker, that when this statement in the marriage service is read, many a presiding minister in a church, and many a thoughtful witness observing the ceremony, asks himself the question, “ Is this really a
God-blessed marriage “? People may be legally and ecclesiastically married, but not, of course, joined together by God. A -couple are not necessarily joined by God, though the ceremony be celebrated in a church, or by a Christian Minister. A union which is based on mere physical -attraction, or convenience, or money, cannot be sanctified, of course, by place or priest. I noted with interest some years ago a statement by a prominent Australian theologian, to this effect -
No marriage is valid before God which is not entered into with the right motives and intention. -Many a speaker in this debate has already directed attention to the fact that most people enter into the matrimonial contract with the firm belief that their marriage will be permanent. If we wish to bring our Christian convictions into consideration of this vital matter - and, naturally, I believe that we should - then we must either be literalists, abiding by the printed word of the Scriptures, in which case while we might concede the right to separate we could not agree to the dissolution of marriage or the remarriage of separated people, or we must be guided by the spirit rather than the letter of the biblical law. Personally - and I believe that we must all speak personally on this matter - I am of opinion that we are not bound to a literal interpretation of the references to marriage in the gospels of the New Testament. I was impressed some few weeks ago when my honorable friend opposite, the honorable member for Port Adelaide (Mr. Thompson), when making his contribution in this debate, expressed his belief that there are circumstances in which it is less Christian to keep people together than to permit them to part - and far more injurious, of course, to soul and body. Unless marriage be a union of body, mind and spirit, of the physical, the ethical and the spiritual, of man. woman and God - for God is in this contract if we put it at it highest level - then it surely cannot be said to be a relationship blessed of God, nor can it make any real claim to permanence.
It is quite absurd to speak of people as joined together by God when their marriage has never had these qualities and has never had any real moral or spiritual significance. I believe that, as we seek to determine the correct Christian attitude to marriage and to divorce, it is well that we consider what we prize as the scriptures of God. But let us ever remember the value of the injunction, “ The letter killeth but the spirit giveth life “.
The important task for us and for those who are the leaders of our Churches is to put a fence at the top of the cliff rather than an ambulance at the bottom. Is it not true, Mr. Deputy Speaker, that divorce is a symptom? My friend, a city minister, to whom I am indebted for this reference, wisely points out that we need to get at the root of the disease, to provide better preparation for Christian marriage and so minimize the prospect of divorce. The minister of a prominent city church, popular for weddings, said to an acquaintance, “ I shall never marry a divorced person “. “ How many weddings did you have over Easter? “ came the question to him. He answered, “ Thirty “. “ Did you have a heart-to-heart talk with each of the couples in preparation for marriage? “ he was asked, and his reply was, “ No; how could I with that number? “ His friend then said, “ No wonder we have so many divorces “. The responsibility is on the Church, of course, to see that young people are prepared for the important contract of a Christian marriage. The Church and its teachings should be the fence at the top of the cliff, but often it is the ambulance placed below.
What is the position when the Church has done its very best and is yet faced with marital failures? To be realistic, must we not, as members of this House who will shortly come to a distinct vote one way or the other on the merits of the bill, accept the fact that in a society which at best is only theoretically Christian, the dissolution of marriage in certain circumstances is inevitable? We must recognize that secular society, and Federal and State governments, take the prospect of divorce for granted. The existing legislation and the bill before us do not pretend to meet the Christian point of view, in whatever way we may like to express it. This, I believe, is legislation based upon expediency, and with this 1 can find no fault, for divorce in our community is taken as a social expedient.
The bill presents one uniform matrimonial causes law in place of the chaos of diverse State legislation, with all its disadvantages to the individual, particularly when movement from State to State is involved. After the most careful analysis, I am satisfied that the bill in its present form is justified and, well knowing what I do, I propose to vote for it without further amendment. In my opinion, the major achievements of the bill are these: First, support for marriage guidance organizations by recognition and by financial grants; secondly, provision for a three-year period of marriage before divorce proceedings may be commenced - an admirable provision which will become more positive with experience; thirdly, in clause 14. provision that a duty of a court dealing with a matrimonial cause is to consider from time to time the possibility of a reconciliation of the parties; fourthly, the stipulation that no decree absolute shall be granted until the court is satisfied that proper arrangements have been made for the children of the marriage; fifthly, provision for Australian domicile for the parties to divorce proceedings in this country; and. sixthly, the dispensing with the wide disparity between the residents of the States when they are forced to turn to the available grounds for divorce.
As previous speakers have pointed out, fourteen grounds for divorce are set out in clause 27. However, to interpret correctly these divorce grounds, we must take into account the qualifying provisions of clauses 31 to 38. These are positive achievements in this field. After we have been ploughing around in the wilderness for so many years without a uniform matrimonial causes act, this surely is what we need. Some people are quite appalled when they realize the scope of the legislation that the Parliament has now to consider, and the long period that has elapsed without action having been taken. These, then, are achievements that we must accept. The people need this, measure, and I counsel the House not to lose this splendid piece of legislation by pulling it apart. Some honorable members already have said that they will vote against the bill unless one amendment is made. There is a distinct danger, as we try to take the bill apart in that way, that we will lose the whole of it.
The bill has had its isolated critics, and in my opinion they are isolated critics. But, of course, we must examine their complaints as best we can. I believe that this, legislation has been handled by the Government very fairly indeed. It has been before honorable members and the public for many months.
– And you have resented every criticism of it.
– I do not think that is. fair comment. As the honorable member knows, the Attorney-General (Sir Garfield: Barwick), presenting the legislation on. behalf of the Government, has already written in a large number of amendments. No one, during the period that this legislation has been open to discussion and tc» criticism, could have done more than I have to ascertain the true public reaction. Copies of the bill and of the explanatory notes were forwarded by me to a wide cross-section of the public. I was glad to accept every opportunity to speak to groups of people, and I make these observations as a result. Up to this date, I have not received any protests of any kind from residents of Western Australia, the State from which I come, but I have received from variousorganizations of women letters commending the bill because it protects the interests of women and children, and asking me, as a member from Western Australia, to vote for the measure. If Western Australia’s experience of divorce, particularly of the separation clause, were as bad as suggested by the honorable member for Fremantle (Mr. Beazley), for whom I have a high regard, why is it that the women of that State have not risen in strong protest instead of commending the legislation to us as local members? The same honorable member has referred to the Attorney-General’s Bill as spineless. He praised nothing in the bill and will condemn it in toto if his view about the five-year-separation clause is not adopted. Yet his criticisms were in general1 terms. In not supporting the opinions expressed in his earnest speech with more details and facts, I believe that he did himself and this Parliament a disservice.
Some prominent churchmen believe that the bill will make divorce easier. Yet thelearned Leader of the Opposition (Dr. Evatt) in his speech in support of the bill expressed not only his conviction that clause 27 (m) was justified, but also the view that by extending the period of 21 days to twelve months relating to the restitution of conjugal rights under the existing New South Wales law, this bill would certainly not make divorce easier. I have looked carefully at the Western Australian experience of the five-year-separation provision and I believe that the House should take note that for those impatient to end a marriage, the acceptance of a voluntary two-year extension of waiting time is a remarkable thing. The longer the wait, of course, the greater the opportunity for reconciliation in which all of us are interested. But what of the detailed experience in Western Australia? Of the total number of divorces in recent years, the proportion of divorces under this provision of five years’ separation has been as follows: - In 1955, 26.1 per cent.; in 1956, 24.4 per cent.; in 1957, 24.8 per cent, and in 1958 the figure fell to 20.1 per cent.
May I refer to the most recent notes issued by the Attorney-General. He states that Western Australia has had fourteen years’ experience of a ground similar to but more liberal than clause 27 (m). Western Australia’s experience in relation to divorce ran parallel to that of the eastern States and was not deflected by the introduction of this five-year-separation provision in 1945. Western Australia’s divorce rate dropped after 1947, as did the rates in the other States, but it dropped faster. The Attorney-General states that there is nothing in the actual experience of Western Australia over this substantial period of fourteen years which lends any countenance whatever to the claim that the presence of clause 27 (m) will increase the divorce Tate or lead to any irresponsibility in entering marriage.
I do not know that any other speaker in the debate has referred to the experience in New Zealand, where the period of separation is seven years. It is interesting to note that in New Zealand - no doubt because of the longer period, seven years instead of five years - the percentage of divorces on this ground is lower than the percentage in Western Australia. The percentage ranges over the years 1955 to 1957 in a slightly ascending scale from 5 per cent, to 7 per cent. only. Other critics have claimed that the additional grounds beyond those in the existing State acts will vastly simplify divorce. But is it not true that these grounds do not represent, as it were, new areas that will result in a new crop of divorce actions? Are they not rather alternative grounds, permitting a more humane approach in many cases to divorce? Sometimes they involve personal sacrifice from the time viewpoint by those seeking to use them. An alternative ground so often will be recognized as the means whereby domestic affairs need not be opened up to the curious and often cruel community investigation.
I should like to pay tribute to some very valuable contributions made to this debate. The honorable member for Blaxland (Mr. E. James Harrison) made a splendid and logical defence of the separation clause about which I have been speaking. He expressed confidence that this legislation will result in a falling off in the divorce rate rather than a fear that it will have the opposite effect. I must, however, correct him in one aspect. He said that Western Australia had no marriage guidance council. I assure him and the House that for a number of years we have had a most active marriage guidance council, performing splendid work. The honorable member may be interested to know that a former president of the Western Australian branch of the Marriage Guidance Council is now president of the federal body of the organization. My friend and colleague, the honorable member for Fawkner (Mr. Howson) also made an earnest speech not in agreement with the view that I have expressed. He was afraid of the influence of the legislation, particularly this separation clause - clause 27 (m). I can only wish that the honorable member might have analysed the New Zealand experience rather than depend solely, as he did, on a reference to the Western Australian experience.
Finally, I am impressed by the lengths to which the bill goes to safeguard marriages, by the responsibility placed upon the courts to protect wives and children and by the recent amendments proposed by the AttorneyGeneral to safeguard several of the divorce grounds against abuse. It is specifically provided that dissolution will be refused where conduct offends the public interest. We should praise the AttorneyGeneral for his very fair attitude in presenting this bill. I have already emphasized that he has been prepared to listen to criticism. He has been prepared to introduce amendments, and I believe that where a just case can be presented without injuring the whole fabric of the bill, he will give it a fair hearing. This legislation will be regularly and critically reviewed. It will be a piece of Commonwealth legislation. Any legislation that is on the statute-book is open to review. Nobody in this House can say that once this bill becomes law that is the be all and end all of the matter. I believe that the Attorney-General himself will be the first to move to correct any anomaly or undesirable trend.
Fortunately this is a non-party measure. Each member is free to follow his personal conviction. I hope that each of us, in our approach to the vote on this measure, will realize the seriousness of the subject. But at the same time I trust that we will take into account the deep research that has been undertaken by the Attorney-General and those who have been associated with the formulation of these ideas, so expertly presented in this piece of legislation which, I again remind the House, has earned the praise of legal experts and those who are closely associated with the problems of marriage and divorce not only in this country but elsewhere in the world.
.- Like the honorable member for Swan (Mr. Cleaver), I agree that this is a controversial measure. Like the honorable member, I feel that much of the criticism that has been levelled at this bill is unjustified when the bill is properly examined. Incidentally, although this bill is an exceedingly controversial one, I am happy that it is being dealt with on non-party lines. Speaking with experience of twelve years in a State Parliament and ten years in this Federal Parliament, this is the first occasion that I have been able to participate in a debate on a measure that is regarded as a non-party measure on which every honorable member is free to vote as he pleases. That is something novel to all of us, accustomed as we are to the hurlyburly of politics. It is not very often that we are able to say exactly what we feel about a bill.
This measure marks the commencement of an important epoch in the parliamentary legislation of the Commonwealth because it is a genuine and earnest attempt to give the people of Australia a uniform law on a very controversial subject. In effect, one law will take the place of seven, some of which contain the same provisions, and some of which contain provisions that are not contained in others. This bill, if it becomes law, will mean that the existing divorce laws will be placed on a uniform basis, and a national standard on a very important matter which affects the home life of the people will be achieved.
I think that what is being done by this bill might well be done in respect of a number of other powers that the Commonwealth possesses. For instance, if a uniform divorce law is good, a uniform company law would also be good for Australia. Therefore, as a consequence of our journey into the realm of national law on divorce, I hope that other laws which have general application also will be made uniform. We have reached the stage in the national life of the Commonwealth at which it is desirable to have national standards so that the people, irrespective of where they may be living, will be in exactly the same position. It is most undesirable in a federation that laws should vary to such an extent that the legal concept in one State differs from the legal concept in another. Like the honorable member for Swan, I have received from organizations and from individuals communications in relation to this measure, which indicate that the feeling in the community is extremely mixed. On one hand, the Business and Professional Women’s Club has written to me asking that I do all that I can to expedite the passage of this legislation. On the other hand, I have received letters from organizations which condemn the bill and ask that I vote against it. The discussion that has taken place in the community indicates that there is a great volume of public opinion about this bill, but the opinions that have been expressed are so varied that it is extremely difficult to find anything that will give a lead to a member of Parliament as to how he should vote on it. Each honorable member has to examine the measure from every possible angle and then decide what he believes to be best in the interests of the community.
The claim that this legislation will make divorce easy is not well founded. If one examines the measure carefully, one comes up against the inevitable problem that arises in any attempt to replace seven laws by one. Some form of averaging must take place. In some respects it may appear that divorce will be easier, but in others it is certain that it will be harder. For instance, the bill provides that divorce cannot be sought until three years after the marriage. None of the existing State laws contains such a provision. There is no restriction on the time at which an action for divorce may be commenced. That illustrates the fact that some of the criticism that has been levelled at the measure is not well founded.
This legislation appeals to me most because, for the first time in the history of matrimonial causes, an attempt has been made to deal with a very difficult social problem in a just and humane way. As far as I know, there is no provision in the existing State laws which gives married couples any assistance to overcome the difficulties that beset them. The existing legislation is legal and cold. If a matrimonial offence has been committed, the aggrieved party is entitled to seek relief and he or she may obtain a divorce. But the solution of the problems that beset people who have entered upon married life have been ignored. Everybody knows how difficult it is for people to live together even in a community. Inevitably, whether one likes it or not, there are differences of opinion, clashes of personality and other difficulties that make living together in a community very difficult. However, that difficulty becomes much more acute in married life. There, the very intimate relationship that exists between man and woman, the differences of opinion, the clashes of personality and the 101 problems that arise in married life mean that the partners to the marriage must undergo a period of adjustment which, in many cases, is a very difficult period indeed.
Unfortunately, until recent years there has been no provision in law for people who are experiencing domestic difficulties to secure advice, assistance or guidance from any person or organization. As a result, instead of some solution being found to the problems of people who are having an unhappy married life, the unfortunate people have had to battle it out for them- selves and in the end exasperation or frus- tration have taken control, the marriage has broken up and the children have suffered most. Desertion was the only way out for people in those difficulties. Because this measure makes a humane approach to the problems of married people, its proposals in -relation to reconciliation of estranged couples might well receive the support of honorable members.
Certain clauses of the bill are open to justifiable criticism. I refer to the clause which provides for a reduction in the period of desertion from three years to two years, and to that very controversial clause 27 (m). It seems to me that the Minister, in drafting these clauses, has overlooked the three years’ period that seems to run through the measure. For instance, the bill provides that an action for divorce cannot be commenced until the marriage has been in existence for three years, which indicates that the Minister and those who drew up the bill have considered that married people should have at least three years in which to adjust themselves to the new circumstances of married life. If the period of waiting fails to effect a reconciliation, steps can be taken at the end of three years to make the marriage void. In clause 23, the period of three years is specified in relation to domicile. So three years seems to be important in the minds of those who framed the bill as a significant period which should be allowed to elapse before certain things are done. In view of these two provisions, it is strange that the measure does not provide for desertion for three years as a ground for divorce, as this is at present a uniform provision in the laws of all the States but one.
It seems to me that it is much more desirable that a period of three years should elapse before a divorce can be obtained on the ground of desertion than that two years should be sufficient. Two years is a comparatively short period, and I doubt whether people could determine within that period whether desertion would or would not be permanent. If, in spite of efforts at reconciliation by those who will have power under the terms of this bill to try to effect reconciliation, desertion still continues after three years have elapsed, sufficient time will have passed, I think, for a divorce to be sought. For these reasons, I feel that I cannot support the provision which makes. desertion for two years a ground for divorce, and, at the committee stage, I shall support any amendment designed to increase the period to three years.
I turn now to the second matter - separation for five years as a ground for divorce. I admit that very strong cases can be put “both for and against this. After having given the matter very long and earnest consideration, I feel that I cannot at present support clause 27 (m), which makes this provision, and I certainly will support, at the committee stage, any amendment which will delete it.
I commend the Government on the reconciliation provisions of this measure. They, quite apart from anything else in the bill, justify its introduction and its receiving the support of the House. As I stated previously, I feel that the manner in which matrimonial causes generally, and difficulties between husbands and wives, have been dealt with “in the past does not reflect any credit upon the community. But a new vision is now appearing and people are beginning to realize that the community has a responsibility to those of its citizens who meet with domestic trouble. So, in recent years, organizations have been formed to work in -the field of domestic relations. They have done good work and have greatly helped many people in their difficulties. This measure provides that such organizations shall receive legal recognition as part of the Commonwealth scheme in respect of matrimonial causes, and will enable them to function with an authority and a surety that did not exist before.
In addition, this measure will safeguard the rights of children. We know that those who have suffered most from divorce in the past, and who will suffer most in the future, are the children of broken marriages. Their security is destroyed and home life suddenly ceases for them. They experience all the difficulties that arise when parents are separated. Children in these circumstances become emotionally disturbed, and, as a result, whoever is in charge of them has great difficulty in controlling them and seeing to their welfare. This emotional disturbance of children is one of the worst tragedies that result from domestic unhappiness. It is a responsibility of the com munity, and it is certainly a responsibility of the Parliament, to endeavour to prevent this kind of tragedy.
This measure attempts to deal with these two very important matters. First, it provides for efforts to reconcile marriage partners who are in difficulties and who are disputing with one another - who are, as it is generally termed, at loggerheads. Secondly, it provides that, if these efforts fail, the interests and the welfare of the children must be protected before matrimonial relief is given. In my opinion, the bill puts these matters on a proper basis which provides for the consideration and protection of the human interests of those who. unfortunately, because of their age. are not able to protect themselves. From that stand-point, therefore, the bill is, in my view, an exceedingly good one.
I sincerely hope that the provisions relating to reconciliation will prove successful, although I think it would be unwise of us to expect spectacular results once the measure becomes law and these provisions come into operation. Such results are achieved only very slowly. People have to get to know the institutions that exist. Those who work in the organizations involved have to become skilled and experienced in giving advice discreetly and tactfully. They must learn to win the confidence of the people who are in dispute and, as a consequence of winning their confidence, to give sound guidance. So I feel that this work of conciliation and reconciliation will take time, but I believe that, once it becomes established, it will achieve lasting good for the community.
I believe that the structure of this bill is sound, Mr. Deputy Speaker, that it will make provision that is sadly lacking at present for the satisfaction of a want in the community, and that it will bring humanity and justice to the solution of a social problem which is causing the Australian people a great deal of difficulty. Therefore, I shall support the bill on the motion for the second reading, and I reserve my right to vote as I think necessary on any amendments proposed at the committee stage.
– Mr. Deputy Speaker, the longer this debate proceeds, the more obvious it is that all honorable members, irrespective of where they sit in this House, are very keen to have uniform divorce laws put into operation in Australia. On the other hand, the longer the debate proceeds, the more obvious it is that the views of all of us on certain clauses of this bill differ greatly. I give full credit, as others have done, to all those who have spoken for the sincerity of their remarks. I doubt whether we have ever had in any debate in this House more speeches straight from the heart and the head than we have heard on this occasion.
The fact remains, as the honorable member for Bendigo (Mr. Clarey) has said - being an old campaigner, he will not, I am sure, misunderstand what I am about to say - that, if some honorable members feel that certain provisions of this bill are wrong and if the Government intends to force through before the end of this session this measure of 1 1 6 clauses, in respect of which 56 amendments have already been circulated, and a third schedule almost equal to another bill, the measure will not receive the consideration that should be given to a bill dealing with a matter which, as all of us agree, fundamentally goes right down to the basic roots of our society and our way of life. Divorce is not an easy matter to discuss. It is a very difficult and dangerous matter to discuss in a political body. In fact, it has often been termed “ political dynamite “. I believe that it is, and that it should be handled with care. It should be given the closest analysis and the most time that we can give to it.
I join with others in congratulating most heartily the Attorney-General (Sir Garfield Barwick) on the amount of time he has given to this bill, and on the way in which he has endeavoured to find out what various sections of the community feel about it and how they think it could be improved. I am not criticizing the proposal to move 56 amendments. I congratulate the AttorneyGeneral most heartily on what he has done, but I ask him - I plead with him - to go a little further. There is no necessity to put this bill through before the session ends next week.
– Pigeon-hole it?
– You will not give me credit for talking sincerely. I have given every one else credit for talking sincerely and I would like to have a little of it, particularly from this side of the House. It is not necessary to pigeon-hole the bill. I am an old enough campaigner to know that, if I want to do that, I could force the Government to apply the gag to the discussion of every clause, or even every line of every clause. I do not propose to employ that method. I ask that, in view of the considerations that have been put forward by many members on certain clauses, and in view of the heavy legislative programme still before us, the bill should be brought forward in the next session, on a motion, at the stage at which it finishes here, whether it be the end of the second-reading debate, or half-way through the committee stage. I am sure that the Opposition would not oppose that course. It is a very nice thought, and one that I share, that Parliament should be prorogued so that the new representative of Her Majesty the Queen may, with all the formality of tradition, open the new session. But that does not mean that this bill has to be forced through in this session.
The bill began as a girl who was engaged to the honorable member for Balaclava (Mr. Joske) - a private member’s bill. It was then taken up by the Attorney-General before the marriage to the honorable member for Balaclava could take place, and it became a non-party bill. With the publicity that it received on 14th November, unfortunately, it has now become, to all intents and purposes, a Government bill so far as this side of the House is concerned. I know that there was a straw vote. I do not know why it was necessary to take it on a non-party bill, or why any animosity should have arisen on this particular question, when I asked why it was taken and what the result was. Let us have this as a non-party measure, but I do not like theson of thing that has been published in thenewspapers. Any one who has been in Parliament for any length of time knows where this kind of report comes from -
It was learned to-day that if any attempt to”side track” the legislation, such as referring- it to a Senate select committee for further examination, succeeds, the Government is prepared to drop it altogether. Ministers feel-
Newspapers do not say “ Ministers feel “ without reason - that no Government should be expected to resubmit continuously legislation of such an important and contentious character.
As I have said, I do not propose to meet threat with threat but I ask the AttorneyGeneral to give consideration to my proposal, so that this bill can be properly considered in committee. It is obvious from what has been said that every one in this House would like to see a uniform divorce law, but some of us may either agree or disagree with the church leaders.
At least in this day and age, if we have so many church leaders disagreeing with some sections of the bill, I think we ought to pause a while and consider whether we are right in what is proposed, or whether they have some justification for the criticism that they have levelled at the bill. The honorable member for Swan (Mr. Cleaver) said that this was a secular matter. He referred to isolated critics. I know him very well, and I do not believe that what he said was intended to be taken literally. A number of people, not only here, but outside, look upon divorce as a secular matter, and treat the church leaders as isolated critics. Divorce is difficult to debate. You cannot treat it in an abstract way and render unto Caesar the things that are Caesar’s nor unto God the things that are God’s. Both these are considerations which are inextricably bound together. Therefore, a very heavy weight of responsibility falls on all of us.
I join with the honorable member for Fawkner (Mr. Howson), the honorable member for Mitchell (Mr. Wheeler) and the honorable member for Moreton (Mr. Killen) and others who have pleaded this same cause. I do not want to offend any one else’s susceptibilities. I do not criticize other points of view. But all of us, as we travel down the arches of the years, know full well what is expressed, I think, in Edward Gill’s poem, “The Fool’s Prayer “ -
Those clumsy feet which, in the mire, go crushing blossoms without end.
We could quite easily go crushing some of the best flowers of our civilization if we try to hurry through 116 clauses and 56 amendments. The best legal brains in Australia have found it necessary to propose 56 amendments to this bill. Therefore, I feel that a little longer time - even if it is another four or five months - will be in the interests of all concerned.
I regret the impression that has gone abroad that this is a lawyer’s bill. It is not a lawyer’s bill. Each one of us here has the responsibility, as has been stated over and over again, of handling, a subject which goes to the very foundation of our Christian society. It may be that the lawyers are right. It may be that the churchmen are right. I do not often receive a letter from the head of my church and when I do it is up to me to pay some attention to it. I know that one church interprets very strictly the injunction, “ Those whom God hath joined together let no man put asunder “. Some may say that that is too narrow, but there are others who do not interpret it as strictly. Although they take a strong attitude towards divorce, they sometimes feel that it is the lesser of two evils. It is those people who have now asked us to look again at three or four clauses of the bill, and consider whether they will make divorce easier. When the committee stage is reached I hope that we shall not have to consider these things at three or four o’clock’ in the morning.
I am sorry that, in replying to the statements by the bishops, the Attorney-General should have stated that his own view was that there was much more decency and a much higher sense of responsibility in the community than the churchmen seemed to conceive. I should like to hear him apologise for that statement, because I do not think it was meant. It has been taken as a slap-down to the clergy in public. Surely we have progressed beyond the stage at which Henry II., striking difficulty with the Church, asked -
Who will free me from this turbulent priest?
We have progressed since then, and so has the Church; its outlook has considerably widened. Nevertheless, in this particular case, here am I, neither a lawyer nor a minister of religion, confronted with a very wide divergence of opinion on two or three of these clauses. For the moment I cannot judge between them, but I feel that we could do a lot of good by having further discussions at the committee stage of these particular phases.
Furthermore, may I remind honorable members that in this day and age, even if we disagree with the churches, we want to disagree with them as amicably as possible and not do anything that would in any way bring them into public disfavour. After all, lawyers deal with the causes of divorce; ministers of religion have to deal with its disastrous effects. Maybe ministers have fallen down on their job, but 1 suppose there are no better marriage guidance counsellors than ministers. Maybe they have not done their job as well as they should have done, but, all the same, perhaps we have not supported our ministers and our churches as well as we should have and the fault is ours and not theirs if they have fallen down on the job. At the same time, the religious aspect is a most important one in this day and age, when, in every corner of the globe we have religions of all kinds being attacked by atheistic materialism allied with a dialectical and diabolical philosophy which seeks to undermine our way of life by undermining religion and all the fundamental truths for which they stand. Here, again, is a very cogent reason why, with our church leaders so against the advice of our lawyers and saying that this bill is making divorce easier, we should take note of what they say. Maybe if a little more time is given, we will be able to prove to them that they are perhaps concerned over something which is covered by other phases of the bill. All I ask is that we do not push it through quickly against these objections which have been raised.
I wish to refer to one other point. It is not just a question of whether divorce will be easier or harder. In our religion it is held that there is more joy over one sinner that repenteth than over ninety and nine that need no such repentance. But if we are going to make divorce easier, it will make repentance less necessary. Therefore, this will again be undermining the social foundations of the community. If there is no need for repentance, then many of us will perhaps be much worse than we are to-day, because we all are human beings.
The honorable member for Mitchell (Mr. Wheeler) referred to the question of publishing details of divorce proceedings. I was the first member in the Victorian State Parliament who asked that these details be suppressed. I was asked to do so by a judge of the divorce court at that time. After weighing the whole matter up I came to the conclusion that it would be possibly all to the good although there were some cogent arguments against it.
Most of the clauses I have no desire to oppose, because of what the Government is seeking to achieve through this bill. But I am most seriously disturbed when we do not give what I believe is proper consideration to the suggestions - objections if you like, but not obstructions - which have been raised by the leaders of nearly all the Churches. If I said that the vast majority of the leaders of the Churches had made these suggestions or objections, I do not think I would be far wrong. It is not just this Church or that Church. On most of the matters mentioned by the honorable member for Bendigo (Mr. Clarey) most of the leaders of all the Churches are in agreement.
Already, in some ways, we have made it easy through our social laws to break up family life. Through child endowment and through de facto widows’ pensions it is much easier these days, to use the vulgar parlance, for “ the old man to blow through”. He says, “Why should I bother? The children can get child endowment and the wife can get a de facto widow’s pension. “
We are inclined to look at these matters from a secular point of view and not from the religious side. As I have already said, this has worried me very considerably. Therefore, I do again ask that more time for discussion of these matters should be given in committee. As I said before, maybe the lawyers are right and maybe the religious leaders are right; but surely we can do everything we can and give all the time we can to guard against such things as making repentance unnecessary.
No time can be too short for our conceiving The ways and means to profit from mistakes - Repentance lies in starting now, not in leaving Our efforts, till another morning breaks. No good can be achieved by sitting crying. The greatest sin is when we give up trying.
Order! The honorable member for Lilley must not sit on an arm rest in the aisle.
– As a prisoner of war one had more time than most to contemplate on the reason for life and its mysteries and how the multiverse itself came into being. Out of that experience the thought sometimes comes back to me that the greatest sin is when we give up trying. What I am afraid of, what I think the Churches are afraid of, and what honorable members who agree with me are afraid of, is that some clauses in this bill will make it easier to escape and give up trying. The honorable member for Swan (Mr. Cleaver) and other honorable members referred to clause 27 (m). Western Australians have said to me that 85 per cent, of divorce cases in Western Australia brought under the Western Australian version of clause 27 (m) should have been brought on other grounds, but this was the easiest way of escape. Is this true?
– In other words, they deceived the court.
– Perhaps that happened in many cases. But is it true? That is one thing which this House should investigate, because if that is true then it is an added reason why clause 27 (m) should not be included in the bill. The bishops think it should not be in the bill.
The bishops are not against the measure in toto. They have said that uniformity is good. They think most of the bill is good. They are in favour of marriage guidance counsellors even though they may not always be included among them. But they have stated their objections seriatim, and therefore we should give very serious consideration to them. I hope that at the committee stage plenty of time will be afforded to enable honorable members to understand fully what the clauses and the 56 amendments mean; and I hope that all honorable members will give very serious consideration to what I, anyhow, regard as the two main objections to the bill.
.- In this legislation the Parliament is discussing what is probably the most important of issues - that of human relationships. That has been the sup-erne question since creation. The living together of a man and a woman can be complex. The reconciliation of standards which differ greatly between parties to a marriage, mutual respect and dignity, are all associated with relations in married life. We are still incapable of a perfect universality of thought and ideals in the immediate and intimate relation of man and wife. In so much that is associated with our ways of life there is contention and rivalry. The whole basis of community life is hard and competitive, and that hard, competitive outlook must leave its imprint on every aspect of human association.
The idea of independence, even as between man and wife, has led invariably to disputation and division. That is why I deprecate the habit these days of both a man and his wife being wage-earners. The fact that a man and his wife both leave their home to go to work holds a degree of danger much greater than we like to admit, and has caused serious complications in home life. This is emphasized by the way in which child life in our community has suffered as a result of there being so many of these part-time home-makers.
We are all aware of the burden placed on families by the economic and social claims of to-day, and of how the steep inflationary trends cause families to undertake financial commitments which are difficult for them to meet and dangerous for their continued happiness. I certainly am not unaware of the commitments entered into by families as a result of the alluring inducements of high pressure advertising and salesmanship. People who enter such commitments are often quite unsuspecting of the danger involved therein to their home life. Another danger to the home life of the nation is the failure of people to realize the absolute interdependence that must exist between a married couple if their married life is to succeed and to radiate mutual happiness.
In making a uniform divorce law for Australia we have the advantage of the accumulated wisdom and experience gained by the various States which now administer their own divorce laws. The founders of the Constitution regarded marriage and divorce as major matters upon which the Commonwealth Parliament should have power to legislate and, accordingly, included such power in the Constitution. It is quite evident that we have not hurried in taking the Commonwealth into the legislative field covering this subject and allied subjects.
People who contemplate entering the sacred estate of matrimony are counselled not to do so lightly, wantonly or inadvisedly, it is in this condition of mind that 1 think everybody, excepting a very few people, accepts the vows and bonds of marriage, lt must be conceded that men and women enter a new and uncharted area when they thus associate their lives. When people are about to marry there are so many circumstances involved that appear secondary, but which later become vital to mutual happiness and understanding. A happy marriage involves the reconciling of the differing natures and ambitions of the partners. In addition, in many cases changes of disposition occur after marriage. The differing temperaments of the partners, the failure of the marriage to fulfil all the expectations of one, or both, of the partners - these can cause trouble in a home, and they are dangers which can be met and overcome only by the making of concessions on both sides. AH this is part of the complex experience that is marriage. The success or failure of a marriage will largely be determined by the degree of devotion and loyalty that the partners bring to bear on the immediate concerns of their married life. There must be mutual trust and faith between them.
I am greatly impressed by the attitude of the House. This is one of those occasions when, with heart-searching and good conscience, we are earnestly seeking to do the right. I am also aware that strong and influential people in the religious life of the community have declared against this bill. That opposition, however, is not aimed solely against the legislation, but is aimed against all that permits the dissolution of marriage. The sanctity and indissolubility of marriage are basic articles of faith, and I do not challenge the view of the church in that respect. I assure our religious leaders of a respectful understanding of their point of view. However, I want to say that circumstances that have been brought to my notice as a public man over the years have made me realize that there must be some provision to meet adequately the needs of those on whom great injustice has been imposed.
Only yesterday I had a telephone call from a man in Adelaide who confided to me that he had been separated from his wife for twenty years, and that during that time he had had to suffer all the loneliness arising from his position. That man does not know where his wife is, and he knows of no act by his wife that would give him, under the present law, the right to secure a release from the marriage bond. Surely there must be some reasonable approach which will afford people in cases of that description, and many others, a means of relief. Such people are the victims of the great tragedy of matrimonial differences, and surely there must be some basis for an adjustment of their unhappy circumstances. That being so, I feel that the House does well in undertaking its public responsibility to deal with the vital matter of divorce.
Sitting suspended from 6 to 8 p.m.
– I have studied a graph indicating present divorce trends in Australia. I am pleased to be able to say that this graph showed a downward movement, indicating some improvement in the general approach of the community to divorce. I welcome this trend towards better marital relationships and towards lesser recourse to our divorce laws. This trend, by the way, is noticeable throughout the whole of Australia.
I would now like to refer to particular provisions in the bill that have caused concern on the part of some honorable members. I have made an earnest study of those provisions, and I must confess that I cannot see in them the dangers that others have seen. In my opinion it would be difficult to frame provisions to safeguard more effectively the rights of innocent people while denying lenience to those guilty of domestic infidelity. In the first place, there must be separation for a period of five years. This is a period of probation.
– And that is after the couple’s disagreements.
– That is so. If at the end of that period either of the parties wishes to seek a dissolution of the marriage, he or she can make an approach to the court. If, however, the petitioner has misconducted himself during the five years, he is denied the right to approach the court. What better protection could an innocent party have, and what more effective sanction could there be on a guilty party? In addition, the court has power to determine questions of allocation of property and of maintenance for a spouse and for children of a marriage. Having in mind all these provisions, surely it must be conceded that this is a most effective and beneficial piece of legislation.
The primary purpose of the bill is, of course, to unify divorce laws throughout Australia. This is most desirable, because at the present time a person may escape his obligations by moving from one State to another. This law will make that impossible, and people will have to accept their responsibilities in whichever State they are domiciled.
It is also gratifying to note that the legislation gives encouragement to attempts to reconcile couples contemplating divorce by providing machinery for conciliation. Provision is made for marriage guidance councils to make every effort to reconcile the contending parties. This is all to the good. I believe that the overwhelming majority of honorable members will welcome the attempt to provide uniform divorce laws throughout Australia, as well as the provision of machinery for attempting reconciliation.
I feel also that we in this Parliament should do all we can to prevent situations arising in the family life of the community that may tend to result in divorce. We have a responsibility, surely, to see that homes are provided for our people, and that they have security in those homes, so that wives will be happy to undertake the obligations of motherhood. More care and attention should be given to the requirements and the problems of the children and young people of our community. These problems are not, of course, peculiar to Australia. They are apparent in all countries in the present disturbed and rather complex international situation. There is evident, not only amongst juveniles but also amongst some of the older sections of the community, a striving for excitement, which does not help in promoting sober and proper conduct. I hope, therefore, that there will be in our community a greater appreciation of the value to the nation of family life, and particularly the bringing up of children to feel that they have an important place in the home and community. I recognize the need for legislation of this kind. I realize that many of our citizens face difficulties in these matters and that we must find a way through these difficulties. I suggest, therefore, that the House support this measure. I thank the Attorney-General for his courtesies to me in making available certain information, and I commend him for the industry that led to the introduction of this bill. I intend to support it.
– I do not propose to canvass the merits of this legislation in any great detail. That task has been made unnecessary for me and for other of my colleagues of the Cabinet because of the brilliant exposition of the contents of the bill, and the justification for its detail, given by my colleague, the Attorney-General (Sir Garfield Barwick). In making that presentation, the Attorney-General spoke for his Cabinet colleagues who had brought their judgment to bear on the matters of detail contained in the bill, and who had given their support to it in its broad terms. I feel that it is necessary to say that, and that is perhaps the principal reason I have chosen to intervene in this debate. As time has gone on, there has been a disposition in some quarters to represent the bill as the child of the Attorney-General, and to present him as being out on his own in his advocacy of some of the more controversial elements contained in the legislation. I stress that that is far from being the truth.
I felt I should speak in this debate, also, because there are those who would seek to create some mischief by developing abroad the impression that the Government, having told its supporters that they may regard this legislation as a non-party measure - a great social question on which they were free to vote as they chose, according to their conscience - has since attempted to put pressure upon them in order to regiment their vote along party lines. That is completely false. T repeat now what has been said to Government supporters at earlier times. Any member who, as a member of one of the Government parties, would normally support the Government is entirely free to exercise his vote on any section of the bill or on the bill as a whole according to the dictates of his conscience. He need feel no concern that his action will in any way jeopardize the respect which his colleagues would hold for him in any other circumstance.
I think it is well that that should be made clear. I have seen a suggestion in the press that the Prime Minister (Mr. Menzies), in announcing his support for the legislation, has done so as a friendly gesture to his colleague, the AttorneyGeneral. No question arises about the friendship of the Prime Minister for the AttorneyGeneral. But to suggest that the Prime Minister gives his support to legislation dealing with a major social problem that has exercised the minds of the nation’s leaders since federation merely as a passing gesture of his goodwill is to do far less than justice to the right honorable gentleman.
The fact of the matter is that the Prime Minister, in common with his Cabinet colleagues, has been considering the principal items of the legislation for some years, and earlier in the history of the Parliament gave thought to special aspects of it. I listened today to my friend the honorable member for Chisholm (Sir Wilfrid Kent Hughes), appeal to the Parliament to take a little more time over this legislation and not to act with unnecessary haste. He rightly stressed the great social consequences of the measure with which we are dealing. He is right to make such a plea, but when we look at what has happened down through the years, it can hardly be said that the Parliament has been in any unreasonable haste to deal with a matter which the fathers of our Constitution confidently believed would be one of the first matters to be dealt with by the new Parliament of the federation. Indeed, the pre-federation debates show that the need to provide uniform treatment for such social questions as marriage and divorce was one of the compelling reasons in favour of federation. This power was brought into our Constitution for that purpose.
As the honorable member for Chisholm has cogently said, this is a delicate and dangerous matter; it is a great human and social question. He referred to it as political dynamite, and I think that would be the judgment ofmost parliamentarians, particularly if they felt I do not suggest that this is so in his case that they were to concern themselves merely with their own political salvation. Because this is such a sensitive matter, government after government has looked at it and has turned away rather than face the hazards and consequences political, social and spiritual that may arise from legislation to deal with it.
My mind goes back 23 years to a time in the history of this House when a motion was brought forward as a private member’s motion by one of the most distinguished men the Australian Labour Party has produced and one of the most earnest, sincere and able of men. I refer to Maurice Blackburn, whose memory will still be respected, I think, by many members in this House. Maurice Blackburn brought forward a motion in these terms-
– He would hate you to praise him, anyhow.
– I do not think so. He and I were very good friends and, I think, always respected each other. On the occasion I mentioned, the honorable member for Parkes will be interested to know, he introduced a motion from his side of the House, and I seconded it from my side of the House. We were both lawyers. I was a very young and inexperienced one, by comparison with him, but our legal experience had shown us that Australian citizens who had cause to seek relief in their marital difficulties were being thwarted because of the division of legislation amongst the six States, and because of the problem of establishing domicile when legal proceedings were commenced. He submitted a motion in these terms -
That, having regard to the fact that, by reason of the non-enactment of appropriate Commonwealth legislation, the Divorce Court of each State must deny relief to a petitioner who, though domiciled in Australia is not domiciled in that State, this House is of opinion that legislation should be forthwith introduced to provide for a Commonwealth matrimonial domical.
That was a very limited provision dealing only with the question of domicile and seeking to give relief in cases where, for example, a wife had been deserted by her husband in Brisbane, the husband had settled in Perth and the wife had sought matrimonial relief against him there, only to discover that in the legal proceedings taken in Perth her husband could raise the defence that he had not established a domicile in that State. We saw this as an injustice and as something to be remedied. We put that view - he from his side of the House and I from mine - to the Parliament; and the Parliament, voting on non-party lines, carried that resolution. I have waited 23 years to see matrimonial domicile on a Commonwealth basis as embodied in this legislation.
I repeat that it is true that earlier governments have measured this problem and decided that it was too difficult and too sensitive for them to handle. But here is a government that has been confirmed in office at election after election. It is now in its tenth year, and if ever a government had a responsibility resting upon it and was in a position to discharge that responsibility in this matter, it is this Government. We could not claim that we have to fear the wrath of the electorate even if we were so timid to do so; and I am proud of the fact that after almost 60 years of federation, having waited to examine this matter with great care and great patience - not for the first time, as I shall point out in a moment - we have come forward with the most comprehensive piece of legislation possible to conceive and one which I am confident will, in the judgment of the great majority of Australians, deal fairly, reasonably and humanely with this great social question.
I turn again to the question of whether this Parliament has had a reasonable time in which to consider this matter. I bring that point much more up to date than the earlier illustration I gave of only one aspect, important though it then was, of the general question. In April, 1957, my friend and colleague, the honorable member for Balaclava (Mr. Joske), a great deal of whose expert and able professional career had been devoted to the legal side of this question of divorce, brought to the Parliament a private member’s bill seeking to have the Parliament adopt uniform matrimonial and divorce legislation. Later that year this Parliament unanimously supported to the second-reading stage the legislation he had brought forward. In other words, this Parliament, not voting on party lines but each member being free to vote according to his conscience, unanimously resolved that there should be uniform legislation for marriage and divorce carried through by this Parliament. It is two and one-half years since the honorable member for Balaclava introduced his bill. The Government, having seen the strength of support for this proposal and realizing that a great matter such as this should receive the kind of careful examination and expert attention in its drafting and its detail that the Attorney-General’s Department and the resources of the Government could bring to it, decided that it should adopt the bill as a government measure and attempt to give a detailed effect to it, but at the same time making it clear that so far as individual members of the Parliament were concerned they were free to deal with the measure as they might choose.
I think it is necessary to stress these matters because on every matter of real controversy, and, indeed, on almost every matter of substantial consequence that I see in the legislation, detailed consideration had been given to it by Cabinet before the present Attorney-General came into this Parliament. It is therefore quite unreasonable and certainly unfair to try to present this measure as something that he has conceived and pressed forward against whatever opposition might be forthcoming. But we are indebted to him for the brilliance with which he has put the legislation together, his exposition of it and the careful, painstaking way in which he has gone around Australia wherever opportunity has offered in this long unhurried period that we set aside from May of this year until the present time. He has seen to it that the churches, the social organizations and the community as a whole had every opportunity to consider not only the broad provisions of this measure but also the detailed exposition that is contained in this legislation. The honorable gentleman will recall that earlier in this session it appeared that the Parliament might have adopted the second reading on one night towards the end of August. He and I discussed whether we should carry the second reading through at that stage. We agreed that in order to give more time for consideration of the matter we would let the second reading stand over for several weeks until later in the session when, in point of fact, it has been resumed. So I deny that either the country or this Parliament has not been given an adequate opportunity to consider the legislation and to weigh even the detail of it.
As the honorable member for Chisholm (Sir Wilfrid Kent Hughes) said earlier today, this is a very difficult matter for men accustomed to the problems and exchanges of political life in the Parliament to discuss. It is certainly not often that we are called upon to discuss questions of this farreaching significance in the kind of atmosphere that we have here to-day. But now that it is six months since my colleague introduced the legislation, I want to state again what I believe to be its essence as expressed in his own eloquent language. I propose to quote extensively from his speech because I believe it is well that any who now come to this question afresh should have his words implanted in their minds, as those words represent the general view of this Government. The AttorneyGeneral said -
Mr. Speaker, one of the great foundations of our national life is the family, and in turn the family is founded on marriage. National interest is best served and family life is best nurtured when marriage is truly life-long. The prevalence of broken marriages does threaten our strength and imperil our future. The ideal society would know no occasion for divorce.
But, Mr. Speaker, it is not given to us all, as humans, to choose, often in years of immaturity, a life-long partner with wisdom and an adequate appreciation of the personality - often itself immature - of our choice. Nor are we all able to bear with resignation and fortitude the maladjustment and torments of a faulty choice. Few indeed have the saintliness of Hosea, who forgave and embraced again his unfaithful wife.
Legislatures have thus long since come to the view that a point of breakdown in relationship may be reached where it is proper that one of the parties to the marriage should be given the right by the law of the land to make a second choice, and in accordance with that law and as far as it extends with regularity and honour, to enter a new marriage.
There are those of us who cannot be reconciled in doctrine or in conscience to this view. This we understand and profoundly respect. But nobody supposes that this Government is to-day, for the first time, introducing a system of divorce in Australian life. Such a system has been part of our civil law, part of the pattern of our community life, for a century. What the bill proposes in this respect is that the system shall treat people uniformly as citizens of Australia, and not diversely as citizens of the various States c Territories.
That, I believe, sums up the problem and the general approach which this Government has made to it. I believe that the Australian community is a responsible community. I was sorry to hear the Deputy Leader of the Opposition (Mr. Calwell) talk about “ barnyard morality “. I do not believe that experience in Australia supports that charge. As I am able to analyse the statistics, not only is the incidence of divorce comparatively static, but also nine marriages out of ten remain permanent. If, in the kind of world in which we are living, there is no greater casualty rate than that, then it cannot be said that marriage as an institution has failed, nor can it be said that the great majority of our fellow Australians have failed to take their duties responsibly.
I have heard criticism directed against the legislation on the score that it tends to make divorce easier. But the critics, so far as I have understood them, have never mentioned the directions in which the legislation makes divorce rather harder to secure than it was previously. The bill deals fairly, reasonably and responsibly with this problem. If there are irresponsible elements which attempt to weave their way in and out of the legislation, then the provision that three years must elapse before action for divorce can be taken, is, I think, a reasonable precaution against that kind of irressponsibility. There are other directions in which divorce will be harder. The provision in New South Wales that failure to comply with an order for restitution of conjugal rights constitutes a ground for divorce, which in many cases has become a mere device, certainly has been tightened up. There has been a change so far as Victoria is concerned, which will produce an equity of treatment between men and women citizens of that State which had not existed previously. In other directions to which one could point there has been some tightening rather than some easing of the provisions which formerly existed.
When T hear people talk - rather glibly at times and on occasions, even unctuously - about easy divorce, I cannot help believing, from a wide experience of humanity, that they have little knowledge of just how difficult divorce is for people who feel that their marriage has been wrecked and that they must secure some rescue from the wreckage. Most people, I repeat, are responsible people. Most people who are parties to a marriage attempt to make the marriage work. It is not the first breakdown which produces the divorce in the overwhelming majority of cases. It is only after a succession of breakdowns; it is only after perhaps years of unhappiness in the marriage that the drastic step leading to divorce is taken. I do not speak of the exception; I speak of the great ‘majority of people who are responsible people of normal instinct and normal decency.
That brings me to one point of detail to which I want to make some reference because it has proved to be the most controversial aspect of the legislation. Clause 27 (m) adopts in substance, although not in all its detail, a provision which has been in operation in Western Australia for some fourteen years. It meets the case where the parties have separated and where there is no reasonable likelihood of the marriage being resumed. At the expiration of five years one or other partner is then entitled to proceed to divorce. Arguments have been addressed to this clause, both for it and against it. We gave a great deal of thought to it when we had our Cabinet discussions about it. Quite clearly, there is a dilemma so far as the parties to the marriage are concerned. On one hand, there is the position of the partner who does not seek a divorce, who, never having committed any matrimonial offence, does not want to find himself or herself in the position of being regarded as a divorced person. We must respect the feelings of people in that situation who resent what could happen to them under the terms of this clause. On the other hand, there is the other partner to the marriage who has been denied the normal human companionshin and the normal human parental relationship to which his or her instincts would lead. Therefore, we have to weigh justice as evenly as we can between those partners to the marriage. Perhaps if we waver in our judgment - because there is a real dilemma presented to us here - then in my own view, having given this matter as much thought as I could, and with as much responsibility as I could bring to it, the scales must be heavily weighed by the situation of the children who will be the product of an irregular union unless relief of the kind proposed under the legislation is given.
If the marriage has been wrecked, then either we must accept that people will try to live an entirely unnatural life, of complete abstinence, alien to their instincts, or that they will enter into some irregular union. Such a union either will be childless - again a denial of their normal instincts - or there will be children who perhaps throughout their lives will live a twisted, embittered existence because of the stigma which they feel is attached to them. Faced with that kind of dilemma and that kind of problem, I come down in favour of the clause as it appears in the legislation. Once all the elements in the picture can be presented to the judgment of the Australian democracy, that Australian democracy will give its judgment in favour of the provision as it appears in the bill.
I close by expressing the view that this Parliament has faced up responsibly and soberly to an issue which the fathers of our federation entrusted to the National Parliament. I hope, now that literally years of consideration have been given to this question, that the House will proceed in an orderly way to complete its deliberations upon the legislation and place it into the law of this land.
– I have, perhaps understandably, no present personal interest in this measure. I suppose that none of us dealing with the bill now before the House imagines that ever he will have recourse to its provisions, or expects that the provisions will be exercised against him. However, following the Treasurer (Mr. Harold Holt) in this debate, I feel that I should say that, in my view, his speech hardly enhanced his reputation. He was careful to say that there had been no element of pressure on honorable members on the Government side to vote either in one way or another. Indeed, he made a most vehement denial that there had been any such pressure. I may be completely mistaken, but to me the whole tenor of the right honorable gentleman’s remarks was that he was seeking, by his own speech, to persuade a vote in favour of the bill. That, of course, is the right of any member of the Parliament who rises to express his view on this bill, which is a non-party measure.
The right honorable gentleman, however, speaks as the Leader of the House, and he spoke of the leisurely way in which this bill had been treated, seeming to convey, by implication, the idea that the Parliament had ample time to discuss it and that there was no suggestion that the bill was being rushed through this chamber. He mentioned that it had been introduced in May and that ample time had been given for all sections of the community to study its provisions and to express their viewpoint to members of this Parliament. So, he says, there has been ample time for consideration of the bill.
I support the honorable member for Chisholm (Sir Wilfrid Kent Hughes), who said this afternoon that the bill should not be rushed through the Parliament at this stage and that the Parliament should be given more time to study and debate the measure’s provisions. I do not, however, support the honorable member’s suggestion that means should be found to revive the bill in the next session of this Parliament. I believe that we should continue this session and debate the measure fully. 1 understand that the Parliament is to rise for the Christmas recess on 26th November. That is an early date. It is not unusual for the Parliament to sit well into December, and I believe that this session should continue so that every clause of the bill and every amendment that has been foreshadowed may be thoroughly debated, first in this chamber, and later in another place. The honorable member for Chisholm has pointed out that there are 116 clauses in the bill, and, if I remember correctly, some 56 amendments have been foreshadowed.
– Sixty-five amendments.
– Sixty-five amendments, including those of the honorable member and one or two others of which notice has been given. I do not believe that it is possible, as the notice-paper stands at present, for this bill to be given ample consideration and debated thoroughly in the time that is left in this session if the House is to rise, as we have been told, on the 26th of this month. That falls at the end of next week, and is scarcely more than a week away. I believe, as I have said, that the Parliament should remain in session and that this bill should be more thoroughly debated than at present seems likely. .
Because I believe that the Parliament could easily sit for the extra period required to give the bill the consideration it deserves, 1 cannot support the amendment moved by the honorable member for Macquarie (Mr. Luchetti), who has proposed that the bill be referred to a select committee. I believe that it is the right of this Parliament to sit and debate a measure of this kind without limitation of the opportunities for all members of the Parliament to express their views and subsequently, where they have the power, to vote as their consciences and their views direct.
The Treasurer indicated that the Government had taken a brave course in introducing a measure such as this. He agreed with the honorable member for Chisholm, who had said that such a measure waspolitical dynamite, and said that the subject of matrimonial causes was a delicate and dangerous matter and that the Government was risking the wrath of the electors by bringing such legislation before Parliament. I fail to see it. We have State legislatures which have introduced and maintained legislation on this subject of matrimonial causes. How, then, does the Commonwealth Government become particularly brave in bringing forward a measure such as this, particularly when it is recalled that power to legislate on this subject was given to this Parliament in th* Australian Constitution, that, within the first year of the Federal Parliament, action was taken to introduce some form of uniformity in the laws relating to marriage and divorce, and that, as the Treasurer recalled, 23 years ago he seconded a motion on this very subject proposed by the late Honorable Maurice Blackburn? The right honorable gentleman has not, of course, always agreed with the views of the Honorable Maurice Blackburn. He has expressed himself very strongly on what is known as the Blackburn interpretation of the socialist pledge of the Australian Labour Party. f believe, Mr. Speaker, that the honorable member for Chisholm was justified in his gentle rebuke of the Attorney-General (Sir Garfield Barwick) for the tenor of his reply to the criticism of this measure expressed by the bishops. The Attorney-General, in his second-reading speech, said he hoped there would be an expression of public opinion. I believe that if an expression of public opinion goes against the views of the Minister he should not become testy in his reply. I think it is most important that this Parliament should give weight to the considered views of the Churches of this country. We in this Parliament should take great care that we do nothing to weaken the Churches in this country. I suggest that the bishops of two major communions and the leaders of other Churches in the community who have expressed very grave doubts as to certain provisions of the bill are speaking for the people of their Churches, and their views must be given the greatest weight and the greatest respect by this Parliament.
I believe very strongly that there is a need for uniformity in the laws relating to matrimonial causes and that the Commonwealth should legislate in this field. I know of cases in which parties have been considerably disadvantaged by the differences existing in the laws relating to matrimonial causes as between one State and another or as between one State and a Territory of the Commonwealth. In relation to paragraph (m) of clause 27 - probably the most controversial provision in the bill - I have received something over 100 letters expressing grave concern.
– Where from?
– From individual constituents in my electorate and from organizations within the electorate.
– They would not know what it was all about.
– All the letters are on my files. The honorable member, who comes from Western Australia, perhaps is an authority on these matters.
– I know how that kind of provision has worked.
– There are many separationists in Western Australia, as we all know but I do not think that the views of the honorable member are such as to set aside the written expressions of the views of people who have very strongly held opinions on this matter, and who have the right to have their opinions expressed in this place. I point out that I have received from individual constituents and from organizations within my electorate more than 100 letters protesting against the provisions of clause 27 (m). In order to obtain an expression of public opinion, in a radio session which has a considerable listening public in this area I referred to the provisions of the bill, quoted the objections that were stated in the letters I had received, and invited constituents to send me their views on the measure. No one has written in favour of the bill. Every letter that 1 have received has opposed the provisions of clause 27 (m) on the basis that it makes possible divorce by mutual consent. That view is very strongly held, Mr. Speaker.
– That has nothing to do with the clause.
– Clause 27 states-
. a petition . . . may be based on one or more of the following grounds: -
I know that the Attorney-General has suggested that this provision must be read in conjunction with clause 33, which sets out the safeguards against divorce by mutual consent, which it is feared that the terms of clause 27 (m) will make possible. But the petitioner could be, in fact if not in law, the person at fault in the breaking up of the marriage, and the respondent - the wife, we shall say - would have to bear the stigma of being the divorced person, having been the respondent. I believe that that, in itself, carries a stigma in the public mind. That provision could be exercised against a party to a marriage who herself believes and hopes that reconciliation is possible and it could be left to the court to decide whether there is any reasonable likelihood of cohabitation being resumed.
As you know, Mr. Speaker, as the member for the Australian Capital Territory my voting rights are restricted. I am precluded from voting on this bill by the legislation concerning the Australian Capital Territory electorate. The present Government has refused to vary the legislation, so I will not have the right to support my views on this matter by vote. Had I the right to vote on the bill I would certainly vote against clause 27. I may have the opportunity to speak further on that at the committee stage.
– Have you not a vote on this matter?
– If the honorable member would like it in words of one syllable I will give it to him afterwards.
I would also like to refer to clause 27 (1), to which the honorable member for Watson (Mr. Cope) made some reference this afternoon. Clause 27(1) provides for dissolution on the ground that either party to the marriage is, at the date of petition, of unsound mind and unlikely to recover. The honorable member for Watson pointed out that that provision does not exist in New South Wales. He expressed himself as opposed to its inclusion in the bill. But that provision is one that I would vote for if I had the right to vote. I know of individual cases in which it would enable justice to be done and happiness to be restored to people whose lives have been upset by the mental illness of a partner in marriage. It is true, of course, that mental disease is an illness like any other form of ailment, but it is not so in the legal sense. The person suffering from mental illness does not have the rights enjoyed by other people under the law. I can find nothing exceptional in this clause.
I wish to refer particularly to clause 6 which relates to certain children to be deemed to be children of the marriage. The wording of the clause is -
For the purposes of the application of this Act in relation to a marriage -
a child adopted since the marriage by the husband and wife or by either of them with the consent of the other;
a child of the husband and wife born before the marriage, whether legitimated by the marriage or not; and
a child of either the husband or wife (including an illegitimate child of either of them and a child adopted by either of them) if, at the relevant time, the child was ordinarily a member of the household of the husband and wife, shall be deemed to be a child of the marriage, and a child of the husband and wife (including a child born before the marriage, whether legitimated by the marriage or not) who has been adopted by another person or other persons shall be deemed not to be a child of the marriage.
I should like the Attorney-General to have a further look at part (c) of that clause because it has been suggested to me that it could create a particular difficulty in a case in which the remarriage occurred of a divorced woman having the custody of children in respect of whom the former husband had a responsibility to provide maintenance. As I read this provision, if that woman remarried, the second husband would have to assume responsibility for those children although a court had previously decided that their maintenance was the responsibility of the former husband. A provision such as that could lead, I suggest, to the continuation of a de facto alliance between a man and a woman who had had children by a previous marriage, because of the man’s reluctance to accept the responsibility for those children. I believe that the Attorney-General should have a look at that clause and I should be glad if, in replying, he would refer to it.
Mr. Speaker, I do not wish to traverse any other portion of the bill. I wish only to return to clause 27 (m) to say that the Attorney-General, in his second-reading speech, anticipated that this clause would provoke some disagreement and discussion in the community. He said -
There remains for mention a ground upon which there may centre a good deal of attention and discussion.
Later he said, in dealing with this provision -
I am conscious, however, that this ground could be subject to abuse.
The people who have protested against this clause and the implications of it see the possibility of that abuse. I believe that these views must carry a great deal of weight, particularly when they are expressed by bishops of leading Churches and the leaders of other church communities. If I had the opportunity to vote on this measure I would vote against clause 27.
In concluding, I repeat that I think this Parliament should be given the opportunity to debate this measure without limit. There should be no pressure of time and no disadvantage should be imposed by reason of the hours of the day at which it is debated. It might very well be said to honorable members that they can debate this for as long as they like provided that they debate it at three or four o’clock in the morning. I suggest that no measure of this kind can be adequately debated under those conditions. Parliament should be kept here for another week or a fortnight so that every member, during the debate on the bill and in committee, may express a view on every clause if he so desires.
.- I desire to make a few comments on this bill and to endorse the remarks made by the honorable member for the Australian Capital Territory (Mr. J. R. Fraser) in his plea that this Parliament, if necessary, should be kept in session for the next few weeks in order to give adequate time to discussion,
– You would be the first to complain.
– 1 am quite willing to remain here as long as this Parliament is sitting. There is plenty of legislation for us to consider. The honorable member for Wannon (Mr. Malcolm Fraser) is not content to remain in the House even now. He wants to go out. I think that we should have an assurance from the Government that it is not intended to push this bill through by having members stay until the early hours of the morning to debate the committee stages. The proposed amendments that have been circulated by the Attorney-General (Sir Garfield Barwick) - 58 of them, covering twelve pages - are themselves bigger than an ordinary bill. Other amendments have been foreshadowed in addition to this 58. If the AttorneyGeneral and the others who move amendments take only ten minutes each to pui their viewpoint, that will require about eleven hours of time, apart from any comment that other honorable members may wish to make.
Let me make this point clear: I am al! in favour of uniformity. I believe it is long overdue. In that regard, 1 commend the action of the honorable member for Balaclava (Mr. Joske) who introduced the private member’s bill some two years ago and who devoted a great deal of work and time to this problem. I am only sorry that the legislation was not carried on by the honorable member for Balaclava. After seeing that the honorable member’s proposition was fairly acceptable to the public, the Government decided to adopt it. It arranged for the Attorney-General to put the bill through this House and the Treasurer (Mr. Harold Holt) and other Government supporters have emphasized that it is a Government measure. Whilst they have not told Government back-benchers what they should do, they have let them know, quite clearly and distinctly, that it is a Government measure and that they are greatly concerned about it. I think we have got our priorities all mixed in this Parliament. As I said, a uniform divorce law is most desirable, but we should look at some of the problems which are causing divorce in this community. I suggest that a national plan from this Parliament to get on with the task of providing homes for young married couples would be a much worthier subject to discuss, and time would be much better spent in that way than devoting it to this matter of divorce. I believe that undoubtedly the problem of young married couples trying to raise children to-day-
– It is not a problem.
– It is all very well for the honorable member for Hume to say that it is not a problem. He sends his wool to red China and gets his money easily. If he were a wage-earner on the basic wage trying to bring up two or three children he would be greatly concerned that this Government has done nothing at all in the matter of child endowment for nearly ten years. He would think that it should do something to help young married couples and give them a chance to provide for their children instead of having to suffer the continual upset which comes about through living on the basic wage and struggling to provide for their families. While Parliament is dealing with this matter of divorce I should like it to give some consideration to the causes of divorce. I should like it to get on with the task of amending the social services legislation, to bring in a decent educational programme and generally to get our priorities right. Then we would be better able to discuss what the Government describes as this most urgent matter of divorce.
As I said earlier, the Attorney-General should give us an assurance that he does not intend to keep honorable members discussing this measure until the early hours of the morning, during the committee stage.
– Are you frightened of it?
– It is not a matter of being frightened. We have heard this bill applauded by the legal brains in the Parliament. They have told us what a marvellous measure it is. When the AttorneyGeneral introduced it he was clapped on the back, but now he has to bring in 58 amendments and seven or eight more have been suggested by other members. This was supposed to be a model bill when the Attorney-General introduced it; I feel it will be necessary to spend a great deal of time at the committee stage discussing amendments to it.
Some criticism has been levelled at the churches for what has been called “pressurizing” or some other term. That is rather strange. Quite frankly, I am always pleased to receive information from leaders in the community. If an arbitration or industrial measure is before this House, it is delightful to get information from the leaders of the trade union movement as well as from the employers’ federation and the Chamber of Manufactures. They always supply us with information which they think we should have. There is never any criticism of their actions. The information they provide is always welcomed and often quoted. But because the Bishops of the Church of England and the Catholic Church and men like the Reverend Alan Walker and other church leaders have expressed doubts about certain parts of the bill - clause 27 in particular - the Government is quite worried about the churches coming in and offering advice. I suggest that they are probably in a better position to know what causes broken homes than any legal man sitting in the chamber or elsewhere.
Will all these amendments make this law perfect? The lawyers are the experts who will discover weaknesses in it. They have done so already. They are the men who will reap a rich harvest out of it. If there are weaknesses in the measure, it needs a great deal of thought. I am quite happy to support, generally, the idea of uniformity.
I thought that the honorable member for Fawkner (Mr. Howson) set out quite clearly the difference between this measure and the bill introduced by the honorable member for Balaclava (Mr. Joske). He pointed out that the honorable member’s bill might have been described as containing the highest common factor but this bill brought down by the Attorney-General has the lowest common multiple. The Attorney-General has not introduced a new measure. He has taken clauses from all the acts in the Commonwealth and States dealing with this subject and consolidated them. He has just put them together and introduced them because he does not want to tread on anybody’s corns in any of the States.
I am quite happy to support this bill, except for clause 27 (m). I expect a lot of explanation of that provision from the Attorney-General. It is not good enough for him to say that this provision is safeguarded by some other clause. Honorable members are well acquainted with the onus of proof section in the Repatriation Act and how that is applied. The legal men in this chamber - the honorable member for Balaclava and the Leader of the Opposition (Dr. Evatt) - as well as a former senator and Attorney-General who is now Chief Judge of the Commonwealth Industrial Court, Mr. Justice Spicer, all expressed opinions on that particular section and how it is interpreted by the Repatriation Commission. We want more than words from the Attorney-General. If he cannot give us some real explanation and have something written into this measure to safeguard the effects of this clause, I, for one, will oppose it.
I endorse the remarks of the honorable member for the Australian Capital Territory (Mr. J. R. Fraser) that the expressed opinions of the church leaders cannot be ignored. I do not say that we have to accept them but we cannot just say that they do not know anything about the issue. Their opinions are entitled to be received and not pushed aside as though they counted for nothing.
I think the honorable member for Perth (Mr. Chaney) expressed himself some time ago as one of the experts who criticized the letters which the honorable member for the Australian Capital Territory had received. We have many experts in this Parliament. It is surprising to find how many members in this House think they are the real brains of this nation and that if they were not here the country would collapse. 1 am quite happy to accept the views of men outside the Parliament who are much more capable than most of those inside it. I am always ready to listen to the views of other people and accept them also. I think the honorable member could learn a lot from some of the letters he received, too. But from the way he spoke about the letters received by the honorable member for the Australian Capital Territory, he probably threw his copies into the wastepaper basket anu forgot all about them. As I said before, 1 am sorry that the Government has not seen fit to do something to remove the causes of divorce by increasing child endowment, education, housing facilities and so on, instead of concentrating on divorce as such. 1 hope that the Attorney-General will give the assurance I have asked for. 1 am sure that members of the Opposition would be quite happy to remain in session until Christmas to give this important legislation the proper consideration which it should have in this Parliament. Much better consideration should be given to it than is to be given to it under the Government’s plan, and with much better results. We could devote a great deal of time to the bill, and to amendments to it, instead of having it pushed through in the small hours of the morning.
I support the principle of having uniformity of divorce laws, but I need a great deal of explanation from the AttorneyGeneral regarding clause 27 (m).
.- I wish to refer briefly to what is possibly one of the most important pieces of legislation that has been introduced to this Parliament for a long time. In common with other members of the Australian Labour Party, I support the policy of uniformity in divorce jaws. But support of a policy of uniformity does not mean that we must accept any hotch-potch that is brought to the Parliament and said to be a uniform law which will meet all the requirements in respect of such an important matter as divorce. Whilst the Attorney-General might have had the best of intentions in his presentation of this bill to the Parliament, he has destroyed any goodwill he might have created by endeavouring to stampede the bill through the Parliament without due and full consideration of all its implications. It is for that reason, Mr. Speaker, that 1 intend at this stage to -support the amendment moved by the honorable member for Macquarie (Mr. Luchetti) and subsequently to vote against the second reading of the bill if the amendment is defeated.
The bill contains 116 clauses. As the honorable member for Mitchell (Mr. Wheeler) said the other night, it was presented to this Parliament as the acme of perfection in divorce law. Yet, not very long after its introduction, we find that 56 amendments to it have been submitted to the Parliament by the Government. They relate to a bill which, we were told, was the acme of legal perfection! Surely that fact in itself is an indication that the Attorney-General, however great his talent may be, has erred in trying to persuade the Parliament to accept this measure without the most comprehensive and far-reaching national inquiry.
Private members have also proposed moving a number of amendments to the bill, which means that the final number of amendments will be far in excess of the 56 that I mentioned. No matter how members of this Parliament may vote, they must have serious misgivings about the legislation unless some form of committee is established to make a full inquiry into all the implications of it. In Great Britain, which is by general consent, the model of parliamentary democracy for all the world, and where democracy has become the symbol of the national life, such a divorce measure was not rushed through the House of Commons. Instead, the British Parliament appointed a royal commission which took almost five years to complete its hearing of evidence and its deliberations. The British Parliament obviously does not believe in rushing far-reaching legislation through the Parliament without full and proper prior consideration having been given to it. The divorce lawyers have decided that we in this Parliament shall be asked to vote on this measure without having the benefit of a full inquiry into all its implications. Eminent as these gentlemen may be, I do not accept them as the final authority on divorce or on a measure that will amend, at the same time as it unifies, the divorce laws operating in Australia.
Much has been said about clause 27 (m). There are great differences of opinion about this provision of the measure. There are also great differences of opinion about whether lunacy should be a legal ground for divorce in this unified divorce law. If it is in order to accept lunacy as a basis for a divorce action, why should not a married person be able to divorce a spouse who has contracted cancer, or has become blind? Such matters cannot be discussed hurriedly. They require full inquiry. The hurried approach of the Attorney-General, with all his great knowledge of the law, is something that I did not think he would be guilty of in this Parliament, and something that I do not think the people will readily countenance.
As a matter of fact, I do not think the amendment moved by the honorable member for Macquarie goes far enough. If I had preceded him in this debate, and provided that the Standing Orders did not prevent me from doing so, I would have moved for the legislation to be referred to a royal commission to inquire into its implications and to present a report to the Parliament before the legislation was brought before us for a decision on it. I have made inquiries and I find that in view of the amendment moved by the honorable member for Macquarie, the Standing Orders would not permit me to move, at this stage, the amendment I have outlined. However, I now formally advise the House that in the event of the amendment seeking reference of the bill to a select committee - for which I shall vote - being carried, I shall, if the Standing Orders allow me to do so, move as follows: -
That all words after “ that “ be omitted with a view to inserting in their place the words - “The House declines to give the bill a second reading until the proposals have been considered by a royal commission to be appointed for that purpose “.
I personally do not think that a select committee of this Parliament would have a wide enough scope to inquire into all the ramifications of this legislation. However, the fact that the honorable member for Macquarie has moved the amendment for the appointment of a select committee ro inquire into the measure leaves me no alternative but to vote for it. I think, though, that the widest possible inquiry is necessary, and to this end a royal commission should be appointed. I do not suggest that one judge sitting alone should make the inquiry. What would be wrong with the appointment of a royal commission, like that appointed in Great Britain, which was probably one of the most extensive ever set up? Why should we not have in this country judges and representatives of the churches, of women’s organizations and family guidance organizations, sitting as a royal commission to inquire into this important measure? I hear the usual grumbles from the Country Party, who have no consideration at all for any of those great national problems. This is a bill, no matter what the Country Party may say, which far transcends party politics. That is evident from the fact that the vote on the measure is said to be a free vote. Each and every one of us may make his own decision on the bill, and the corporate decision of all of us will have far-reaching effects in this country. It will affect the lives of men, women and children all over Australia. So the measure obviously should not be rushed through.
I have heard it said - I do not know whether it is true and I hope it is not true - that certain members of the Government are canvassing other honorable members to make sure that the AttorneyGeneral’s point of view will prevail. I hope that this will not be tolerated, and that the vote, when it is taken, will be really a free vote. Such tactics should not hr used in this Parliament, especially in relation to such an important and far-reaching measure. I can tell the House that I have not been stampeded by churches or anybody else on this matter. There has been no organized approach from outside to honorable members on this measure, as there was in other cases. When the banking legislation was before this Parliament I received more than 30,000 letters about it. On this issue I suppose I have received only a few communications from churches and some organizations. So it might be said that the people at large are accepting this measure as something which requires mature skill and judgment. I think thai the Attorney-General -has done a disservice to himself, to this Parliament and, undoubtedly, to democracy by endeavouring to rush the measure through.
I summarize my views by saying that 1 will support, by my vote, the amendment moved by the honorable member for Macquarie. If that is carried, I shall consider moving the amendment I outlined a few minutes ago. I shall vote against the second-reading of the measure until such time as a royal commission or select committee has been appointed in order to inquire into every clause of the bill, because I believe that its ramifications and effects will be so great that it should not be put through this Parliament except after the fullest inquiry. Only after the fullest inquiry on the widest possible scale can we justify altering and bringing uniformity to laws which have been responsibly carried out, especially when the unifying legislation, which we were told was the acme of perfection, has already been the subject of 56 amendments.
I have expressed my view on this bill, Mr. Speaker, because I think that it is important that my electors shall know how I shall vote and understand my reasons for so voting.
– in reply - When I presented this bill, I said that I was very anxious that it should be the subject of very full and free discussion in the community and in this House. I then said that I would hold myself available to honorable members, to societies, organizations and individuals over the long recess from May to August. I honoured that promise, and I have seen a large number of people who have come to me for explanations. Notable in their absence were the honorable members for Grayndler (Mr. Daly) and Kingston (Mr. Galvin). I have not heard them, or seen them near my room, nor have I received any letters from them. All I can say, without wanting unduly to criticize the honorable gentlemen, is that if the thought they have given to this important question between May and the present time has yielded no more than we have heard from them to date, then if we gave them an eternity they would not produce an idea on the subject. It is very easy to say, “ If we had more time we would do better “. It is a common human frailty to make such an excuse, but we all know that the fellow who makes it will do no better no matter how much time you give him.
This bill has been very much discussed publicly and privately. I have received a very large volume of correspondence on it. I have not been so unfortunate as the honorable member for the Australian Capital Territory (Mr. J. R. Fraser), who said he had received only letters opposing the bill. The preponderance of the letters I have received have very much favoured it. The only letters I have received against the bill have been organized letters, in identical terms. They have come from various parts of the Commonwealth, perhaps written in different handwriting, but in identical language, even to the commas and other punctuation marks.
– Does that destroy their value?
– Well, of course, this is a new form of pressure that is brought to bear - letters being distributed all over the Commonwealth to be signed and forwarded on. Apart from those, the only letters I have received in opposition to the bill I could count on one hand, while I could produce a large sheaf of letters in favour of it.
I took some pains also, Mr. Speaker, to address any meetings which desired to be addressed. I saw members of the various churches and their officers dealing with social welfare work, and from them I heard points of view. In addition, as this bill is full of what I might call legal techniques, 1 listened to lawyers, both those who are in practice and those who are on the bench administering the divorce laws.
– Did you talk to yourself?
– And I talked to myself, if you want to know. I can always be pretty sure that in that way I will get some good advice. I could have taken the easy course and avoided the cheap political jibe that I have introduced a lot of amendments. I could have said, “ Let the lawyers make a few shillings out of these ambiguous phrases; I will not worry about that “. But I did not take that course. By removing the ambiguities and trying toexpress the provisions in as precise terms- as I possibly could, I endeavoured to ensure that the lawyers would not make any money out of this bill unnecessarily. I approached the bill in this way: The Government had taken a very courageous step, before ever I came here, in deciding that it would introduce a uniform divorce bill. It knew the contentious nature of the subject and it knew the great, difficulty of getting, in any community, or even in a House relatively as small as this, a firm view one way or the other on issues that touch people’s lives so closely and about which it is difficult for people to think in an objective fashion. I realized the courage of the Government and I realized that if this bill was passed it would not be touched in a hurry for a long time. I believed, therefore, that it behoved me, and those with me, to make as certain as we could that it was well expressed.
The amendments that I have proposed - and we have heard, how many there are of them - were circulated about a month ago. I took the trouble to give a small explanation with each one of them, and any honorable member who has chosen to read the amendments, and those explanations, will see that by far the greatest number of them are no more than matters of expression, involving no change at all in the policy or the principles of the bill. I made it very plain, in a letter which I sent to honorable members concerning the amendments, just where there were any significant differences from the legislation originally proposed. The bill has, therefore, been the subject of a great deal of discussion. I have had considerable assistance from those to whom I have listened. They have put points of view to me, and, as technicians, have suggested various changes in the language.
Every one seems agreed, Mr. Speaker, that there is a case for a uniform law of divorce. Every one realizes that there is need for one single Australian domicile. We all realize that we are one people so far as our family life is concerned, that there are no variations in this respect from State to State, and that it is very proper that we should establish a uniform basis for our family life. I have not heard any valid objections to uniformity, although once or twice I was told that I should leave the matter to the rivalry of the States, in which case the States would be competing for custom in divorce. Beyond that sort of remark I have heard no opposition at any time, and, as 1 understand it, there is none in this House. Once we decide that there is a case for uniformity of divorce law in Australia, we immediately face a very difficult problem. This emerges with respect to clause 27 (m) and also clause 27 (1), which provides the ground of insanity. Let me explain how it arises.
We do not come to this bill in a vacuum and, for the first time, try to write out a divorce law. We come to it in a situation in which there are already at least six sets of laws in Australia. The citizens of the States are already living under and having the benefits or disadvantages of those laws. When you find that a particular State has a ground that is working well and has not caused any social evil, and with which the people of the State are satisfied, you carry a very heavy burden if you say, “ In my uniform law I am going to cast that ground over. This may be good enough for you but it is not good for the rest of Australia, so out it goes.” That is the very considerable responsibility that rests on any one who seeks to unify the laws, and it is particularly true, as I will demonstrate in a moment, with respect to paragraphs (m) and (1) of clause 27. Anticipating myself for a moment, Western Australia has had fourteen years of satisfactory experience of the ground that is the prototype of clause 27 (m). In all those years, so far as I can ascertain, no churchman has raised his voice to say that the ground was working ill.
– Quite wrong!
– The honorable member need not say it is quite wrong, because it is quite right. No churchman has raised his voice to say that this ground for divorce has caused people to enter upon marriage lightly and irresponsibly. Faced with that situation, when we begin to draw a uniform bill, we need some very cogent reason for jettisoning the ground that has proved satisfactory amongst Australians, because the people of Western Australia are the same as all other Australians are, as good and as bad. One other point to be remembered in considering grounds that already exist in the States is that the people of Australia are mobile; they can move from one State to another, and a ground that is in operation in Western Australia can be used by people from other States if they go to Western Australia for a relatively short time and, for instance, take a job there. This does happen. So, the fact that a ground is established in this continent is a very potent factor to be borne in mind when we try to get uniformity.
– The Attorney-General means that it may happen to-day under the amended laws of 1945 and subsequent laws.
– Yes, exactly, as it is now. I am reminded by the right honorable gentleman that, when the Commonwealth intervened to protect women who had been deserted and who had lost their domicile because the husband had gone to another State-
– Or another country.
– It may happen that a New South Wales court would be called on to enforce the law of Western Australia by granting a divorce on the ground that is now clause 27 (m). In Australia at this moment, without any intervention of the Commonwealth Parliament, a ground for divorce comparable with 27 (m) is available to more people than may happen to be in Western Australia at any particular time.
– Would it not be the guilty party who would travel to Western Australia to obtain a divorce on this ground?
– Order! The honorable member has already spoken.
– I will come back in a moment to deal with the problem of the guilty party. I point this out as the immediate problem that faces anybody who attempts to produce uniformity.
It has been said of me that I put all the grounds available in all the States in a hat, jumbled them up and drew them out as a clerk might. Indeed, the honorable member for Darebin (Mr. Courtnay) said that that was the only exercise that took place, to act as a clerk in putting these grounds together. Every ground in the bill was carefully considered over a lengthy period. At an earlier time, the grounds have been considered by my predecessors or by the honorable member for Balaclava (Mr. Joske), and at no time was it a mere exercise of a mechanical or mathematical kind.
Now, I want to put before the House the bases on which I suggest one should begin to choose the grounds for dissolution. I point out that this bill does not bring divorce for the first time. For more than 100 years, the secular authority, the State, has regarded marriage as dissoluble. It has asserted that it can be, and in proper cases should be, dissolved. It necessarily follows that those who believe in indissolubility must be very careful when they enter the argument, because there is a tendency for them to try to discuss clause 27 (m) on the undisclosed premise of indissolubility, whereas the premise must be dissolubility. Very often, those who say that they do not like the proposed ground are really saying that they do not like any ground and that there ought not to be any ground of divorce at all. One must be very careful. Of course, he who believes in indissolubility - and that is his personal affair in which one does not interfere at all - can, if he is careful and clever enough, put to one side his belief in indissolubility and discuss the question on the assumption that marriage is dissoluble. If he forgets all about indissolubility, he can discuss the problem on the basis of whether the ground is good for the community. It is a very hard exercise, and few can achieve success in it.
I suggest that we approach this question of choice of grounds, as a House, on the footing that marriage is dissoluble. We then consider: What is a good ground. A good ground is one that is good for the social and moral welfare of the community as a whole, with justice to the individual. I want to come to the point where, in considering this ground, one has to balance these two points. I and those who are with me have come down on one side, and as long as those who discuss it with us are informed, there is no reason whatever why we should not differ. The difficulty in these discussions arises from ill-informed criticism or criticism that has not stemmed from careful contemplation. So, I approach the question of the selection of the grounds on the basis of what is good for the community as a whole and gives justice to the individual.
At this stage, I want to interrupt myself for one moment to say that we should remember in considering this matter that it is not a question of making divorce easier or harder. In the present situation, marriages are breaking down. The divorce law does not cause them to break down; the divorce law is a remedy. It is one thing to try to get for the community the most that can be got out of family life, but when a family has broken down and ceases to have any reality, then the community must seek an arrangement that is better and sounder. It is not a question of making divorce easier or harder. It is a matter of deciding whether a marriage that has lost its reality should be dissolved, and that is very relevant to a consideration of the ground contained in clause 27 (m), which has created so much controversy.
It is easy to use the expression “ making divorce easier “. I have listened to some honorable members who imagine that if fourteen grounds are included in a divorce bill, divorce has been made easier than if only twelve grounds had been included. With very great respect, that view is unwarranted. The greater number of divorces are based on the grounds of adultery and desertion. I have here the figures for 1956, those being the latest figures in the YearBook. They cover a large number of grounds. Out of a total of 6,345 divorces in that year, 3,966 were on the ground of desertion and 1,751 were on the ground of adultery. I shall read through the figures because they show that other grounds included to meet special cases and to do justice where some special circumstance exists, account for very few divorces. These figures are taken over the whole of Australia for a year and show that on the ground of bigamy there were two divorces; drunkenness, 104; failure to pay maintenance, 20; imprisonment, 23; insanity, 18; non-consummation, 3; pre-nuptial incontinence, 1; presumption of death, 3; and sodomy, 4.
To add a ground does not make divorce easier. Those who resort to these remedies mostly do so on two or three main grounds, which are common throughout the States. It is a complete fallacy to add up the number of grounds and say that divorce has been made easier. Let me, for a moment, test it on the ground of insanity. Insanity is a ground in all States except New South Wales, and in 1956 there were eighteen, divorces on that ground. The ground of insanity is a very tight one. A person who is to be divorced must be insane, must have been for five out of the preceding seven, years, I think it is, in an institution for the insane, must be incurable and must still be. in the institution at the date of the hearing. An honorable member mentioned that, medical science is getting better. So be it, and the harder it is to prove that a person, is incurably insane.
– That is why there are so few cases.
– Yes, so very few cases. But to say that because I add insanity as a ground in New South Wales I have made divorce easier is to be foolish. 1 have not made divorce easier. I have provided for a particular and unusual case, because it is thought to be just. So, when one uses the expression “ making divorce easier “, it needs some close watching.
Let me take another illustration. The period for desertion has been three years in all States except Tasmania in the case of, I think, a woman. This bill proposes that the period shall be two years. Somebody has said that that makes divorce easier. I would claim that that is a misconception because I think it is a fair conclusion that a person who will seek for a divorce after two years’ desertion would seek one after three years’ desertion. There may be a very odd case where the parties make up in the third year, but I imagine that is pretty rare, because the two years’ desertion must have been preceded in the majority of cases by a substantial period of progressive breakdown before the final step is taken. So, to reduce the period from three years to two years does not add a single customer to the divorce courts, lt simply allows the customer to come sooner, and when 1 state that the average age of divorced people is about 30, it will be recognized that that year of life is extremely important to them. Unless there is a very good reason for denying it to these people, for my part I am all for them having it. But it is wrong to say that to reduce the period from three years to two years makes divorce easier. That has been the catchcry, and I ask honorable members to make up their own minds on this matter.
Having said that I think the basis for choice of a ground is the moral and social welfare of the community, as a whole, remembering justice to the individual, I for my part think that the community is extremely interested in sound marriage. So, my first endeavour in this bill as was said when I introduced it and as many people have said with some generous remarks about the way I have done it, my first step was to try to prevent the final breakdown and to keep the existing marriage sound. There are mechanisms in this bill for that purpose which I do not want to enumerate, because honorable members are all familiar with them. But having failed to prevent the breakdown having found that the marriage is irretrievably lost, I for my part and, I think, many honorable members will agree with me do not regard two people who have not seen each other for many years, who have come almost to hate each other, between whom there is enormous bitterness and who are not to live together again, as soundly married in any language. If that is right, the community has a very great interest in enabling some other sound marriage to replace the one that is no longer sound.
I see no benefit in allowing one of the parties to maintain the tattered shred of the status of marriage when all reality is gone. I see no sense in that from the point of view of the community. May I just quote from the Morton report. This report, may I say, needs very careful handling because it is very hard to tell where the majority is and where the minority is. I say this without any criticism, but the letter that came to me from the bishops cited the minority report and gave no indication at all to people that the quotations were nor out of what the commission as a whole thought but were out of what only nine members thought. Ten members thought the opposite. So, it is a very dangerous document to take up.
– The majority took the opposite view.
– Yes. There were ten members of the Morton commission who in one form or another thought that a principle of breakdown of marriage should be introduced into divorce law. Nine members thought otherwise, and the bishops quoted the opinions of those nine.
– The numbers were nine each.
– That is the trouble. The honorable member should read the report very carefully, it is not easy to read. There were ten on one side and nine on the other.
– According to my information there were nine on each side.
– Not at all. What I was saying was that there is no profit to society in a marriage that is irretrievably lost. May I read what is said by four members of the Morton commission, and I read this not for the authority they have but for the way in which they state their views.
– Which four are these?
– They were four of the nine who favoured including a ground similar to that in clause 27 (m) as well as the traditional grounds. The tenth member of the commission he was a Scotsman thought that the ground similar to that contained in our clause 27 (m) should be the only ground, but the other nine thought that they should have the traditional grounds plus a prototype of clause 27 (m). Let me read what they said for the manner of the saying -
We see no benefit to society, to the individual or to the State in maintaining marriages in name which are no longer, and on all foreseeable estimates will never be, marriages in fact and which secure few or none of the purposes for which marriage was designed. There are many persons living together in illicit unions, which have all the potentialities of happy, permanent marriage, who are unable to marry because of a preexisting marriage which has completely broken down, and because the “ innocent “ spouse from spite, religious scruple or some other reason, is not prepared to take proceedings for divorce. We see in many of these illicit unions, which may have endured for years, all those elementsof love, comradeship and happiness in children that make the cohesive qualities of a happy marriage.
Nor is that all. The frustration caused in such cases can lead to consequences detrimental to the individual and, we think, also to the State. We have in mind not only the stigma of illegitimacy that attaches to the children of such unions, with the psychological consequences resulting therefrom, but the effects on the parties directly concerned. First, they are living in an atmosphere of deception, and, if there are children living in the house, that means that sooner or later the children feel that there is something being concealed. Secondly, they are living in fear, and there is nothing more warping to people’s lives or development than that they should live in fear, and nothing more injurious to children than they should grow up with the atmosphere of fear around them. Thirdly, there are many such people who long to have children to complete their Union, but who refrain from doing so because they do not think it right to bring up children in an atmosphere of lying and fear arising from the fact that their parents cannot be legally married. Fourthly, such people do not feel free to enter into the fullest activities of a citizen; they are unlikely to take part in social work, political work and other ordinary activities. In particular, many of them are religious people, but it may be doubted whether there is any church in the country where two people living in adultery would feel at home, and they will probably fall away from any religious body to which they would like to be attached, and will give little if any religious upbringing to any children they may have in their home. [Extension of time granted.]
Such views were expressed to us in evidence and we think that they are sound. What is the balance that you will need to find here? If it be right to say that the state has no profit from a marriage irretrievably lost, by the application of the existing and traditional principle of matrimonial offence one of those two parties has the initiative and the other has not. I know that people will say that the guilty one should not have any initiative, but to all who say that let me put the question, “Who is the guilty one? “ This is one of the hardest things to determine and, for my part, courts of law are very ill-equipped to find out where true guilt or innocence lies between warring spouses. You just cannot get into the house, and you cannot get into the bedroom. If a lawyer persisted in all the detail into which he should go to try to elucidate who was truly right and who was truly wrong, he would eat up his client’s funds in great style.
It is not easy to fasten guilt or innocence. In consequence, if you follow the traditional ground of a matrimonial offence you leave the initiative with one party. If that initiative is not taken, then the other is under a life sentence. I do not know whether we very readily accept the position that adultery - taking the worst of the matrimonial crimes - is to be visited with a life sentence on the so-called guilty party. If he stole your car or if he did many other things, I suppose he could get a bond. But on the traditional view adultery results in a life sentence, and the community is deprived of the possibility that the guilty may form a new sound union and have a new and sound family. For my part, I feel that the community owes it to itself to enable either of the parties to have the initiative. Clause 27 (m) is designed to that effect.
Of course, there needed to be safeguards. When we are dealing with this matter in committee I shall answer the honorable member for Kingston who asked for some details, but it is inappropriate to do so now. By clause 27 (m) I have tried to provide that there shall be no injustice to the individual. I have said to the courts, “You must not give the guilty party a divorce in circumstances which would be harsh and oppressive “. I could not express the idea of justice better. I have said to the courts, “ You shall not give the guilty party a divorce in circumstances where it is against the public interest and where it is offensive to public morals “. The divorce courts know what that means. They have developed doctrines on that basis before to-day. I have said to the courts, “You shall not give the guilty party a divorce until financial justice has been done to the other party “. Having provided for personal justice, that there shall be nothing offensive to public morals, and for financial justice, what is left?
Let us suppose that the party who has the initiative will not take it, that there is nothing personally harsh and oppressive, that there is nothing against the public interest, and that there is no financial injustice. There may be spite left. We know that that happens. Of course, there may be religious scruple or sentiment. I quite understand those who have said to me, “ But you ought not to overbear the religious scruple of the one who does not want divorce. You ought not to overbear the sentimentalist who wants to maintain the sentiment of marriage when all the reality is gone “. In balancing the benefit to the community of a new marriage that has a chance of being sound, against the marriage that is completely lost, I come down in this bill on the side of the community and I say, “ I think that the persons who are only hanging on to the thread of the status of marriage for a religious scruple or for sentiment - all honour to them for that; that is their business will have to give way in favour of the community “, having secured personal and financial justice for them. That is the crux of clause 27 (m) of this bill. From the very beginning, I have been quite frank in saying that 1 have added this basis, this concept of divorce new in some of the States in Australia, to the traditional grounds in order that the community might benefit.
– What about the new safeguards?
– I have added the new safeguards. I have left the traditional grounds so that the legally innocent party may obtain a dissolution of the marriage earlier than he or she otherwise would. Let me take desertion as an illustration. A person who is deserted and who wishes to take the initiative for divorce can bring suit after two years, but the party who is the deserter must wait for five years before taking any action. I have kept the traditional grounds so that the advantage of the legally innocent party will be preserved. However, I commend this to the House: At the end of the clause I have said, in effect, “ When the marriage has no reality whatever and when bitterness and ill will have taken the place of affection, then it is only right, in the interests of the community, that the other party should have the initiative as well, provided that there are the safeguards that I have provided “. These I shall refer to during the debate at the committee stage.
– There may be bitterness on one side and goodwill on the other.
– Of course there could be. This, after all, is the secondreading debate. I have gone into this ground because it was debated at such length by honorable members. I should have thought that this House had expressed itself during this secondreading debate, with very little dissent, in favour of the principle of the bill, namely, uniformity, a single domicile for Australia, and the same kind of law in this area of family life for all Australians.
Question put -
That the words proposed to be omitted (Mr.
Luchetti’s amendment) stand part of the question.
The House divided. (Mr. Speaker - Hon. John McLeay.)
Majority . . 68
Question so resolved in the affirmative.
Original question resolved in the affirmative.
Bill read a second time.
– Order! I think the honorable member is getting wide of the request of the Attorney-General. The committee is dealing with the procedural question of whether amendments proposing new clauses should be considered at their appropriate place in the bill instead of being left until the end of the bill for consideration. I feel that many of the members who have spoken have been very wide of the mark.
– It is not a question of the relevance of what has been said before. It is a question of how we are to deal with provisions that are to become the substance and fabric of the bill. As we deal with each point we will be referring backwards and forwards. The Attorney-General (Sir Garfield Barwick) could, I think, have a short adjournment so as to arrange the matters in an order which would meet the objection raised by the honorable member for Lang (Mr. Stewart). I have no doubt that the Attorney-General has his papers arranged in a certain order. It is probable that very few members in the chamber will have quite the same advantage. Therefore, I suggest to the AttorneyGeneral and the Temporary Chairman that this be looked at. It would not take long. The committee could then resume and get through the bill in a way that would prevent any confusion. It is vital to prevent any confusion on this important bill.
– I want to make a few observations on this point. I think that what the Attorney-General (Sir Garfield Barwick) suggests is eminently sensible. He wants to so arrange the consideration of the various proposed amendments as to obviate the necessity for bringing in amendments as new clauses after the bill has gone through the committee in its present form. He wants to introduce his amendments in in the order in which they would appear in the bill. I think that is right.
I also think that what the honorable member for Lang (Mr. Stewart) and the honorable member for Parkes (Mr. Haylen) have said about the complexity of this matter should receive consideration by the Attorney-General so that we can get a newly numbered document. It ought to be possible to have that by the time the House meets to-morrow afternoon. The Printing Office can certainly do that. It could have a new, clean document printed which would indicate everything that the AttorneyGeneral proposes to put in at the point at which he wants to put it in. We could agree to suspend Standing Orders accordingly.
– I intend to test the feeling of the committee on the matter that has been put by the honorable member for Parkes (Mr. Haylen), the honorable member for Lang (Mr. Stewart) and other members of the Opposition. I believe that the proposed amendments should be reproduced for honorable members so that their effect may be clearly seen. This has been done in other legislation to which amendments have been proposed. I know that the AttorneyGeneral (Sir Garfield Barwick), the Leader of the Opposition (Dr. Evatt) and others can understand the proposed amendments; but I say, without reflecting on any one, that they have earned a considerable amount of money in attaining their skill. We who have not had the same privilege find some difficulty in following the list of proposed amendments. This is not a matter that can he glossed over lightly. This is a bill that will affect the lives of many people.
Order! I think the honorable member is now making a second-reading speech.
– He is moving an amendment.
– No motion can be moved on a matter of procedure. Strictly speaking, there should be no debate on this matter. To assist the committee I have allowed debate to go on
Motion (by Mr. Daly) put -
That the Temporary Chairman do report progress and ask leave to sit again.
The committee divided. (The Temporary Chairman - Mr. P. E. Lucock.) Ayes . . . . 15
Question so resolved in the negative.
Order! The committee will now revert to the proposal put forward by the AttorneyGeneral.
Order! The honorable member for Grayndler will resume his seat.
I should say not.
– Then I propose to move that the honorable member for Grayndler be now heard.
Order! There is no question before the Chair. The honorable member cannot so move.
– Then I shall move dissent from your ruling, Mr. Temporary Chairman.
Order! If the honorable member for Grayndler does not resume his seat and obey the Chair he will not be in a position to resume it for some considerable time.
– I think, Mr. Temporary Chairman, that it would suit the convenience of honorable members if the Attorney-General were given the leave he asks for. He could then move that progress be reported, and let the matter stand over till to-morrow. Let us have that decision now. If that is all right the AttorneyGeneral could follow that course.
– I withdraw the request for leave, Mr. Temporary Chairman. We shall go on with the clauses, and when we reach a clause in which an insertion is necessary I shall then consider what I shall do.
Clause 1 (Short Title)
The question before the committee is - That clause 1 be agreed to.
Mr. DALY (Grayndler flO.35]. - I wish to speak on clause 1. There is now a question before the Chair, and I do not suppose that on this occasion, Mr. Temporary Chairman, you can rule me out of order. I want to say to the Minister that this is a clause in relation to which, as in relation to other clauses, he should place before the Parliament a clear statement of the proposed amendments. Earlier the Minister said that it was not possible to bring down a measure in which he could show, in relation to clause 1 and other clauses, the amendments that were proposed. That has been done hundreds of times in this Parliament.
Order! The honorable member for Grayndler is out of order. The matters he is discussing are irrelevant to clause 1, which deals merely with the short title.
.- In discussing the short title I should like to ask the Attorney-General (Sir Garfield Barwick) whether he is aware of the complete confusion in which he has placed the committee in regard to the multiplicity of amendments he has put before us. Surely we cannot properly discuss the short title if we do not really understand what we are discussing.
Order! The honorable member is out of order.
– Surely if there is to be a discussion in committee on what the bill does it must be relevant that the amendments following the short title should be discussed either now or at a later stage.
Order! The short title is not to be amended.
– Is it your ruling that we can discuss only the short title now?
– In that case we shall return to the other matter at a later stage.
.- I desire to address myself to the short title. I submit to the committee that the short title is erroneous and does not give a fair impression to the Parliament or the public of the intentions of the bill. I think that the short title of this bill should be “The Increase in Divorce Bill 1959”. I think that would be an appropriate title, because contained in this measure are increases in the number of grounds for divorce, and that should be explicitly stated in the title.
Clause agreed to.
Clause 2 (Commencement)
– I move -
Omit the clause, insert the following clause: - “ 2. This Act shall come into operation on a date to be fixed by Proclamation. “.
This is done in case the bill does not become law before the end of the year. In any event, it is necessary to complete statutory rules to carry out the act, and they could not be ready by the end of the year.
.- The original copy of the amendments was dated 7th October. I have another copy here dated 11th October. I presume these copies are different, because one mentions 58 amendments and the other mentions 56. The note on the amendments circulated by the honorable gentleman reads, in regard to the present amendment -
This amendment is proposed because of doubt whether the legislative programme will permit the bill to pass both houses before the end of the year.
– That is out of date.
– It is not out of date. It is very relevant to the fact that originally it was suggested that there was no violent hurry to get the bill through in view of all the other legislation that had to be passed in the short time before the end of the year. Apparently that position has changed. That only confirms and underlines my earlier suggestion that we would have dealt with the bill in a far better fashion if we had not tried to force it through before the end of the session. We were given to understand originally that in the opinion of the Attorney-General it was not necessary to force the bill through. I direct attention to that, because I have been criticized for having said that it was not necessary to force the bill through and for having directed attention to the fact that there was a “ leak “ to the newspapers on 14th November to the effect, that if the bill did not go through before the end of the session it would not be seen again. So apparently the new decision was made by Cabinet, because here we have the AttorneyGeneral stating in his notes on the amendments that the reason for this amendment is that it was doubtful whether the bill would go through before the end of the year.
– I should like the Attorney-General to correct me if I am wrong, but to my mind the position is simply this: In the first draft of the bill, 1st January, 1960, was given as the commencement date, but then it was found that the rules would not be ready by that time, or that some necessary preparatory work could not be completed by then. The proposal now is that the legislation will come into effect on a day to be fixed by proclamation, which is the normal way to do it.
.- The honorable member for Chisholm (Sir Wilfrid Kent Hughes) has brought an important point to the attention of the committee. In clause 2 of the original bill we find it stated that the act shall come into operation on the 1st day of January, 1960.
– On what date does the honorable member wish it to be proclaimed?
– Honorable members may choose to laugh about this, but I assure them that it is of importance. The honorable member for Lilley knows very little about it. I resent the fact that the Attorney-General and other Government supporters, on a supposedly non-party measure, voted as one man, in a government bloc, with the exception of the honorable member for Chisholm. That proves that it was treated as a party matter, lock, stock and barrel. The honorable member for Chisholm was the only one with the courage of his convictions. He is the only one who is prepared to stand up on that side of the Parliament and vote for a full investigation.
One matter that a select committee could well have a look at is: Why did the AttorneyGeneral incorporate in the bill a provision that it was to come into operation on 1st January, 1960, and why does he seek now to change that to “ a date to be fixed by proclamation”? That might well be ten years from now. It might be any time. That shows that the Government is rushing this legislation through. The Attorney-General was prepared to say anything at the secondreading stage in order to put it over the Australian people.
– Order! I ask the honorable member to withdraw that remark, which is a reflection on the Attorney-General.
– In deference to your wishes, Mr. Temporary Chairman, I withdraw it. I will say that he was misleading the Australian people concerning the Government’s real intentions. I hope that he will rise in his place and explain to the honorable member for Chisholm and other members of the Parliament the real reason why the legislation will not now come into force until a date to be proclaimed instead of on the date originally stated.
I know why the AttorneyGeneral wants this bill to be put through so quickly. The Parliament is to be prorogued so that it can be opened by the new Governor General. When the Parliament is prorogued, all current legislation will lapse. Just to avoid that, the bill is to be rushed through without a full and complete inquiry. I believe that this alteration of the date, which has been brought to the attention of the committee by the. honorable member for Chisholm, proves the down right hypocrisy of the Government on this issue, and establishes the fact that it is misleading the Australian people. It now seeks to rush this legislation through the Parliament in order to please the honorable member for Balaclava (Mr. Joske) and one or two other legal lights on that side.
– I think that I can speak for myself on this matter. I can understand the reason for the amendment, although the original proposal has been altered entirely. I can understand that the rules cannot be drafted by 1st January. However, what I want to underline without being misunderstood by any one is that in the note which was circulated with the original amendment, the Attorney General said -
This amendment is proposed because of the doubt whether the legislative programme will permit the bill to pass both Houses before the end of the year.
That was on 7th October. On 14th November, we read in the papers and it was an obvious leak the following: -
Ministers feel that no government should be expected to re-submit continuously legislation of such an important and contentious character.
Therefore, I submit, there was no hurry to get it through then, and there is not now. The AttorneyGeneral did not consider that it was absolutely vital to get it through before Christmas. So far as he, the man in charge of the bill, was concerned, a delay of a few months would not have been of such importance as to warrant the action that is being taken now.
– I agree with what has been said by the honorable member for Grayndler (Mr. Daly) and the the honorable member for Chisholm (Sir Wilfrid Kent Hughes) concerning the time factor, but the matter goes deeper than that. The whole basis of our approach is that we must be sure that we are doing the right thing in our legislation. Clarity has been the catchword of the Attorney General, but now, when the legislation has been forced through a division on the motion for the second reading and we come to the committee stage, we find that he is utterly confused. He does not know which of the 56 amendments should apply here and there. Despite the defence offered by the Leader of the Opposition as this is a non-party measure, we speak as we feel the AttorneyGeneral has not established, in my view, the relevancy of time. One amendment seems to cancel out another; one question cancels out another. Is that the atmosphere in which a question so vital as divorce legislation should be dealt with?
Obviously, the honorable member for Grayndler has touched the heart of the matter when he says that, though this is alleged to be a bill upon which every one can speak freely, the bludgeon has been produced in the Government party rooms. When the Prime Minister (Mr. Menzies) declared to his sycophantic followers how he would vote, it became obvious just what they would do. I am sure that that was quite enough for most members of his party. The point that I return to concerning clause 2, is that there is in no sense a feeling of security, or an awareness of the way in which the Government is going in regard to this vital legislation. It is all wishywashy. The Minister has not justified the faith that we must have in him if he is to push forward with this important legislation. We who oppose it on this side find in this clause another indication of vacillation and we number it among the 56 signs of weakness in what was supposed to be a perfect piece of legislation. About the only record established so far has been in regard to the number of amendments brought down - amendments which even the Minister himself does not appear to understand.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 3 and 4 agreed to.
Clause 5 -
– (1.) In this Act, unless the contrary intention appears - “ Australia “ includes Norfolk Island; “ crime “ means an offence punishable by imprisonment; “ decree “ means decree, judgment or order, and includes a decree nisi and an order dismissing a petition or application; “ Matrimonial cause “ means -
jactitation of marriage;
– According to the definition, Australia includes Norfolk Island. What is the position with regard to other Territories such as Papua and New Guinea? Will they follow suit?
– Only the mainland Territories and Norfolk Island are included.
– Are we to have a different divorce law for Australians in Australian New Guinea and Australians on the mainland?
– Not necessarily. It is intended that the external territories of Papua and New Guinea shall have their own ordinances, which will govern this question. The ordinances which will be provided will be suitable for both Europeans and non-Europeans.
.- I am not quite sure where the word “ crime “ is used in the bill. The definition is that it is an offence punishable by imprisonment. No period of imprisonment appears to have been specified in this definition. I believe there are some misdemeanours connected with the driving of motor cars, for instance, that are punishable by imprisonment, and that could become crimes within the meaning of this act. Can the Attorney-General clarify the position?
. - The only other place in the bill, I think, where the word “ crime “ is to be found is in one of the grounds for divorce. I refer to paragraph (g) of clause 27. It is quite plain that a term of imprisonment is specified. The clause states, in part -
Subject to this Division, a .petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be based on one or more of the following grounds: -
that, since the marriage, the petitioner’s husband has, within a period not exceeding five years - ‘
suffered frequent convictions for crime in respect of which he has been sentenced in the aggregate to imprisonment for not less than three years;
I move -
After the definition of “ crime “, insert the following definition: - “ ‘ cross-petition ‘ includes an answer in which the respondent to a petition seeks- a decree or declaration of a kind referred to in paragraph (a) or (b) of the definition of ‘ matrimonial cause ‘ in this subsection “.
The purpose of this is to allow a respondent to make a cross-claim in his answer.
.- I refer to the point raised by the honorable member for Fremantle (Mr. Beazley) regarding the definition of crime. The word appears, as the Attorney-General has said in clause 27 (g), which states that a petition for dissolution of marriage may be based on the ground that, since the marriage, the petitioner’s husband has, within a period not exceeding five years, suffered frequent convictions for crime in respect of which he has been sentenced in the aggregate to imprisonment for not less than three years. As the honorable member for Fremantle suggested, “ crime “ could amount to a. conviction for drunken driving, or somepetty conviction that normally is not: regarded strictly as a crime.
– You cannot get three years for that kind of offence.
– The clause refers to three years in the aggregate. I do not know why some honorable members on the other side are continually interjecting. I am absolutely certain that they have not looked at the bill. I would ask, just as the AttorneyGeneral (Sir Garfield Barwick) asked when he was making a speech, that those people who have not made any study of : the bill kindly refrain from making impertinent interjections.
My attitude to this bill is completely sincere. It is immaterial to me whether any member of this House or any person in Australia obtains a divorce, but I do feel that as members of Parliament we have a duty in this place to see that the acts we pass do not pander to the weaknesses of individuals. I am quite certain that the bill before us panders to the weaknesses of individuals. If honorable members look at the report of the Royal Commission on Divorce they will see references time and time again to pandering to the weaknesses of individuals. This is what this Parliament and many State Parliaments have been doing continually during the last few years, and I believe that we in this place should be prepared to study this bill and genuinely try to assist the AttorneyGeneral in his endeavours. I am quite sincere when I say that the more I study the bill the more I am convinced that the Attorney General has made a sincere effort to bring down a Matrimonial Causes Bill that will be of benefit to Australia. At the same time, however, I think the honorable member for Fremantle has raised a pertinent point. I think the definition of “ crime “ should be looked at and made clearer than it is at present.
– I am not quite sure whether I should raise this point now or when clause 27 is being considered. Perhaps the Attorney General will clarify the genuine confusion in my mind about convictions in cases in which the sentences are concurrent. Are those “ frequent convictions “ in the terms of clause 27 (g)?
– I will answer the honorable member for Lang (Mr. Stewart) first. The operative word in the definition is “ punishable “. An offence punishable by fine or imprisonment would not qualify as a crime. It must be a crime punishable by imprisonment.
– By imprisonment only?
– Yes. A person may have been convicted of an offence which did not, in the first instance, carry a sentence of imprisonment. That person may have failed to pay the fine originally imposed, and have gone to jail as a consequence. It was thought that such cases should be excluded.
– There was a recent case in Canberra in which a person was sent to gaol for dangerous driving.
– But the intention of this provision was to confine crime as mentioned in clause 27 (g) to crimes punishable by terms of imprisonment, and not by imprisonment in the alternative, for failure to pay a fine.
– What about concurrent sentences?
– The concurrent sentences are added together, because clause 27 (g) refers to sentences in the aggregate.
Amendment agreed to.
– I move -
Omit the definition of “ decree “, insert the following definition: - “ ‘ decree ‘ means decree, judgment or order, and includes a decree nisi and an order dismissing a petition or application or refusing to make a decree or order;”.
Let me explain the reason for this amendment. In clause 66 there is a provision that the parties must obtain from the judge an approval of the arrangements for the children. On examination, it was realized that it was possible that a refusal to approve the arrangements for the children might not be caught up in the definition of decree. For that reason the definition of decree is extended to include a refusal to make an order or decree.
Amendment agreed to.
– I move -
In sub-clause (1.), in the definition of “ matrimonial cause “, paragraph (b), omit “ a decree of dissolution or nullity of marriage or of judicial separation “, insert “ the dissolution or annulment of a marriage by decree or otherwise or of a decree of judicial separation “.
This change is necessary because in some countries divorces are granted not by decree, but by act of parliament, and in some cases by religious ceremony or the like.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 6 (Certain children to be deemed to be children of the marriage).
– I should like the Attorney-General to explain the provisions o! sub-clause (1.) (c) of this clause, which states that for the purposes of the application of this Act in relation to a marriage - a child of either the husband or wife (including an illegitimate child of either of them and a child adopted by either of them) if, at the relevant time, the child was ordinarily a member of the household of the husband and wife, shall be deemed to be a child of the marriage. . . . 1 refer to the case of a man marrying a previously divorced woman who, by a decision of the court, had been given the custody of the children of her former marriage, an obligation having been placed on the former husband to maintain those children. Would those judicial decisions be set aside by the provisions of this clause, so that the second husband would have to assume all the responsibilities of maintaining the children of the former marriage? I suggest to the Attorney-General that, when explaining this provision he should consider the possibility that a future divorce action between the two persons could leave the husband responsible at law for the continued maintenance of all the children of both marriages. I see an evil in this, because it could lead to reluctance on the part of a man who had a de facto relationship with a divorced woman or a woman about to be divorced to enter into marriage, because of the added responsibility of maintaining the children of the former union.
– This clause unquestionably makes the child to whom the honorable member referred in his illustration a child for the purposes of the application of the act, so that, if there should subsequently be a divorce between the new pair, the court, would be entitled, if the circumstances were appropriate, to make an order for the maintenance of the children of the first marriage who had been brought into the household of the second marriage. But, of course, the old order would remain. It would not be discharged because of the second marriage of the mother, in the terms of the honorable member’s illustration.
The order would not be discharged, and the court, in the divorce proceedings between the parties to the second marriage, would take into account the fact that there was already an order existing. But, of course, the court might find that that order was insufficient. Take the case, for example, of the divorced wife of a very poor man whose means would permit an order of only 5s. a week for the children. Suppose that she marries a wealthy man who is content to take her children into his household and that subsequently that marriage breaks down. The court may merely say, “ You have brought these children into your household and into a new way of life. You must now make appropriate provision for them.”
– The converse, of course, could hold good: That the divorcee might have divorced a wealthy husband and subsequently have married a husband who was relatively poor financially. The difficulty then would rest with the court in making a decision, I take it, as to the order that would be made for the maintenance of the children. But presuming that there is no second divorce between the couple, does the second husband become responsible for the financial upkeep of the children of the former marriage, in respect of which the court has made an order for maintenance against the former husband?
– This bill does not begin to work until there are divorce proceedings. It does not touch a person’s rights before divorce proceedings take place. It does not at all speak of what his obligations are before the time that the court interferes in divorce proceedings.
Clause agreed to.
Clause 7 agreed to.
The following bills were returned from the Senate -
Income Tax and Social Services Contribution Assessment Bill (No. 2) 1959.
International Wheat Agreement Bill 1959.
Without requests -
Income Tax and Social Services Contribution Bill 1959.
House adjourned at 11.6 p.m.
The following answers to questions were circulated: -
s asked the AttorneyGeneral, upon notice -
– The answers to the honorable member’s questions are as follows: -
m asked the acting Minister for External Affairs, upon notice -
What steps have been taken or are being taken to ratify (a) the 1948 International Convention for the Safety of Life at Sea, (b) the 1948 International Convention for the Protection of Literary, Scientific and Artistic Works, (c) the 1952 Universal Copyright Convention, (d) the 1954 Convention for the Protection of Cultural Property in the event of Armed Conflict and (e) the 1957 Universal Postal Convention?
– The answer to the honorable member’s question is as follows: -
m asked the Minister for Labour and National Service, upon notice -
What department, trust or board owns, administers and maintains each of the ports at which the Australian Stevedoring Industry Authority determines a quota and maintains a register of waterside workers?
– The answer to the honorable member’s question is as follows: -
Controlling Authority or Department. South Australia.
The bodies listed above are those having the general control for administrative purposes of each of the ports where registers have been established by the Australian Stevedoring Industry Authority. In New South Wales, in all ports except Sydney, although the Maritime Services Board is responsible for administration, navigation and pilotage, the New South Wales Department of Public Works is responsible for construction, maintenance and dredging. In Sydney the Maritime Services Board is solely responsible. As to actual ownership, the position broadly is that in some cases ownership of the port area is vested in an authority on behalf of the State government; in many cases wharfs are under lease to stevedoring or shipping companies and there are also some privately owned wharfs, the maintenance of which is carried out by the owner.
d asked the Minister for Labour and National Service, upon notice -
– The answers to the honorable member’s questions are as follows: -
g asked the Minister for Primary Industry, upon notice -
– The answers to the honorable member’s questions are as follows: -
Not all malting type barley is of malting grade and some Cape barley is used for malting, (b) Information on interstate sales has not been made public by the State boards, (c) Information on the break-up of exports into malting and other grades of barley is not available but total exports in 1958-59 were-
d asked the Minister for Immigration, upon notice -
– Mr. and Mrs. Nibre have obtained a good deal of publicity of their own seeking, both in the United Kingdom and Australia, which is factually quite incorrect. I am reluctant to make public adverse information in the possession of my department about any individual migrants, but as the honorable member’s question is framed in a manner which could suggest that Mr. and Mrs. Nibre have been unfairly dealt with I feel obliged in this instance to depart from my usual handling of such cases. 1 am able to give the following answers to the questions specifically asked by the honorable member: -
z asked the acting Minister in charge of the Commonwealth Scientific and Industrial Research Organization, upon notice -
– The answers to the honorable member’s questions are as follows: -
Cite as: Australia, House of Representatives, Debates, 17 November 1959, viewed 22 October 2017, <http://historichansard.net/hofreps/1959/19591117_reps_23_hor25/>.