House of Representatives
20 May 1975

29th Parliament · 1st Session



Mr SPEAKER (Hon. G. G. D. Scholes) took the chair at 2. 15 p.m., and read prayers.

page 2471

PETITIONS

The Clerk:

– Petitions have been lodged for presentation as follows and copies will be referred to the appropriate Ministers:

Australian Government Insurance Office

To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble petition of the undersigned employees and agents of the Australian insurance industry respectfully showeth:

  1. 1 ) That Parliament should reject the Bill currently before it to establish an Australian Government Insurance Office.
  2. That while there is a need to establish in Australia a Natural Disaster Fund to provide compensation for property damage and other losses resulting from disasters such as earthquakes, floods and cyclones, such a Fund can be established, as in other countries using the medium of the existing private enterprise insurance offices.
  3. That a plan for such a Fund was submitted to the Treasury in October 1974.
  4. That no sound reasons for the establishment of an Australian Government Insurance Office (other than the desire to provide non-commercial disaster insurance and Australian Government competition with private enterprise) has been given by the Government.
  5. That there is already intense competition between the existing 45 Life assurance offices and between over 260 general insurance companies now operating in Australia and that further competition from a Government Office would only be harmful at this time.
  6. That the insurance industry is already coping with

    1. the effects of inflation,
    2. increased taxation on life assurance offices,
    3. the effects of recent natural disasters,
    4. other legislation measures already in train or in prospect by the Government, e.g. the National Compensation Bill, a National Superannuation Plan and improved Commonwealth Public Service Superannuation.
  7. That as taxpayers your petitioners are greatly concerned at the huge costs (far more than the $2m initial capital and loan funds which it is proposed will be allocated) of establishing an Australian Government Insurance Office.
  8. That as employees and agents of existing insurance offices your petitioners fear for their jobs and their future prospects if the Parliament proceeds with the legislation.

Your petitioners therefore humbly pray that the House will reject the Bill.

And your petitioners as in duty bound will ever pray. by Mr Crean, Mr Anthony, Mr Donald Cameron, Mrs Child, Mr Chipp, Mr Cross, Mr Drury, Mr Jacobi, Mr Macphee, Mr Mathews and Mr Oldmeadow.

Petitions received.

Australian Government Insurance Office

To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble Petition of undersigned citizens of Australia respectfully showeth that the establishment of an Australian Government Insurance Office will:

  1. Nationalise the Insurance Industry.
  2. Trade unfairly.
  3. Add to the taxpayers burden.

Your Petitioners therefore humbly pray that the House of Representatives rejects completely the Australian Government Insurance Office Bill 1 975.

And your petitioners as in duty bound will ever pray. by Mr Berinson.

Petition received.

Australian Government Insurance Office

To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble Petition of undersigned citizens of Australia respectfully showeth that the establishment of an Australian Government Insurance Office will:

  1. Increase Bureaucracy at the time when the Government spending should be curtailed.
  2. Shrink the flow of funds to the private sector.
  3. Eliminate private insurance of Australians.

Your Petitioners therefore humbly pray that the House of Representatives rejects completely the Australian Government Insurance Office Bill 1975.

And your petitioners as in duty bound will ever pray. by Mr Garland.

Petition received.

Australian Government Insurance Office

To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble Petition of undersigned citizens of Australia respectfully showeth that the establishment of an Australian Government Insurance Office will:

  1. . Lead to nationalisation of the Insurance Industry.
  2. Eliminate private insurance for Australians.
  3. Create hundreds of public service jobs and cause serious unemployment in the private Insurance Industry in Australia.
  4. Have a serious effect on the private sector of the economy by the passing over of further funds to be controlled by the Government through its instrumentalities.
  5. Provide no better plan for the establishment of a National Disaster Fund than that provided by the Insurance Industry in its submission to the Treasury in October 1 974.

Your Petitioners therefore humbly pray that the House of Representatives rejects completely the Australian Government Insurance Office Bill 1 975.

And your petitioners as in duty bound will ever pray. by Mr Garrick.

Petition received.

Australian Government Insurance Office

To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble

Petition of undersigned citizens of Australia respectfully showeth that the establishment of an Australian Government Insurance Office will:

  1. Permit unfair competition against private enterprise with inevitable losses met by the taxpayer.
  2. Lead to nationalisation of the private Insurance Industry, acquisition of its assets and thereby a nationalised control of a substantial part of the private sector of the economy.
  3. Provide the opportunity for that office to obtain general and superannuation business by the application of Australian Government financial and verbal duress on State Government’s local and Semi-Government bodies, Australian or State instrumentalities or any other body, or their employees, which is funded by the Australian Government.

Your Petitioners therefore humbly pray that the House of Representatives rejects completely the Australian Government Insurance Office Bill 1 975.

And your petitioners as in duty bound will ever pray. by Mr Fisher.

Petition received.

Australian Government Insurance Office

To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble Petition of undersigned citizens of Australia respectfully showeth that the establishment of an Australian Government Insurance Office will:

  1. 1 ) Lead to the nationalisation of the Insurance Industry.
  2. Divert a substantial flow of funds from the private to the public sector.
  3. Depress the private sector still further and create unemployment both within the Insurance Industry and elsewhere.

Your Petitioners therefore humbly pray that the House of Representatives rejects completely the Australian Government Insurance Office Bill 1975.

And your petitioners as in duty bound will ever pray, by Mr Hyde.

Petition received.

Australian Government Insurance Office

To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble Petition of undersigned citizens of Australia respectfully showeth that the establishment of an Australian Government Insurance Office will:

  1. Provide no better plan for the establishment of a National Disaster Fund than that provided by the Insurance Industry in its submission to the Treasury in October 1 974.
  2. By the ‘National Interests’ provisions of the Bill provide the opportunity for any government to introduce national schemes which should properly be the subject of separate legislation.
  3. Provide no better insurance service to the public than that already provided by the existing 45 Life Offices and 260 General Insurers.
  4. Lead to nationalisation of the Insurance Industry.

Your Petitioners therefore humbly pray that the House of Representatives rejects completely the Australian Government Insurance Office Bill 1 975.

And your petitioners as in duty bound will ever pray. by Mr Lamb.

Petition received.

Australian Government Insurance Office

To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble Petition of undersigned citizens of Australia respectfully showeth that the establishment of an Australian Government Insurance Office will:

  1. Create hundreds of public service jobs and cause serious unemployment in the private insurance industry throughout Australia.
  2. Add to the Taxpayers burden.
  3. Trade unfairly.

Your Petitioners therefore humbly pray that the House of Representatives rejects completely the Australian Government Insurance Office Bill 1975.

And your petitioners as in duty bound will ever pray. byMrMcLeay.

Petition received.

Australian Government Insurance Office

To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble Petition of undersigned citizens of Australia respectfully showeth that the establishment of an Australian Government Insurance Office will:

  1. Eliminate private insurance for Australians.
  2. Cost taxpayers far in excess of the proposed $2 million capital and loan funds.
  3. Permit unfair competition against private enterprise with inevitable losses met by the taxpayer.
  4. Provide no better insurance service to the public than that already provided by the existing 45 Life Offices and 260 General Insurers.

Your Petitioners therefore humbly pray that the House of Representatives rejects completely the Australian Government Insurance Office Bill 1975.

And your petitioners as in duty bound will ever pray, by Mr Willis.

Petition received.

Metric System

To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The petition of the undersigned citizens of Australia respectfully showeth-

That the plan to obliterate the traditional weights and measures of this country is causing and will cause widespread inconvenience, confusion, expense and distress.

That there is no certainty that any significant benefits or indeed any benefits at all will follow the use of the new weights and measures.

That the traditional weights and measures are eminently satisfactory.

Your petitioners therefore pray:

That the Metric Conversion Act be repealed, and that the Government take urgent steps to cause the traditional and familiar units to be restored to those areas where the greatest inconvenience and distress are occurring, that is to say, in meteorology, in road distances, in sport, in the building and allied trades, in the printing trade, and in retail trade.

And your petitioners as in duty bound will ever pray. by Mrs Child, Mr FitzPatrick, Mr Garrick and Mr Oldmeadow.

Petitions received.

Uranium

To the Honourable the Speaker and members of the House of Representatives assembled. The humble petition of the undersigned citizens of Australia respectfully showeth:

That whereas uranium found in vast quantities in Australia is the raw material for the nuclear fission reaction,

And whereas presently assured reserves of uranium in Australia represent a potential production of over 540,000 kilograms of Plutonium 239 if utilized in Light Water Reactors overseas,

And whereas the Maximum Permissible Inhalation of Plutonium 239 is 0.00000025 gram,

And whereas Plutonium 239 is one of the most dangerous substances human society has ever created, causing mutations and cancers,

And whereas there are no methods of safely and absolutely confining Plutonium from the biosphere for the requisite quarter of a million years,

And whereas Plutonium coming in contact with the air forms an aerosol cloud of micron-sized particles, its most dangerous form,

And whereas the export of uranium may return to us an import of Plutonium particles dispersed in the global environment via the circulation of the atmosphere,

And whereas there are no sure safeguards against the military use of nuclear fission, and the nuclear proliferation represents a prime environmental threat to all forms of life on the only earth available to us,

And that it is therefore an act of self-preservation to demand a halt to all exports of uranium except for bio-medical uses,

Your petitioners humbly pray that the members, in the House assembled, will take the most urgent steps to ensure:

  1. That further mining and export of uranium from Australia except for bio-medical purposes be banned,
  2. That the Australian Atomic Energy Commission be transformed by the rewriting of its charter into an Australian Energy Commission to further the understanding of energy flows through our society and to promote national economic independence and self-sufficiency.

And your petitioners as in duty bound will ever pray, by Mr Clayton.

Petition received.

Family Law Bill

To the Honourable the Speaker and Members of the House of Representatives assembled. The humble petition of the undersigned, all being of or above the age of 1 8 years as follows:

  1. Your petitioners oppose and seek the deletion of those provisions of the Family Law Bill 1974 which supplant the existing grounds by the introduction of the sole ground of irretrievable break-down, which remove any consideration of fault, and which will weaken the family unit while causing more widespread injustice because:

    1. 1 ) it imposes on society a radical alteration of divorce law far beyond identifiable requirements or desires;
    1. b) it lowers the status of marriage by permitting people to drift’ into divorce, reduces parental importance and leads to increasing institutionalisation of children with consequential delinquency;
    2. it will not reduce the ‘in-fighting’ in a divorce suit which mainly occurs over matters of property and custody;
    3. it will not encourage maturity in acceptance of marital and parental obligations and responsibilities.
  2. Your petitioners commend the divorce legislation introduced in Great Britain in 1973, which acknowledges the importance of the family unit, mirrors community requirements, secures justice for innocent people and establishes a realistic definition of irretrievable breakdown, and call for similar legislation to be provided in Australia.

Your petitioners, therefore, humbly pray that the House of Representatives in Parliament assembled will make provision accordingly. byMrDrury.

Petition received.

page 2473

PUBLIC ACCOUNTS COMMITTEE

Notice of Motion

Mr WENTWORTH:
Mackellar

-I give notice that on the next day of sitting I shall move:

That the following matter be referred to the Joint Committee of Public Accounts under the provisions of section 8 (d) of the Public Accounts Committee Act:

. Whether, and if so to what extent, payments of unemployment benefits have been made during this financial year to persons not entitled under the law to receive them.

Any matters connected with the foregoing which in the opinion of the Committee should be reported to the House.

page 2473

QUESTION

QUESTIONS WITHOUT NOTICE

page 2473

QUESTION

SAND MINING ON FRASER ISLAND

Mr MALCOLM FRASER:
WANNON, VICTORIA

– Was the Prime Minister aware that the Government’s environmental impact study regarding sand mining of Fraser Island had not been undertaken when he approved the Dillingham-Murphyores Minerals application to negotiate overseas contracts on 26 November? Did he make inquiries to ascertain whether the Government’s environmental protection procedures were being observed- or was he more concerned with his campaign for the Queensland State election?

Mr WHITLAM:
Prime Minister · WERRIWA, NEW SOUTH WALES · ALP

– Questions have been asked about this matter before. There was a letter from the Minister for Minerals and Energy to me about this matter on 20 November. A copy of it was sent to the Minister for the Environment and Conservation, as he was then titled, the following day. His Department sent a communication to my Department. I sent a letter in reply to the Minister for Minerals and Energy on 26 November. A copy of the reply was sent to the

Minister for the Environment and Conservation. It was received in his office on 29 November. He cannot remember when he read it. He wrote to me on 1 1 March.

The whole point at issue is whether the procedures which the Australian Government wishes to apply in these matters can be carried out without co-operation and whether they can be made retrospective. The letter which I wrote to the Premier of Queensland on this matter on 9 July last he answered some time in January. There is still not an agreed procedure between the Australian Government and the Queensland Government. It would obviously be very desirable that there should be such an agreed procedure. It is wasteful of time and confusing to people concerned if there have to be 2 public inquiries. The legislation which covers this matter came into operation, I think, on 17 December.

Mr Hunt:

– Four days.

Mr WHITLAM:

– On 17 December, I think it was.

Mr Hunt:

– And the approval was on the 13th of the month.

Mr WHITLAM:

-The honourable gentleman who interjects received copies of the correspondence before most people in the House did. A public inquiry is to be held in the next week or so- that is, the arrangements to hold it were made some three or four months after 17 December. The big issue is, of course: To what extent can the Australian Government purport to abort contracts which have been made in accordance with the law? The people who sought the authorisation from the Minister for Minerals and Energy had acted completely in accordance with the law and had done so before there was any correspondence between me and the Premier, and in fact before the present Government had been elected.

page 2474

QUESTION

BUILDING INDUSTRY

Dr GUN:
KINGSTON, SOUTH AUSTRALIA

– My question which is addressed to the Minister for Labor and Immigration refers to the reported continuing increase in housing costs. Is this continuing rise in building costs in any way due to shortages either of building workers or of building materials? If so, will the Minister explain whether the Government has any manpower proposals for the building industry which will marry the wish of workers to find jobs to the wish of families to buy houses? Is it not a fact that any such manpower schemes would be greatly facilitated by a system of permanency for building workers? If this is so, will consideration be given to a permanency system?

Mr Clyde Cameron:
HINDMARSH, SOUTH AUSTRALIA · ALP

-The question raised by the honourable member for Kingston is a very complex one. The building industry is a fragmented industry. Because it is fragmented, and made more fragmented by the fact that most of the building is carried out by sub-contractors, we have not got a satisfactory method of training building workers for the various trades making up the building industry. My Department is now working on a plan which will seek to establish a training pool of building operatives so that we will not be left at the mercy of building contractors or sub-contractors who see little point in indenturing apprentices to trades, but simply tear into’ tradesmen who have already served apprenticeships with larger employers, caring little for the fact that the supply of tradesmen in the building industry is becoming short. They have to face the fact that there is no point in putting a lot more money into the building industry unless it can be matched with manpower and materials. If we do no more than put a lot more money into the building industry all that will happen is that we will get the same number of houses but will have to pay a lot more for them.

The Government believes that there is a strong case for permanency in the building industry, but before a system of permanency can be secured for the bunding industry we would need to have the support of the 6 States as well as the Commonwealth in any such plan. The permanency provisions covering waterfront employment have worked well. The same sort of thing, with some modifications, could work in the building industry. The question of permanency has been studied first of all by Mr Justice Aird and later by Justice Evatt. On the conclusion of consideration of Justice Evatt ‘s report- an interim report, which I have just received- the Government will have to decide whether it is worth while persevering with the inquiry, which has already been through the hands of 2 judges. I must say that the Building Workers Industrial Union has co-operated well with the Government in its scheme for adult apprenticeship. The scheme has worked very successfully in the experimental stages that we have embarked upon already. I hope that other unions will come to see the necessity for this sort of thing. In the meantime, until other unions see the necessity for adult training, this Government will have no hesitation and no alternative but to recruit skilled tradesmen from overseas to bridge the gap that now exists. The irony of the whole thing will be that the majority of those skilled tradesmen who are recruited from overseas to bridge the gap which now exists in certain facets of the building industry will be people who obtain their trade certificate by adult apprenticeship training.

page 2475

QUESTION

URANIUM CONTRACTS

Mr ANTHONY:
RICHMOND, NEW SOUTH WALES

– I direct a question to the Minister for Minerals and Energy. Does the statement by the Minister that he has a reputation for honouring contracts previously entered into apply also to the 8863 tonnes of uranium contracted for sale by Australian companies? Since the delivery date for these contracts begins in 1977-1 exclude the earlier deliveries by Mary Kathleen Uranium Ltd which will have to be met from the Atomic Energy Commission stockpilewhen will development of the Northern Territory uranium deposits commence so that these companies can honour their contracts?

Mr CONNOR:
Minister for Minerals and Energy · CUNNINGHAM, NEW SOUTH WALES · ALP

-The Leader of the National Country Party can put his fears at rest. We will be able to honour the commitments -

Mr Anthony:

– By the companies?

Mr CONNOR:

-We will be able to honour the commitments and we will be able to phase them in. The figure of 8863 tonnes which was cited is not the correct figure. It was for this reason also that we bought into Mary Kathleen Uranium Ltd. We will honour the contracts to the letter.

page 2475

QUESTION

FERRY ‘LADY FERGUSON

Mr COATES:
DENISON, TASMANIA · ALP

– I direct a question to the Minister for Transport. I refer to the ferry ‘Lady Ferguson’ which was towed to Hobart from Sydney recently for the trans-Derwent ferry service but which apparently has now been found to be unserviceable. Was the inspection by officers of the Australian Government Department of Transport intended to determine the ferry’s suitability for the trans-Derwent service or only to see whether it was capable to undertake the tow? Is there any way by which officers of the Australian Government Department of Transport could have picked up the fault in the vessel before it left Sydney?

Mr CHARLES JONES:
Minister for Transport · NEWCASTLE, VICTORIA · ALP

-The New South Wales Government Transport Commission asked surveyors from my Department to carry out an inspection of the ferry. The Tasmanian Transport Commission likewise asked for a survey to be carried out to determine the seaworthiness of the ferry and for the issue of a certificate for insurance purposes. The departmental surveyors carried out the survey but were not prepared to issue a certificate for insurance purposes. The ferry was slipped and after a brief inspection had been made they asked that a number of things be done before it left Sydney for tow to Hobart. These included the provision of additional buoyancy below deck, boxing up of the vessel beneath the passenger deck, strengthening of the bow, extra caulking above the copper sheeting, bracing of the deck houses and closure of appliances. Those requirements were laid down on the condition that it was to be an unmanned tow and in the knowledge that when the ferry arrived in Hobart it would be slipped and any necessary work carried out. I understand that a representative of the Tasmanian Government inspected the ferry whilst it was in the water after it had been unslipped in Sydney. My departmental people were asked to do certain specific things which I have just indicated to the honourable member. They were not required to give an opinion as to the condition of the ferry, whether it was suitable or unsuitable, or what its general condition was. All they were asked to do was to give an opinion as to whether it was suitable for towing to Hobart.

page 2475

QUESTION

PALESTINE LIBERATION ORGANISATION

Mr HODGES:
PETRIE, QUEENSLAND

-My question is directed to the Minister for Labor and Immigration. Last Tuesday in another place in answer to a question without notice the Minister for Foreign Affairs readily advised that a visa had been granted to Mr Gamal El-Surani, a member of the Palestine Liberation Organisation. Yet the following day the Minister for Labor and Immigration in reply to a similar question from the honourable member for North Sydney claimed that he did not know what the honourable member for North Sydney was talking about. Is it a fact that the Minister still has responsibility for approving applications for visas to enter Australia? Were departmental or ministerial representations made to the Minister prior to approval being given for the issue of a visa to Mr El-Surani, and what was the approximate date?

Mr Clyde Cameron:
HINDMARSH, SOUTH AUSTRALIA · ALP

– Nominally I have authority for issuing visas, but when an application for a visa comes from a source such as that outlined by the honourable member and is connected with diplomatic matters it is one for the Department of Foreign Affairs or the Prime Minister to handle; it is too big for me to handle. One has to have someone of some consequence to handle a matter like that. Naturally I would hand over such a matter to the person who is most suitable or who would more appropriately handle it. In the case referred to by the honourable member I was very glad to do that, and it was with a great deal of confidence that I handed the matter on to the Prime Minister for attention. Whether the Prime Minister handed it in turn to the Foreign Minister I would not know because it is not my function to probe him on matters like this. I believe that it was competently handled, not by me but by those who did in fact handle it.

page 2476

QUESTION

MEDIBANK

Dr JENKINS:
SCULLIN, VICTORIA

-I direct my question to the Minister for Social Security. I ask: Is it correct to claim that the Medibank program, which is Australia’s universal health scheme which will be operational from 1 July, has been radically altered to discriminate against private bed patients in public hospitals in comparison with public bed patients in those hospitals? If so, when and why was this so-called radical change made?

Mr HAYDEN:
Minister for Social Security · OXLEY, QUEENSLAND · ALP

-There has been no such radical change. I have noted that a former member of this Parliament, and indeed a former member of this Party when he was in this Parliament, Mr Allan Fraser, has made such an assertion. The principles in the area referred to by the honourable member for Scullin have not changed. We have consistently said over the several years that we have been proposing this scheme that hospital treatment in public wards of public hospitals will be means test free and free of charge. We have pointed out that this expands the range of choice available to the public because in most cases State health authorities administering public hospitals prevent most people from entering public wards by the imposition of a severe means test. People wishing to use intermediate or private ward hospital services, certainly can do so. Their medical costs for medical services from the doctor of their choice will be met from Medibank. Their hospital costs will have to be covered with private hospital insurance.

What is significant, though, is that apart from the savings because there will be no contributions for medical insurance, there will be significant savings for hospital insurance. For instance, in New South Wales the present bed day charge for intermediate treatment is $44 and for private treatment $52. I understand that there are no intermediate bed services in the Australian Capital Territory and the charge is $52 per day for private bed services. Those charges will be reduced respectively to $20 and $30 a day. There will be a substantial subsidy from the Medibank program.

We have not changed the program at all. I refer honourable members to paragraph 4.2 of the White Paper of November 1973 which relates to the Australian health insurance program. It says:

The Government believes access to free hospital treatment of high quality to be a fundamental right of every Australian resident and that means tests and other restrictions on eligibility for such treatment are incompatible with this principle.

It also says:

  1. . as a general proposition, it - the Government- is convinced that the proper staffing of public hospitals, and the teamwork which modern medical care requires, are best achieved through a system of salaried, sessional or contract service, rather than through fees-for-service, for hospital patients.

Hospital patients are defined as public ward patients. Paragraph 4.14 says, inter alia:

The Planning Committee recommended that doctors treating private patients in public hospitals continue to charge fees-for-service and that their fees be eligible for medical benefits.

I draw honourable members’ attention to paragraphs 4.14 to 4.23 inclusive; especially paragraph 4.22, which points out:

  1. . where hospitals are prepared to appoint general practitioners to their sessional staffs for the care of midwifery patients, these patients should be treated as hospital patients without charge. The effect of this arrangement would be that general practitioners would be remunerated by private fees for pre-natal attendances and by hospital payments for the delivery.

The facts are that those principles have been enunciated consistently. There has not been a radical change. There has been no secret conspiracy to try to bring about a departure from what was proposed before. We are not extending something new to other States, as Mr Fraser has asserted. We have consistently put those principles to other States. We are seeking to apply them in Canberra, where there has not been access, as a matter of free choice, to public ward treatment. Indeed, those people who have not been able to afford private ward treatment have had to resort to what is a pauper form of treatment by begging for free medical service from private medical practitioners. There has been no guarantee that they could have access to that. Those undesirable qualities will be changed.

Mr Malcolm Fraser:

– Were you referring to Allan Fraser?

Mr HAYDEN:

– Yes, Allan Fraser.

page 2476

QUESTION

REORGANISATION OF DEFENCE SERVICES

Mr KILLEN:
MORETON, QUEENSLAND

– I address a question to the Minister for Defence. My question concerns the reorganisation of the defence services. I ask my honourable friend: Can he recall stating in this Parliament in December 1973 that legislation would be introduced in the autumn of 1974 to implement the recommendations of the Tange report? As this is now the spring or rather the winter of 1975 -

Government supporters- Autumn.

Mr Cohen:

– It always feels like spring to the honourable member for Moreton.

Mr KILLEN:

– How right you are! As we are now perilously close to the winter of 1975, can the Minister say in what season and in what year the Parliament will have an opportunity to consider the legislation?

Mr BARNARD:
Minister for Defence · BASS, TASMANIA · ALP

– The honourable member obviously is confused about his seasons; but it is true that I indicated publicly that the reorganisation legislation would be introduced into the Federal Parliament as soon as practicable. I am sure that the honourable member will appreciate that it is complex legislation requiring a great many alterations to the provisions which already apply. However, I am happy to inform the honourable member that I have been assured that the legislation will be available for introduction this session.

page 2477

QUESTION

ELECTORAL BALLOT PAPERS

Mr MATHEWS:
CASEY, VICTORIA

– I ask the Minister for Services and Property a question. In what countries does the electoral legislation provide for the printing of the party affiliation of the political candidates on the ballot paper? In the event of a proposal of this sort being adopted in Australia, what action, if any, could be taken to prevent political organisations from misrepresenting their aims and objectives under, say, a false title?

Mr DALY:
Minister for Services and Property · GRAYNDLER, NEW SOUTH WALES · ALP

– There are 24 countries which either require or permit the printing of party affiliations on the ballot paper. They include Denmark, West Germany, Sweden, Switzerland, the United Kingdom and the United States of America. In answer to the second part of the question I would also like to say -

Mr Donald Cameron:
GRIFFITH, QUEENSLAND · LP

- Mr Speaker, I seek your guidance on a procedural point.

Mr SPEAKER:

-I take it the honourable member is raising a point of order?

Mr Donald Cameron:
GRIFFITH, QUEENSLAND · LP

– Yes, this is a point of order. On the Notice Paper the third order of the day relates to the Electoral Laws Amendment Bin, consideration of the Senate’s amendments. Is the subject matter of the question included in that Bill? If so, is not the Minister out of order?

Mr SPEAKER:

-I do not think the Minister is out of order.

Mr DALY:

– Of course provision would have to be made to prevent that kind of misrepresentation. For instance, in this country the National Country Party of Australia is neither national nor country. Yet it calls itself the National Country Party. In Western Australia, according to Sir Charles Court, it does not even qualify as a political party because it has not got 7 members in either House. It is now recognised in Western Australia as a pressure group and the possibility which the honourable member has mentioned would have to be guarded against. I also understand that under the guise of the National Country Party in Western Australia there is a socialist wing which, of course, presents complications. Recently as the honourable member knows, this Party which masquerades as the Country Party launched a great campaign in Canberra as the National Country Party of Australia. With each packet of policy speeches, according to the newspapers, it issued 2 packets of aspirin. Events in Western Australia show not only the misrepresentation but also the need for Aspros. I suppose that in the political sense the Country Party has been married more times than Elizabeth Taylor and it has been divorced just as often. But in Western Australia there has not been misconduct; the Liberal Party has sold the milkrun That is precisely the situation.

Mr Whitlam:

– There has been irretrievable breakdown.

Mr DALY:

– Yes, there has been an irretrievable breakdown. This shows the misrepresentation that could occur if candidates were to appear on the ballot paper under the name of a country party. I understand the father of the bride, the honourable member for Richmond, has visited Western Australia, together with the father-in-law from Queensland. So far there has been no sign that they have been able to mend the breakdown in the marriage. On this occasion it appears that there has been a dissolution of the marriage because there is no possibility of any reconciliation whatever. So honourable members can see the need in this legislation to safeguard against misrepresentation by a party calling itself national and country while being neither, but naturally, taking advantage of the legislation, wanting to put a misleading name on the ballot paper. I thank the honourable member for a very intelligent question.

page 2477

QUESTION

BORROWINGS BY THE MINISTER FOR MINERALS AND ENERGY

Mr MALCOLM FRASER:

– I ask the Prime Minister: Can he inform the House whether the proposed $2 billion borrowing by the Minister for Minerals and Energy has the approval of the Australian Loan Council? If not, when will the Government seek approval of the Loan Council? What is the purpose of the loan?

Mr WHITLAM:
ALP

-The answer to the first question is no; to the second, if and when the loan is made; to the third, for matters related to energy.

page 2478

QUESTION

INCOME TAX ASSESSMENT ACT: FILM COMPANIES

Mr INNES:
MELBOURNE, VICTORIA

– My question which is directed to the Treasurer relates to the operation of section 13 of the Income Tax Assessment Act insofar as it applies to film companies which are controlled from abroad. As I understand the provisions of that section, any business which is controlled principally by non-residents and which produces no taxable income or an amount of income which is less than might be expected, the Commissioner of Taxation determines the proper amount of taxable income and levies tax thereon. The special provisions appear to film businesses which are controlled from abroad. Of the gross income derived 10 per cent is taxed and that gross income -

Mr SPEAKER:

-Order! The honourable member is giving a lot of information’. He should ask his question.

Mr INNES:

-. . . is less than the amount of customs details and sales tax which has been paid to the Commonwealth. I ask the Treasurer whether he will have these provisions examined and advise whether they give an unfair advantage to overseas film makers as against Australian film and television program makers?

Dr J F Cairns:
LALOR, VICTORIA · ALP

– The section of the Act mentioned by the honourable member has been brought to my attention. I understand it has been designed to allow the Commissioner of Taxation to arrive at a proper tax assessment when information is not available or when it could be concealed. The wording of the section, however, indicates that it is possible that the application of the paragraphs could be of advantage to overseas companies, including film companies. I am aware of the honourable member’s interest in this matter. I have not yet had enough information to make up my own mind about the meaning of the sections. As soon as I have it, I will supply him with the information.

page 2478

QUESTION

TAKEOVER OF AUSTRALIAN COMPANY

Mr COHEN:

-Has the Treasurer had his attention drawn to the move by Japanese interests to take over the Australian owned company, Diahatsu Distributors (Gossan) Pty Ltd, by back door methods? If so, what action does he propose to take?

Dr J F Cairns:
LALOR, VICTORIA · ALP

-I am aware of this matter. I am also aware of the concern of the people associated with the company and many other people as a result of the action by the Japanese company concerned. It does not appear that the action of the Japanese company is in any way an infringement of the foreign exchange regulations or the takeover regulations that have been applied by this Government and by its predecessors. In fact, there may be nothing directly of a legal nature that the Government can do to prevent this action. It seems to me, on the evidence that I have obtained about it, that it must be said to be a very unwise action by the Japanese company concerned. I should imagine that it ought to be guided by that in its conduct and realise that good relations, which are essential for its operations in this country, may in fact be endangered by actions of this kind.

page 2478

QUESTION

FRASER ISLAND SAND MINING

Mr JARMAN:
DEAKIN, VICTORIA

– I address my question to the Minister for Environment. I refer to the occasion when this House was debating the Environment Protection (Impact of Proposals) Act 1 974. 1 ask: Why did the Minister and his Department ignore the Prime Minister’s correspondence to the Minister for Minerals and Energy dated 26 November, indicating approval to DillinghamMurphyores of its application to negotiate overseas contracts? How does he justify his actions and those of the Government in this regard?

Dr CASS:
Minister for Environment · MARIBYRNONG, VICTORIA · ALP

– I did not ignore it all. The decision taken at the time was strictly legal- there is no question of that- as is perfectly obvious to those who care to try to understand the question. The Australian Government has no power at all to stop any State government at all from issuing mining leases to dig up any areas it likes within that State. That is a fact of life. All that the Australian Government has power to do is to have a say at the end of the line in relation to whether or not the products mined can be exported. Since this clearly relates to Fraser Island, let us examine the situation.

The Queensland Government alone provided the prospecting licences in the early sixties. The Queensland Government alone granted the mining leases in 1971, 1972 and 1973; there is a whole range of them. Queensland Titanium Mines has been mining there for two or three years already. There is nothing that the Australian Government can do to stop that. The miners could dig up all the minerals on Fraser Island and ship them to the mainland and there would be nothing that we could do about it. That is the reason why I noted the advice. It came at the end of a long line of a whole series of procedures which had been authorised by a State government, as was its legal right. The question of whether, after a company has committed itself so much financially, we are entitled to stop it from exporting what it legitimately intended to export when it first embarked upon a project is a question which clearly is difficult to resolve. The law is not on anybody’s side.

We are genuinely seeking to implement our environmental impact procedures generally. In this situation, as I have pointed out, a large step had been taken before we were ever involved or before we were ever asked. Clearly, to overcome the bottleneck we need to get agreement with the States. This is where I suggest that those people on both sides of the House who have contact with the States could make the point because I think the environment is at risk if we do not have this sort of responsibility being shown. Whenever any mining corporation applies for a prospecting lease or a mining lease we should, if we are all honest, make sure that the environment departments of both the State and the Australian governments are informed. There is no law that can require that. Co-operation is required. When that is done we may then be able to institute environmental impact procedures in co-operation.

As the Prime Minister has mentioned, it would be ludicrous to have 2 separate environmental impact studies. There is no reason why anyone on either side- the miners or the people who object- should be put to the bother and expense of having 2 separate inquiries. Of course we ought to work together when the first approach is made to a State government. We cannot become involved unless the States are prepared to cooperate. Maybe, in view of the difficulty being experienced in the present situation, we can serve notice now that we will be very bloody-minded, if you like, about export permits if we are not invited to take part right from the beginning, but that again will depend upon the support received from both sides of the House.

page 2479

QUESTION

SOCIAL SECURITY PAYMENTS

Mr WALLIS:
GREY, SOUTH AUSTRALIA

– My question is directed to the Minister for Social Security. Has the Minister’s attention been drawn to the editorial in the Sydney ‘Daily Telegraph’ of the 19th instant claiming that 65 000 people were receiving social security hand-outs to which they were not entitled and that those people had been obtaining money by false pretences? Is there any evidence anywhere to substantiate such an assertion?

Mr HAYDEN:
ALP

– No, there is no evidence to substantiate such an assertion. In fact, it represents the work of a particularly vivid imagination. I presume that what has happened is that the editorial writer has extrapolated information from a survey on registered unemployed which showed that about 24 per cent of those who were registered in September were in either full time or part time employment, which is a very different thing from saying that they received unemployment benefits, and, applying that proportion to the latest unemployment figures, drew the conclusion that over 60 000 people were drawing unemployment benefits illegally. In fact the survey showed a much better position as at September of last year than was the position in 1963 when a similar survey was conducted under a Liberal-Country Party Government. As the Minister for Labor and Immigration pointed out yesterday, the survey in September of last year revealed that 64 per cent of those who responded were unemployed, compared with 54 per cent in 1 963.

I would like to ask honourable members to reflect upon 2 very important points. Firstly, the Government, I as the Minister for Social Security and my Department, are concerned to establish any cases where people are illegally obtaining unemployment benefits. Each week people appear in the courts throughout Australia charged with illegally obtaining those benefits. The check procedures do work and do identify the culprits. In fact, the ‘West Australian’ of the 17th instant reported the case of one man being gaoled for 6 months for such an illegal action.

There always has been and there always will be a fringe group of people- we believe that they are in a small minority- who will abuse the system of unemployment benefits. As the Minister for Labor and Immigration pointed out yesterday, those who dishonestly obtain these benefits deserve to be penalised severely for doing so.

I come to the second point on which I would like reflection by honourable members and the leader writers in newspapers who so easily resort to sensationalism without worrying about the social implications of the sort of momentum that they are trying to develop. The work test which is applied is a particularly tough one. If a person does not accept employment to which he is referred and which is the normal sort of employment he engages in, or an equivalent type of employment, he loses his benefit. Single people can be directed to anywhere in Australia to take up that form of employment. We are constantly criticised for the severity of the measures associated with the work test. But let us consider the situation which will occur if we make that work test much tougher. For instance, if a ditch digging job is offered to a man in late middle age who probably has been a journalist, an editoralist, in one of the major newspapers and has become unemployed- he has slack tummy muscles and a weak back, the sort of condition I am in today- he would not last too long; none of us would. I ask honourable members to reflect on that, because it represents the sort of severe result which would flow from an unthinking demand that things must be made much tougher.

Our experience in the Department of Social Security is that of course some people abuse trust and try to obtain illegally benefits to which they are not entitled. The experience over many years, both before and after this Government came to office, using methods which applied before the present Government came to office, and improved methods, has been that these people represent only a small minority in the community. It is better to use the present liberal system of providing unemployment benefits on the assumption that we must get benefits to the great mass of deserving cases in the community rather than to take tough measures to try to weed out a small minority and thereby impose a rather harsh repression on the great majority of people concerned.

page 2480

QUESTION

FRASER ISLAND SAND MINING

Mr HUNT:

– My question is directed to the Minister for Minerals and Energy. When did the Department of Minerals and Energy have its first discussions with DM Minerals about sand mining operations on Fraser Island? Did the Minister call for an environmental impact study or statement when DM Minerals began negotiating with his Department in accordance with the mandatory requirements laid down on 1 January 1974?

Mr CONNOR:
ALP

– As my colleague, the Minister for Environment, has already stated, when the present Government took over administration the position was already well advanced; I came in at the end of the line, not the start. The applications that were the subject of the Dillingham export application- the applications for leaseswere made from 1961 to 1970. Sand mining activities have been conducted on Fraser Island since back in the early 1960s and have varied according to the price obtainable for heavy minerals from beach mining. In 1971 a very full inquiry was conducted at Maryborough in respect of the main lease which was the subject of the export permit. I personally examined the report of the inquiry, which ran to 600 pages of evidence from, I understand, 22 witnesses. I was satisfied that the terms of the inquiry were adequate. More than that, I was satisfied with the particularly stringent terms that were imposed upon the leases: No more than 20 acres could be uncovered at one time; and 12 inches of the top soil had to be removed, stacked and replaced. In addition, plans had to be submitted to the appropriate Queensland State Department of the vegetation- the trees, shrubs and the like- that was there.

Mr Anthony:

– Have you ever had a look at the place?

Mr CONNOR:

-Yes, that has been done. The security that is provided also is very adequate. An amount of $190,000 is to be available for restoration in the case of the 20 acres concerned. The money available for restoration costs, in the event of any failure to comply with the requirements under the lease, would be of the order of $9,000 per acre. These are the most rigid conditions I have seen. Twenty acres at a time is mined and restored. When 100 acres have been treated they go back to the Queensland Government. In addition, since January 1972 beach mining had been carried on on a strip 500 yards wide and Vh miles long outside the area of lease No. 102. We were first asked to approve of an export contract back in March of 1974. We were approached again in June, twice, and again in September. At that stage I saw no valid reason, in terms of my known powers, to refuse the application, and I have acted accordingly. If anything does count for Australia, it is that we honour contracts that are entered into. I made a fair, decent and honest appraisal of the situation and acted accordingly.

page 2480

QUESTION

PRODUCTION OF OIL FROM COAL

Mr JAMES:
HUNTER, NEW SOUTH WALES

– Is the Minister for Minerals and Energy aware of achievements by the East German Government in the production of oil from coal? Is it impracticable for his Department to send samples of South Maitland coal or Hunter Valley coal to East Germany for the purpose of experimenting in the practice of extracting oil from coal, as this product is supposed to have a good reputation for that process?

Mr CONNOR:
ALP

-Undoubtedly, the South Maitland coal is of a highly volatile type and is eminently suitable for the purpose of coal hydrogenation. In contradistinction with the brown coal, the lignite in Victoria, a much more readily available technology can be used in respect of this coal. Yesterday, in answer to the honourable member for McMillan, I pointed out that the East Germans had done wonders in respect of the hydrogenation of brown coal, lignite, and their lignite is inferior to that from the Morwell Valley. The South Maitland coal has the first essential, which is a high hydrogen percentage. It has somewhere between 6 per cent and 7 per cent. Liquefaction takes place when the percentage is between 14 per cent and 15 per cent. I commend the honourable member for his interest in the matter. I will be very happy to send samples to East Germany. I repeat what I said yesterday: We are in close contact with the people there. We intend to pursue the matter. I might add that another coal in Australia is particularly suited to this purpose. It is a highly volatile coal. I refer to the Walloon coal in the Darling Downs, which is comparable to that from the Hunter Valley. In the case of that coal, of course, we find that every major oil company or its subsidiary is already in possession of leases in that area, obviously because those companies are equally interested in coal hydrogenation. At this stage, naturally, for national reasons it is not proposed to permit the export of that coal.

page 2481

ROYAL AUSTRALIAN AIR FORCE VETERANS’ RESIDENCES TRUST

Mr BARNARD:
Minister for Defence · Bass · ALP

-Pursuant to section 10a (2) of the Royal Australian Air Force Veterans’ Residences Act 1953-1965 I present the annual report of the RAAF Veterans’ Residences Trust for the year ended 30 June 1974.

page 2481

URBAN FINANCIAL ASSISTANCE

Mr UREN:
Minister for Urban and Regional Development · Reid · ALP

– Pursuant to section 8 of the Urban and Regional Development (Financial Assistance) Act 1974 I present 14 agreements in relation to the provision of financial assistance to New South Wales, Victoria, Western Australia and Tasmania. This is an example of co-operation in Australian and State government relationships.

page 2481

STEVEDORING INDUSTRY ACT

Mr Clyde Cameron:
HINDMARSH, SOUTH AUSTRALIA · ALP

– Pursuant to section 58 ( 1) (c) of the Stevedoring Industry Act 1 956- 1 973, 1 present the annual report of the Australian Stevedoring Industry Authority for the year ended 30 June 1974, together with financial statements and the Auditor-General’s report on those statements.

page 2481

QUESTION

INDUSTRIES ASSISTANCE COMMISSION

Ministerial Statement

Mr LIONEL BOWEN:
Special Minister of State · KingsfordSmithSpecial Minister of State · ALP

– Yesterday at Question Time, the Leader of the National Country Party of Australia (Mr Anthony) asked me a question concerning statements made by a member of the Industries Assistance Commission with particular reference to superphosphate. I indicated to the House that I would have inquiries made and advise the Parliament further. I have this day received advice from the Chairman of the Commission.

Mr SPEAKER:

-Order! I think the honourable gentleman will have to get leave to make this statement. Is leave granted? There being no objection leave is granted.

Mr LIONEL BOWEN:

-Thank you very much, Mr Speaker. I have received a letter from the Chairman indicating that the person who made this statement has agreed that it would not be proper to continue as a member of that Commission. Accordingly a new determination has been made and I table the correspondence.

page 2481

PERSONAL EXPLANATION

Mr COHEN:
Robertson

-Mr Speaker, I wish to make a personal explanation.

Mr SPEAKER:

-Does the honourable gentleman claim to have been misrepresented?

Mr COHEN:

-Yes, I do, Mr Speaker. It has just been brought to my attention that during the past few days, a number of newspapers have misrepresented a statement that I made in an interview with Richard Carlton on the television program ‘This Day Tonight’ last Thursday night. The articles appeared in the ‘Sun-Herald’ of 18 May 1975 and the ‘National Times’ and the Sydney ‘Daily Telegraph’ of 19 May. I should like to read those comments. The Sydney ‘Sun-Herald’ had this to say:

An Act of High Courage

Labor backbencher Barry Cohen showed marked honesty and courage this week when he suggested that the means test abolition may have to be stayed in the cause of general restraint. Mr Cohen’s N.S.W. Central Coast electorate of Robertson probably has about the highest proportion of pensioners in Australia.

The article in the ‘National Times’ stated:

A striking example of this growing unease was last week’s appearance on ‘This Day Tonight’ by Labor backbencher Barry Cohen. Despite the fact that his N.S.W. electorate of Robertson has a disproportionately high number of pensioners he said that the Government should, as an economy measure, postpone its promised abolition of phase three of the means test in this year’s Budget.

Yesterday’s ‘Daily Telegraph’, in an article headlined ‘Those pre-Budget blues, ‘ stated:

Most notable has been the young -

Thank you very much-

N.S.W. MP, Mr Barry Cohen, who holds the Central Coast seat of Robertson.

Mr Cohen has suggested that the gradual abolition of the means test should be delayed as part of a Government austerity campaign.

It is even more remarkable in that his electorate includes many pensioners.

Mr Cohen’s outlook makes sense economically and it is refreshing in an age of selfish politics.

Mr SPEAKER:

– Order! If that is a misrepresentation, I am sure the honourable gentleman would like it more often.

Mr COHEN:

-While I agree that I have shown marked honesty and courage in almost everything that I have done, and I thank the newspapers for the praise, basically I am not quite as deserving as it would appear. What I said in the interview and in my letter to the Caucus committee members was that if the Government- ‘if ‘ is the key word- was planning to defer stage 3 of the abolition of the means test, it should consider an alternative proposal of mine in preference to deferment. The proposal was that the Government should abolish the means test for people 69 years of age and over at the next Budget; for people 68 years of age at the 1976 Budget; 67 years of age at the 1977 Budget; 66 years of age at the 1978 Budget and 65 years of age at the 1979 Budget.

page 2482

INTER-PARLIAMENTARY UNION CONFERENCE AT TOKYO

Mr COLLARD:
Kalgoorlie

-I present the report of the Australian delegation to the 61st Inter-Parliamentary Union Conference held in Tokyo between 2 and 1 1 October 1974.

Ordered that the report be printed.

Mr COLLARD:

– I ask leave to make a short statement in connection with the report.

Mr SPEAKER:

-Is leave granted? There being no objection, leave is granted.

Mr COLLARD:

-On behalf of members of the delegation to the Tokyo Conference I report that all delegates enjoyed what was a superbly organised conference and the exceptional . hospitality of the Japanese group. The National Diet building, a building of considerable magnificence, of which any country could feel proud, was an ideal venue for the Inter-Parliamentary Union Conference. All accommodation for meetings and facilities provided for delegates were of the highest order. The opening ceremony took place in the Chamber of the House of Councillors in the presence of Their Majesties, the Emperor and the Empress of Japan. The Emperor, in a short speech, welcomed all delegates, and speeches of welcome were also made by Speaker Maeo, as President of the Japanese Group, Prime Minister Tanaka, and the then acting President, now confirmed as President, of the Inter-Parliamentary Union, Dr Dhillon, of India. Sixty-three national groups were represented at the Conference including for the first time the Democratic People’s Republic of Korea- that is, North Korea- and Bahrain. Four hundred and eighty nine members of parliaments attended and were accompanied by 133 advisers. Nine resolutions were adopted by the Conference and copies of those resolutions have been forwarded by Mr Speaker to the Prime Minister (Mr Whitlam) for the consideration of the Government.

The receptions given by the Japanese group, the Prime Minister, the Governor of Tokyo and the Presiding Officers were all of a standard which would be difficult for any country to match. A highlight was a visit to and afternoon tea at the Imperial Palace where the leaders of delegations and their wives were received by the Emperor and Empress. An excursion to Kyoto, the former and ancient capital, on a super express train which travelled at about 120 miles per hour was quite an experience. At Kyoto was a beautifully situated 6-storied conference centre, the main conference chamber of which could seat 2000 delegates. An Australian reception was held on the evening of 9 October at the Ambassador’s residence, the Charge d ‘Affaires ad interim, Mr David Sadlier, and myself being joint hosts. We record our thanks to Mr and Mrs Sadlier and the Embassy staff for making all the necessary arrangements and making this a successful evening. We are also indebted to Mr Sadlier and his staff, especially to Mr Howard Brown, who acted as our adviser and interpreter, for all the assistance which was available during the period of the Conference. Finally, I thank all members of the Australian delegation, John Bourchier, my Deputy, John England, Mike Townley, Keith Johnson, Len Keogh and Ian Wilson, for their ready co-operation and assistance at all times. To Keith Bradshaw, First Clerk-Assistant in the Senate, who was secretary to the delegation, I also record my sincere thanks.

page 2482

FAMILY LAW BILL 1974

In Committee

Consideration resumed from 19 May.

Clause 4.

The CHAIRMAN (Mr Berinson:
PERTH, WESTERN AUSTRALIA

-Order! When I reported progress last evening, the Committee was dealing with clause 4. The last business was the disposal of the amendment moved by the honourable member for Kooyong (Mr Peacock). In accordance with the procedure suggested yesterday afternoon, I invite the Committee to grant leave to the Attorney-General (Mr Enderby) to move his circulated amendment No. 10, but without the right to speak. Is leave granted? There being no objection, leave is granted.

Mr ENDERBY:
Attorney-General · CanberraAttorneyGeneral and Minister for Police and Customs · ALP

– I move circulated amendment No. 10.

Amendment agreed to.

The CHAIRMAN:

– Is it the wish of the Committee to grant leave to the honourable member for Mackellar (Mr Wentworth) to move circulated amendment No. 12 in his name, but without the right to speak? There being no objection, leave is granted.

Mr WENTWORTH:
Mackellar

– I move circulated amendment No. 12.

Amendment negatived.

Clause 4, as amended, agreed to.

Clause 5 agreed to.

Clause 6.

For the purpose of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage.

Circulated amendments.

  1. (Mr Wentworth)- After ‘Australia’ insert ‘by persons ordinarily resident in such place, in accordance with the laws of that place’.
  2. 14) (Mr Howard)- At the end of the clause add: ‘except where one party to the marriage is married according to Australian law or except where either party at the time of the marriage is an Australian citizen ‘.
Mr WENTWORTH:
Mackellar

– I move circulated amendment No. 13. As honourable members know, this clause raises some questions of great difficulty. Polygamous marriages are legal in places outside Australia but illegal in Australia. The clause as it stands in the Bill reads:

For the purpose of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage.

This is not only for the purposes of principal relief but also for ancillary purposes of maintenance and other matters under this Bill. The clause would mean that an Australian resident going abroad to a country where polygamy was accepted would be able to return to Australia polygamously married although he may already have had a wife in Australia. I realise that involved in this are questions of international law which are very difficult, but it seems to me that the clause would be improved if it were made to read in this way:

For the purpose of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia by persons ordinarily resident in such place, in accordance with the laws of that place, shall be deemed to be a marriage.

I think it is necessary to put some kind of limit on the operation of this clause so that persons in Australia who are legally married, in accordance with the laws of Australia, to somebody in Australia should not be in a position to go abroad and contract another marriage.

Mr Cope:

– He would be a glutton for punishment.

Mr WENTWORTH:

-The honourable member may speak from his own experience. I know that there are difficulties under the Marriage Act. It is difficult to interpret the law in regard to polygamy. But whatever the law may be, I do not think we should make it any wider. I do not see any reason why my amendment should not be accepted because it does not in any way go outside the express desires of those who are advocating the Bill.

Mr KILLEN:
Moreton

-This clause provides me with a ground on which to illustrate the sense of vexation which I have. I will be glad if I can have the ear of the Attorney-General (Mr Enderby) in passing to express my vexation as to the manner in which this Committee debate is being conducted. I do not seek to reflect upon a vote of this chamber, but as I have observed in the past, I think it is the quintessence of absurdity that the principal law officer of the Crown is muzzled to the extent that he is given 5 minutes in debate, the same amount of time as any other member of this Committee is given. It is quite proper for members of the Committee to ask him questions and for him, as the Attorney-General of the country, to give explanations and in many cases to seek to settle the concern that honourable members have.

I express my concern with respect to this clause. As far as this country is concerned, with a person going abroad and entering into what appears to be a polygamous union no great difficulty arises, but I venture to suggest that where a person comes from abroad where polygamous unions are permitted very grave problems can arise, particularly having regard to the fact that in recent years Australia has embarked upon what one may describe- I trust not offensivelyas a pluralistic society in terms of race. This clause commences:

For the purpose of proceedings under this Act -

According to the definition clause of the Bill, proceedings’ are described as being ‘a proceeding in court’. I am at some loss. I do not disguise my misgiving as to whether or not ‘proceeding in a court ‘ means a court which is involved in matrimonial affairs- that is to say a family court or one of the supreme courts of the States exercising jurisdiction under this Act.

If that is not the case, I venture to press upon my honourable and learned friend and his advisers these problems which may arise. Take the case of a Mohammedan who comes to Australia from a country where polygamous unions are permitted and he dies in this country as the result of a car accident. For the purpose of workers’ compensation proceedings or for the purposes of Lord Campbell’s action, who would be the widow? Take the further case of a testator’s family maintenance proceeding. For the purposes of that proceeding who would be the proper person to be regarded as the widow and to be a party to the proceedings? I suggest that similar considerations could arise with respect to succession or indeed to intestacy.

This illustrates the difficulty. We have thrust ourselves into this position by muzzling the Attorney-General. It is a valid question, as I am quite sure my honourable and learned friend would concede, for any person to ask because i there is a measure of disquiet upon this ground. If my honourable friend replies to this question, if he uses the 5 minutes or 2 Vi minutes of his time, pro tanto he ignores the other questions very properly put to him by other honourable gentlemen in the Committee stage. I have expressed my disquiet on this account. I summarise by saying that if a person moves from Australia to another country the private international law provisions would apply. But I am concerned with respect to a person coming from a country where polygamous unions are permitted, because it could very seriously disturb the federal structure here in Australia. I do not yield to any person in my desire to see a sense of proper priority for national consciousness but here, by dint of this one provision, we could seek to trench upon a score or more of provisions existing in State statutes.

Mr KING:
Wimmera

-Before the Attorney-General (Mr Enderby) endeavours to answer the honourable member for Moreton (Mr Killen) I would like to ask him in his reply to explain to me, to other honourable members and no doubt to people outside this House, just why this clause must be included.

Mr Luchetti:

– Hear, hear!

Mr KING:

-I am glad to know that the honourable member for Macquarie agrees with me. A lot of people are suggesting that this whole Bill is not in the best interests of the family. Why are we including in this Bill clause 6, which has been read out, relating to polygamous marriage? The explanatory notes say virtually nothing. They do not explain why it should be there. I would like to see it removed entirely. If I cannot have it removed entirely I will certainly support the honourable member for Mackellar (Mr Wentworth), but I would like a further explanation from the Minister.

Mr LUCHETTI:
Macquarie

-Clause 6 should be rejected. It is foreign in every sense to the traditions that we have known, the type of marriage that we have come to accept in our country and the conditions of life in our country. Those who commit bigamy in Australia are dealt with very sternly. Yet, this Bill- the Family Law Bill, as it is so delightfully described- provides that a married person may leave Australia, go to a foreign country where customs are different, where the laws are different and where traditions are very much strange and foreign to our own, enter into a union with a spouse and return to Australia with another wife. That is to be accepted as the normal situation. The AttorneyGeneral (Mr Enderby) would approve of that. I am wondering now what the Minister for Labor and Immigration (Mr Clyde Cameron) would have to say if an already married member of Parliament returned from Bali, Djakarta or somewhere else and asked for the admission into Australia of a wife whom he had acquired or wooed and won in some foreign place.

This clause violates everything in which we have been taught to believe. It is even in conflict with the embellishments in the Bill which set out the principles to be applied by courts. I quote from the Bill merely to show the extent to which the framers of the Bill, those who are responsible for drafting it, are in conflict. Clause 43 (a) of the Bill states: -the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;

These are the brave, moral, soul-stirring words of the Bill as expressed in clause 43. Yet, clause 6, which we are obliged to discuss at this moment, states:

For the purpose of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage.

There is nothing doubtful about that clause. It is unambiguous and clear-cut. A married person can leave Australia and marry again in another country, and he is entitled to claim that woman as his wife. That person can bring that wife back to Australia to live in this land with his lawful wife whom the community in this country recognises, and he has fulfilled the laws and requirements of our land.

If this clause cannot be thrown out entirely, the only alternative is to try to do as much as we can to redeem the situation by accepting the amendment proposed by the honourable member for Mackellar (Mr Wentworth). It would appear from the comments of my colleagues that every time a person left Australia- we have so many travellers these days- he would be able to acquire a wife in some foreign country and bring her to this land. Perhaps this is a delightful and new way to get around our immigration laws and to build up our population. But I think those who propose this in the main would be those who support zero population growth. The clause contains an extraordinary conflict of ideas in this regard. I think it should be rejected. It is utterly foreign to and out of harmony with the conditions of our country.

Mr ENDERBY:
CanberraAttorneyGeneral · ALP

– I wish to reply very briefly to a number of points which have been made. As the honourable member for Moreton (Mr Killen) pointed out, 5 minutes is not a great deal of time; but let me say this: The 5-minute rule has been a very salutary and useful rule in this debate.

Mr Kelly:

– Do not waste 5 minutes telling us about it.

Mr ENDERBY:

– I will not waste too much time on it, but I think that the other points can be handled quite quickly. We would not be in this position of having succeeded so well with this legislation if the 5-minute rule had not been imposed.

Mr Howard:

– It is a matter of opinion whether you have succeeded well.

Mr ENDERBY:

-That depends upon the attitude one takes. I would argue that we have succeeded particularly well. An enormous amount of misunderstanding is being offered on this subject by some honourable gentlemen. My good friend the honourable member for Macquarie (Mr Luchetti), who has just sat down, seems to suggest that if this legislation becomes law an Australian who is married will be able to go abroad and marry polygamously in country A, perhaps again in country B, and again in country C. The honourable member suggests that a person may be married a number of times. That is not the case. For the law of marriage in this country one looks to the Marriage Act. The basic common law and statutory description of marriage today is pretty much as it was declared in a very ancient case, Hyde v. Hyde, with which the lawyer members of the Parliament would be familiar. In that case the judges espoused the principles of voluntary union between a man and a woman for life to the mutual and complete exclusion of all others. It is so long since I studied the case that I have forgotten the precise words. It was only in respect of that sort of relationship, so the early courts held, that in questions of domicile and questions of matrimonial relief such relief could be given. The laws were progressively relaxed.

One case that springs to my mind is one that would be known to some honourable gentlemen, that of Khan v. Khan, which took account of people who are envisaged as being covered by this clause, that is, those people who come from other countries and have married in a polygamous society or a society that is potentially polygamous. The Supreme Court of Australia took account of the fact that a marriage could be potentially polygamous. The issue involved was as follows: If a marriage was potentially polygamous and the person involved migrated from a country that had a different concept from ours on the law of marriage, would that person be entitled to obtain a divorce? Was it a marriage at all? The courts adapted themselves to the change. What this legislation does is to take the position one small stage further. It states that a person who has come to this country, having married overseas where the law permits a polygamous marriage, should still be entitled to the benefits of this legislation. He has only one wife. He does not have 6 wives.

Mr King:

– How do you know?

Mr ENDERBY:

– Because under our laws it is just not permitted. Under the laws of the country in which that person previously resided it might have been permitted while he was still in that country. But this legislation would still recognise his entitlements to relief and to bring proceedings under the legislation. It would not be a defence for his spouse to say that the marriage was not a marriage at all under Australian law. This Bill just takes the position that extra stage.

Mr Killen:

– You would concede that the States have a different status under State Acts.

Mr ENDERBY:

– I am coming to the little matter raised by the honourable member for Moreton. The learned gentleman talks about State laws- Testator’s Family Maintenance Acts, State workers compensation laws and a whole range of particular State laws that give an entitlement to a person if that person has a particular status. It might be a de facto status or a married status. The status is usually denned in the particular statute of the State. The present law for the purposes of divorce is to be found in the 1959 Matrimonial Causes Act. As I have said, the case of the Khan v. Khan and cases like that permit matrimonial relief to be given in a potentially polygamous situation. That does not affect in any way the New South Wales Workers Compensation Act, the New South Wales Testator’s Family Maintenance Act or whatever may be the appropriate Queensland statutes that deal with the granting of some kind of relief. Neither does this clause, different as it is in a mild way from the existing law, affect such statutes.

Mr Killen:

– It is substantially different.

Mr ENDERBY:

– It does not affect them in any way at all. Clause 6 states:

For the purpose of proceedings under this Act - in other words, for the purposes of family law and matrimonial causes- a union in the nature of a marriage which is, or has at any time been -

That is the difference. The existing law relates to a situation which is potentially polygamous. In other words, a person can come to Australia, having married in Indonesia and having only one wife, although in that country he could have had more wives. Under the existing law in Australia, such a person could obtain a divorce. All this legislation states is that if a person comes to this country he should still be entitled to a divorce, even though the marriage may be more than potentially polygamous. In fact, it may be polygamous but such a person can still obtain a divorce. It would be quite wrong to have the position otherwise.

The CHAIRMAN (Mr Berinson:

-Order! The Attorney-General ‘s time has expired.

Mr Giles:

- Mr Chairman, I rise to order. I take the view that the Attorney-General, acting in a private capacity, has not fully answered to my satisfaction the questions posed by the honourable member for Macquarie. I would like to move that a short extension of time be granted to him to do so. I think this is an important point.

The CHAIRMAN:

– Under the decision of the House concerning this debate, no extensions of time are permitted.

Mr Giles:

– I thought they were; I am sorry.

Mr Kevin Cairns:
LILLEY, QUEENSLAND · LP

– 1 listened to the Attorney-General (Mr Enderby) with some interest. I looked once again at the precise words of clause 6 of the Bill because this proposed new section seeks to replace not one but two sections of the Matrimonial Causes Act, namely, section 6A and the section dealing with void marriages. Clause 6 states:

For the purpose of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage.

It is no use looking at the case of Khan v. Khan because the present Act can deal with marriages which are second, third and fourth marriages. A potentially polygamous marriage can be judged as a void marriage and attract the provisions of the Act. The essential change which is proposed by the clause which the Minister proposes to insert is to convert what would be void marriages to valid marriages. If that is the shortest distance which he proposes to traverse in relation to this matter, it is a very great distance indeed. What would be void marriages will become, for the purposes of this Bill, valid marriages, and many things may flow from that. I do think it is appropriate merely to say that that does not mean much.

I would not go so far as to say that the clause will bring about a situation in which we have a nation made up of eastern potentates with harems or anything of that nature. But it is misleading and incorrect to assert that the present Act does not deal with the situation that has been enunciated. It does. It does so through section 6A and, I think, section 8 1 of the Act. Once this new principle or fact is accepted in the Family Law Bill we will have imported a very significant new practice and new recognition into this country. This matter ought to be looked at. I am not persuaded that it is sufficient to say that this matter will be taken care of by the Marriage Act or by some other Act. I want to know why there is the proposition, or why there is the ultimate effect, to convert what would otherwise be void marriages, with all that flows from void marriages, into valid marriages. That is not a position to be gainsaid or one to be ignored.

The present Act regards polygamous marriages as void. The Bill before us says that they are valid. It is appropriate to ask why the present section 6 A is to be removed. The Bill seeks to turn the marriage of a person outside Australia which is potentially polygamous and which at present is void into a valid marriage. The distance between these two objectives is not short; it is very great. I support the amendment of the honourable member for Mackellar (Mr Wentworth) because it deals with the precise situation and seeks to rectify it. The Attorney-General did not seek even to meet that situation in his explanation. Until those 2 differences of interpretation are dealt with I do not believe that the position is being met or that even an attempt is being made to meet it.

Dr KLUGMAN:
Prospect

– I have a letter from Professor Nygh, the Head of the School of Law at Macquarie University, which appeared in the ‘Sydney Morning Herald’ of 6 March 1975. I believe that the letter explains clause 6. 1 will try to read the letter very quickly in order to explain the position. I especially hope that the honourable member for Mackellar (Mr Wentworth) will listen to what is contained in the letter because I believe that a reasonable explanation is given. Professor Nygh, replying to a letter from Mr F. Gormly, Q.C., stated:

Mr Gormly stated that clause 6 of the Family Law Bill 1974 would, if enacted, permit Australians to contract polygamous marriages abroad.

This is incorrect.

Clause 6 of the Family Law Bill, like section 6a of the present Matrimonial Causes Act 1959, is intended to overcome the ancient English decision of Hyde v. Hyde, in which it was held that English courts could not grant matrimonial relief to parties to a polygamous marriage, either to dissolve it if it was valid or to annul it if it was void.

This refusal of jurisdiction applied even when the marriage was in fact monogamous, the husband having taken only one wife, but where he had under the relevant foreign law the right to take further wives.

In 1962 this policy led the Victorian Supreme Court, quite correctly as the law then stood, to refuse matrimonial relief, including custody and maintenance, to an Australian woman who had married a Pakistani in Karachi in a Muslim ceremony, even though both parties were by then settled in Australia and the husband had not taken another wife.

To the Australian Parliament of the day this seemed unjust, and the Matrimonial Causes Act 1959 was amended in 1965 by inserting section 6a which provided, subject to certain conditions, that a polygamous marriage celebrated outside Australia should henceforth come within the definition of ‘marriage’ for the purpose of matrimonial relief under the Act.

One of the conditions was that both parties should at the time of marriage be domiciled (i.e. permanently resident) in countries which permitted males to contract multiple marriages.

This condition led to further hardship a few years later when the West Australian Supreme Court held that a young Australian woman who was domiciled in Australia and had married a Malaysian in Penang in a Muslim ceremony could not, upon her return to Australia after the marriage broke down, invoke the jurisidiaion of the court to dissolve the marriage.

The removal of this condition in the present Bill will ensure that jurisidiction cannot be denied in future similar cases.

Clause 6, therefore, like its predecessor, is merely concerned with giving the courts jurisdiction in respect of polygamous and potentially polygamous marriages. It says nothing about the capacity of Australians to contract several marriages abroad.

Indeed, there is a strong argument- supported by many judges in England and Australia- that an Australian, being domiciled in a country permitting monogamy only, cannot lawfully marry in a polygamous fashion, either here or abroad.

If that view is correct, all clause 6 will do is to permit an Australian court to decree the formal annulment of such a marriage, unlike the West Australian court in the case earlier mentioned which had to tell the unfortunate young woman concerned to go away not knowing whether she was or was not married under Australian law.

It would also permit an Australian court to order maintenance and grant custody over any children born of the relationship.

E. Nygh, Professor and Head of School of Law, Macquarie University, North Ryde (N.S.W.).

I am sure that honourable members will not have had a chance to digest what was contained in the letter because I had to read it so quickly. I had to do this because I did not know whether I could finish reading it in the time available to me. I hope that honourable members, before they get carried away into debating this matter in a silly way- especially the lawyers among them- will read the letter which was published in the ‘Sydney Morning Herald ‘ of 6 March 1 975.

Mr HOWARD:
Bennelong

-The letter just read by the honourable member for Prospect (Dr Klugman) has gone a long way towards explaining the historical antecedents of the present Matrimonial Causes Act but it does not give an unqualified denial to the remarks that have been made by the honourable members for Moreton (Mr Killen) and MacKellar (Mr Wentworth). The difficulty that I find in accepting the view of Professor Nygh is that its complete acceptance is dependent upon a paragraph which as I recollect is about three-quarters of the way through the letter, where the learned professor said:

Indeed, there is a strong argument- supported by many judges in England and Australia- that an Australian, being domiciled in a country permitting monogamy only -

Meaning Australia- cannot lawfully marry in a polygamous fashion, either here or abroad.

The problem that I see about clause 6 as it is presently drafted is that so far from it being drafted in reliance on that strong view by the inclusion of the words ‘shall be deemed to be a marriage ‘, which appear at the end of the clause, it could in fact raise a very real doubt whether a person normally domiciled in Australia, which is a country which does not permit polygamy, who goes to another country, enters into another marriage in that country where polygamy is permitted and returns to Australia with his second wife- this is precisely the point that was made by the honourable member for Macquarie (Mr Luchetti)- does in fact have 2 wives according to the interpretation of the clause. This is my concern. I do not think, with respect to the honourable member for Prospect, that Professor Nygh ‘s letter gives the total answer.

Question put:

That amendment No. 13 (Mr Wentworth’s) be agreed to.

The Committee divided. (The Chairman- Mr J. M. Berinson)

AYES: 33

NOES: 83

Majority……. 50

AYES

NOES

Question so resolved in the negative.

Clause agreed to.

Clauses 7 and 8- by leave- taken together.

Mr KILLEN:
Moreton

-I shall take a few seconds of the Committee’s time to speak about clause 8, sub-clause (2), which states:

Proceedings for a decree of restitution of conjugal rights, of jactitation of marriage or of judicial separation shall not be instituted or continued after the commencement of this Act.

I raise not the slightest objection to the disregarding of the old procedure of jactitation of marriage because I am informed -

Mr Kelly:

– What is that?

Mr KILLEN:

– That is where a person professes or boasts that he is married to another person when, in fact, there is no basis for that profession or that boast. I am informed by the Attorney-General’s professional advisers that there has been virtually no activity, if I may so describe it, of that character in recent years. I am prepared to accept that. Nevertheless I cannot accept the fact that the Attorney-General (Mr Enderby) and the Committee do not acknowledge circumstances in which some people find themselves when, by dint of very deep religious conviction, they hold that even though their marriage has for all practical purposes finished, they want a judicial separation. I argued that point last evening- I shall not weary the Committee by arguing it again- but I hope that no person who supports the abolition of this provision will hold himself out to be a liberal. If there should be but one person or five people in our community who take the view that because of deep religious views they have a preference for a judicial separation, I think it is a pity that the country cannot respond to that. The Minister for Labor and Immigration (Mr Clyde Cameron), on the clause relating to this, last evening referred to the injunctive process. I think that shows the world the difference between those who have a fierce regard for the spirit and those who are governed entirely by material considerations.

Clauses agreed to.

Clause 9 agreed to.

Clause 10 agreed to.

Clauses 11 to 13- by leave- taken together.

Mr KILLEN:
Moreton

-I want to say something about the provisions which deal with marriage counselling organisations. I ask the Attorney-General (Mr Enderby) why no provision has been made for representatives of the churches- I speak about the churches in their corporate sense- to be represented or for their views to be considered. I further ask the AttorneyGeneral what sorts of qualifications he would look for in those people taking part. I acknowledge freely that this is a vital field of human activity, but I think the Parliament and the country are entitled to protect themselves against what I describe as well-meaning and highly accomplished busy-bodies.

Mr ENDERBY:
CanberraAttorneyGeneral · ALP

– I think the clause is in identical terms to existing section 9 of the Matrimonial Causes Act. I have never heard the honourable member for Moreton (Mr Killen) complain about the operation of that section.

Mr Killen:

– The Minister was not here when that Act went through.

Mr ENDERBY:

-That does not matter. I have never heard the honourable gentleman complain about it. Perhaps this is an appropriate time to express a thought which is becoming obvious to a number of honourable members at the moment, that is, that some honourable gentlemen who in some ways failed in their opposition to this Billnot all, and I look at my good friend the honourable member for Wentworth (Mr Ellicott)- are now determined to stall and bluster and talk -

Mr Anthony:

-The Minister should not be so personal.

Mr ENDERBY:

-I put it again. It is becoming increasingly apparent. The ladies and gentlemen will be chosen with the same skill and care as were the ladies and gentlemen who sit on the counselling associations which serve under the existing Matrimonial Causes Act.

Clauses agreed to.

Clause 14.

  1. 1 ) Where proceedings for a dissolution of marriage have been instituted, or financial or custodial proceedings have been instituted by a party to a subsisting marriage, it is the duty of the Judge or magistrate constituting the court and of every legal practitioner representing a party to give consideration, from time to time, to the possibility of a reconciliation of the parties.
  2. If, in such proceedings, it appears at any time to the Judge or magistrate from the evidence in the proceedings or the attitude of the parties, or of either of them, that there is a reasonable possibility of such a reconciliation, the Judge or magistrate may-

    1. adjourn the proceedings to afford the parties an opportunity to consider a reconciliation;
    2. with the consent of those parties, interview them in chambers, with or without counsel, as the Judge thinks proper, with a view to effecting a reconciliation; and
    3. if he thinks it desirable to do so, nominate-
    1. a marriage counsellor or an approved marriage counselling organization; or
    2. in special circumstances, some other suitable person or organization, to assist those parties in considering a reconciliation.
  3. Where it appears from an application for dissolution of a marriage that the parties have been married for less than 2 years preceding the date of filing of the application, the court shall not hear the proceedings unless the court is satisfied that-

    1. the parties have considered a reconciliation with the assistance of a marriage counsellor, an approved marriage guidance organization or some other suitable person or organization nominated by the Director of Counselling and Welfare; or
    2. there are special circumstances by reason of which the hearing should proceed.

Circulated amendments. (20a) (Mr Peacock)- In sub-clause ( 1 ) after ‘for’ insert ‘a separation order or’.

  1. (Mr Enderby)-In sub-clause (2) (b) after ‘Judge’, insert ‘or magistrate’.
  2. (Mr Enderby)-In sub-clause (6) (a) after ‘Welfare’, insert’ of the Family Court’.
  3. (Mr Wilson)- After ‘application’, second appearing, insert ‘or where there is a child of the marriage who has not attained the age of 1 6 years ‘.
Mr WILSON:
Sturt

– I move circulated amendment No. 23 which relates in particular to clause 14, sub-clause (6). This sub-clause at present states:

Where it appears from an application for dissolution of a marriage that the parties have been married for less than 2 years preceding the date of the filing of the application, the court shall not hear the proceedings unless the court is satisfied that- (a) the parties have considered a reconciliation. . .

The amendment I propose will require the parties, where there is a child of the marriage who has not attained the age of 16 years, to undergo the same reconciliation procedures as are provided for in those cases where the marriage has been in existence for only a short time. I have supported the reforms in this Bill. I have supported the measure to remove fault. But I am concerned to see that families are strengthened and that the interests of children are protected. Under clause 48 as it has now been adopted, a legal fiction has been introduced. That is, the marriage is dissolved if there has been a 12-month separation, not if there has been irretrievable breakdown. A 12-month separation is deemed to be an irretrievable breakdown, unless there is an intervention by one party who indicates to the court that there is a reasonable likelihood of cohabitation being resumed. That initiative must be taken by the other party to the marriage. There is no opportunity for representation of the children in determining whether or not the marriage should be dissolved. In clause 65 of the Bill opportunity is given for children to be represented only after the marriage has been dissolved. Clause 65 provides that, where, in proceedings with respect to the custody, guardianship or maintenance of, or access to, a child of a marriage, it appears to the court that the child ought to be separately represented, that child can be represented, but that is only in circumstances in which it is assumed that the marriage is to be dissolved. Very often, where the parties in fact separate, they do so because there is a breakdown in communication between man and woman, and very often the communication has very little opportunity to be reinstated unless there is some machinery whereby that communication can be re-established. Where the parties have no children the importance of the reestablishment of that communication is not so significant; it is a matter of the bilateral relations between those parties. But where there are children it is not a unilateral matter and it is not a bilateral matter; it is a matter of multilateral relations. I do not believe that this Bill as now drafted goes far enough in giving to children those opportunities to have their parents live together if communication can be re-established.

In urging this amendment I do not intend to suggest that steps should be taken to force people to live together in circumstances in which they are unhappy and their children are unhappier. Much has been said about the concern for children living in unhappy circumstances. If the marriage has irretrievably broken down, it should be dissolved; but it should not be presumed that the breakdown is irretrievable, particularly where there are children, unless every effort has been made to restore communication so that the children can have the opportunity to live in a stable, happy, 2-parent family. Therefore, if this amendment is accepted and it saves but a few marriages, it will have been worth while. I recognise that it involves counselling a large number of families; but the price involved in providing that counselling for a large number of families, if it gives a happy family life in a 2-parent situation for a significant number of children, is worth paying. In the interests of the children affected by unhappy marriages, I urge that this amendment be accepted.

Mr GILES:
Angas

-I should like to support in a modified fashion the views expressed by the honourable member for Sturt (Mr Wilson). In fact, I mentioned this aspect in a short speech during the second reading debate. I will not weary honourable members by repeating that speech, but I tried to draw the distinction, as has the honourable member for Sturt, between on the one hand divorces that occur shortly after marriage for a variety of reasons- I am presuming that they are valid reasons- and divorces that occur after the children have left the nest, and on the other hand divorces between 35-year-old people with 6 children. I do not consider that this Bill quite considers community views on that sort of thing. As the honourable member for Sturt has said, really it all boils down to what gives best security to the children. I am in a bit of a quandary on this matter because, on the one hand, there are many instances in which the insecurity of a child is magnified by having an unhappy domestic atmosphere. There is no question about that. If parents are warring constantly, then children become worried; they ponder what they can do to help and they become emotionally quite upset. I think that is well proven. On the other hand, there are those marriages in which I am quite sure people can persist and should be encouraged to persist until such time as the children are mature enough to have a better understanding of the problems that face an older generation than their own. I am not completely satisfied at this point of time that the amendment proposed by the honourable member for Sturt precisely carries out what I have in mind. I think it probably does, and I should like to voice my concern in the same area. I will be interested to hear what the Attorney-General (Mr Enderby) has to say in relation to those aspects of this clause.

Mr KELLY:
Wakefield

– I ask the Attorney-General (Mr Enderby), when he is replying, to deal with another part of clause 14. Continuing from where the honourable member for Sturt (Mr Wilson) left off, it states: the parties have considered a reconciliation with the assistance of a marriage counsellor . . .

What is the significance of using the words ‘have considered’? That seems to me to be a rather loose form of words.

Mr Enderby:

– What is the sub-clause to which you are referring?

Mr KELLY:

– Clause 14 (6) (a). Sub-clause (6) states, in part: the court shall not hear the proceedings unless the court is satisfied that-

  1. the parties have considered a reconciliation with the assistance of a marriage counsellor . . .

One would have thought that words of more definite meaning than ‘have considered’ would have been advantageous. Would the AttorneyGeneral, when replying, explain why that rather loose phraseology is used?

Mr ENDERBY:
CanberraAttorneyGeneral · ALP

– Let me deal firstly with the point raised by the honourable member for Sturt (Mr Wilson). One can be completely in agreement with him, of course, on what he seeks to achieve. However, let me put something to him. He did concede the enormous difficulty that would flow from the extra counselling work that would be involved, and that is extreme. The assessment given to me, and it may have been given to the honourable member, is that on the 1973 Australian divorce statistics- unfortunately, they are increasing all the time- it has been estimated that this counselling would involve an additional 9000 cases, with all the consequences of that. I think this fact has to be borne in mind: Clause 14 is far stronger in its attempt to bring about the parties having resort to conciliation proceedings where children are involved than the existing provision in section 43 of the Matrimonial Causes Act. If one looks at the language of section 43 of the existing law one finds that proceedings are not to be brought within 3 years without the leave of the court, but the same burden is not placed on the court to be satisfied that the children are well cared for as is found in clause 14 of this Bill.

I also suggest to the honourable member for Sturt that if he reads clause 14- stronger, as it is, than the old section 43- together with clause 12 of the present Bill, which refers to a child of a marriage who is under 18 years of age, he will see that the Bill enables the court, of its own motion or at the request of either party, to order that the parents attend a conference with a welfare officer to discuss the welfare of their child and try to resolve any differences between them concerning the matter. That is additional to the provision that the honourable member for Sturt read out and additional to the existing law. It is far better, far stronger. There is also the right of the child or children to have counselling of its or their own. That is another novel step forward. Of course, there is also the provision which has been written into this Bill and which has found a place in the existing law, that is, that the court shall not pronounce a decree nisi unless it is satisfied that proper, reasonable, satisfactory arrangements have been made for the children. That is provided for, as I remember it, in section 7 1 of the Matrimonial Causes Act. That provision has found a place in clause 63 of this Bill. So I suggest to the honourable member for Sturt that the other clauses of the Bill more than make up forcertainly go towards meeting- the concern that he has expressed, which was about something that worries all of us.

I turn to the point mentioned by the honourable member for Wakefield (Mr Kelly). In this respect also the clause is a substantial improvement upon section 43 of the present Act. The clause says, of course, that the court shall not hear the proceedings- which is very strong languageunless the court is satisfied- someone has to put the facts before the court- that the parties have considered a reconciliation. It is very difficult to make people conciliate. The law often approaches these problems in different ways. When it is desirous to have people conciliate one can inform them of their rights and inform them that certain facilities are available. One can say: There is a welfare officer, a psychologist and a child welfare expert down the corridor. You can go and see them if you want to do so’. But we know from experience that all too often people do not do so. This clause actually requires the parties to have their minds drawn to the possibility of reconciliation and to have considered it. It goes a lot further than the existing law has gone. I do not know what the honourable gentleman has in mind as to how much further he wants to take the matter. He might want to provide that the parties have reasonably considered the matter or that they have considered it in depth, but one cannot make them take the advice. I would suggest that the clause goes as far as is reasonably practicable for the subject matter to be put in that way.

Question put:

That amendment No. 23 (Mr Wilson’s amendment) be agreed to.

The Committee divided. (The Chairman- Mr J. M. Berinson)

AYES: 34

NOES: 76

Majority……. 42

AYES

NOES

Question so resolved in the negative.

Clause agreed to.

Clauses 15 to 19- by leave- taken together and agreed to.

Clause 20 agreed to.

Clause 22 (Appointment, removal and resignation of judges).

Mr KILLEN:
Moreton

-At the risk of being accused quite wantonly and recklessly by the Attorney-General (Mr Enderby) of being an obfuscationist I take this opportunity to ask a question about this matter. Last evening it was suggested in a debate peripheral to this measure- this clause, indeed, and one or two others- that we have enough legalities and that those appointed to the Family Court- this was certainly one of the inferences to be drawnwould be people skilled in the understanding of the ways of humanity. That would seem to me to be a rather extravagant description to give to some people. But still, at the risk, as I said, of incurring the Attorney-General’s displeasure that I should presume to bother the parens patria of this country on a matter of this nature, I should like to know from the Attorney-General what he has in mind. Are the people to be appointed to the Family Court to be people with legal qualifications or not?

Mr ENDERBY:
CanberraAttorneyGeneral · ALP

– I think the proper answer to give to the honourable gentleman is that this Bill is not yet law. It was introduced into the Senate some time in 1973 and it has had the most exhaustive study by members of Parliament since that time: In and out of the Parliament, debate, references to a Standing Committee -

Mr Killen:

-But not by us.

Mr ENDERBY:

-No, not by us. I am not having a go at the honourable member for Moreton. He is very sensitive.

Mr Killen:

– Yes, I am getting a little weary. Please try to understand the fragile manner I have.

Mr ENDERBY:

– I am just putting to the honourable member that one has to bear in mind that this Bill is not yet law. Until last night one has not been able to say, with any degree of confidence, that indeed it would become law. Certainly until last night the whole provision in clause 21- the creation of the Family Court of Australia- was open to a considerable amount of uncertainty. It was at risk. The honourable gentleman knows that if he asks me to give him a list of people, or a list of people I have in mind that I have plucked out of the air overnight, I cannot.

Mr Killen:

– I am not asking you to name them.

Mr ENDERBY:

-No, of course not. I cannot name them. But the clause is clear. I do not want to spend time reading it but there is the formal part which states that the judge shall be appointed by the Governor-General- of course, on advice; that he shall not be removed except by the normal method for the removal of judges; and that he shall not be appointed as a judge unless he has one of the three sets of qualifications: That is, unless -

  1. he is or has been a Judge of another court created by the Parliament or of a court of a State- and so on, or unless- and this is the one the honourable gentleman obviously has in mind -
  2. by reason of training, experience and personality, he is a suitable person to deal with matters of family law.

It would be open there to appoint a person who did not hold the qualifications set out in paragraph (a) of sub-clause (2). One knows- and I certainly hold the view- that lawyers have had the most experience with dissolving marriages. Lawyers, particularly barristers, perhaps have had more experience than anyone else with settling ancillary relief- custody and property matters that are in dispute between a husband and wife. There is good reason for that. The legal profession has always had a monopoly of doing this sort of work. It may be that there has been good reason for this in the past. This Bill does not continue the monopoly as a matter of law. Let there be no doubt about that.

I would ask honourable gentlemen to take into account as well that there are any number of qualified people in the community who might not satisfy the test of having been a judge, or having been enrolled as a legal practitioner of the High Court of Australia or of a supreme court of a State or a Territory for not less than 5 years, who would be suitable through experience in welfare work, counselling work or social work. I say what I am about to say to the honourable gentleman, my good friend, with the greatest of respect: Lawyers should not look with disdain on the other intellectual disciplines. Other courses than law are being offered today in the universities and there are other people in the community who serve the community, as lawyers do. All the Government has in mind- I should say that it is what I have in mind because I remind myself that this is not a Government Bill; this is a Bill that came from the Senate after a free vote -

Mr Killen:

– Let us not allow the Senate to run us.

Mr ENDERBY:

-Quite so, but I suggest to the honourable gentleman that this provision is per.fectly proper and desirable. If he wants to continue the monopoly of the legal profession in that regard let him say so. I personally think that there are talent, experience and qualifications of a professional kind in the community that could well be available to be drawn upon and put to considerable use.

Mr Killen:

– Do you think they can be made available under this provision?

Mr ENDERBY:

– I have assisted the honourable gentleman as much as I can. I read the words, as he reads the words, and that is what they appear to say.

Clause agreed to.

Clause 23 agreed to.

Clause 24 agreed to.

Clause 25 agreed to.

Clauses 26 to 36- by leave- taken together.

Mr KILLEN:
Moreton

-I remind the Attorney-General (Mr Enderby) that clause 34 states:

The court has power … to make orders of such kinds, and to issue, or direct the issue, of writs of such kinds, as the Court thinks appropriate.

Could my friend the Attorney-General give me an indication of what sort of writs are in contemplation there? Again, I trust he will not accuse me of seeking to delay, frustrate, obfuscate or anything else. I am just curious. Thank heavens curiosity remains one of the dominant qualities of the Irish.

Mr ENDERBY:
CanberraAttorneyGeneral · ALP

– I put again to the honourable member for Moreton (Mr Killen) that this is not a Government measure.

Mr Killen:

– But you are -

Mr ENDERBY:

– It is perfectly all right. I am not running away from that side of it at all. This is a Bill on which honourable members have a free vote. Clause 34 gives a wide discretion to the court and confirms the power of the court in relation to matters in which it has jurisdiction to make orders and to direct the issues of writs of such kinds as the court thinks appropriate. A relevancy question would arise there. The clause also enables particular writs and orders, including new kinds of writs and orders, to be prescribed without prejudice to the general power of the court in the matter.

There is relatively little experience in family court work in Australia. The only family court that has been in existence for any period of time- and indeed that court for only a short time- is the South Australian Family Court. That court has been universally applauded as having been a very successful experiment, one which obviously influenced a number of members of the Senate, from which this Bill came, one which obviously influenced a number of honourable members in this chamber who now consider the Bill, and one which led last night to the rejection of the move against the family court provisions. But it is in the nature of a new type of process that new remedies will be necessary. With the emphasis being placed on informality and on a new approach to solving the problems of the family a wide discretion is being given to the judges who make up the court to devise the writs and the orders that they will be able to use.

Clauses agreed to.

Clause 37 agreed to.

Clause 38 agreed to.

Clause 39.

  1. 1 ) Subject to this Part, a person may institute a matrimonial cause under this Act-

    1. in the Family Court; or
    2. b ) in the Supreme Court of a State or a Territory.
  2. Proceedings for a decree of dissolution of marriage may be instituted under this Act by a party to the marriage if, at the date on which the application for the decree is filed in a court, either party to the marriage-

    1. is an Australian citizen;
    2. is domiciled in Australia; or
    3. is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date.
  3. Proceedings of a kind referred to in any of paragraphs (a) to (e) of the definition of ‘matrimonial cause’ in subsection 4(1), other than proceedings for a decree of dissolution of marriage, may be instituted under this Act if-

    1. either party to the marriage is an Australian citizen:
    2. either party to the marriage is present in Australia v .. i .. . < ‘( . u .. c.iiUi c.i : hv r.ii;r:~:.:rv :;.io ;. . - . -. . < ,.t. i.
  4. Subject to this Part, the Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Family Court and on the Supreme Court of each Territory, to hear and determine-

    1. matrimonial causes instituted under this Act;
    2. matrimonial causes continued in accordance with section 9; and
    3. proceedings instituted under regulations made for the purposes of section 106, 109, 1 10 or 1 1 1 .
  5. The Governor-General may, by Proclamation, fix a date as the date on and after which proceedings under this Act may not be instituted in or transferred to a court of summary jurisdiction in a State or Territory or in a part of a State or Territory specified in the Proclamation and a court of summary jurisdiction shall not hear and determine any such proceedings so instituted in, or transferred to, that court on or after the date.

Circulated amendments.

  1. (Mr Ellicott)- In sub-clause ( 1 ), omit paragraph (a).
  2. (Mr Ellicott)-At the end of sub-clause (1), add the following paragraph:

    1. in such other Court of a State or Territory (not being a Court of summary jurisdiction) as may be prescribed. ‘.
  3. (Mr Wentworth)- In sub-clause (3), paragraph (b), omit ‘or ‘, insert ‘ and ‘.
  4. (Mr Wenrworth)-After sub-clause ( 3 ) add:

Provided that no such proceedings shall be finalised unless-

  1. the Court is satisfied that the respondent has received due notice of the application, or
  2. the Court is satisfied that it is impracticable to serve such notice on the respondent and that, having regard to all the circumstances, it would be inequitable for the application to proceed. ‘.

    1. (Mr Wentworth)- In sub-clause (4), paragraph (a), after ‘citizen’ add ‘who is present in Australia and is ordinarily resident there; or’.
    2. (Mr Wentworth)- In sub-clause (4), omit paragraph (b).
    3. (Mr Wentworth)-In sub-clause (4), paragraph (c), omit ‘ present ‘, substitute ‘ ordinarily resident ‘.
    4. (Mr Ellicott)-In sub-clause (5), after ‘State’, insert and such other Court of a State as may be prescribed pursuant to paragraph ( 1 ) ( c) ‘.
    5. (Mr Ellicott)- In sub-clause (5), omit ‘on the Family Court and’.
    6. (Mr Ellicott)-In sub-clause (5), after ‘Territory’ insert ‘and in such other Court of a Territory as may be prescribed pursuant to paragraph ( 1 ) (c)’.
    7. 1 ) (Mr Connolly)-In sub-clause (7), omit ‘instituted in, or’.
    8. (Mr K. M. Cairns)-In sub-clause (7), omit instituted in, or’.
    9. (Mr Connolly)-In sub-clause (7), omit ‘instituted in, or’.
    10. (Mr K. M. Cairns)-In sub-clause (7), omit instituted in, or’.
Mr ELLICOTT:
Wentworth

-A proposed amendment circulated in my name v.ieks at the end of sub-clause ( 1 ) to add:

  1. in such other Court of a State or Territory (not being a Court of summary jurisdiction) as may be prescribed.

Of course one has to accept the proposition that there will be a Family Court of Australia. One also has to accept the limitation in the Bill that for the time being there will be only 6 judges of that court. I wonder whether I could have the ear of the Attorney-General (Mr Enderby) on this point because what I am putting may affect whether I have to call for a division on the question.

Mr Enderby:

– I was trying to help one of your colleagues.

Mr ELLICOTT:

-I appreciate that. I am proposing an addition to paragraphs (a) and (b) of sub-clause ( 1 ) of clause 39. 1 have in mind that even though a Family Court of Australia is to be established and even though there may be concurrent jurisdiction in supreme courts, I think the Attorney-General will be familiar with the problem of jurisdiction being exercised in country areas where perhaps the State supreme court does not sit or where there are not the funds or the opportunity for the Family Court to sit. The purpose of my proposed amendment, which I suggest is quite appropriate to provide an alternative, is to enable jurisdiction to be granted, for instance, to district courts. The learned Attorney-General may recall that in New South Wales divorce cases were remitted to the district court. Particularly if the only ground for divorce is to be one year’s separation, it would not tax the intellectual capacity of judges to arrive at a decision as to whether that ground is established. Therefore it may be- I say this with great respect to district court and county court judges- that this may be a proper jurisdiction to give in some instances to judges who are sitting in country towns and even in the suburban areas of big cities like Sydney to make it more convenient for parties to applications for dissolution of marriage to have their divorce proceedings dealt with.

Under the existing Act it has been the practice to require the concurrent matters of maintenance and custody to be dealt with at or about the same time as the dissolution of marriage is dealt with. But under this Bill, if it becomes law, this will no longer be necessary except, I think, in relation to custody. The maintenance matters will be dealt with at another time. So the application for dissolution of marriage will be a separate procedure. As I have already said, it is a proceeding which could fall within the competence of judges who sit in a district court or a county court. Certainly for the convenience of parties such matters ought to be dealt with by them in appropriate cases. Of course, where the judges are members of the Family Court, they may so sit. There may be many cases, such as in country towns, where judges could well exercise the dissolution jurisdiction under this Act. Therefore I suggest to the Attorney-General (Mr Enderby) that this amendment may be one on which he is prepared to indicate to me that he will give favourable consideration to it in due course. For that reason I would not seek to force a division on this amendment. If the Attorney-General indicates that he will give favourable consideration to it, I will be quite happy with that.

The CHAIRMAN:

-The question is that amendment No. 62 circulated by the honourable member for Wentworth be agreed to.

Mr Wentworth:

– I wish to speak to clause 39, but not to amendment No. 62. Mr Chairman, will you put the question on this amendment so that then I may speak?

The CHAIRMAN:

– If the honourable member prefers. Does the Attorney-General wish to speak to this amendment?

Mr ENDERBY:
CanberraAttorneyGeneral · ALP

– Yes, Mr Chairman. We are dealing with amendment No. 62 to clause 39. I wish to indicate to my friend the honourable member for Wentworth (Mr Ellicott) that I will give favourable consideration to the matters he has raised. I did follow his argument. The honourable member will have noticed that I have not been moving a number of the amendments circulated in my name. I am doing that deliberately. My actions are not unrelated to some of the remarks which went backwards and forwards between my good friend the honourable member for Moreton (Mr Killen) and myself a little while ago. I want this Bill to become law as soon as possible, and I think most honourable members want that. If supplemental Bills have to be introduced at some stage in the future, perhaps that can be done. With a little indulgence, Mr Chairman, I wish to make the point that I am anxious, now that we are obviously going to pass this law, to be able to embark upon attempts to reach agreement with the States on the Family Court issue during the Parliamentary recess which is approaching. With all the uncertainties that surround this measure, and there have been many from about November 1973 until today- these uncertainties will continue; obviously they will not disappear today- I am hopeful that before the Parliamentary recess we will enact a law on which I could then begin to negotiate with the States. On that basis I am not pressing my amendments in the hope of expediting matters. I will certainly give favourable consideration to what the honourable member for Wentworth has said.

Amendment No. 62 negatived.

Mr WENTWORTH:
Mackellar

– I wish to make some remarks about this clause in general and then move my amendment No. 64.I am a little worried about the operation of this clause which makes the jurisdiction of the court very wide in relation to people who are visitors to Australia. This may be important, because many countries have provisions under which they will not recognise what are known as quickie divorces in other countries. Some difficult legal anomalies may arise with regard to this matter. It will be practicable for one party to a marriage to come to Australia, to live here for a year and then, because he or she is separated and has evidence of separation, to sue for divorce from the other party and obtain it without any other ground. It may be a divorce which in international law is not recognised by certain other countries. Anomalies may therefore arise. This is a complicated question and I will not press it. I make those comments as a preface to what I am now going to say. I move circulated amendment No. 64:

After sub-clause (3) add:

Provided that no such proceedings shall be finalised unless-

the Court is satisfied that the respondent has received due notice of the application, or

the Court is satisfied that it is impracticable to serve such notice on the respondent and that, having regard to all the circumstances, it would be equitable-

The circulated amendment should read ‘equitable ‘ and not ‘inequitable ‘- for the application to proceed. ‘

As the clause stands now it would be possible for someone to visit Australia, to stay here for a year or establish domicile which may take less than a year, and then sue for divorce on the grounds of living apart from the other party for a year. The other party would not even know that this had occurred. It seems to me that in such circumstances the court has a duty to that other party to ensure that reasonable notice is given. There may be cases in which it is impracticable to give notice. In those circumstances there is a let-out under clause (b) of the amendment which I have moved. Surely the Committee will accept that it is absolutely inequitable for circumstances to arise in which a man or a woman can be divorced by legal processes in Australia, without ever knowing or having a chance to know that the petition was being lodged. I ask the Committee to consider this matter seriously. It is one which I suppose is a matter of form and not of substance. I repeat the amendment which I have drafted:

Provided that no such proceedings shall be finalised unless-

the Court is satisfied that the respondent has received due notice of the application, or

the Court is satisfied that it is impracticable to serve such notice on the respondent . . .

I think the Committee will agree that the amendment is eminently reasonable in view of the very wide residential jurisdiction which we have just conferred on the court under the provisions of the previous part of this clause. Apparently anybody can go to the court if he is an Australian citizen, if he is domiciled in Australia, or if he is ordinarily resident in Australia and has been so resident for one year. As I have said, this opens the door to Australia becoming a divorce mill for people from overseas. It may result in there being granted in Australia divorces which would not be recognised overseas. That is a matter for overseas law and not for Australian law. But surely what is a matter for Australian law is that, in circumstances where a visitor to Australia institutes divorce proceedings, due notice should be given to the respondent so that he or she will have an opportunity to answer the charges and will not find himself or herself divorced without even knowing that the proceedings had been instituted. I hope the Committee will agree to this amendment, which is a matter of mechanics and not of substance.

Mr KILLEN:
Moreton

-One of the points referred to by my friend the honourable member for Mackellar (Mr Wentworth) is that possibly the respondent to a proceeding may find that a petition has been granted without his or her being aware of it. I think the honourable member would find that matter dealt with under the rules. The Attorney-General (Mr Enderby) says that this is a non-party matter, but the fact is that he remains the parens patria of this countrya mantle that hangs upon his shoulders with varying degrees of assessment, depending upon the prejudice of one’s views. I trust that he will be able to give the honourable member for Mackellar an assurance that the rules will cover adequately the possibilities referred to by him. It would be quite unthinkable for a person to find himself or herself divorced without having been informed of the proceedings in contemplation.

The other matter raised by the honourable member for Mackellar is important. I would welcome the Attorney-General’s assurance and, if need be, his further consideration of this point: There is a very great difference between the bases offered for grounding jurisdiction. We all understand the term ‘is domiciled in Australia9. But the use of the term referring to a person as an Australian resident or as one who has ordinarily been resident in Australia for 12 months is another matter. The two terms are by no means identical. It could well be that the person was resident in Australia but had no intention of regarding Australia as his or her domicile.

As presently advised, I believe that there would be a number of common law countries which would have some difficulty in accepting a decree granted with respect to residential qualifications only. I cannot cite the countries to the Attorney-General. But that, as I say, as presently advised, is the case. It would be a matter of some lament if we were to grant jurisdiction for a court to grant decrees which were not acceptable around the world. I would not share completely the view put by the honourable member for Mackellar that we are in close peril of rivalling Reno; but, by the same token, I think that, for the good name of Australia, it would be a pity if any decree granted by our courts were not to be accepted because the jurisdiction was taken on residential grounds and not upon the grounds of domicile.

Mr Enderby:

- Mr Chairman -

The CHAIRMAN:

– Order! The AttorneyGeneral is precluded from replying as he has already spoken to this clause.

Mr Wentworth:

– Could the Committee grant leave to the Attorney-General? If I can get an assurance on this matter of rules, I will not press my amendment.

Mr Killen:

– I suggest that leave be given.

The CHAIRMAN:

– Is leave granted? There being no objection, leave is granted.

Mr ENDERBY (CanberraAttorneyGeneral) by leave- I give the honourable member for Mackellar (Mr Wentworth) the assurance that this is a matter normally covered by the rules. If he looks at the present law under ‘Service’ he will find a dozen or so rules which regulate this aspect. Our rules have not yet been made.

Mr Wentworth:

– In view of the assurance given by the Attorney-General, I do not press my amendment. That wil cover the matter.

The CHAIRMAN:

– I might as well put the amendment. It simply will not be passed.

Amendment negatived.

Clause agreed to.

Clause 40 agreed to.

Clause 41.

  1. Where, by virtue of a Proclamation under sub-section ( 1 ), this section applies to a court, this Act has effect in relation to the institution of proceedings on or after the date fixed by the Proclamation, and in relation to proceedings so instituted, as if references in sections 39, 46, 94 and 96 to the Supreme Court of a State were, in relation to the State in which the court referred to in the Proclamation is established, references to that court, and that court is invested with federal jurisdiction accordingly.

Circulated amendment.

  1. (Mr Enderby)- In sub-clause (3) omit ‘sub-section (1)’, substitute ‘sub-section (2)’.
Mr ELLICOTT:
Wentworth

-I rise on this clause only to seek some assurance from the Attorney-General (Mr Enderby). A document was circulated by him recently. It said, in part:

The Family Law Bill contains provisions for the establishment of a Family Court of Australia. This would be a Federal court - these are the words which trouble me a little:

. which would ultimately exercise all the jurisdiction under the Family Law Bill.

If that is read literally, it means all the jurisdiction in all the States and in all the Territories and at all levels. As the Attorney-General is aware, the provisions of clause 21 of this Bill restrict the number of family court judges to six. In subclause (3) of clause 21 there is power by regulation to add to the number of judges. The history of that sub-clause is that it was included, as I understand it, in the Senate Committee stage of this Bill as a brake on the Attorney-General in his appointment of judges, as the Senate Committee of the whole felt that the requirements of clause 41 should be adhered to and felt rather strongly that these family courts, both for constitutional reasons and for other reasons, ought to be established in all States. So clause 41 was inserted after the inquiry by the Senate Standing Committee to ensure that this would take place.

What I have read from the statement circulated by the Attorney-General certainly leads me to think that he may not be going to observe the requirements of clause 41 or that he is not going to approach them with the degree of sincerity and vigour that they deserve. All I seek is a statement from the Attorney-General as to his intentions with regard to the implementation of the provisions of clause 41 of this Bill. They are very significant. They alone can provide for the appointment under clause 65 of judges of the requisite competence and expertise. They alone, in other words, can provide an effective family court system under the present constitutional structure. It is of tremendous importance, not only to the Senate but also to those of us who have some faith in the family court system as such, that this provision be adhered to.

Mr KILLEN:
Moreton

-So that the Attorney-General (Mr Enderby) will have to make only one speech, let me raise 2 matters with him now. Firstly, what would be in his mind if one State, or indeed a number of the States, held out against any agreement?. Secondly, will the Attorney-General give an assurance that in those large States in which there are circuit practices I instance the Northern District of Queensland, where judges go out on circuit and do so with a regularity- there will be no diminution in the services provided by the courts; in other words, that the person who today may be able to obtain matrimonial relief after 3 months or 6 months will not have to wait 12 months?

Mr ENDERBY:
CanberraAttorneyGeneral · ALP

– I move circulated amendment No. 76. Let me answer the points raised. The honourable member for Wentworth (Mr Ellicott) directed my attention, in considering clause 41, to the memorandum that was circulated over my name. I certainly will be doing my best to reach agreements with the States, as described in clause 41. Indeed, on the last occasion on which I was on my feet- that is, prior to speaking by leave- I made that very point as one of the reasons why I wanted this legislation to become law. I think the language is to the effect that, as soon as practicable after the Bill becomes law, the Australian Government shall take steps with a view to making agreements. That will be done. Now, on the other question -

Mr Ellicott:

– That is in this piece of paper which I showed to the Attorney-General.

Mr ENDERBY:

-I have seen it.

Mr Ellicott:

– The words there seemed a little to the contrary.

Mr ENDERBY:

-Perhaps so. The paper was an attempt to assist honourable members at that time. The honourable member for Moreton (Mr Killen) raised the question of what would happen if the States held out from making these agreements. I hope that he is not suggesting that I might be faced with an unreasonable attitude on the part of the States. If he is putting to me a question as to what I will do if some State is unreasonable in these negotiations as we try to reach an agreement, I must admit that I cannot answer him at this stage. It would depend upon the degree to which the State was being unreasonable. It would depend on what it was saying to me. We certainly will be trying to be reasonable.

Amendment agreed to.

Clause 41, as amended, agreed to.

Clause 42, agreed to.

Clause 43.

The Family Court shall, in the exercise of its jurisdiction under this Act or any other Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to-

  1. the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
  2. the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;
  3. the need to protect the rights of children and to promote their welfare; and
  4. the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to the children of the marriage.

Circulated amendments.

  1. (Mr Ellicott)-Omit ‘The Family Court shall, in the exercise of its jurisdiction under this Act or any other Act, and any’, substitute ‘Any’. (77a) (Mr Kevin Cairns)- Omit ‘in the exercise of that jurisdiction, have regard to- ‘, insert ‘ to the extent to which it is not contrary to this Act, have regard to-‘.
  2. (Mr McMahon)- Amendment withdrawn. (78a) (Mr McMahon)- In paragraph (a), omit ‘voluntarily entered into for life’, substitute ‘, voluntarily entered into upon the basis that the union is intended to be permanent and should not be dissolved by law unless the marriage relationship has irretrievably broken down’.
  3. (Mr Fraser)- After paragraph (c) insert the following paragraph: (ca) the need to protect the position of a woman who wishes only to continue her role as a wife and mother; ‘.
Mr Kevin Cairns:
LILLEY, QUEENSLAND · LP

– I move circulated amendment No. (77A). The first sentence of clause 43 would now read:

The Family Court shall, in the exercise of its jurisdiction under this Act or any other Act, and any other court exercising jurisdiction under this Act shall, to the extent to which it is not contrary to this Act, have regard to -

My amendment is moved for a very good reason. Clause 43 as it now stands in the Bill is a clause of deception. As was so magnificently pointed out during the second reading debate by the Minister for Education (Mr Beazley), the framers of the Bill must have gone to the local vicar in respect of this clause and said: ‘Write something so that we can run it around the country to assuage the worry of all those people who think the Bill might do other things’. Paragraphs (a), (b), (c) and (d)- especially paragraph (a)- have nothing to do with the philosophy of the Bill, especially as clause 48 has already been agreed to. Paragraph (a) reads:

  1. the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;

That is completely contrary to the law and to clause 48 as proposed by the Attorney-General (Mr Enderby) and as now accepted by the Committee.

I move my amendment merely to strip away the deliberate deception which is involved in this clause, which says that these are the principles to be followed by the court but it is not the law, it is not the Act, to be administered under the jurisdiction of the court. Unless there is a world of difference understood between the 2 situations people will be deceived, and people have been deceived up to this time. That is why I seek to make the clause explicit. Unfortunately it has been made necessary as a result of clause 43 which has been run around Australia to indicate a philosophy with which this Bill has very little to do.

Mr LUCHETTI:
Macquarie

-Clause 43 stands out as a rare orchid in the desert of this legislation. The words contained in the clause would certainly bring comfort to many people. It expresses noble sentiments. It gives encouragement to those who are troubled by matrimonial problems. When the law has been enacted it will assure those who have problems that the Government and the law makers of our country have a conscience and a soul. They have written a piece of legislation which, with all virtue, upholds the sacrament of marriage for Christians who believe in it This clause in its nobility seems to me to have all those virtues.

Many of us who have spoken during the second reading debate and on the various clauses have been trenchant in our criticism of those responsible for framing the Bill. We have vigorously expressed our feelings in regard to the sins of omission and commission of the authors of the Bill. But here we find these wonderful words- words which would give great encouragement to anyone concerned with matrimonial matters. It refers to ‘the need to preserve and protect the institution of marriage’, ‘the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society’, the responsibility for the care and education of dependent children, ‘the need to protect the rights of children and to promote their welfare’, and ‘the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to the children of the marriage ‘. These are wonderful words. I rise merely to pay a tribute and a compliment to those who drafted this Bill and to say that these are encouraging words. As I said, they stand out as a rare orchid, perhaps like a beautiful lily on a mountain crag. They give some hope to people that there is in this Parliament and in those who framed the legislation a soul and a conscience. They give some hope for the married and for humanity.

Whilst the amendment of the honourable member for Lilley (Mr Kevin Cairns) expresses a thought which highlights more than anything else the disastrous features of the legislation generally, I doubt whether it will achieve very much. May I express a thought on the amendment which has been circulated by the right honourable member for Lowe (Mr McMahon). I think that it would be most unfortunate to destroy this delightful work, this beautiful composition, this beautiful work of art, this marvellous skill of the draftsman by omitting anything and by putting in the words proposed by the right honourable member. It would certainly be a blot on the legislation. All I say is that if we cannot eventually accept the proposal put by the Leader of the Opposition (Mr Malcolm Fraser) we should not meddle with the clause at all.

Amendment negatived.

Mr McMAHON:
Lowe

– I move circulated amendment No. (78a) clause 43 relates to the Family Court and to the matters to which it must have regard when exercising jurisdiction. I am mainly concerned here with paragraph (a) which refers to the need to preserve and protect the institution of marriage. Everyone of us wants to do his best to protect that institution to the maximum extent possible. But I think that when guidelines of this kind are being introduced it is of vital importance to reflect contemporary mores and accepted contemporary attitudes. The existing clause does not. The proposed change does. I do not believe that the clause should be used as propaganda in order to bemuse the people or to create the impression that the law is’ different from what it will be now that clause 48 has been agreed to.

Mr Kevin Cairns:
LILLEY, QUEENSLAND · LP

– Strip away the deception.

Mr McMAHON:

– As my colleague has just said, my amendment is an attempt to strip away some of the deception and for that reason I believe that it ought to be passed. The origin of the words marriage is a union of a man and a woman voluntarily entered into for life and can be found in an interpretation of the Divorce Act 1865 of the United Kingdom. The presiding judge then decided that the word ‘marriage’ in a Christian sense meant a ‘voluntary union entered into for life’. We all know that that no longer represents contemporary mores and accepted contempor ary attitudes. The fact is that the Committee has now agreed to clause 48 which states that the marriage may be dissolved if it has irretrievably broken down. Therefore, we find a complete inconsistency between this sub-clause and clause 48 if this sub-clause is passed in its present form. I have discussed this matter with the Crown Law authorities, the advisers to the Government, and also with the Attorney-General (Mr Enderby) himself. With their assistance I have worked out a phraseology that truly and accurately reflects the mores and the attitudes of today.

Under today’s law there can be no doubt that the proper definition of the word ‘marriage’ is that it is a union intended to be permanent and should not be dissolved by law unless the marriagehere I use the phraseology of clause 48- ‘has irretrievably broken down’. That reflects the idea and the concepts that I have mentioned. I believe that this is an amendment which strips the words used in the clause of deceit and propaganda. The amendment gives the clause the meaning that it ought to have. I believe that the amendment will be welcomed by most members of the Australian community. I therefore strongly support it. As I have said, I have had discussions on it with the relevant authorities and I have been assured of their support. I hope that the amendment will be carried into law.

Mr ENDERBY:
CanberraAttorneyGeneral · ALP

– It seems to me that the amendment moved by the right honourable member for Lowe (Mr McMahon) correctly states the present attitude of society to marriage. Speaking for myself, I would not oppose it. I hope that, holding my views on this Bill and its importance, I shall not live to regret this when the Bill goes back to the Senate.

Mr ELLICOTT:
Wentworth

– I think that the amendment proposed by the right honourable member for Lowe (Mr McMahon) is completely and utterly legalistic. It seeks to introduce into the Bill a lawyer’s idea of marriage. That was never the intention of clause 43 (a). Clause 43 (a) states what are the aspirations of the parties to a marriage. It states that the marriage is: the union of a man and a woman to the exclusion of all others voluntarily entered into for life;

When 2 people get married I guess that that is their aspirations. I hope that we do nothing in this Parliament to reduce that idea. We all know that a marriage may irretrievably breakdown. We know that events may occur during the marriage to indicate that the parties were never suited and that they should never have married. We also know that events will occur which will bring about the end of that marriage. But one thing ought to be clear: When people participate in a marriage ceremony, whether it be in a registry office, a church or in some other place, and that ceremony is recognised by law the parties to it should look upon it as a permanent union and one that they will with all sincerity try to maintain permanently for life. That is what ‘permanently’ means. If we start to undermine the idea of marriage with ideas that it is in some way qualified by lawyers’ language I believe we take away rather fundamentally from this still most personal and most precious institution in our lives.

Mr MARTIN:
Banks

– I agree with the sentiments that have been expressed by the honourable member for Wentworth (Mr Ellicott). I admit that when I first saw clause 43 and tried to read it in conjunction with clause 48, which has now been passed by the Committee, there seemed to be some conflict. I am rather shocked by the attitude of the Attorney-General (Mr Enderby) in seeming to agree to the acceptance of the amendment which has been moved by the right honourable member for Lowe (Mr McMahon). I think that if there is one thing that we would want to establish in this country- we should certainly establish it for the Family Court -it is that marriage is permanent. Marriage as set out in clause 43 (a) is the proper concept of marriage. I would hate to think that at this stage of the debate there would be any watering down of the principles which I and the great bulk of the people in Australia hold about marriage. It is entered into permanently for life, as is clearly set out in the clause. I think that when the matter was debated in the Senate, this was one of the clauses which was amended to bring before the Family Court the prime reason for marriage; that is, that it is permanent. Only in the most exceptional circumstances should those marriage bonds be dissolved. I for one, as a practising Christian, as I think the bulk of Australians including honourable members of this chamber are, would hate to see any watering down into legalistic terms which would tend to give the opinion that marriage is something dissolvable almost at will and that the marriage contract when it is entered into is entered into with the thought that maybe it is not of a permanent structure. I think that any watering down of this sub-clause would not be of benefit to our way of life.

Mr GILES:
Angas

– I suppose that the amendment moved by the right honourable member for Lowe (Mr McMahon) could be described as a case of brutal honesty. But I certainly would not look at it for one minute as a watering down of the provisions of the Bill. If honourable members read the clause that the honourable member for Macquarie (Mr Luchetti) described as a jewel or a rare orchid in the desert, they will find that it might offend that concept. I am prepared to admit that. I will read out what the amendment of the honourable member for Lowe proposes. It proposes to omit the words ‘voluntarily entered into for life’ and to substitute the words ‘voluntarily entered into upon the basis that the union is intended to be for life’- the honourable member uses the word permanent’- ‘and should not be dissolved by law unless the marriage relationship has irretrievably broken down’. I would have thought that the last few words that are proposed to be inserted did the opposite to watering down the marriage. In fact, I would have taken the view rightly or wrongly- I suppose that I am entitled to my view- that this tightens up the position and sets down the principles contained in clause 43. The marginal notes for clause 43 state ‘principles to be applied by courts’. I would have thought that this was a worthy principle to be taken into account by the courts in conjunction with the other provisions in the Bill so poetically described by my friend the honourable member for Macquarie. I am surprised at 2 views that I have heard so far. They are along the lines that this amendment would represent a watering down of the principles that should be looked at by the court prior to considering any case of divorce. Of course, this is the job of the courts as the legislation is constituted. Although it is brutally honest, on balance I support the amendment.

Mr HURFORD:
Adelaide

-I support clause 43 as it stands and oppose the amendment proposed by the right honourable member for Lowe (Mr McMahon). I believe that it is very important that the right attitude to marriage should be expressed in this Bill. The correct attitude is that marriage is something undertaken for life. It should not be entertained that the marriage is going to break down in any way. I believe that having the clause as it is provides no difficulty for the Family Court, whatever the circumstances may be, because the court will take notice of them.

Mr Kevin Cairns:
LILLEY, QUEENSLAND · LP

– Because they will take no notice of it, that is why.

Mr HURFORD:

-I do not accept the interjection of the honourable member for Lilley. The fact is that the opponents of this Bill have quite wrongly considered that because in essence the Bill is doing away with fault, this means that marriage is not going to be looked upon in society as it was in the past. I do not agree with that proposition. I believe that almost everybody in our community enters into marriage believing that it is for life and not something that is terminable. I think it is tremendously important that this principle should be written in this way in the Bill.

I support the clause as it is and do not entertain the amendment of the right honourable member for Lowe. I point out that the clause will stop the courts being cavalier and capricious in divorce cases. If the amendment of the right honourable member for Lowe were carried it would give the courts an excuse to have that sort of attitude. Those of us who voted to give the Bill a second reading and supported clause 48 in its present form have been looked upon by some as not supporting marriage for life. I repeat that that is not correct. I believe that the clause ought to be supported in its present form.

Amendment negatived.

Mr MALCOLM FRASER:
WannonLeader of the Opposition

– There is, and has been I think, an impetus in different parts of this legislation to establish circumstances in which a woman whose marriage has broken down must go out to work to look after herself if she is fit and able to do so. I believe that a family court should take into consideration circumstances which have been traditional and which still are present through much of our community, that a woman who gets married expects to be looked after by her husband and, even if the marriage breaks down, expects still to have some right to the protection of the law and some right to be looked after by the person she married at an earlier time. I think it is necessary to do away with that particular impetus and thrust in the legislation. Therefore I believe that some additional amendments need to be made to this legislation.

Whilst this amendment is directed to clause 43, 1 think the same words ought to be inserted in clause 75. If this amendment is carried a subsequent amendment will be moved to clause 75. The amendment would seek to protect the position of a woman who believes that marriage and looking after children is a lifetime and honourable vocation. I think it would be a most unfortunate day for this Parliament if we ever passed legislation which put a thrust into the law to break down the traditional role that women have played in our community. Therefore I believe that this additional principle is one that ought to be taken into account when family courts come to make their decisions.

The CHAIRMAN:

– Is the Leader of the Opposition moving circulated amendment No. 79 standing in his name?

Mr MALCOLM FRASER:

– I am moving amendment No. 79, standing in my name, which seeks to insert after paragraph (c) the following paragraph: (ca) the need to protect the position of a woman who wishes only to continue her role as a wife and mother; ‘.

The CHAIRMAN:

– The question is: ‘That the amendment proposed by the Leader of the Opposition, No. 79 as circulated be agreed to ‘.

Mr HOWARD:
Bennelong

-Briefly, I would like to second the amendment that has been moved by the Leader of the Opposition (Mr Malcolm Fraser). Part of the atmosphere of support that has been generated for this Bill has been among those who have felt in the past that our laws have presumed far too much, and that to far too great an extent the only role for a woman in marriage is the traditional role of a wife and the bringing up of children. I would be the first to concede that perhaps in years past there has been an undue bias in that direction and what ideally speaking we ought to achieve is a situation where, with proper regard to the interests of children, women are in a position to exercise a choice as to whether they should fulfil a full-time wife and mother role or only a parttime one.

The proposition that is inherent in the amendmentI think it needs to be recognised- is that in the process of redressing the balance we might have gone a bit too far and we may be effectively closing off, not only in this legislation but in other legislation that affects the relationship in marriage between men and women, the option of the full time wife and mother role. As I see it, in no way does this amendment destroy some of the other objectives of the Bill so far as maintenance is concerned, but I think the amendment does bring back to the Bill, certainly so far as the principles to be applied by the Court are concerned, a much needed balance so that we do have, hopefully, something approaching the ideal situation where, if a woman does opt for the traditional role of a wife and a mother on a completely full time basis, she should not in any sense be at a disadvantage. If the purpose of clause 43 is to state the broad principles which ought to be applied by the Family Court in exercising its jurisdiction, and if we are to include any principles in that, surely there ought to be room for the expression of the principle that there is a need to protect a woman within marriage who, in the exercise of choice, opts for the full time wife or mother role.

Mr PEACOCK:
Kooyong

– I want to speak only briefly on this matter. I do so, not with any fear and trembling because I am opposing my learned Leader on this matter, but because I believe that we do not need to amend clause 43 in the way that has been proposed. In fact I think that the amendment may in reality as a principle tend to downgrade the status of women. I also pose the question: What if the husband establishes grounds for divorce, albeit that there may be in normal circumstances a general desire on the part of the woman to continue her role as a wife and mother but on other occasions she may so break that role as to occasion proper grounds for divorce. If we follow the logic of this amendment through as a principle to be applied by the court, I submit that also we would have to insert an amendment which would refer to a man who may wish only to continue his role as a husband and father. So, for those brief reasons, I am opposed to the amendment moved by my Leader, but I may conceivably be persuaded to support an amendment to clause 75 which relates to matters to be taken into consideration in proceedings with respect to maintenance where I think the amendment would be more applicable than as a general principle to be applied by the courts. For that reason I support the clause as it now stands and oppose the amendment.

Mr CONNOLLY:
Bradfield

– I must make a few very brief comments in support of the amendment moved by the Leader of the Opposition (Mr Malcolm Fraser). Firstly I would like to point out that I do not agree with the view just expressed by the honourable member for Kooyong (Mr Peacock). The reason I wish to speak to the amendment is specifically this: The presumption throughout this legislation has been the equality of men and women to enter divorce and therefore to have exactly the same basis on which their marriages should be terminated, the fact of the matter is that a vast number of marriages up to the present time have been based on decisions made on social mores which were the accepted views of the community as early as 50 or 60 years ago. Many women who entered into marriage contracts in earlier times did so on the specific presumption that their husbands would take care of them and be the sole or main source of their maintenance. Now, of course, times have changed, but there is considerable doubt whether amended laws should be made at this stage which force under such circumstance people who entered into contracts at that time to live according to legislation which is passed in 1 975. In other words, a vast number of marriages do not in fact give women the basis of equality that is presumed in this legislation.

Mr ELLICOTT (Wentworth)-Mr Chairman, I seek leave to speak again.

The CHAIRMAN (Mr Berinson:

-For what period?

Mr ELLICOTT:

– For 2 minutes.

The CHAIRMAN:

– Is leave granted? There being no objection, leave is granted.

Mr ELLICOTT:

-I regard this amendment as what might be called a stop-the-drift amendment. It is all right for the honourable member for Kooyong (Mr Peacock) to speak about husbands and their position; but in recent years there has been a substantial drift in the position of a woman who wants to stay at home, to look after the children and to do those things which one traditionally might have expected her to do. For some reason this woman has become a second rate citizen. The Leader of the Opposition (Mr Malcolm Fraser) has moved his amendmentI say so with great respect- to stop this drift in public thinking about the position of the wife of a marriage. I think it would be good for this Parliament to recognise it somewhere. It is proposed to be introduced in to clause 43. I would like to see it introduced into clause 75.

I hope that the amendment moved by the Leader of the Opposition is one that the Committee will accept. I hope that it is the sort of amendment that some people I see sitting opposite might be prepared to support in order to stop this drift and to recognise the fact that a woman who stops at home and looks after the children may be entitled in the coming years to some sort of wage. We are already thinking of that. Why should she be in an inferior position? Why should she be neglected? Unless we in Parliament start to stand up for her, she will -become a deprived person- deprived not only in a physical and financial sense but also, I believe, in a psychological sense. Many wives today are feeling that because they do not go to work they are in some way inferior. I notice it in speaking to married women who stop at home. They have this attitude that in some way they want to break through into a job in order to get away from what they have been taught to regard by society’s standards as something of a tedium. So I support the amendment.

Mr KILLEN:
Moreton

-Mr Chairman -

Mr Enderby:

– You have spoken, have you not?

Mr KILLEN:

-No, I have not. I thought that would have been a matter of ecstacy to the Attorney-General, not a matter of complaint. I support the views which have been put by the honourable member for Wentworth (Mr Ellicott) in supporting the views of the Leader of the Opposition (Mr Malcolm Fraser). There is this extraordinary avant-garde attitude that if a women is divorced and finds herself with a new status the forces of equality take over and she should be considered on all fours with the former partner of the marriage. The Attorney-General, despite his very considerable efforts to earn a reputation as the unreasonable man, is not without reason. I want to posit this to him: A woman may be married for 15 or 18 years and the union, for “one reason or another, may break up. The women is then obliged to go back to work. It could well be that she would be asked to go back and work in an environment that was completely and utterly foreign to her. It could well be that the skill she had as a stenographer, say, has left her. It could also be the skill of a private confidential secretary -

Mr Kelly:

– Or a nurse.

Mr KILLEN:

-It could be the skill of a nurse. I am indebted to my friend for his interjection. Whatever a woman’s skill may have been, having been away from her vocation for so long she would be so utterly bereft of accomplishment in the field that pro tanto she would find herself placed in a position of difficulty. Clause 75(1), dealing with proceedings with respect to maintenance, says that the court shall take into account only the matters referred to in sub-clause (2). One of the matters listed in sub-clause (2) is that in paragraph (e), which is the responsibility of either party to support any other person. I am suggesting to the Attorney-General that, by analogy, this should be the case. It is not a fierce amendment which the Leader of the Opposition proposes It is an amendment which takes proper knowledge of the fact that times have changed. To use the elegant language of the honourable member for Wentworth, this is a stop-the-drift amendment. I think it is about time the national Parliament took cognisance of the fact that married women are not second class citizens.

Mr ENDERBY (CanberraAttorneyGeneral) Mr Chairman -

Mr Malcolm Fraser:

-You have spoken, have you not?

Mr ENDERBY:

– I have, but I made an arrangement with the honourable member for Wentworth (Mr Ellicott). Mr Chairman, I seek leave to speak for 2 minutes.

Mr CHAIRMAN:

– Is leave granted?

Mr Malcolm Fraser:

– Leave is granted if I can speak for the same dme, if I wish to.

The CHAIRMAN:

– Is leave not granted?

Mr Malcolm Fraser:

– Leave is granted if an arrangement was made; but I might be seeking leave to speak again, too.

The CHAIRMAN:

– Is leave granted? There being no objection, leave is granted.

Mr ENDERBY:

– I will not be giving the Leader of the Opposition (Mr Malcolm Fraser) leave to speak again.

Mr Malcolm Fraser:

– You will not?

Mr ENDERBY:

– That is so. I am prepared to sit down now if the Leader of the Opposition intends to seek leave to speak again. I ask him whether he is prepared to stay seated.

The CHAIRMAN:

– Order! I have to point out to the Attorney-General that he has 2 minutes at his disposal and he might as well use that time.

Mr ENDERBY:

– I oppose the amendment on the basis put forward by the honourable member for Kooyong (Mr Peacock), who put it extremely eloquently. One does not have to stop a drift. If one wanted to stop a drift, one certainly could not do it in the way proposed by the Leader of the Opposition. I suggest to the honourable gentleman that the language of clause 43 is consistent with what those who support the amendment seek to achieve. If a drift has to be stopped, the assertion that it should be stopped is to be found in clause 43, particularly paragraphs (a) and (b)- the restatement of the importance of the family. Surely that is what supporters of the amendment are talking about.

One finds enormous support, and support for the first time, for the principle in clause 75. If one is to seek reasons why a woman should be encouraged to continue as a wife and mother, they can be found by imposing the responsibilities on her husband to support her. In particularthis goes to what the honourable member for Moreton (Mr Killen) said- paragraphs (j) (k) and (n) of clause 75 (2) for the first time proudly state in a law of Australia that the court will take into account the extent to which the party whose maintenance is under consideration has contributed to the income earning capacity, property and financial resources of the other. In other words, if the wife has played the role of wife and mother and so allowed her husband to go out and work and earn assets, she is encouraged to be a wife and mother in that way. It does work to that effect. More importantly, paragraph (k), which refers to the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration, again goes directly to the question referred to by the honourable member for Moreton. What I suggest to honourable members is this: Clause 75 is directly drawn with those considerations in mind, and indeed clause 43 is directly drawn with those considerations in mind.

Mr MALCOLM FRASER (WannonLeader of the Opposition)- Mr Chairman, I seek leave to speak for 2 minutes.

The CHAIRMAN:

– Is leave granted? There being no objection, leave is granted.

Mr MALCOLM FRASER:

– I think the AttorneyGeneral (Mr Enderby) has very much missed the point of the amendment. Paragraphs (a) and (b) of the clause are not related to the amendment I have moved. Paragraphs (a) and (b) certainly talk about the importance of marriage; but at the same time, as I indicated before and as other speakers in support of the amendment have indicated, in redressing what might have been an imbalance in the past there is now an imbalance in another direction which tends to thrust a woman who is a party to a broken marriage out to work, even though when the marriage was originally undertaken it was clearly understood between the 2 partners that she regarded her role in the traditional sense, namely, that of somebody who wished to make marriage and being a mother and a wife a full time vocation and job.

I believe it will be most unfortunate if the Parliament passes these laws which tend to thrust people out into the work place and which do not recognise that the traditional role of a woman in the Australian society still has a place within the laws of this Parliament. The amendment which has been moved is designed to give equality to those who wish to play that traditional role. I know very well that the Attorney-General seeks to destroy that role in the impetus of the legislation which he is handling through this House. It is not a question of imposing an obligation on anyone. It is a matter of seeing that a proper contract undertaken in the first instance is carried through in a proper manner. I hope that the amendment will be supported.

Mr Hurford:

- Mr Chairman, I seek leave to speak.

The CHAIRMAN (Mr Berinson:

-Has the honourable member already spoken to this clause?

Mr Hurford:

– I have already spoken to clause 43 but not to this particular question.

The CHAIRMAN:

– Is leave granted to the honourable member to speak for 2 minutes?

Honourable members No.

The CHAIRMAN:

– Leave is not granted.

Question put:

That amendment No. 79 (Mr Malcolm Fraser’s) be agreed to.

The Committee divided. (The Chairman- Mr J. M. Berinson)

AYES: 47

NOES: 64

Majority……. 17

AYES

NOES

Question so resolved in the negative.

Clause agreed to.

Clauses 44 to 47- by leave- taken together, and agreed to.

Clause 49.

Circulated amendment.

Mr CONNOLLY:
Bradfield

– I make certain observations on sub-clause (2) of clause 49, which states:

The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

The substance of amendment No. 90, circulated in my name, is that the words ‘or that either party’ and subsequent words should be omitted. I have brought this matter to the attention of the Committee because I have some doubt in my own mind about whether or not the inclusion of these words is a substantial advantage to the Bill as presently formulated. I understand that in the existing legislation such a formulation does not appear, with the result that it could be argued that there is room in this formulation for parties to be encouraged to commit perjury in this respect in their evidence before a court in divorce proceedings. After all what are ‘household services’? Where is the objective judgment? I would appreciate it if the Attorney-General could give an undertaking that the proposed Family Law

Council, when it is established, will keep this matter under close review and that, if necessary, the regulations will be changed if it is discovered that these words in clause 49 in fact do open an opportunity for perjury which should not be allowed.

I am aware that the basis of the argument for this clause is that poor people are to be given the opportunity to continue living in the home with the other party to a divorce proceeding, but I should think that it would be difficult for a court to make an objective judgment on a matter such as this. I suggest that no distinction between rich and poor should be made by the law and that both should be subject to the same legal interpretations. While it could be argued, as the AttorneyGeneral undoubtedly will argue, that for example a woman who has taken action against her husband has merely helped him in time of sickness and so on, one does have to draw a distinction in terms of the interpretation of ‘living separate and apart’ in clause 49 and the provision in sub-clause (2) relating to the rendering of some household service to the other party.

Sitting suspended from 6 to 8 p.m.

Mr BERINSON:
Perth

– I support the amendment moved by the honourable member for Bradfield (Mr Connolly). Before stating my reasons, I hope that I can anticipate your indulgence to a small extent, Mr Deputy Chairman, to allow me to make a brief preliminary comment which is not very closely connected to the present clause. For unavoidable reasons I was unable to be present in the House when the vote was taken on the motion for the second reading of the Bill. My position as Chairman of Committees also effectively precludes my voting during the present Committee stage of the debate. In fairness, therefore, to the large number of constituents who have conveyed to me their special concern, both for and against this Bill, I should take the present opportunity to state my general position.

In the first place, I would have voted for the motion for the second reading of the Bill and I would have voted against the amendments proposed yesterday to clause 48- in other words, I would have supported clause 48 as it now stands. On the other hand, there are a small number of amendments- the amendment to the present clause is one and amendment No. 102 to clause 72 is another- which I believe should be supported. I have to say that I feel some regret that the attention of the Committee has obviously declined since the major clauses were disposed of. I turn to clause 49 (2), which reads in part:

The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence . . .

That will remain the case even if the amendment is carried. I am not altogether enamoured of its remaining. I know that it may well be said that it does nothing more than state the present law- and so it does. But it states a law which is not expressed in any existing legislation but which has come to be law by judicial interpretation. To that extent even the first part of clause 49 (2) appears to me to be unnecessary- in other words, the concept whereby living separate and apart can co-exist with the presence of the 2 parties under the same roof is quite well established without it. But even if it is worth having that first part of clause 49 (2), I cannot understand why we should take it to the extreme, which the latter part that is sought to be deleted now does, and include the provisions ‘or that either party has rendered some household services to the other’.

It. is not at all clear to me that that provision does nothing more than state the existing law. I could be well behind the times by now, but so far as I know the 1963 decision of the Full Court of New South Wales in the Crabtree case is still the one most often discussed. Although it did not go on the facts in the Full Court the statement of facts made it quite clear that, while the parties lived under the one roof, they had separate bedrooms and the husband made his own breakfast, had his other meals out, sent his washing out and so on. In fact there were none of these household services provided. I am not saying that one should have a look for that complete division to establish the grounds. On the other hand I do not believe that we should go to the extent of inviting the possibility of people rendering services, living under the one roof and nonetheless feeling themselves to be free to claim that they have established such a case. It would appear to me, agreeing to this proposition, that all we are left with as a ground for divorce is not so much 12 months separation as 12 months lack of cohabitation. I think that is bringing it within highly questionable grounds. But my main objection is that not simply does it open the way to perjury but also it positively invites it. This is the only part of the Bill that does so. It is all the more regrettable to me that this should be the position since, as I understand the case of so many people who, like myself, have supported the Bill in principle, not the least of its advantages is the fact that it will do away with much of the improper activity that until now has occurred in divorce cases.

There is just one other comment that I should like to squeeze in if time allows. It has been said on a number of occasions that to do otherwise than to support these sorts of provisions is merely to rest on comfortable middle class assumptions and that we should recognise that people sometimes simply cannot afford to live under separate roofs. I do not understand that argument. It appears to me that the position before the dissolution of a marriage with respect to the separation of the sort that is envisaged by the people arguing for this clause is no different from separation after marriage and that the same provisions of maintenance or, in the absence of maintenance, of social security benefits that are available after a divorce are also available in the case of separation prior to a divorce. I would be happy if that position were clarified. So far it has not been clarified by anyone making that assertion.

Mr KILLEN:
Moreton

-The honourable member for Perth (Mr Berinson), predictably, has expressed himself in terms of moderation and reason. I find myself to be in substantial agreement with my honourable friend’s views. From talking to judges and practitioners in this field, quite apart from my own meagre association, I have found that there is an overwhelming sense of support for the proposition that there should be an objective basis for separation rather than subjective basis. As the position stands now there is tremendous scope for fraud on the court. I think the Committee should recognise just that. One of my very close friends- I trust he will not be embarrassed if I cite him -

Mr Daly:

– I am not.

Mr KILLEN:

– The Minister for Services and Property would be giving an extravagant meaning to the words ‘ close ‘ and ‘ friend ‘ if he were to use them, at least in that juxtaposition. But to return to our muttons and to be serious about this matter, one of my very close friends- Mr Gordon Garland of counsel, who is probably one of the most experienced practitioners in Australia today in the matrimonial causes field- has told me that one of his concerns is the scope given by the existing provisions for fraud on the court. He has suggested, in his own very quiet and humble way, that the Parliament- the legislature, as he puts it decorously- should consider whether objective means, objective criteria, should be resorted to. As the position now stands, if a wife with children merely did washing for a man in relation to whom it is open to the plainest of intent that some application should be made for a dissolution of the marriage, that in itself may, one way or the other, inhibit the application. I would like to support the amendment which has been moved. I think it would remove an application from the whole field of subjectivity. As things stand at the moment I fear that we will be pressing upon judges for consideration, when they come to determine the matter, whether the application before them represents in some minor form a fraud on the court.

Mr HOWARD:
Bennelong

-My support for the amendment moved by the honourable member for Bradfield (Mr Connolly) goes beyond the concern expressed about fraud by both the honourable member for Perth (Mr Berinson) and the honourable member for Moreton (Mr Killen). I am concerned also about the confusion that will be caused by the retention in the clause of the words ‘has rendered some household services to the other’. It will be confusing on 2 counts. Firstly, inevitably there will be a difference of opinion between persons who might have resort to this law as to what constitutes a household service.

I think most people can understand the intent of the words or the effect of the clause: That is, even if a person continues to reside in the same residence it is possible to say that cohabitation has ceased. But when we start talking about rendering ‘some household services’ I think we introduce unreasonable elements of confusionconfusion as to what constitutes household services and also confusion as to what degree of household services need to be rendered in order to bring the exclusion contained in the clause into operation. Far be it for me to embrace all the arguments that have been advanced in favour of the legislation, but one that has generally been argued is that this legislation will bring to the divorce law of this country a marvellous simplicity: Everybody will know that the single ground for divorce is separation for a period of 12 months, and if all the doubts, worries and concern are removed people will understand what the law is. I would generally subscribe to the view that, as far as possible, the laws ought to be intelligible to the layman who reads the relevant Act.

Whilst I can wholeheartedly agree that the first part of subparagraph (2) certainly expresses the law as it has existed for a long time- I would not doubt that for a moment- I also concede that there have been cases in which a few household services have not negatived the proposition that cohabitation has been brought to an end under the same roof. But I think to spell it out in this statute will, quite apart from the issue of fraud, bring into this particular area of the Bill an imprecision, a confusion, and perhaps quite unwittingly and against their will parties may get into a situation the full consequences of which they do not realise.

I ask the Committee to give very serious consideration to the amendment of the honourable member for Bradfield. I do not think the amendment is meant in any terms other than to clear up a possible area of confusion. I do not think it really goes to a matter of principle so far as the Bill is concerned but I think it is a genuine attempt to remove an area of confusion and also, as the honourable member for Perth has pointed out, to block off a possible avenue of abuse through fraud and deception. On both of those grounds I hope the Committee will support the amendment of the honourable member for Bradfield.

Mr ENDERBY:
CanberraAttorneyGeneral · ALP

– I wish to make a short contribution on this clause. What honourable members seem to be missing- and I suggest with great respect that they are missing- is the state of the present law. When the honourable member for Moreton (Mr Killen) talks about subjective elements being replaced with objective elements surely he forgets that the present law dealing with, say, a 5-year separation period, interpreted by the courts as it has been, allows the judges to take into account services of this kind offered by one spouse or another. How could it be otherwise? The traditional role of judges is to ascertain the facts, to determine whether or not there has been a separation in fact when the parties lived under the same roof- when perhaps, under some circumstances or other, the wife, claiming to be in a separated situation, does prepare a meal; or the husband, claiming to be in a separated situation, does move a piece of furniture or perform a favour or something of that sort. The whole question then comes back to the judge to decide. This is what we put people on the bench for- to decide issues of fact of this sort. May I suggest, with great respect to the learned gentlemen who delight in -

Mr Killen:

-Be friendly.

Mr ENDERBY:

– I am being very friendly. I suggest to the learned gentlemen who delight in this exercise that if they are looking for certainty and for the satisfaction of that ideal that comes from this Parliament declaring its point of view as to what the law should be, they will not achieve it by cutting out those words that come to us from the Senate-come to us after having been thoroughly thrashed out there- and leaving even a more uncertain expression, a wider and more generalised statement. We could test it this way: The sub-clause, in its present form, states:

The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence-

That is pretty much a straightforward statement of the existing law: or that either party has rendered some household services to the other.

That too is pretty much a straightforward statement of the present law. But these honourable members want to cut out the latter part of that sub-clause. They want to remove the words ‘or that either party has rendered some household services’ in the interests of objectivity, they say, and in the interests of certainty, they say. But it will give the court less guidance. All honourable members :know that the court, in one way or another, notwithstanding the rules that apply in this situation, would have regard to the fact that there was a debate taking place in this chamber at the moment. They would have regard to the fact that we removed the words ‘or that either party has rendered some household services’- a meal has been cooked, a bed has been made -

Mr Kelly:

– A man might mow the lawn.

Mr ENDERBY:

-Or a lawn has been mowed. I am indebted to the honourable member for Wakefield. They would have regard to this and say: ‘What do they expect us to have regard to? If this is being removed, what are we to have regard to in determining whether or not the parties have lived separately and apart even though they live under the same roof?’ We give them guidance. This sub-clause is consistent with the existing law and has been thoroughly thrashed out. Some court cases have been referred to: The honourable member for Perth (Mr Berinson) referred to Crabtree and Crabtree; Hastings and Hastings is another one. My God, the Federal law reports must be full of such cases! I put it to honourable members that they should have a second thought.

Amendment negatived.

Clause agreed to.

Clause 50

  1. For the purpose of proceedings for a decree of dissolution of marriage, where, after the parties to the marriage separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the commencement of the hearing of the application, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period, but the period of cohabitation shall not be deemed to be part of the period of living separately and apart.

Circulated amendments.

  1. (Mr Bourchier)- In sub-clause (1) omit ‘up to the date of the commencement of the hearing of the application’, substitute ‘up to the date of the filing of the application’.
  2. (Mr Kevin Cairns)- In sub-clause ( 1 ) omit ‘up to the date of the commencement of the hearing of the application’, substitute ‘up to the date of the filing of the application’.
Mr Kevin Cairns:
LILLEY, QUEENSLAND · LP

-The amendment circulated in my name is to clause 50 and I suggest to the Attorney-General (Mr Enderby) that there may have been a drafting error or an oversight. The amendment deals with clause 50 and, in lines 38 and 39, seeks to omit phraseology which does not exist in either of the two preceding clauses to which clause 50 would be related. It proposes to substitute, with respect to the filing of the application, that the 12 months’ period shall apply ‘up to the date of filing of the application’ for the words presently proposed in clause 50: ‘up to the date of the commencement of the hearing of the application’. I suggest to the Attorney-General there may be a drafting error, a printing error or an oversight which caused this. After all, clause 50, which is the cohabitation clause, is related to clause 48. Sub-section (2) of clause 48 reads as follows:

Subject to sub-section (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and a decree of dissolution of the marriage shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for dissolution of marriage.

I suggest that in clause 50, which is obviously a repeat of that principle, there is an oversight and the amendment ought to be considered, in fact, to make sense of the cohabitation provisions which are contained in proposed clause 50.

Amendment negatived.

Clause agreed to.

Clause 51.

  1. Marriages that are within a prohibited relationship are marriages-

    1. between a person and an ancestor or descendant of the person; or
    2. between a brother and a sister (whether of the whole blood or the half-blood).
  2. Any relationship specified in sub-section (3) includes a relationship traced through, or to, a person who is or was an adopted child, and, for that purpose, the relationship between an adopted child and his adoptive parent, or each of his adoptive parents, shall be deemed to be or to have been the natural relationship of child and parent.
  3. Nothing in sub-section (4) makes it lawful for a person to marry a person whom the first-mentioned person could not lawfully have married if that sub-section had not been enacted.

Circulated amendment.

  1. (Mr Wentworth)-Omit sub-clauses (3), (4) and (5 ), substitute the following sub-clause:
  2. Marriages that are within a prohibited relationship are marriages-

    1. between a man and a woman who is, or has been, his-

Ancestress

Descendant

Sister

Father’s sister

Mother’s sister

Brother’s daughter

Sister’s daughter

Wife’s mother

Wife ‘s grandmother

Wife’s daughter

Wife ‘s son ‘s daughter

Wife’s daughter’s daughter

Father’s wife

Grandfather’s wife

Son’s wife

Son’s son’s wife

Daughter’s son’s wife between a woman and a man who is, or has been, her-

Ancestor

Descendant

Brother

Father’s brother

Mother’s brother

Brother’s son

Sister’s son

Husband’s father

Husband’s grandfather

Husband’s son

Husband ‘s son ‘s son

Husband ‘s daughter ‘s son

Mother’s husband

Grandmother’s husband

Daughter’s husband

Son’s daughter’s husband

Daughter’s daughter’s husband;

  1. for the purposes of this section, it is immaterial whether the relationship is of whole blood or halfblood, or whether it is traced through or to, a person of illegitimate birth; and

    1. (i) any relationship specified in paragraph (a) of this sub-section includes a relationship traced through, or to, a person who is or was an adopted child, and, for that purpose, the relationship between an adopted child and his adoptive parent, or each of his adoptive parents, shall be deemed to be or to have been the natural relationship of child and parent; and
    2. for the purposes of this section a person who has at any time been adopted by another person shall be deemed to remain the adopted child of that other person notwithstanding that any order by which the adoption was affected has been annulled, cancelled or discharged or that the adoption has for any other reason ceased to be effective; and a person who has been adopted on more than one occasion shall be deemed to be the adopted child of each person by whom he has been adopted.’.
Mr WENTWORTH:
Mackellar

– I move amendment No. 93 circulated in my name. This amendment stands on quite a different footing from any other amendment that has been put in the course of this debate, for the simple reason that the clause to which it relates is quite different from any other clause of the Bill and does not itself relate to the main thrust of the Bill. Clause 5 1 changes what are known as the prohibited degrees of marriage. It allows marriage between people who are nearly related whether by blood or marriage- marriages which are prohibited under our present law. The amendment I have moved is simply to keep the present law and not to change it; certainly not to change it wantonly, lightly or inadvisedly. This matter has received no adequate consideration by the Committee. It is a fundamental change.

The existing law is set out in the Second Schedule to the Matrimonial Causes Act. With the repeal of that Act the Schedule goes with it and in its place we are to have sub-clause (3) of clause 5 1 of this Bill, which states:

Marriages that are within a prohibited relationship are marriages-

between a person and an ancestor or descendant of the person; or

between a brother and a sister (whether of the whole blood or the half-blood).

This means that any other marriage is now to be permitted- a marriage, for example, between an uncle and a niece or between an aunt and a nephew. I do not want to go into the merits of such marriages as there is not time to do so, but I point out to the Committee that this is a fundamental thing going right back over the thousands of years of human relationships. I shall read just a couple of extracts from the ‘Encyclopaedia Britannica’. Referring to incest, it states:

Incest is universally condemned and usually greeted with horror;

It also states:

Some combination of endogomony and exogomony is found in most societies. All have incest prohibitions. These are not based on genetic knowledge. Indeed, many incest taboos involve persons not genetically related . . . The prime reason for incest prohibition seems to be the necessity for preventing society from becoming snarled in its own web: every person has a complex set of duties, rights, obligations, and statuses with regard to other people, and these would become intolerably complicated or even contradictory if incest were freely permitted.

Now we are changing the fundamental law of incest and we are creating the absurd position that sexual relationships of certain kinds will be a crime of incest under State laws- certain State laws; the laws differ from State to State- but still marriage will be permitted. This is quite ridiculous.

The main point I am making is that we are doing this without any consideration at all. We are making a fundamental change in the nature of sexual relationships in society. We are saying that a number of things which previously have been regarded as incest are not now to be regarded as incest. Marriage is to be permitted, for example, between an aunt and a nephew or between an uncle and a niece. This may be right or wrong, but it is a fundamental change and it is being made without any proper consideration. In the Senate debate on this Bill this matter was not mentioned. I believe that it was mentioned in one of the Senate Committees. In this chamber at present are about 12 honourable members. Yet in a moment we may be voting on this question without most honourable members realising what has happened. This is quite apart from the other provisions of the Bill. It has been put in and nobody seems to understand that we are making this fundamental change. It has never been discussed. I shall not say whether it is a wrong change or a right change; what I am saying is that we should not make such a change without talking about it. We should preserve, as my amendment seeks to preserve, the current situation. If there has to be change, let it be made after due consideration. This is a most fundamental matter which, as I have said, goes to the root of all human relationships. For thousands of years societies have regarded this incest taboo as one of the main structural things in the form of their organisation. Do not let us change it now without considering what we are doing.

Mr HOWARD:
Bennelong

– I rise to take up the concern expressed by the honourable member for Mackellar (Mr Wentworth), but not necessarily at this stage to speak in total support of his proposed amendment. I confess to a confusion about the matter in my mind. Because it involves a fairly important issue and is something that can be divorced completely from the basic difference of opinion expressed on this Bill, I would be very grateful for an explanation as to precisely what the words ‘ancestor’ and ‘descendant’ mean in this context. As I understand it- I will be grateful if the Attorney-General (Mr Enderby), in his helping role in this debate, is able to correct me on this clause as at present as the Bill stands it will permit marriages between a niece and an uncle and between a nephew and an aunt. My understanding of the word ‘ancestor’ is that it applies in a straight up and down line and that the wording in these provisions would prohibit marriages between parents and children. If that is to be the intent of the legislationI would be grateful if the situation could be explained, because I do not think this is an area about which there ought to be any confusion at all- I would have thought that it would have been far more practical and sensible to have spelled out the situation, if in fact the number of prohibitions on marriage within prohibited relationships is being cut down. If my understanding of the words ‘ancestor’ and ‘descendant’ is correct, the number of prohibited marriages under this Bill is very limited. I ask the AttorneyGeneral to give very serious consideration to this matter. I would be grateful to know his point of view on the interpretation I have put on the words ‘ancestor’ and ‘descendant’.

Mr Donald Cameron:
GRIFFITH, QUEENSLAND · LP

– The honourable member for Mackellar (Mr Wentworth) made a most unjust and unwarranted attack when he pointed out that only about a dozen honourable members were in the chamber. I know for a fact that many honourable members are in their offices listening to every word said during the course of this debate by the honourable member for Mackellar and other honourable members. I believe that this amendment should be incorporated in the Bill in order to spell out clearly what we accept and what we reject. There is no change proposed to the present order by the honourable member for Mackellar. I suppose it is strange that in the course of this debate this is but the second occasion on which he and I have been of one accord. I do not see this suggested amendment affecting the Bill. It would simply continue a safeguard. Therefore I support my friend, the honourable member for Mackellar, and the other honourable members who have spoken in support of the amendment.

Mr ELLICOTT:
Wentworth

-My difficulty with this clause arises from the Marriage Act itself. Section 22 of the Marriage Act states:

Notwithstanding sub-section (2.) of section twenty-two or sub-section (3.) of section twenty-five of the Matrimonial Causes Act 1959, the provisions of sections eighteen, nineteen and twenty of that Act relating to the prohibited degrees of consanguinity and affinity and the Second Schedule to that Act apply in relation to marriages in Australia, other than marriages to which Division 3 of Part IV. of this Act applies, and to marriages under Part V. of this Act, wherever the parties are domiciled or intend to make their home.

Unless I am mistaken, there is a real chance that by virtue of this amendment, the 2 Acts, assuming that this Bill becomes an Act, will get out of step. It could have serious effects. In other words, there would be certain prohibited degrees for marriage but a narrower class for divorce. My only suggestion to the Attorney-General (Mr Enderby) is that this is a reason why the amendment to the prohibited degrees ought to be a matter for the Marriage Act being amended, rather than the Family Law Bill. I urge on him the idea of perhaps retaining for the time being, and no doubt perhaps for a short period, the prohibited degrees under the old law until an amendment is brought in to the Marriage Act. That is my suggestion. If I am right in what I say, then there are serious consequences which could flow.

Mr ENDERBY:
CanberraAttorneyGeneral · ALP

– I thank the honourable member for Wentworth (Mr Ellicott) for drawing my attention to the apparent- I emphasise the word apparent’- inconsistency between the provisions of the Marriage Act and the clause in this Bill which is before the Committee. I am happy to inform the Committee that amendments are in train for the Marriage Act, as the honourable member for Wentworth would know, having regard to his previous experience as SolicitorGeneral. We will certainly be keeping the matter under close review. I wish to turn my attention to some of the remarks made by the honourable member for Mackellar (Mr Wentworth). Surely the references to incest and eugenics or inbreeding or things of that sort, and the fear of such things which goes deep in many of us, are illfounded and not justified by what is to be found in this clause. I say as a reminder to honourable members, although by itself it is not enough to convince honourable members, that this Bill came to us from the Senate and this provision was inserted by the Senate after examination. The fact remains that the definition of prohibited degrees is clear. I read that definition to honourable members from clause 5 1 (3) of the Bill:

Marriages that are within a prohibited relationship are marriages-

between a person and an ancestor or descendant of the person, or

between a brother and a sister (whether of the whole blood or the half blood).

Increasingly in recent years it has become apparent that the wider range of prohibited degrees, which depend essentially on marriage relationships, does not serve any utility, if I may put it that way, in the cause of eugenics, even if I have to use that word which does not please me particularly. But the lateral relationship in that sense as it goes out before it goes down in an ancestor-type way, plays little or no part in the sort of built-in fears that the honourable member obviously entertains. Surely the vertical ancestor relationship does. If one has to use words like blood’ and ‘genes’, that is where the concern lies. This is what underlies the honourable member’s concern, it seems to me, as I understood him.

A lot of research has been done on this matter. The honourable member read at some length from an edition, I know not which edition, of the Encyclopaedia Britannica’. There has been more up to date research on this matter by people such as Professor Nygh and Professor Finley of Monash University suggesting that the lateral sort of relationship matters not- and it is a considerable infringement of the right to marry. I am reminded- I do not know whether it is truethat Jewish law, for example, and other areas of law, does not and has never gone in for the more restricted areas which we have previously laid down. What is in the Bill is generally accepted, and I put it to honourable members as being a reasonable relaxation of these rules which have come to us from the past- surrounded, I would say, by all the taboos of the past.

Mr Wentworth:

- Mr Chairman, I wish to make a personal explanation. I take this matter seriously.

The CHAIRMAN:

– Does the honourable member claim to have been misrepresented?

Mr WENTWORTH:

-Yes, entirely, Mr Chairman. The Attorney-General (Mr Enderby) either did not listen to what I was saying or did not understand it. I was careful to point out that all reputable authorities are not talking mainly about eugenics. The quotation which I used referred to social relationships. If the AttorneyGeneral knew anything about sociology or anthropology, he would know that this question of social relationship is much more important and far-reaching than any question of eugenics. He has entirely misrepresented the drift of my argument. Obviously he has not understood what this matter is all about. This is one of the things which terrifies me. I am terrified of -

The CHAIRMAN:

– Order! I think the honourable member for Mackellar has gone as far as a point of personal misrepresentation will allow.

Mr Kevin Cairns:
LILLEY, QUEENSLAND · LP

-The proposed amendment nominates the prohibited relationship in 2 ways. In a vertical sense it nominates the prohibited relationship as, first, between a person and an ancestor or descendant of the person, and, second, in a lateral relationship, which also has the capacity to be vertical, between a brother and a sister whether of the whole blood or the half blood. One has to look at the prohibited relationship if it is assumed that prohibited relationships are to remain prohibited and if it is assumed that there is not to be a fundamental alteration to the relationship. I wonder why the list of prohibited relationships which are in the present Act are not included in the Family Law Bill. After all, in the proposed Bill the word descendant’ is not defined and the word ‘ancestor’ is not defined. What is a ‘descendant”? It is left up in the air and we are uncertain as to the extent to which a descendant is in a vertical relationship that is prohibited and to what extent relationships can extend laterally and remain prohibited.

There has to be an air of uncertainty which revolves around the very short and very shortened definitions of what constitute prohibited relationships in the proposed Bill. I am very uncertain; I have to be uncertain. After all, I ask the Attorney-General: ‘Would a prohibited relationship be a marriage between a man and a woman who is his wife’s daughter’s daughter?’ I ask that precisely. I ask: ‘Would it be a prohibited relationship between a woman and a man who is her husband’s son’s son, or between a woman and a husband’s daughter’s son?’ These are some of the questions which have to remain uncertain in our minds when one looks at this very shortened category of descendants and what constitutes a prohibited relationship in the proposed Bill. In these circumstances, nobody could depart from this chamber with any certainty. He could surely not derive certainty from what is in the proposed Bill in terms of clauses 51 (3) sub-clauses (a) and (b). It is not possible to do so. The sections which follow do not nominate prohibited relationships as we have come to expect them to be. I would think that the Attorney-General ought to pay some appropriate attention to this matter, especially as I hope that, in refusing to pay attention to a previous clause, he has not made a mess of proposed clause 50 which, on the advice of his officers, he was going to accept. In those circumstances, he ought to pay a modicum of attention to the case which has been made by the honourable member for Mackellar. It cannot be laughed away. It is serious. It cannot be ignored. If the Family Law Bill does not seek to alter completely what are prohibited relationships, there ought to be an answer to the question. I would certainly seek the agreement of the Committee to grant leave to the Attorney-General to answer some of the propositions that I have put to him.

Mr PEACOCK:
Kooyong

– I have been in some doubt about this clause. I do not accept the argument of the honourable member for Lilley (Mr Kevin Cairns) about the need to define ‘ancestor’ or ‘descendant’ which he says are not denned. Neither are these denned in the amendment by the honourable member for Mackellar who, in that amendment, has used the very terms ‘ancestor’, ‘descendant’, ‘ancestress’ and ‘descendant’. That amendment does not define it either, no matter what the honourable member for Mackellar (Mr Wentworth) may seek to interject. It does extend the categories. It extends the categories to people such as the father’s wife. If there was in fact a blood relationship, say, between the father’s wife and the other party, that would be a different matter. If there was an adopted son with no blood relationship, though some have discussed this aspect in consideration of the clauses, that may be different. But I do not think this applies. Let me explain what I am troubled about. I would hope that members on this side of the Committee would grant leave to the Attorney-General (Mr Enderby) to clarify the matter that troubles me.

Mr Kevin Cairns:
LILLEY, QUEENSLAND · LP

– I have said that should be done to enable him to explain it.

Mr PEACOCK:

-That is not what troubles me. The aspect that troubles me is the one which was pointed out by the honourable member for Wentworth (Mr Ellicott) who said that there are categories listed in the Marriage Act which are not discussed as definitely in the Family Law Bill. It seems anomalous that certain marriages are debarred in the Marriage Act but permitted for divorce reasons in the Family Law Bill.

Mr Enderby:

– That is not so. Read the legislation. ‘Declared void ‘ is the expression.

Mr PEACOCK:

-If what I say is the case, I would like the Attorney-General to clarify the position.

Mr Enderby:

– Read it, please.

Mr Howard:

– Give him leave.

Mr PEACOCK:

-We will give leave.

Mr Enderby:

– I do not want leave.

Question put:

That the amendment (Mr Wentworths) be agreed to.

The Committee divided. (The Chairman- Mr J. M. Berinson)

AYES: 47

NOES: 62

Majority……. 15

AYES

NOES

In Division:

The CHAIRMAN:

– Order! My attention has been drawn to the display of signs in the public gallery. The attendants will have those signs removed. Order! The Committee is in the process of a division.

Mr Malcolm Fraser:

- Mr Chairman, is it appropriate to allow a demonstration in this chamber?

The CHAIRMAN:

– There is no longer a demonstration, in accordance with my instructions to the attendants,

Mr Malcolm Fraser:

– Thank you, Mr Chairman.

Question so resolved in the negative.

Clause agreed to.

Clauses 52 to 54- by leave- taken together, and agreed to.

Clause 55.

  1. Subject to this section, a decree nisi made under this Act becomes absolute by force of this section at the expiration of a period of 1 month from the making of the decree or from the making of an order under section 63, whichever is the later.

Circulated amendment.

  1. (Mr Wentworth)- In sub-clause ( 1 ) omit ‘ 1 month’, substitute ‘3 months’.
Mr WENTWORTH:
Mackellar

– I move circulated amendment No. 94.I put it to the Committee that the interval of one month between the decree nisi and the decree absolute is insufficient. Let me put one reason why it may be insufficient in certain cases. The Committee has agreed to the provision that parties may be deemed to be living separately and apart even though one performs some domestic services for the other. This may mean that until the decree nisi is granted they do not have any idea of what living apart really means. It may be that when they get some experience of living apart, unable to perform these services one for another, they may think differently. I see no reason why there should not be a reasonable interval- surely 3 months is a reasonable interval- between the decree nisi and the decree absolute.

Amendment negatived.

Clause agreed to.

Clause 56 agreed to.

Clauses 57 to 60- by leave- taken together, and agreed to.

Clause 61 agreed to.

Clauses 62 to 7 1 -by leave- taken together.

Mr KILLEN:
Moreton

-Without insisting on the point, I am wondering whether in relation to clause 64(l)(c) the AttorneyGeneral (Mr Enderby) would indicate whether he would consider inserting after the words ‘subject to paragraphs (a) and (b), the court may’ the words ‘take into consideration the conduct of the parties and all other relevant facts and circumstances and’. I know that my friend will say that this is getting back to the fault concept.

Mr Enderby:

– It certainly is.

Mr KILLEN:

-Oh, yes, of course it is. I am delighted -

Mr Enderby:

– It seems to be ingrained in much of what you say, does it not?

Mr KILLEN:

– I am delighted to get my friend’s reaction because it gives point to what I have to say.

Mr Whan:

– You looked surprised, Jim.

Mr KILLEN:

– If we were to wig you we would still have wool over your eyes. I just want to say this to the Committee: We are not dealing here with some trivial matter. Whatever our views may be with respect to the primary matter, we are dealing here with matters which concern the whole happiness and circumstance of those children who are thrust into custodial proceedings. Any person in this Committee who has ever been involved in custody proceedings will know the sense of anguish and the sense of distress in which they are involved. Judges, when they come to consider who shall have custody, surely to heavens are obliged by the whole conglomeration oftheir discipline to ask: ‘Where does the fault lie?’ Is the Attorney-General serious and are his professional advisers serious when they say: ‘Oh, no, we will have no part of any reflection upon fault . ‘ Would the Attorney-General, as the principal law officer of the country, seriously contend that a judge should say to a woman who has been so utterly bereft of family and parental responsibility that merely because sheisthe mother she should not have custody of the children? I could not contemplate a more absurd proposition. But, under the existing provision, that could well be the case.

I say to my honourable friend that he should take into account this new arrangement whereby he wants a Bill so that he can go to the States and say: ‘We have a Bill. We want to do something about it’. I want him to reflect upon the enormity of a national Parliament saying in this instance that it is utterly disinterested in any consideration of fault. Such a position seems to me to belong to a world of utter unbelief and unreality. I hope that my honourable friend may succumb- no, I would not ask him to succumb to anything. I only ask him to accept the good sense of a suggestion made to me by one who has had probably even greater experience in the field of matrimonial law than all those who presently advise him.

Mr ENDERBY:
CanberraAttorneyGeneral · ALP

– The remarks of my good friend, the - honourable member for Moreton (Mr Killen), demand an answer. He asks us, without having circulated an amendment in his name to the effect, to write into the Bill something that suddenly has occurred to him. He suddenly gets to his feet and off the top of his head utters this thought -

Mr Killen:

– What an ungenerous soul you are; what a mean man you are.

The CHAIRMAN (Mr Berinson:

-Order! The honourable member for Moreton has already made his speech.

Mr ENDERBY:

-He wants to write into the Bill in letters 3 feet tall, almost like a neon sign: Blame, blame, blame, guilt, guilt, guilt, fault, fault, fault’.

Mr Killen:

– It would have no effect upon you.

Mr ENDERBY:

-Of course. It tells us all a lot about the honourable gentleman. Of course ‘the conduct of the parties’, which he wants to write into the Bill, is a relevant consideration. Let me read the Bill to the honourable member. He has not read it. It states:

The court shall regard the welfare of the child as the paramount consideration.

The court should not give a damn about the parents when it comes to the welfare of the child. But, of course, in the consideration of the welfare of the child the conduct of the parents is relevant.

Mr Killen:

-Aha! Fault!

Mr ENDERBY:

-But we do not want to put it in neon signs. The honourable member wants to write into the legislation: ‘Fault, fault, fault, blame, blame, blame, guilt, guilt, guilt’. That is all the honourable member wants -

Mr Killen:

– What a smart illegitimate you are.

Mr ENDERBY:

-Let us reflect of it. Of course -

The CHAIRMAN:

– Order! The honourable member for Moreton will withdraw that comment. He also will desist from further interjections.

Mr ENDERBY:

- Mr Chairman, it does not offend me.

The CHAIRMAN:

– Nonetheless, I ask for the comment to be withdrawn.

Mr Killen:

– I will withdraw it in deference to you, Mr Chairman.

Mr ENDERBY:

-Let me put this thought to the honourable gentleman as a lawyer -

Mr Killen:

– I would invite him not to incite me in this outrageous fashion.

The CHAIRMAN:

– Order! The honourable member for Moreton has spoken on this clause.

Mr ENDERBY:

-Let me invite the honourable member to think as a lawyer -

Mr Killen:

– This vulgar old man.

The CHAIRMAN:

– Order! I warn the honourable member for Moreton.

Mr ENDERBY:

-Let me invite the honourable member for Moreton to think as a lawyer. If he were acting for a party in a custody suit in relation to a child and he had evidence of behaviour of the other spouse that went to disqualifying that spouse from being entitled to have the custody of the child, would he not think it was relevant to put that evidence before the court under that heading? Of course he would. But the honourable member wants to enshrine it in the legislation. He wants to write ‘Fault, fault, fault, blame, blame, blame, guilt, guilt, guilt’ all over this legislation. That is the one thing we are trying to take out of this legislation.

Clauses agreed to.

Clause 72.

A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately, whether by reason of having the care or control of a child of the marriage who has not attained the age of 18 years, or by reason of age or physical or mental incapacity for appropriate gainful employment or for any other adequate reason having regard to any relevant matter referred to in sub-section 75 (2).

Circulated amendments. (101) (Mr K. M. Cairns)- Omit ‘having regard to any relevant matter referred to in sub-section 75 (2) ‘. ( 102) (Mr Viner)- Omit the clause, substitute the following clause:

  1. The Court may, having regard to the matters referred to in section 75 as may be relevant in the circumstances, make such order for the maintenance of a party to a marriage or a child of a marriage who has not attained the age of 1 8 years, as it deems proper. ‘.
Mr Kevin Cairns:
LILLEY, QUEENSLAND · LP

– I shall not detain the Committee for very long. This is a very important clause because it is a lead-in clause to the maintenance provisions of the Bill and of the proposed Act. It needs to be examined very closely. I suggest to the Committee that in clause 72 there is an alteration in both the onus and the emphasis required with respect to maintenance under this Bill. That becomes immediately obvious when one reads the first part of the clause. It states:

A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately, -

I suggest that, as the lead-in clause to the maintenance section which is designed to give the sense of direction and the philosophy of maintenance in this Bill, this clause needs to be looked at very closely.

I ask this question: Why have the words ‘if, and only if been included in this clause? That must concern me and it must concern very many fair-minded people. There is an alteration with respect to the emphasis under this clause. Under this Bill, but not under the existing Act, the obligation of the maintenance provisions will be determined according to the wife’s abilityperhaps duty- to support herself. No matter how those provisions are read, one cannot escape that proposition. There is now a stronger obligation on a wife to support herself than has existed hitherto. That cannot be ignored. I believe that it is not just an unfelicitous choice of words. It is a choice of words that is rather intended. This becomes clearer, because under the existing Act if a wife is deserted and seeks maintenance it falls upon the husband- I use the terms ‘wife’ and husband’ in that sense- to say to the court: ‘I do not have to pay because she left me. She has won an Opera House lottery. I am broke and she is able to support herself. But, as proposed under the Bill, the onus is placed upon the wife to demonstrate to the court that she cannot work, that she cannot earn enough money or that she cannot support herself adequately. It is impossible to escape that change in onus and that change in emphasis as proposed in clause 72. 1 suggest that the Committee look very closely at the matter and peruse the philosophical direction and lead given by this clause and the change with respect to the dependent partner concerning the onus in relation to support and the emphasis on the obligation placed upon the dependent partner, who is usually the wife. So, I propose an amendment which, in fact, may be displaced by an amendment to be proposed by the honourable member for Stirling (Mr Viner).

My amendment proposes the deletion of the last words in clause 72. It would delete the words having regard to any relevant matter referred to in sub-section 75 (2)’. I propose to delete those words because section 75 (2) lists 10, 1 1 or 12 circumstances which would attract maintenance. It is not appropriate to say that all the circumstances which would attract maintenance would be included in those 10, 11 or 12 propositions. There would be others that have not occurred to the framers of the legislation and others that will occur as circumstances alter. I am led to this concern because in the present Matrimonial Causes Act this phraseology is contained in section 84(1): the court may . . . make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.

A wide range of judgment is allowed under the present Act. That judgment is constricted. It is constricted especially with respect to the onus on the dependant party and an emphasis of proof that is put upon the dependant party which certainly does not exist and is not intended to exist under the present Act. I believe it would be foolish to try to demonstrate otherwise.

Mr VINER:
Stirling

– I have given notice of an amendment in my name to clause 72 of the Bill to bring into effect what the honourable member for Lilley (Mr Kevin Cairns) has just spoken about because I perceived in the clause as drawn the clear shifting of emphasis and onus from the existing law.The present law declares that any party to a marriage has a positive right to claim maintenance, leaving it then to the court to work out as between the parties and according to the circumstances that attach to them whether it is proper to give maintenance to one of the parties. The Bill proposes to change that so as to provide that a party to a marriage shall be liable to pay maintenance if, and only if, the other party is unable to support herself or himself adequately. What that does is to presuppose that there is an obligation or a burden upon one spouse to support herself or himself in the case of the dissolution of that marriage. That, of course, immediately raises or questions the position of a woman who has not worked for many years during marriage, who has lost old skills and must retrain herself if she is to be able to support herself. I speak of the woman because it is a rare situation where the innocent husband needs to be supported by the wife.

If clause 72 is agreed to in its present form we will have a situation in which the husband will be able to say to the innocent wife: ‘Well, I am only liable to support you if you are unable to support yourself. You ought to go out and support yourself.’ That clearly shifts within society the benefit which has been given heretofore to a wife. It renders inflexible the concept upon which the courts must proceed in determining maintenance. I do not believe that the law should be inflexible in this area. We should not freeze the law at one moment of time but leave the courts through the social influence of the day to ebb and flow with the social influence as it applies to the particular parties.

What the proposers of this law are seeking to do here is to have Parliament adopt really an intransigent view of what the social attitudes should be whenever from here on the courts have to determine a question of maintenance. I believe that that arises because of the so-called equality of the sexes. This is where the concept arises that a wife must be put on an equal basis with a husband. She must be burdened with the obligation of supporting herself rather than looking to her husband who has been the breadwinner with the obligation within our society to maintain her and their children.

Although it might be said that clause 75 allows to the court the widest discretion to take into account the particular circumstances of a case and so give justice as between the parties, I fear that with clause 72 being the primary clause with respect to maintenance the courts will be guided by the concept or the philosophy that they find explicit in that clause. So when the courts come to apply the considerations enumerated in clause 75 they will do so in the light of that primary concept. I believe that in order to give adequate protection to all parties to the marriage in this area the law should assert a positive right to maintenance, then giving to the court the discretion which is contained in clause 75 to apply the considerations which are there set out to the particular circumstances of the case, and thereby give full effect to the social influences of the day, whatever they may be. Therefore I move the amendment in my name to clause 72.

The CHAIRMAN:

– It is not in order for the honourable member to move his amendment now. He has spoken to his amendment and he will be given an opportunity later, by leave, to move his amendment.

Question put:

That the amendment (Mr Kevin Cairns’) be agreed to.

The Committee divided. (The Chairman- Mr J. M. Berinson)

AYES: 27

NOES: 78

Majority……. 51

AYES

NOES

Question so resolved in the negative.

Amendment negatived.

Mr VINER (Stirling)- I move amendment 102 in my name on the list of amendments.

Amendment negatived.

Clause agreed to.

Clauses 73 and 74- by leave- taken together, and agreed to.

Clause 75.

Circulated amendments. (103) (Mr Viner)-In sub-clause (1), omit ‘shall’, substitute ‘may’. (104) (Mr K. M. Cairns)-In sub-clause ( 1 ), omit ‘shall’ substitute ‘may’. (105) (Mr Viner)-In sub-clause (1 ), omit ‘only ‘. ( 106) (Mr K. M. Cairns)-In sub-clause ( 1 ), omit ‘only ‘. (107) (Mr Viner)-At the end of sub-clause (1) add ‘that are relevant’. (108) (Mr K. M. Caims)-At the end of sub-clause (1) add ‘ that are relevant ‘. ( 109) (Mr Viner)-In sub-clause (2), paragraph (e), after the’, insert ‘relevant’. (110) (Mr K. M. Cairns)- In sub-clause (2), paragraph (e), after’the’, insert’relevant’. (111) (Mr Viner)-In sub-clause (2), paragraph (f), omit eligibility of either party for’, substitute ‘receipt by either party of. (1 12) (Mr K. M. Cairns)- In sub-clause (2), paragraph (f), omit ‘eligibility of either party for’, substitute ‘receipt of either party of’. (113) (Mr Wentworth)-In sub-clause (2), paragraph (f), omit ‘under any law of Australia or of a State or Territory or’. (114) (Mr Wentworth)- In sub-clause (2), paragraph (0, after ‘ any ‘ ( first occurring), insert ‘ private ‘. (115) (Mr Viner)- In sub-clause (2), paragraph (f), omit or’ (second occurring), substitute ‘and ‘. (116) (Mr Viner)- In sub-clause (2), paragraph (h), omit would increase’, substitute ‘increases’. (1 17) (Mr K. M. Cairns)- In sub-clause (2), paragraph (h), omit ‘would increase ‘, substitute ‘increases ‘. ( 1 17A) (Mr Fraser)-After paragraph (k), insert the following paragraph: (ka) the need to protect the position of a woman who wishes only to continue her role as a wife and mother; ‘. (118) (Mr Viner)-In sub-clause (2), paragraph (b) omit ‘financial’. (119) (Mr K. M. Cairns)- In sub-clause (2), paragraph (b), omit ‘financial’.

Mr KILLEN:
Moreton

-Mr Chairman, I am a little surprised that some of the proposers of amendments to clause 75 have not risen. I rise to make one observation about this clause. It deals with the whole general thesis of this Bill. The Attorney-General (Mr Enderby) and those who have supported the Bill and, in particular, clause 48 have spoken in becoming terms about no fault. May I have some shush please?

Mr Clyde Cameron:
HINDMARSH, SOUTH AUSTRALIA · ALP

– No.

Mr KILLEN:

– I would not expect any sense or shush from the Minister for Labor and Immigration. He has one of these errant views of responsibility. I am dealing with one of the most responsible features of this Bill, and the Minister for Labor, with 300 000 unemployed on his hands, is unable to take even a serious view on this Bill. I say to him: Do not start to interrupt me.

Mr Clyde Cameron:
HINDMARSH, SOUTH AUSTRALIA · ALP

– Do not get too angry.

Mr KILLEN:

-You and your cerebral deterioration. The Committee is now dealing with one of the most crucial parts of this Bill- the adjudication as to where responsibility lies with respect to maintenance. Whatever the differences of opinion may be between and among the members of the Committee as to the grounds which should exist with respect to the granting of a decree of divorce, I trust that we can accept the one short thesis I propound, namely, that the position of the children should be paramount. I trust that is the case. I hope that none of my friends, no matter what elaborate opinions they may hold of me- there are very few who hold that- or what meagre opinions they may hold of me- and I understand there are many who hold thatdisagrees with me when I say that in dealing with this clause we are dealing with one of the most central provisions of this Bill. I hope the Committee will treat it accordingly.

I find it impossible to understand why it is in a consideration of this provision we ask those who adjudicate to turn their backs on fault. I am not oblivious to insult, but I am not overcome by insult. I have had nearly 20 years in this Parliament, and there is no form of insult these days that rouses me to any sense of antagonism. When my friend the Attorney-General talks about me and fault, fault fault and blame, blame, blame with a rhetoric which would have done credit -

Mr Peacock:

– Guilt, guilt, guilt.

Mr KILLEN:

– Guilt, guilt, guilt, with a rhetoric which would have done credit to the rhetoricians of old, let me assure my honourable friend that I am not put out or disturbed by that.

Mr BEAZLEY:
FREMANTLE, WESTERN AUSTRALIA · ALP

– The honourable member only answers to tut, tut, tut.

Mr KILLEN:

-On the contrary, I say: ‘Oh my, oh my, oh my’. I hope the Attorney-General understands that when he is dealing with clause 75 he is dealing with a veritable power house of fault, fault, fault, blame, blame, blame and guilt, guilt, guilt. I only hope that the honourable gentleman on this occasion will not seek to run away from it.

Mr VINER:
Stirling

-With respect to clause 75 there are a number of amendments standing in my name. I shall refer to some of the more important of those amendments. In the first amendment which involves the introductory words of the clause it is intended to remove the mandatory nature of the opening words so as to allow the court a discretion in the matters which it may take into account when determining maintenance. This is done by omitting the word ‘shall ‘ and substituting the word ‘may’, and by deleting the word ‘only’. That will provide that the court in exercising jurisdiction in respect of maintenance may take into account the matters referred to in the following sub-clause. Those matters are wide enough in their terms, together with the last consideration which is found in paragraph (n) and which states: any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into acount.

That is wide enough to accommodate all circumstances surrounding the breakdown of the marriage and it requires, in a particular instance, the award of maintenance to one of the parties. That, in much the same way as I pointed out in relation to clause 72, renders the law flexible rather than inflexible and provides to the court the discretion which is needed to determine the case fairly among the variety of situation which come before the court. That is the pattern of most of the amendments which I shall move in due course. I shall refer to others now. For example, in relation to paragraph (e) in sub-clause (2) I seek to make it clear and explicit that the court shall have regard to the relevant responsibility of either party to support any other person. That is relevant in the sense of being relevant to the fact that there has been a dissolution of marriage.

In paragraph (f) the existing language is in terms of ‘the eligibility of either party for a pension’ which the court can take into account. It seems to me that the court should have regard not so much to the eligibility of either party to a pension, allowance or benefit, but the actual receipt of that pension, allowance or benefit. Furthermore, it should be a pension, allowance or benefit received under the law of Australia or of a State or Territory. It appears to me that that would give- if I may put it this way- much better justice to the case than the court merely having regard to the eligibility of a person to receive such a pension when that person may, for some reason, not actually receive it. There is a small amendment to paragraph (h) but, nevertheless, I think it is necessary. Presently, that subparagraph provides that the court may take into account: the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party . . .

The amendment I propose is to provide for the situation where it must actually increase the earning capacity of that party. Again one looks at the situation where the event is actually occurring and the increase in earning capacity has occurred. Finally, I refer to paragraph ( 1 ). By my amendment it is intended to remove the word financial’. That appears in the context of the court being enabled to take into account maintenance. If the party whose maintenance is under consideration is cohabiting with another person the court takes into account the financial circumstances relating to the cohabitation. To me that appears to be too limiting in its terms, so I move amendment No. 103 standing in my name.

The CHAIRMAN:

– Order! The honourable member’s time has expired. I require some clarification from the honourable member for Stirling. He has indicated that he has moved the amendment. I suggest that he might be prepared to move amendments Nos. 103 and 105 together. They appear to be linked.

Mr Viner:

– Yes. In order to save time I have dealt with a number of amendments which I propose to move in regard to this clause.

The CHAIRMAN:

-Yes, but the point is that we are in a position to take only one amendment at a time. I ask the honourable member whether, at the moment, he is prepared to link amendments Nos. 103 and 105 for the purpose of the first amendment.

Mr Viner:

– Yes, I am.

Mr Clyde Cameron:
HINDMARSH, SOUTH AUSTRALIA · ALP

– This is only the second time on which I have risen to speak on the Family Law Bill. I do so because at the moment the debate is dealing with clause 75 of the Bill. This is a clause which was dealt with extensively by the Senate Standing Committee on Constitutional and Legal Affairs which was charged with studying in depth the provisions of the original Bill. After long and very careful consideration the Standing Committee decided that the Bill and the clause which we now have before us should have added to it paragraph (n). That clause provides:

In exercising jurisdiction under this part, the court shall take into account only the matters referred to in sub-clause (2).

Sub-clause (2) sets out the things that shall be taken into account, such as age and the state of health of each party. That is a perfectly proper thing to take into account. Other matters to be taken into account are the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment. Because of the limitation of time I will have to skip over paragraphs (c), (d), (e), (f), (g), (h), (i), (j), (k), (l) and (m) which deal with matters of a similar character. Then the Senate added this very important, all-embracing, omnibus paragraph which states that the court shall take into account:

  1. any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

Where Parliament is able to lay down the law in clear and precise terms it has a duty to do so. It is not right that Parliament should dodge issues which are capable of being dealt with by precise definition within the statute. It is not good enough for Parliament to run away from issues which can be clearly laid down by statute by allowing those matters to be dealt with by case law. No one, I believe, expects that the Parliament will abdicate its responsibility and allow a series of judges in 6 States eventually to hammer out a consensus on what should happen in these cases. The Senate looked at this matter with great care and added to the list of matters that the judge shall take into account sub-clause (n), which refers to any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account. Clause 75, which is now before the Committee, with that additional amendment was carried by the Senate -a Senate which is representative of all the parties in this chamber. It was carried without a division and without dissent. The Senate has given this Bill far more attention than this House has given it, and no one can say that the Senate is a rubber stamp for the Attorney-General.

Mr Peacock:

– You want us to be a rubber stamp for the Senate.

Mr Clyde Cameron:
HINDMARSH, SOUTH AUSTRALIA · ALP

-No, it is not a question of this House being a rubber stamp for the Senate at all. The Senate has given this Bill far deeper attention than this House has given it. A standing committee of the Senate has gone into the pros and cons of the Bill far more carefully than we have. If a committee of that kind and a Senate which is constituted in the way that our Senate is, representing all sections of the community, has supported unanimously the clause that is now being put here, I believe that we ought to accept it unless some weighty reason is given for not doing so. So far no such weighty reason has been advanced; and, until a weighty reason has been advanced for rejecting the unanimous decision of the standing committee of the Senate and of the Senate itself, I am not prepared to change the clause just on the say-so of somebody who jumps to his feet and talks off the cuff, as it were, on a matter of this kind. I hope that the Committee will accept the clause in its present form.

Mr Kevin Cairns:
LILLEY, QUEENSLAND · LP

-I follow the honourable member for Stirling (Mr Viner), who I thought set out quite admirably the case for having another look at the whole direction and purpose of clause 75. I remind the Committee that in considering clause 75 one has to bear in mind that the preamble to that clause comes in clause 72. Clause 72 remains the first clause in the maintenance section of this Bill which will determine the philosophy and attitude of the court in judging what is appropriate under clause 75.I mention in passing that under clause 72 the onus of proof and the emphasis of obligation have been altered, and they have been altered very significantly. Against that background, let us consider one or two of the propositions that have been put forward by the honourable member for Stirling.

Before I discuss those propositions in detail, I should say in answer to the honourable member for Hindmarsh (Mr Clyde Cameron) that, although he is correct in saying that the last paragraph of clause 75 (2) states that the court will consider any fact or circumstance which, in the opinion of the court, the justice of the case requires, it is an open question whether that general advice to a court will override the precise provisions which are contained, for example, in clause 75 (2) (h), and that is a strange provision. Under clause 75 (2) (h) as it now stands, the matters to be taken into account are: the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

The operative words are ‘would increase’. At present, by cross-examination and by observation of the demeanour of the parties concerned, the court makes a judgment; but, under this provision, if maintenance is sought at the rate of $50 a week, for example, some kind of IQ test will be carried out and professional vocational guidance people will say that in this case, because this person appears to be rather more intelligent than another, her income would be increased far more by the payment of that maintenance than would another person’s. That is the uncertainty that the words ‘would increase’ induce into the proceedings of the court. I ask: Why has there been this choice of words? The court could be beset with all kinds of professional advisers and sociologists who will make a judgment about what factors would increase means. If they do not do that, they will be acting contrary to the sense of what is contained in clause 75 (2)(h).

There are other provisions in clause 75 which also leave a great deal to be desired; for instance, the eligibility of either party to a pension, allowance or benefit. There can be a distinction between eligibility and receipt. A wife who will have the obligation to maintain children could have a benefit available to her which would consist of the possibility of those children being cared for in some state institution covered in this Bill to which she has an objection. If she refuses to allow the children to be kept in some kind of circumstance which is available to her but of which for philosophical, social and personal reasons she does not want to avail herself, then to that extent the party seeking maintenance under that clause will be disadvantaged. This illustrates the great difficulty in trying to categorise in nine or ten paragraphs precise details about circumstances that will determine maintenance. I believe that that is an error. I think it is a very imperfect substitute for the present procedure, which allows a judgment to be made by the court taking into account all of the circumstances and conditions which are relevant to the case. The precise provisions of the precise categories involved in clause 75 at the moment allow some very grave distortions which the court could not ignore in its own determinations. It is for that reason that I support the amendments moved by the honourable member for Stirling, a number of which are similar to amendments I have moved.

Amendments negatived.

The CHAIRMAN:

– Is leave granted to the honourable member for Stirling to move amendment No. 107 standing in his name? There being no objection, leave is granted.

Mr VINER:
Stirling

-Amendment No. 107 now becomes redundant in view of the failure of the 2 earlier amendments.

The CHAIRMAN:

– Do you wish to proceed with amendment No. 109?

Mr VINER:

– Yes.

The CHAIRMAN:

– Is leave granted? There being no objection, leave is granted.

Mr VINER:

– I move amendment No. 109, circulated in my name.

Amendment negatived.

The CHAIRMAN:

– Is leave granted to the honourable member for Stirling to move amendment No. 1 1 1? There being no objection, leave is granted.

Mr VINER:

– I move amendment No. Ill, circulated in my name.

Amendment negatived.

Mr MALCOLM FRASER:
WannonLeader of the Opposition

– Earlier I moved an amendment to clause 43 and by a not very wide margin the Committee defeated that amendment. But during the debate on that clause a suggestion was made that if a similiar amendment were moved to clause 75 it would gain greater support, and I believe that this is a more appropriate place for the nature of the amendment I moved. I made the point that in this legislation there is a thrust that compels to go out into the work force a woman who has been married and who is capable of working but who might well have looked forward to a life and a proper and traditional career as a wife and mother. I think it was said in the earlier debate that in older times there might well have been a wrong balance in the other direction, an overreliance on the responsibility of a husband to look after and care for a wife or an ex-wife in all circumstances. This Bill has sought to redress that balance. But, in my view and in the view of a number of other people, in seeking to redress that balance it has gone considerably too far and additional matters need to be taken into account in the determination of the circumstances under which maintenance will be awarded in accordance with clause 75.

It is not a question of compelling a person to do anything. It is not a question of compulsion. There ought to be a right of choice. Under the legislation as it stands at present there is no right of choice; there is a compulsion. A woman will have to go out and get a job even though she might have regarded both being a wife and a mother as being in the traditional sense a true and proper vocation in which to spend her life. That is a pretty remote possibility in the circumstances of this legislation. It is not a question of a husband suddenly being confronted with a certain situation. Before the marriage he would know the sort of person he was in fact marrying and know whether she was somebody who wanted to pursue an independent career in some job or profession or whether she was the sort of person who wanted to make her career that of being a wife and a mother. If that second choice is the one that has been plainly known and understood there is an obligation and a responsibility upon the husband- or the ex-husband in the circumstances of a divorce- to meet the commitment and to meet the obligation and responsibility he has rightly accepted upon entering into the act of marriage.

If honourable members want to have legislation which absolves any male from any responsibilityfor his own actions and for the woman he marries- I say again that that is not the sort of legislation that ought to be passed by this House- they should agree to this clause being passed as it stands for that is what it seeks to do. I do not think that that is the sort of clause that the people of Australia will applaud. I hope that it will not be the sort of clause that this House will in fact pass. It is not a question of trying to put husbands and wives in the same position. It is just not possible to do that. But at the moment this legislation certainly puts wives very much in an inferior position. Necessarily they will be in a much worse position in relation to their capacity. There are some elements of clause 75 that take account of that. But there also ought to be an element that takes account of the position of a woman who believes that a woman’s role is to be a wife and mother and who believes that that is an adequate role for a woman in Australian society. That is something of which clause 75 takes no account. I believe that that is wrong.

Mr Enderby:

– Of course it does.

Mr MALCOLM FRASER:

-The AttorneyGeneral interjected that of course it does. The Attorney-General wanted divorce proceedings to take place after a separation of 3 months. The Attorney-General has done everything he can over a long period during the course of this debate to belittle the institution of marriage. He knows quite well that he has done that. He also knows quite well that many people will regard him in the light of the remarks and interjections he has made, the heat that he has engendered and the partisan attitude that he has displayed during the debate to the people who have taken a contrary point of view to his. He would be well advised to show less passion and more logic in his actions. He has not done that so far. In a situation in which a partnership has irretrievably broken down, in accordance with this legislation, somebody who falls into the category of which I have spoken has a right to expect some responsibility to be shown in the area of maintenance by the person she married at an earlier point in time. So the amendment only says that amongst the things that should be taken into account -

The CHAIRMAN:

– Order! The Leader of the Opposition’s time has expired. I did not hear the Leader of the Opposition formally move the amendment circulated in his name. I ask the Leader of the Opposition to do so now.

Mr MALCOLM FRASER:

– I move circulated amendment No. 1 17A.

Mr PEACOCK:
Kooyong

– I support the amendment It will be recalled that I opposed the Leader of the Opposition (Mr Malcolm Fraser) when he sought to amend clause 43 by the insertion of the form of words that he has moved as an amendment to clause 75. 1 said then that I thought that the amendment the Leader of the Opposition had moved to clause 43 was more appropriate to be moved to clause 75.1 heard an interjection when the Leader of the Opposition was speaking that clause 75 (2) (c) would be sufficient. Frankly, it is not sufficient. More than that, I think that acceptance of this amendment would give encouragement to those mothers who wish to continue in the very role referred to by the Leader of the Opposition. A factor that I did not raise when I opposed the amendment to clause 43 but that I took into account on that occasion is that I do not agree with hearts and flowers clauses or philosophic clauses being inserted in legislation, and that is what was sought to be done in relation to clause 43. But in considering clause 75 we are considering the matters to be taken into consideration in relation to the procedures with respect to maintenance.

I think that there is a distinctive factor in the role of a mother which is accepted in the community and which we not only participate in but also believe in, that those who hold to that belief in their role as mothers ought not to be overlooked in relation to this clause when one is considering maintenance factors. Therefore neither clause 75 (2) (c) or 75 (2) (k), which refers to the earning capacity of the party to the marriage whose maintenance is under consideration, is sufficient. The amendment moved by the Leader of the Opposition not only makes it more sufficient but also encourages those who wish to pursue their lives as mothers of children. It is an equitable amendment. It is a proper amendment. It does not compel a woman to do certain things. It ensures a choice. In other words it encourages mothers to look after their children. Therefore I support the amendment. I have not sought to make a regular distinction between husbands and wives in relation to this legislation. In fact, I have applauded the fact that husbands and wives generally have been treated on the same footing. However in taking into consideration maintenance factors, I think that the very matter that is implicit in the Leader of the Opposition’s amendment is one that ought to be encouraged. Therefore I support it.

Mr LUCHETTI:
Macquarie

-The amendment proposed by the Leader of the Opposition (Mr Malcolm Fraser) is one which would find approval in almost any assembly in this country. I am sure that if the Leader of the Opposition’s proposal were to be put to a meeting in any city or town in this country the majority of the people at that meeting would be pleased to support it. The Leader of the Opposition has proposed the insertion of the following paragraph after paragraph 3 of clause 75 (2): (ca) the need to protect the position of a woman who wishes only to continue her role as a wife and mother;

What is wrong with that? What offence does that give? In the brave new world in which we live and in which women are, in their estimation, being elevated quite frequently to a position of equality, and the right to go out to work is not a choice but a necessity, we find that it is now being said to them: ‘You are equal- equal in the right to pay your bills and equal in the right to go to work’. When I became involved in the great political party which has made such a contribution to the development of Australia over the years- the Australian Labor Party- I was reared on the credo, on the thought and on the belief that what we were trying to do for women was to take them out of industry- take them from the mines and from the workshops- and give them a position of dignity in their own home in which they could care for their children, be greatly respected and preside over the moulding of the character and human quality of our people and the building of our nation. All the duties which today are performed by creches, pre-schools, kindergartens, clubs and other places that care for young people, previously were performed in the home with the mother’s care, love and affection.

What the present amendment proposes to do is to say in plain, clear and unmistakable words that there is a need to protect the position of a woman who wishes only to continue her role as wife and mother. This brave new world! This world in which we force the woman to go from home to industry where she has to meet obligations of very great costs- maintenance and other debts. The only way she will be able to discharge those debts is by leaving her children, leaving her home, and not being permitted to do the things that this amendment would ask that we allow her to do. This undoubtedly is an attack upon the mothers and an assault on children, for how may a mother care for her children if she is compelled to go out to employment in order to meet her financial obligations- to become the breadwinner? Let us contemplate the situation where the husband has left the home and the mother is charged with the responsibility of maintaining the family and paying the debts that come her way. The court will not look upon her as the woman, the mother, the wife, the bearer of children, the one responsible for the upbringing of the family; it will look upon her as just another person, another party.

We in this place, we in this Committee, are drafting the words that will be used by the judges of the future in deciding these matters. Honourable members come forward in Committee with a letter or something of that nature saying: ‘This is what someone wrote’. The courts of the future will determine all these matters according to the words we write in this measure. I ask the Committee to include in the legislation the words proposed by the Leader of the Opposition (Mr Malcolm Fraser).

Mr McMAHON:
Lowe

– I think that if we look at the literal meaning of the words contained in clause 75 we must come to one very precise conclusion. The wish of the Leader of the Opposition (Mr Fraser) was to insert in that clause a paragraph (k) (a) to include those women who wish only to continue their role as wife or. mother. The terms of paragraph (c) of sub-clause (2) are very clear. It applies to either party to a marriage who has the care or control of a child of the marriage who has not attained the age of 18 years. Clearly, therefore, it relates to a mother and wife who has the care and control of a child who has not attained the age of 18 years. To that extent I believe that the amendment is not necessary. But if it were, I think we should look at the precise wording of paragraph (n). The widest jurisdiction is given there; any single factor can be brought into consideration. Paragraph (n) states: any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

This, of course, appears on another page of the Bill and does not follow directly on proposed paragraph (k) (a). Paragraph (n) therefore, provides the widest power that would be needed- it gives a clear instruction to the court. It is an instruction; there is no beg-pardon, no possibility at all of misconception. The court itself must follow the instruction or it will be failing under the provisions of the Bill. I believe this is pretty clear. As we have discussed the other clause before, I think this is enough and leave it that way.

Mr WENTWORTH:
Mackellar

– I most certainly support this amendment. It perhaps, is an amendment which as the right honourable member for Lowe (Mr McMahon) said a moment ago, may not be strictly necessary, but nevertheless, it does add to the implications of this clause and it sets the tone in the right way. But there is another reason why I can say this, and that is the interaction of this clause with paragraph (f) of clause 75 (2) which is before us. I want the Committee to remember that of the widows pensions that the Government pays over half are paid not to de jure widows but to notional widows- that is, to separated and divorced women- it is the availability of this pension which makes this amendment which has been moved by the Leader of the Opposition (Mr Fraser) so much desired, because what is happening is that only a small subvention from the husband or the ex-husband will be capable of keeping a woman in domestic circumstances rather than sending her out to work, as the pension will be available also. As honourable members will know, there is what is known as a free area with regard to the pension and there is a tapering provision also. So on the whole this may by one of the important things which will not put too heavy a burden on the ex-husband but will enable the ex-wife to remain in domestic circumstances rather than go out to full time work. Very often full time work is available, as honourable members know, whereas part time work is not. As a matter of practicality I think it is very often for a woman not a choice between part time work and full time work but a choice between full time work or no work, and that will, of course, affect her aligibility for the widows pension. For these reasons I think there is something really practical in the amendment that has been put by the Leader of the Opposition. But beyond these practical aspects I think it is very desirable, because it does add something to the whole tone of this clause and makes clear, as surely we want to make clear, that an elderly woman whose marriage has broken up should not have to go out to full time work. We want to make it clear that, at any rate, she will have some kind of claim on her ex-husband. Let us remember that, in the nature of things, there will be many cases where an elderly woman is deserted without just cause by a husband of similar age who is able to find a young partner, whereas the woman would have the same capacity to do so. This is human, and I am afraid it is one of the differences between the sexes which will not be eliminated by any law of this or any other parliament.

Mr YOUNG:
Port Adelaide

– I disagree with the arguments put forward by the honourable member for Mackellar (Mr Wentworth). I see in paragraphs (c), (k) and (n)- those paragraphs referred to by the right honourable member for Lowe (Mr McMahon)sufficient protection for the woman who wants to continue her role as a mother. I think she would find it very difficult after separation to continue her role as a wife but she may be able to continue her role or want to continue her role as a woman. I refer to paragraph (c), which provides that the matters to be taken into account by the court include: whether either parry has the care or control of a child of the marriage who nas not attained the age of 1 8 years.

And, also, as provided in paragraph (k): the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration.

Obviously, in many cases the earning capacity of the woman has been affected by her married life. Sub-clause (n) is completely open. It states:

  1. . any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

It is very difficult, impossible in fact, for honourable members to try to write into clause 75 all the circumstances which may eventuate when the court is looking at the situation of a particular couple. For instance, men may put forward the view that maintenance should be based, when referring to working people, on average weekly earnings or that the court should take into account that at the time of separation the man was getting an unusual amount of overtime in his salary for that year. New sub-clauses would be needed to provide for these circumstances. In looking at the specifics of both partners to the separation of course there is no end to the number of sub-clauses that could be written in. I do not think any person looking at clause 75 could suggest properly that any further subclause is needed. I think the proposed amendment is a useless platitude to offer the women of Australia.

Mr GILES:
Angas

-Firstly, I agree with the points made by the right honourable member for Lowe (Mr McMahon). I think in all probability they cover the issues in sub-clauses (c) and (n). The honourable member for Port Adelaide (Mr Young) just mentioned one of the points I was going to make so I shall not repeat it at length. It is a little hard, if one looks at the wording of the amendment of the honourable member for Wannon (Mr Malcolm Fraser), to see how a wife could continue to be a wife if she had no husband. I would carry it a little further and say that it is a little difficult to see how she could continue to be a mother if she did not have any children. Let us face the fact -

Mr Luchetti:

– When does she cease to be a mother?

Mr GILES:

– Wait a minute. Just hear me out and I will get back to that. The court has custody and control of the children. That is the second point. The third point that worries me is that the proposed amendment states: the need to protect the position of a woman who wishes only to continue her role as a wife and mother;

Is this meant to encompass her future maternal role or is it meant merely to cover the position of looking after children that may be left to her by the custody of the court? I do not think I am nitpicking. These are practical problems involved in the wording of this amendment. Mr Berinson, this might surprise you- although after today nothing may surprise you- in spite of these problems I intend, on balance, to support the amendment. The issue is so serious that I think the Committee would do well to make sure that the situation is covered, even if we are guilty of duplication, which I believe we would be in accepting the amendment. If the AttorneyGeneral (Mr Enderby), when or if he rises in reply on what is a private member’s Bill and not his, can convince me that the faults I find are groundless I will not support the amendment. But my current thinking is that despite all the faults and the anomalies that have been drawn to the attention of the Committee by the right honourable member for Lowe and the honourable member for Port Adelaide and two more by myself, on balance I will support the amendment unless the Attorney-General convinces me that the position of this clause in relation to the others is such that my fears are not well-grounded.

Mr Donald Cameron:
GRIFFITH, QUEENSLAND · LP

– The honourable member for Angas (Mr Giles) invites an honourable member to convince him that the amendment proposed by the Leader of the Opposition (Mr Malcolm Fraser) should be opposed. I think a close examination of his own utterances would convince him of that which he seeks. Honourable members who oppose this amendment are not against motherhood; they are not against the protection of small children. But in all seriousness I ask: How can an amendment be proposed which deals with ‘the need to protect the position of a woman who wishes only to continue her role as a wife and mother’ when the marriage has been dissolved? How can she continue to be a wife? If the divorce court has eliminated her opportunity to continue to be a wife, in the terms of the proposed amendment she has only one other role, and that is that of a mother.

The honourable member for Macquarie (Mr Luchetti) rightly interjected on the honourable member for Angas and asked: ‘At what stage does a woman cease to be a mother?’ She ceases to be a mother upon her death or, alternatively, upon the death of all her offspring. But her offspring reach a stage when they no longer need protection from the family unit. The birds reach a stage when they fly from the nest. This Bill in clause 75 (2) (c) states:

  1. . whether either party has the care or control of the child of the marriage who has not attained the age of 18 years;

Therefore under this Bill all children less than 1 8 years of age automatically receive the protection which is advocated by the amendment moved by the Leader of the Opposition and supported by the honourable member for Kooyong (Mr Peacock). Sub-clause (g) of the Bill states: . . where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

The honourable member for Mackellar (Mr Wentworth) instanced the case of the elderly woman whose marriage has broken up and who must go out to work. It is my belief that this clause affords that woman the full protection of the court in the determination of maintenance. The honourable member for Port Adelaide (Mr Young) alluded to sub-clause (k) which states: . . the duration ofthe marriage and the extent to which it has affected the earning capacity ofthe party whose maintenance is under consideration;

Again there is protection for this person. Subclause (n) states:

  1. . any fact or circumstance which, in the opinion ofthe court, the justice ofthe case requires to be taken into account.

What an emotive picture was painted to this Committee by our friend the honourable member for Mackellar. He referred to the elderly man coupling with a young lady and leaving his grey haired wife at home to fend for herself.

Mr Cope:

– Shame on him!

Mr Donald Cameron:
GRIFFITH, QUEENSLAND · LP

– I would agree. It is surprising to hear the former Speaker the honourable member for Sydney, supporting me in this argument. Because the honourable member for Mackellar has grey hair he has a thing about grey hair. I believe that all the protection which is necessary is already afforded by clause 75. 1 conclude, as I commenced, by saying that because I and the majority of members of the Committee will oppose this amendment of the Leader of the Opposition it must not be interpreted that we as individuals are opposed to motherhood or to the concern which has been expressed. But we believe on considered opinion that the position is already adequately covered.

Mr LUSHER:
Hume

– I have not risen previously to speak during the Committee stage of the debate. I think I made my position quite clear during the second reading debate. I want to speak to this clause because I think it is important. I support the amendment which has been moved by the honourable member for Wannon (Mr Malcolm Fraser). In my view this Parliament has downgraded marriage. It is my intention not to vote to support the downgrading of women. I think this is something which is completely separate in this clause. In my view the fact that marriage can be dissolved after 12 months is something which the majority of members of this Parliament wanted. I rather hope that the majority of members of this Parliament are prepared to vote in favour of this amendment to ensure, if in fact there is some doubt about it, as I believe there is, the rights and the protection of women under this new Family Law Bill. I commend the amendment to the Committee and I entreat all honourable members to take it very seriously.

Mr ELLICOTT:
Wentworth

– It amazes me that so many honourable members in this chamber are attempting to find excuses for not upholding the position of a woman who wants to remain a wife and a mother. We have had statements from a number of people -

Mr McMahon:

- Mr Chairman, on a point of order. I take exception to that remark because that is not the point of view that was taken. The honourable member has failed to understand.

The CHAIRMAN:

– Order! The right honourable member for Lowe will not intervene in that way.

Mr McMahon:

– I am married and I take exception -

Mr ELLICOTT:

– Take the exception outside.

Mr McMahon:

– I will take it here and now, in open and in public.

Mr Cope:

– I thought you two were buddies.

Mr ELLICOTT:

– Of course we are. He is in my electorate. It amazes me that honourable members are trying to find justification for defeating this amendment. I believe it states something which is basic to our society and needs upholding, though a number of spurious arguments have been put about it already. The right honourable member for Lowe (Mr McMahon) has said that it is absolutely clear. Let us be clear about one thing: This clause applies not only on divorce but it applies also during marriage. Therefore the clause is appropriate to describe the position of a woman who is going to continue to be a wife and going to continue to be in the matrimonial home. Let us be clear about that. So the words are appropriate. It is said that paragraph (c) is appropriate. It reads: whether either party has the care or control of a child of the marriage who has not attained the age of 1 8 years;

Let us understand this: In this day and age some of the most difficult problems that young people face arise when they are 1 8 years and over, when they are going to university, when they have the problems of work. This is the time when their parents are most needed. I believe that when honourable members realise that they will quickly realise that paragraph (c) is no answer. Neither is paragraph (k) which states: the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

The proposal before the Committee is to put emphasis on the position of the woman who wants to commit herself to the marriage, and to make it quite clear that what we said with regard to clause 41 we really mean, so that when the question of maintenance comes up the woman who does want to commit herself as a mother and a wife will be taken into consideration and will not be treated as a second-class citizen, a deprived person, a person who has to be considered for social services in this country. The last paragraph of the clause states: any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

That is a dragnet clause. There is nothing else with regard to this matter in the Bill. There is nothing else in the Bill to bring in this provision. To say that it exists already is a lot of nonsense. I hope that honourable members will have the courage to stand up for what they said with regard to clause 41 and put it into words with regard to clause 75.

Mr Enderby:

– Tell them the present law.

Mr ELLICOTT:

– The Attorney-General can tell honourable members the present law, if he knows it. I wish to say something further about this clause. The Attorney-General has been yelling: ‘Fault, fault, fault.’ I agree with the honourable member for Moreton (Mr Killen), and I did not have anything for dinner, as the Attorney-General might well know. I might well say to the Attorney-General that ‘fault, fault, fault is gleaming throughout clause 75 and clause 1 14, and from one end of the Bill to the other. Let us not go on with this humbug. It is there. It is in neon lights and the court will consider it.

Question put:

That the amendment (Mr Malcolm Fraser’s) be agreed to.

The Committee divided. (The Chairman- Mr J. M. Berinson)

AYES: 61

NOES: 50

Majority……. 11

AYES

NOES

Question so resolved in the affirmative.

Consideration interrupted.

Progress reported.

page 2527

ADJOURNMENT

Mr SPEAKER:

-Order! I propose the question:

That the House do now adjourn.

Mr Daly:

– I require the question to be put forthwith without debate.

Question resolved in the negative.

page 2527

FAMILY LAW BILL 1974

In Committee

Consideration resumed.

Motion (by Mr Killen) put:

That progress be reported.

The Committee divided. (The Chairman-Mr J. M. Berinson)

AYES: 23

NOES: 84

Majority……. 61

AYES

NOES

In Division:

The CHAIRMAN (Mr Berinson:

-That course is not open to me.

Question resolved in the negative.

The CHAIRMAN:

– Is leave granted for the honourable member for Stirling to move amendment No. 115 standing in his name? There being no objection, leave is granted.

Mr VINER:
Stirling

-I move amendment No. 1 1 5 standing in my name.

Amendment negatived.

The CHATRMAN- Is leave granted for the honourable member for Stirling to move amendment No. 1 16 standing in his name?

Mr Lucock:

– No.

The CHAIRMAN:

– Leave is not granted. Is leave granted to permit the honourable member for Stirling to move amendment No. 118 standing in his name?

Mr Lucock:

– No.

The CHAIRMAN:

– Leave is not granted.

Clause agreed to.

Clause 76.

  1. Subject to sub-sections (3) and (4)-

    1. an order shall not be made for the maintenance of a child who has attained the age of 1 8 years; and
    2. an order for the maintenance of a child ceases to be in force when the child attains the age of 1 8 years.

Circulated amendment. (120) (Mr Enderby)-In sub-clause (2), omit ‘sub-sections (3) and (4)’, substitute ‘sub-section (3)’.

Mr ENDERBY:
CanberraAttorneyGeneral · ALP

– I move amendment No. 120 standing in my name.

Amendment agreed to.

Clause, as amended, agreed to.

The CHAIRMAN:

– Is it the wish of the Committee to take clauses 77 to 80 together?

Mr Lucock:

– No.

The CHAIRMAN:

-Leave is not granted.

Clause 77 agreed to.

Clause 78 agreed to.

Clause 79 agreed to.

Clause 80 agreed to.

Clause 81 agreed to.

Motion (by Mr Enderby) put:

That progress be reported.

The Committee divided. (The Chairman- Mr J. M. Berinson)

AYES: 45

NOES: 59

Majority……. 14

AYES

NOES

Question so resolved in the negative.

Proposed new clause 8 1 a.

Circulated amendment. ( 12 1 ) (Mr Wentworth)- Insert the following new clause: 81a. In proceedings under this Part, where the parties have by mutual consent come to an agreement and have so notified the court, the court shall not make an order differing in substance from the terms of that agreement, unless it is satisfied-

Mr WENTWORTH:
Mackellar

– I move new clause 81a standing in my name. It suggests that if the parties have reached an agreement, that agreement shall be ratified in the Family Court unless there is good cause to the contrary. I imagine that this is something which will generally be done. But I think it is not a bad idea to make it explicit. The motive for doing this is to reduce the legalism in the Family Court and to reduce the opportunity for legal representation in that Court. When something is agreed between the parties, and unless there is good cause to the contrary, in my view the Court should ratify the agreement. As I have said, I believe that this is generally what the Court will do, but it would not be a bad thing to make this explicit in the legislation.

Mr Clyde Cameron:
HINDMARSH, SOUTH AUSTRALIA · ALP

– I submit to the Committee that the amendment is unnecessary. Clause 8 1 of the Bill states:

In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.

The amendment moved by the honourable member for Mackellar states in part:

In proceedings under this Part, where the parties have by mutual consent come to an agreement and have so notified the court, the court shall not make an order differing in substance from the terms of that agreement, unless it is satisfied-

that the agreement does not adequately protect the interests of any child or children of the marriage; or -

There is nothing in that which is not already covered by the existing clause 81-

  1. that there are special circumstances which would justify such variation; or -

There is nothing there that is not already covered in existing clause 81-

  1. the parties have mutually consented to such variation; or -

There is nothing in that which is different from the powers given to the court under clause 8 1 -

  1. that since the making of the agreement there have been changes in the circumstances of either party which were not contemplated at the time of the making of the agreement.

There is nothing there either that is not contemplated in clause 81.I am completely opposed, as I hope the Committee will be, to a new clause being written into the Bill which will allow parties between themselves to enter into agreements which might be different from the results that would flow from clause 81 as it now stands. Far too often we have seen parties enter into agreements in respect of matters such as custody and particularly in respect of matters concerning maintenance and the disposition of property and, when the agreements have been put under finer examination by someone who is able to determine more accurately and precisely what sort of settlement should be made, we have found that people have signed away their rights without any real understanding of what they have done.

How many wives or ex-wives have agreed to some settlement which with the passage of time has proved to be quite inadequate for their needs? I know of a very wealthy man- one of the wealthiest men in Australia- who was able to trick his wife into an agreement for settlement which involved the payment of a somewhat handsome amount at the time but which with the passing of time has proved to be totally inadequate. Such an arrangement as that would never have been accepted by a court given the right to make a settlement under the powers conferred on it by clause 8 1 . This is a very dangerous amendment that is now being proposed. Coming as it does from one who, quite honestly, has a very tender regard for the position of women- I say this quite solemnly and seriously; I know that he does- I can only say that he is misguided if he believes that the proposed new clause ought to be put into the Bill. I plead with the honourable gentleman to rethink this matter and to withdraw the amendment, because it will do the very opposite of what he thinks it will do. The Bill as it now stands is the safer provision. It is much safer to leave clause 8 1 as it is, giving the court, in proceedings before it, the fullright and full discretion to determine what kind of a settlement shall be entered into. We will run into -

The CHAIRMAN:

– Order! The Minister’s time has expired.

Motion ( by Mr Daly) put:

That progress be reported.

The Committee divided. (The Chairman- Mr J. M. Berinson)

AYES: 62

NOES: 41

Majority……. 21

AYES

NOES

Question so resolved in the affirmative.

Progress reported.

page 2531

JOINT COMMITTEE ON THE AUSTRALIAN CAPITAL TERRITORY

Mr SPEAKER:

– I have received advice from the Leader of the National Country Party of Australia that he has nominated Mr Hewson to be a member of the Joint Committee on the Australian Capital Territory to fill the vacancy caused by the resignation of Mr Fisher.

page 2531

HOUSE OF REPRESENTATIVES STANDING COMMITTEE ON ABORIGINAL AFFAIRS

Mr SPEAKER:

-I have received advice from the Leader of the National Country Party of Australia that he has nominated Mr Fisher to be a member of the Standing Committee on Aboriginal Affairs to fill the vacancy caused by the resignation of Mr Hunt.

page 2531

ADJOURNMENT

Motion (by Mr Enderby) proposed:

That the House do now adjourn.

Mr MacKELLAR:
Warringah

Speaker -

Motion (by Mr Daly) agreed to:

That the question be now put.

Original question resolved in the affirmative.

House adjourned at 11.19 p.m.

page 2532

ANSWERS TO QUESTIONS

The following answers to questions were circulated:

Destitute Tertiary Students (Question No. 2031)

Mr Snedden:
BRUCE, VICTORIA

asked the Minister for Education, upon notice:

When will he answer my question No. 242 which first appeared on the Notice Paper on 1 6 July 1974.

Mr Beazley:
Minister for Education · FREMANTLE, WESTERN AUSTRALIA · ALP

– The answer to the right honourable member’s question is as follows:

I draw the right honourable member’s attention to my reply at page 2178 of Hansard on 1 3 May 1 975.

Education: Research and Development (Question No. 2033)

Mr Snedden:

asked the Minister for Education, upon notice:

When will he answer my question No. 874 which first appeared on the Notice Paper on 2 August 1974.

Mr Beazley:
ALP

– The answer to the right honourable member’s question is as follows:

I draw the right honourable member’s attention to my reply at page 1747 of Hansard on 16April 1975.

Education: Graduates of Tertiary Institutions (Question No. 2035)

Mr Snedden:

asked the Minister for Education, upon notice:

When will he answer my question No. 1334 which first appeared on the Notice Paper on 16 October 1 974.

Mr Beazley:
ALP

– The answer to the right honourable member’s question is as follows:

I draw the right honourable member’s attention to my reply at page 2 180 of Hansard on 13May 1975.

Ministerial Councils: Contact with States (Question No. 2044)

Mr Snedden:

asked the Minister for Urban and Regional Development, upon notice:

When will he answer my question No. 58 which first appeared on the Notice Paper on 10 July 1974.

Mr Uren:
ALP

– The answer to the right honourable member’s question is as follows:

I refer the right honourable member to the answer to question No. 58 which I gave on 10 April 1975. (Hansard, page 1570).

Department of Urban and Regional Development: Grants (Question No. 2045)

Mr Snedden:

asked the Minister for Urban and Regional Development, upon notice:

When will he answer my question No. 86 which first appeared on the Notice Paper on 10 July 1974.

Mr Uren:
ALP

– The answer to the right honourable member’s question is as follows:

I refer the right honourable member to the answer to question No. 86 which I gave on 10 April 1975 (Hansard, page

1559) .

Department of Urban and Regional Development: Interdepartmental Committees (Question No. 2047)

Mr Snedden:

asked the Minister for Urban and Regional Development, upon notice:

When will he answer my question No. 297 which first appeared on the Notice Paper on 1 6 July 1 974.

Mr Uren:
ALP

– The answer to the right honourable member’s question is as follows:

I refer the right honourable member to the answer to question No. 297 which I gave on 10 April 1975 (Hansard, page 1570).

Land Development: Belmont Shire (Question No. 2051)

Mr Snedden:

asked the Minister for Urban and Regional Development, upon notice:

When will he answer my question No. 383 which first appeared on the Notice Paper on 1 6 July 1 974.

Mr Uren:
ALP

– The answer to the right honourable member’s question is as follows:

I refer the right honourable member to the answer to question No. 383 which I gave on 10 April 1975 (Hansard, page

1560) .

Civil Defence (Question No. 2061)

Mr Snedden:

asked the Minister for Urban and Regional Development, upon notice:

When will he answer my question No. 1 148 which first appeared on the Notice Paper on 26 September 1 974.

Mr Uren:
ALP

– The answer to the right honourable member’s question is as follows:

I refer the right honourable member to the answer to question No. 1 148 which I gave on 10 April 1975 (Hansard, page 1562).

Department of Urban and Regional Development: Publications (Question No. 2063)

Mr Snedden:

asked the Minister for Urban and Regional Development, upon notice:

When will he answer my question No. 1590 which first appeared on the Notice Paper on 1 3 November 1 974.

Mr Uren:
ALP

– The answer to the right honourable member’s question is as follows:

I refer the right honourable member to the answer to question No. 1590 which I gave on 10 April 1975 (Hansard, page 1572).

Decentralisation (Question No. 2068)

Mr Snedden:

asked the Minister for Urban and Regional Development, upon notice:

When will he answer my question No. 1732 which first appeared on the Notice Paper on 13 November 1974.

Mr Uren:
ALP

– The answer to the right honourable member’s question is as follows:

I refer the right honourable member to the answer to question No. 1732 which I gave on 10 April 1975 (Hansard, page 1572).

Regional Freight and Traffic Flows (Question No. 2070)

Mr Snedden:

asked the Minister for Urban and Regional Development, upon notice:

When will he answer my question No. 1734 which first appeared on the Notice Paper on 1 3 November 1974.

Mr Uren:
ALP

– The answer to the right honourable member’s question is as follows:

I refer the right honourable member to the answer to question No. 1734 which I gave on 10 April 1975 (Hansard, page

1572) .

Camden Park Estates (Question No. 2071)

Mr Snedden:

asked the Minister for Urban and Regional Development, upon notice:

When will he answer my question No. 1735 which first appeared on the Notice Paper on 1 3 November 1 974.

Mr Uren:
ALP

– The answer to the right honourable member’s question is as follows:

I refer the honourable member to the answer to question No. 1735 which I gave on 10 April 1975 (Hansard, page 1573) .

Publication ‘Secrecy- Political Censorship in Australia’ (Question No. 2259)

Mr Ruddock:
PARRAMATTA, NEW SOUTH WALES

asked the Minister for Minerals and Energy, upon notice:

  1. With reference to the Prime Minister’s answer to my question No. 1 779 (Hansard, 5 December 1974, page 4763), has his attention been drawn to the book of Mr J. J. Spigelman entitled Secrecy- Political Censorship in Australia and, in particular, An Inside Dopester’s Index of 100 Examples of Secrecy, on pages 1 77 to 1 80.
  2. Has his attention also been drawn to indexed item 5- Department of National Development blueprint for natural resources.
  3. In respect of that item, has it been made publicly available since 1972; if so, when, and in what manner, and by whom was the disclosure made.
  4. If the item has not been made publicly available, what is the reason for the continuing secrecy.
Mr Connor:
ALP

– The answer to the honourable member’s question is as follows:

  1. Yes.
  2. Yes.
  3. and (4) I refer the honourable member to part (3) of the Prime Minister’s answer to Question No. 2243 (Hansard, 13Mayl975,page2198).

Aboriginal Overseas Award Scheme (Question No. 2357)

Mr Snedden:

asked the Minister for Education, upon notice:

  1. How many applications has his Department received for awards under the Aboriginal Overseas Award Scheme which enables Australians of Aboriginal or Torres Strait Islander descent to add to their skills and experience by undertaking short-term overseas study.
  2. What are the names of the Aborigines who have applied and what is the purpose of the application in each case.
  3. 3 ) From which States have the applications come.
  4. Are people from Baron Island eligible for this Scheme.
Mr Beazley:
ALP

– The answer to the right honourable member’s question is as follows:

  1. 1 ) There were 32 applications for 1 975 awards under the Aboriginal Overseas Study Awards Scheme.
  2. and (3) The following is a list of applicants who have been selected for awards with an indication of the purpose of each application. The applicant’s home State is also indicated.
  1. People of Aboriginal and Torres Strait Island descent from all parts of Australia are eligible to apply for awards. This includes people from Cape Barren Island.

International Court of Justice: Atmospheric Nuclear Tests (Question No. 1984)

Mr Garland:
CURTIN, WESTERN AUSTRALIA

asked the Attorney-General, upon notice:

What has been the result of the study of the opinions of the individual Judges of the International Court of Justice as a result of Australia ‘s reference relating to atmospheric tests in the South Pacific by France.

Mr Enderby:
ALP

– The answer to the honourable member’s question is as follows:

I point out that five of the fifteen Judges who participated in the proceedings did not deliver a separate opinion, concurring or dissenting. The Judgment of the Court was adopted by a majority of nine Judges to six. A study of the separate opinions has not affected the Government’s position of accepting the Judgment of the Court, as required under Article 59 of the Statute of the International Court.

International Court of Justice: Atmospheric Nuclear Tests (Question No. 1985)

Mr Garland:

asked the Attorney-General, upon notice:

  1. 1 ) With reference to his predecessor’s press release of 2 1 December 1974, what are the grounds for the belief that the case Australia put to the International Court of Justice influenced the French Government’s decision to discontinue atmospheric nuclear testing in the South Pacific.
  2. Is it a fact that the French testing had reached a stage of technology where underground testing was sufficient for the purposes of the French Government.
Mr Enderby:
ALP

– The answer to the honourable member’s question is as follows:

  1. What my distinguished predecessor, Mr Justice Murphy of the High Court, stated was that he believed the case Australia had put to the Court and the injunction granted by the Court in 1973 had influenced the French Government’s decision to discontinue atmospheric nuclear testing in the South Pacific. To develop further the considerations which Mr Justice Murphy no doubt had in mind would be to reopen matters of controversy, which, as between Australia and France, are, happily, now resolved. But I have no doubt that the initiative which the Australian Government took in 1973, and the vigorous development of that position before the International Court of Justice, served as a focal point in the mobilisation of international opinion against French atmospheric testing; and that this factor was one which influenced the French Government in the decision which it took.
  2. It would not be appropriate for me to speak for the French Government on what its purposes are, or, therefore what is sufficient for such purposes.

Australian Security Intelligence Organisation (Question No. 2100)

Mr Snedden:

asked the Attorney-General, upon notice:

When will he answer my question No. 753 which first appeared on the Notice Paper on 3 1 July 1 974.

Mr Enderby:
ALP

– The answer to the right honourable member’s question is as follows:

See answer to House of Representatives Question No. 753.

Attorney-General’s Department: Publications (Question No. 2106)

Mr Snedden:

asked the Attorney-General upon notice:

When will he answer my question No. 1576 which first appeared on the Notice Paper on 1 3 November 1 974.

Mr Enderby:
ALP

– The answer to the right honourable member’s question is as follows:

The question was answered on 6 March 1975 (Hansard page 1239).

Legal Aid Review Committee (Question No. 2108)

Mr Snedden:

asked the Attorney-General, upon notice:

When will he answer my question No. 1701 which first appeared on the Notice Paper on 1 3 November 1 974.

Mr Enderby:
ALP

– The answer to the right honourable member’s question is as follows:

The question was answered on 6 March 1975 (Hansard page 1240).

Consumer Advice Booklets (Question No. 2371)

Mr Snedden:

asked the Minister for Science, upon notice:

  1. 1 ) Further to question No. 1 76 1 in which I sought information on consumer advice booklets that have been published by the Government, will he provide a list of the outlets to which the 98 000 copies of Buyers’ Guide to Colour Television were distributed.
  2. What has been the success of the sale of booklets.
Mr Morrison:
Minister for Science · ST GEORGE, NEW SOUTH WALES · ALP

– The answer to the right honourable member’s question is as follows:

  1. 1 ) The list of outlets is as follows:
  2. Collins Ltd, Vic.
  3. J.Fairfax,N.S.W.
  4. Advertiser Ltd, S. A.
  5. W.A. Newspapers Ltd.
  6. Qld. Newspapers Ltd.
  7. Davies Bros. Ltd, Tas.
  8. Australian Government Publications and Inquiry Centres in each State Capital.
  9. The Australian Government Publishing Service estimates that approximately 84 000 copies of the booklet have been sold to date.

Hansard: Subscription Rates (Question No. 2414)

Mr Garland:

asked the Minister representing the Minister for the Media, upon notice:

  1. Has the Government recently made a decision to raise the yearly subscription rate for Hansard of the Senate and House of Representatives from$ 1 . 20 to $63. 1 0 per annum.
  2. If so, on what date was this decision made, and why was it made.
  3. Is the availability of Hansard at low cost considered to be highly desirable as pan of our representative parliamentary democracy.
  4. Does the decision imply a cessation of his proclaimed objectives of open government; if not, what does open government mean.
  5. If the Minister or the Government did not make the decision, will the Minister take action to have it reversed.
Mr Morrison:
ALP

– The Minister for the Media has provided the following answer to the honourable member’s question:

  1. In consultation with the Presiding Officers of the Houses of Parliament, the Government made a decision to implement recommendations of the Joint Publications Committee, made at a time when the Liberal Country Party coalition was in power, with respect to the pricing of Hansards.

The resulting prices took account of some, but not all, of the costs involved in the production and distribution of the Hansards and which had been considered by the Committee in reaching its recommendations. The cost elements in the pricing calculations were as follows:

  1. The date of agreement to increase the prices was 26 November 1974.

Costs of printing, warehousing and postage had increased substantially since the previous price adjustment and the volume of content of the Hansards was very much greater. Prices charged for the Hansards, which had not been increased since 1953, were completely out of balance and bore no comparison with charges made for instance for similar publications of other representative parliamentary democracies.

  1. Yes.
  2. No. Open Government is a general concept of making information concerning policies, programs and activities of the Government available to the Australian people. Publication of many documents and records including the Hansard is pan of such a policy which is being performed far more successfully than by any previous Government. I refer the honourable member in particular to the Australian Government Weekly Digest.
  3. Because of the effect the new prices could have on the ability of low income citizens to subscribe to the Hansards and having in mind this Government’s concern with making information available, I referred the matter to the Joint Publications Committee for further consideration. I understand the Committee has deliberated the matter and that proposals have been put forward for the consideration of the Presiding Officers. I understand also that the financial implications of these alternative proposals are being examined in consultation with the Treasury.

Australian Broadcasting Commission: Political Speeches (Question No. 2438)

Mr McVeigh:
DARLING DOWNS, QUEENSLAND

asked the Minister representing the Minister for the Media, upon notice:

  1. 1 ) Is it a fact that on the 7.45 a.m. A.B.C. News on Monday, 14 April 1975, 110 words were devoted to items contained in speeches made by the Prime Minister in the preceding few days and no words were devoted to items contained in speeches made in the preceding few days by the Honourable J. M. Fraser, the Leader of the Opposition.
  2. If so, will the Minister investigate why this discrimination was shown by the A.B.C., particularly when it is realised the Leader of the Opposition had released during that period the Opposition’s 12 point aid plan for Indochina.
Mr Morrison:
ALP

– The Minister for the Media has provided the following answer to the honourable member’s question:

  1. 1 ) It is a fact that on the 7.45 a.m. A.B.C News on Monday, 14 April, 1 10 words were devoted to a speech made by the Prime Minister to an A.L.P. meeting in N.S.W. on the previous day.

It is not a fact that no words were devoted on A.B.C. News to items contained in speeches made during that period by the Leader of the Opposition.

  1. The A.B.C. ‘s National News Bulletin on 13 April at 12.30 p.m. carried a statement made by the Leader of the Opposition in Brisbane concerning the Opposition’s foreign policy (110 words), and at 7 p.m. reported the 12 point aid plan for Inod-China released by the Leader of the Opposition (229 words).

Cite as: Australia, House of Representatives, Debates, 20 May 1975, viewed 22 October 2017, <http://historichansard.net/hofreps/1975/19750520_reps_29_hor95/>.