23rd Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 3 p.m., and read prayers.
Assent to the following bills reported: -
International Wheat Agreement Bill 1959.
Income Tax and Social Services Contribution Assessment Bill (No. 2) 1959.
Income Tax and Social Services Contribution Bill 1959.
– I desire to ask the Minister for Civil Aviation a few questions. Is it not a fact that many members of the Parliament have been privileged to enjoy visits to countries overseas without charge to themselves? Should not the Government make possible visits by less fortunate citizens to such countries? Is it not a fact that charter flights, which make possible visits overseas at cheap rates, have been banned, except under special circumstances? If so, will the Government consider the possibility of using its own aviation services for the purpose of carrying overseas, at rates similar to those that were proposed by private charter companies, people who cannot afford to pay the ordinary charges?
– I believe it is a fact that from time to time various members of the Parliament have had an opportunity to travel by air to visit overseas countries. Generally, the visits have been in connexion with parliamentary functions which the members concerned have attended as representatives either of the Parliament itself or of the Government. In those cases, their fares have been paid as a matter of course from funds made available to the Parliament or to a department for that purpose. It is true that charter flights are permitted only within an extremely narrow field. Doubtless the honorable senator will remember the rather lengthy statement that I made during the last session in which I explained the Government’s policy in that matter and the reasons for it.
In dealing with the suggestion that the government airlines should be used to carry certain groups of people on charter flights,
I point out to the honorable senator that the government airlines are just as much subject to the Government’s policy in connexion with charter flights as are the privately-owned airlines. For that reason, the course suggested by the honorable senator would not be practicable. I add, however, that at a recent conference of the International Air Transport Association Australia took the lead in proposing certain measures which, although they would not involve charter flights, would lead to a considerable reduction of fares in certain circumstances. I refer to group travel arrangements. Although Australia’s submissions were not agreed to at the last conference held in September, they are to be brought up again in March, when we are very hopeful of getting beneficial results.
– I desire to direct a question to the Minister representing the Minister for the Interior without notice. Is he aware of the open defiance of New South Wales laws by the traders of Queanbeyan, and of the risk that is involved of an explosive division of interest of a modified East-West Berlin type developing between this New South Wales town and Canberra because of conflicting laws? As Queanbeyan is already an important suburb of Canberra and is in the process of being absorbed by the rapid expansion of Canberra, would it not be wise at this juncture to make overtures to the New South Wales Government to have the Queanbeyan town area ceded to the Australian Capital Territory, and to suggest that a referendum should be conducted to enable the people of Queanbeyan to express their attitude to the matter?
– I realize the importance of the honorable senator’s question. At the present time, of course, Queanbeyan is not a part of the Australian Capital Territory but is within New South Wales and, consequently is under the administration of the New South Wales Government, which has power to stop the trading that Senator Maher has mentioned, or to allow it to continue. What the Queanbeyan shopkeepers do is their business and the business of the New South Wales Government.
– I wish to ask the Minister for the Navy a question after having received correspondence from the Victorian branch of the ironworkers’ union expressing grave concern over the matter. Is there any justification for reports that no plans have yet been made for a continuance of work at the naval dockyards at Garden Island in New South Wales, and at Williamstown in Victoria, following completion of the present work programmes? Is the Minister able to make a statement reassuring unionists employed at these dockyards regarding their employment prospects?
– Mr. President, the two installations listed by the honorable senator fall into different categories. The Garden Island dockyard is not a dockyard in which construction of any significance takes place. It is the dockyard in Sydney Harbour at which all refits of ships are carried out and where repairs and general engineering work of that kind on existing ships are done. As far as I am aware, there is no indication and no intention that the work available to the Garden Island dockyard will significantly decline or significantly increase unless something happens as happened some time ago when “ Himalaya “ damaged a propeller and gave extra work to the dockyard as a result. It is intended to allow the staff of the Garden Island dockyard to decrease by normal wastage; that is to say, it is not intended to dismiss any of the staff at Garden Island but as, in the normal course, some of the staff leave from time to time, they will not be replaced. I think that the staff of the Garden Island dockyard will go down from about 2,100 to 1,850 by that method.
It is true that there has not yet been introduced a follow-up building programme to take the place of the naval building which is being carried out in the Williamstown naval dockyard, but there is a sufficient amount of work ahead at the dockyard on the ships that are already being built. So there will be plenty of time for a replacement building programme to be brought in without employment there being affected. It is not intended to build up the work force at Williamstown naval dockyard but it is intended to maintain it at a steady rate by replacing wastage as it occurs. I think this is all I can say in the matter.
– Will the Minister representing the Minister for the Interior inform me whether it is a fact that the drivers of Commonwealth cars at all pools, as well as bus drivers in Canberra, are issued each year with two serge uniforms? ls it a fact that these uniforms are difficult to keep free of dust in summer and are oppressively hot? Will the Minister consider the issue of summer uniforms more in keeping with climatic conditions?
– Since the honorable senator’s question concerns a matter of departmental administration, I shall bring it to the notice of the Minister for the Interior.
– I invite the attention of Senator Paltridge, who is both Minister for Shipping and Transport and Minister for Civil Aviation, to a notable event in the life of a small shipyard at Devonport, Tasmania. I refer to the delivery of a 70-ft. landing barge and a 30-ft. launch to the Department of Civil Aviation for use at Cocos Island. I ask the Minister: Do these units measure up to the best turned out in mainland shipyards? Is the department pleased with the performance of the two units in tests carried out prior to delivery? Can these small shipyards depend on further contracts of a similar nature either for the Department of Civil Aviation or for the Australian National Line?
– The units constructed at the Devonport yard are of a very high standard indeed. I think it is both fair and accurate to say that they compare favorably with anything of their type turned out elsewhere in Australia. They certainly performed well during the trials. As to further contracts from the Department of Civil Aviation, I have regretfully to point out that the demand within the department for this type of craft is limited. Only a few of them are required by the department for use at bases, such as that at Cocos Island, and the like, so that one cannot look to a continuing flow of orders from the department, nor, for that matter, from the Australian National Line, for the reason that the craft are not of a type that is employed by the line. Notwithstanding that fact, the Australian Shipbuilding Board and all those interested in shipbuilding are aware of the work being done at the Devonport yard, and as suitable orders come along that yard will be kept well in mind.
– I direct to the Minister tor National Development a question which relates to the printing of a booklet entitled “ Advice on Prospecting and Mining for Uranium in Australia “. Can the Minister say whether the conditions governing the granting of rewards for uranium discoveries have been altered? Is the Government still paying such rewards? Has any company received a reward this year? If so, what was the amount? In view of the expected world surplus of uranium oxide in the mid- 1960’s, is (he Government anxious for prospectors throughout Australia to find new deposits of uranium?
– I am glad that Senator Scott agrees that the booklet to which he has referred, with its illustrations and general descriptions, was a useful contribution to uranium mining. The rewards are still available for uranium discoveries. Indeed, within the last few days I approved of such a reward. I am not certain whether an announcement concerning it has yet been made, and I have not got the details clearly in my mind, but I mention the matter to show that the system still operates. Despite the fact that the market for the sale of uranium is a little difficult at the present time, the long-term importance of our establishing that we have uranium deposits in Australia is of such national significance that the Government is indeed anxious to see uranium prospecting continue and to see further discoveries made.
– In directing a question to the Minister representing the Treasurer, I refer to the news published this morning to the effect that the Taxation Branch had given a ruling refusing to recognize company arrangements made by Sydney doctors, including the distribution among doctors’ families of shares in companies for the purpose of accrual of dividends. No basis for the ruling is given for the information of the general public. I ask the Minister whether the ruling is based upon section 220, I think, which was extended by the Privy Council, in Lane’s case, to any arrangement which had the effect of avoiding the payment of tax. I hope he will pardon me for saying that in my opinion the extension of that section constitutes a grave menace to the taxpayers in general if it is abused. Will the Minister make an early statement to the Senate as to whether that section is being used for that purpose?
– I shall refer the honorable senator’s question to the Treasurer urgently and see whether I can get a reply, within the next day or two, before the Parliament adjourns.
asked the Minister representing the Postmaster-General, upon notice -
Postmaster-General has furnished the following replies: -
In most cases, these officers have thus gained salaries higher than those they would otherwise have been able to attain. A complete examination of the effect of this opinion on the commission’s staffing procedures is currently in progress and action is either being taken, or is projected, to ensure that the commission does not exceed its powers in this regard.
The list of categories, departments and branches is rather long. I therefore ask for leave of the Senate to incorporate it in “ Hansard “, without my reading it.
– Is leave granted?
– An objection having been raised, leave is not granted.
– The list reads -
Most of the categories listed above, not engaged in the commission’s television service, have been regarded as auxiliary programme staff since the promulgation of the Australian Broadcasting Com mission (Staff) Regulations in 1947, and no change in their status is contemplated. The other categories engaged since the introduction of the commission’s television service in 1956, are carrying out duties of an artistic or creative nature as envisaged in the report of the Parliamentary Standing Committee on Broadcasting to which the honorable senator has referred.
asked the Minister for National Development, upon notice -
In view of the fact that a considerable portion of land in the Minmi and Swansea areas, which was defaced by open-cut mining, has not yet been restored to a reasonable condition, will the Minister see that the original contract is carried out?
– The answer to the honorable senator’s question is as follows: -
Presumably the areas referred to in the question are those operated as the Minmi open cut and the Swansea open cut respectively. The Commonwealth Government has never had any direct or indirect financial interest in these particular open cuts. Where it has had such a financial interest in open cuts through the Joint Coal Board all necessary action has been taken to ensure that proper restoration of the disturbed land is carried out. The two open cuts mentioned above were located on privately owned land and mined privately owned coal. They were operated by private organizations. In these circumstances, the matter of compulsive measures to ensure adequate restoration is one for the exercise of State Legislative powers. Provision is made for this matter in the regulations contained in the eighth schedule to the Coal Mines Regulation Act 1912-1953 of the State of New South Wales. The Joint Coal Board has been requested to draw the attention of the State authorities concerned to the fact that this question has been asked.
asked the Minister representing the Minister for Primary Industry, upon notice -
– The Minister for Primary Industry has supplied the following answers: -
The investment of £34,644 from the Tobacco Industry Trust Account was made as follows: -
“A.B.C. WEEKLY “.
asked the Minister representing the Postmaster-General, upon notice -
Postmaster-General has furnished me with the following information -
Is the Postmaster-General aware that about a fortnight ago one of Ansett-A.N.A.’s delivery wagons overturned on the northern highway, near the Queensland border? Is he further aware that when the van was examined, in the course of salvage operations it was found to be full of air mail consigned to northern parts of Queensland?
The Postmaster-General has now furnished me with the following information in reply: -
Despite a thorough investigation by the department both within and outside the Post Office, no evidence has been found of air mails having been carried by road transport by Ansett-A.N.A.
Furthermore, no record can be found of the specific case mentioned, and the PostmasterGeneral would be glad if the honorable senator could provide more precise details supporting his allegations.
My question to the Minister representing the Postmaster-General is more in the nature of a final appeal than an actual question. I now ask the Minister whether, in view of the vicious rise in the postal rates for Christmas cards - a rise of 66) per cent. - and also in view of the customer resistance to the rise, as is evinced by recent statements made by church authorities and business folk, he will consider sending all Christmas mail at the old rates as a token concession, and in order to get the people used to the big changes in postal rates.
The Postmaster-General has now furnished me with the following information in reply: -
The rates of postage payable on all articles sent by post are prescribed by act of Parliament, which does not give any discretionary power to the Postmaster-General to grant concessions of any kind. The only way in which Christmas cards could be accepted at a special low rate would be by amendment of the Post and Telegraph Rates Act.
As a concession cannot be granted, therefore, to Christmas cards, the need to examine the possibility of separating them from other mail, as suggested by the honorable senator in her supplementary question, does not arise.
– I present the report of the Public Works Committee on the following subject: -
Proposed construction of the Edison Telephone Exchange at Brisbane, Queensland.
The proposed Edison Telephone Exchange is to be located on a part of the Brisbane General Post Office site. The existing telephone exchange building contains equip ment for Brisbane subscribers’ services, a central telegraph office, and the main manual trunk exchange with its associated trunk line equipment. The telephone development in the city of Brisbane has been so rapid that the original automatic exchange equipment of the Central exchange has been fully allocated, and extensions have had to be made for an immediate increase of equipment to meet the demands of applicants for telephone services. These additions have been carried out by absorbing comparatively large sections of staff amenity space. This expansion has now almost reached saturation point as tar as additional exchange lines connected to it are concerned, and will reach saturation point with regard to automatic equipment within the next three years. The PostmasterGeneral’s Department is faced with the alternative of deferring provision of further telephone services or of extending the exchange into the proposed new Edison exchange building. The proposal provides for a multi-story building with a frontage to Elizabeth-street, Brisbane. The estimated cost of the project is £776,000 and the time necessary for construction is approximately two and a half years. The city of Brisbane has a population of 600,000 and in recent years there has been considerable development of secondary industries with a resultant upsurge in commercial activities. There is now a total of 12,160 lines of equipment installed, of which 10,750 have been allocated. By 1965 there will be an estimated 12,530 subscribers, which number is expected to increase to 17,600 by 1973 and to 22,500 by 1979.
The committee, therefore, recommends that, as there is an urgent necessity for a new telephone exchange building, the proposed Edison exchange be approved. As is the practice in all Queensland telephone exchanges of reasonable size, it is proposed that the major portion of the Edison exchange building shall be fully airconditioned, as the proper functioning of equipment depends on adequate temperature and humidity control. Offices and lunchrooms will also be air-conditioned, but all other areas other than lobbies and corridors will be mechanically ventilated. The design will result in a building eminently suitable for its purpose and adequate for the important city position that it is to occupy. The committee recommends the project to the Senate.
Ordered to be printed.
Debate resumed from 19th November (vide page 1698) on motion by Senator Gorton -
That the bill be now read a second time.
– In my view, this is a bill of the utmost importance. It deals with matters that go to the very foundations of our nation. I shall make a number of broad, general observations before I address myself to the provisions of the bill, which I shall deal with later to a relatively limited extent. My present intention is not to deal with the subject at very great length at this stage.
I think it is a pity that a bill of this importance should come to this chamber in the dying hours of the session. Everybody is tired after a very heavy series of sittings. They were particularly heavy last week, when we had early starts and sat until midnight, in addition to sitting for an extra day. We should be given the fullest opportunity for unhurried discussion of this measure, having regard to its nature and to the importance of the issues that it raises. Let me say that, although I shall not be a party to any time-wasting debate, I shall certainly resist, with all the resources that I can summon, any curtailment of debate on this measure.
– There will be no curtailment on the Government side.
– I am very happy to hear the Minister say that there will be no curtailment of debate. I should regard as a curtailment of debate any proposal that the discussion should extend into the small hours of the morning, because I think that that would be a most effective way of gagging the debate. It would be a process of legislation by exhaustion. However, I have no reason to expect that that will happen.
– That is not in contemplation, either.
– I am very relieved to hear the Minister say that that is not in contemplation. It seems that we shall not be at issue on that score. I hope that all the other suggestions that I shall make from this place in the course of the remarks that I shall address to the Senate will have similarly happy reception by the Government side.
– I cannot promise that.
– I did not think that you would do so.
This measure is presented to us as a Government measure, but all parties have announced that their members are completely free to vote as they wish in relation to it. That raises one interesting question: To what degree has the principle of Cabinet solidarity been abandoned in relation to the bill? The Government has sponsored it, presumably as the result of a firm Cabinet decision. I should like to know whether the bill comes to us with about 20 names on the board in its favour, or whether the concession that has been given to members to address themselves freely to it extends also to Ministers, the principle of Cabinet solidarity having been set aside in this matter.
– One Cabinet Minister absented himself when a vote was taken in the House of Representatives.
– That might have been by accident or by design. I should like the Minister, when he has an opportunity to do so, to clarify that matter foi the information of the Senate generally.
I make it clear that although I am now speaking from the place normally occupied by the Leader of the Opposition, I am not speaking in that capacity in any way at all. In the remarks that I shall address to the bill, I shall speak entirely for myself. I had contemplated making my speech from the place in the Senate chamber reserved for me, away from the table, but, for reasons connected with the propinquity of the Clerks’ table, I like to speak from this spot. It is far more comfortable for me than the other.
I indicate also that although I sought and secured tha adjournment of the debate after the Minister had made his secondreading speech, I had no right to take that course. I thought that as this was a Government measure, an Opposition speaker was entitled to the right to be heard next. I sought that privilege, not because I believed that, as the Leader of the Opposition, I had a right to speak before any other Opposition senator - each of us had an equal right to seek the privilege - but because I thought that, as the only qualified legal practitioner on this side, I had a special personal responsibility in relation to a measure with the legal complexities of this measure.
I look forward to an exceedingly frank discussion. A discussion of that type may involve a slight baring of one’s soul.
– That would be difficult in some cases.
– I would not be so unkind as to support Senator Courtice in that remark. I think we all have souls. In the circumstances that I have outlined, I would hope for merciful and tolerant treatment at least. Knowing the Senate as I do, I believe that I shall not hope in vain.
My study of the bill and my thinking in relation to it have led me to certain conclusions. At this stage some of them are only tentative conclusions. I want to have the advantage of listening to a frank discussion of the bill by every member of the Senate who desires to speak on it. I want to hear the views of other honorable senators, and I shall make an effort to listen to every speech that is made. It may not be possible for me to listen to every speech, but I want to know the views of every honorable senator who cares to address himself to this matter. In that way, I hope that I shall be able to change my tentative conclusions to firm conclusions. I think that there is much advantage to be derived by approaching the bill in the way that we are approaching it, and I look forward to a discussion on a mantoman basis. I know that the lady senators will realize that I use that term generically only.
Now I want to refer to another matter. For the last week, and even longer, many newspapers throughout Australia have been, not merely guessing at, but predicting the attitude that I take to the bill. They have been making positive assertions of my beliefs in relation to various aspects of the bill and, with complete certainty, have been telling their readers that I shall propose certain motions in this place. Let me say that I did not make up my mind as to what course I should take until late last Sunday evening. Before that time, I did not tell anybody what my intentions were. Not one of those press correspondents who have been attributing these views to me ever approached me on the subject. I simply record, from this place, my protest against their audacity, against their mendacity, and against the deception of their readers. I think that the whole thing - when the newspapers pick upon a public man and attribute to him beliefs and commitments to courses of action - is an outstanding instance of irresponsibility in journalism.
Honorable senators. - Hear, hear!
– The bill deals with the very unhappy subject of matrimonial disputes and with divorce. I think that the Government is open to the criticism that before it entered this field it might well have addressed itself to a consolidation, or a uniform law, in relation to marriage itself, lt seems to be the right course if this Parliament is to approach that field - as it unquestionably has an overriding power to do - that it should in the first instance address itself to the very important subject of marriage and that a measure of this type might have been deferred until a later stage.
I shall take the opportunity to philosophize for a moment or two on the subject of marriage. My own experience of life - if I may make bold to put it that way - is that any marriage in which there is mutual respect between the parties has a wonderful chance to see out the distance. If, added to that, there is even liking between the parties, it is assured of success. Given both those conditions, there is a possibility of the real thing - real love. Where most marriages break down, in my view, is when the basis of mutual respect is destroyed; there is nothing then to hold the marriage together. That is where they do fail. I do not know any lovelier thing in the world than a happy marriage and a happy family unit. I think they are graceful and wonderful at all ages. I have in my hand a few lines 1 have taken from a letter that 1 have received from a young girl. It is dated 17th
November, and it reached me within the last few days. I had written to her to congratulate her on the arrival of her first child. Naturally, she was very pleased, and she wrote to me in these terms -
We are both terribly thrilled and still cannot believe there are three of us now instead of two. X-
The husband - is still in a daze. Baby, of course, is absolutely gorgeous, we think. X has really not seen all of him yet, and neither have I for that matter.
There is the picture of a perfectly happy marriage. Knowing the parties as I do, I recognize the pleasure they have had in joining with their Maker in creating a fresh life - the true purpose of marriage. This is a very simple example of the happiness that comes from following nature. You see it at all stages.
I recall an experience I had with a delightful elderly couple who have enjoyed their lives. They frequently exchange banter. In order to lighten this tedious subject, I should like to relate one experience. When I visited the home, I said to the old lady, “ I am looking for father “. She said. “ He is in the backyard cutting the hedge “. lt transpired that the old gentleman had started to cut the hedge from one end and had proceeded a certain distance. He then went to the other end of the hedge and started to trim it back towards the middle. He then set about trimming the centre of the hedge, leaving a series of humps and bumps. The old lady said, “ Look at himself! Faith, it’s himself and system could be married, for there’s no relation between them at all !” She was, of course, referring to one of the most graceful things in life. I think we could all agree upon that particular proposition.
The Attorney-General (Sir Garfield Barwick), in the course of his secondreading speech on this measure in the other place - he placed marriage and the family unit on a very high pedestal indeed - said -
I approve that sentiment entirely, but it might have been strengthened. I think thai perhaps, my first suggestion to the Minister for the Navy (Senator Gorton) who is in charge of the bill, is that there might have been an advantage in picking up that thought and working it into the preamble to this very important bill, which would then have directed attention to the importance of the family, the importance ot preventing the breakdown of that institution in any individual - case, and so as to colour the mind of all those who will be concerned with the administration of this bill - the courts, the barristers, the public and many others concerned with the administration of the divorce laws. I throw out the suggestion to the Minister that the opportunity is still with us. I hope that the Government will give consideration to putting this measure in its right perspective by framing a preamble containing a suitable approach to the bill.
When I had surveyed the bill, the first thought that struck me was that those Senators who are not lawyers must have have been amazed to think how simple it is to enter into and go through the marriage ceremony, and how complex a proposition it is to undo it - because it is an extraordinarily complicated matter. The vast number of clauses contained in this bill is a case in point. The Attorney-General, in his explanatory memorandum, very properly made the point that it is not a code on divorce law that we are considering. The main purpose of this measure is to pick up and weld together and improve half a dozen State laws with certain improvements and advantages, but basically it is a consolidation of existing statute law. It also behoves us to remember that there is a vase field of case law in relation to divorce. There are very lengthy and complicated treatises on the subject matter, and one must not imagine, when picking up the bill, that he has before him all the law on the subject of matrimonial disputes and divorce, because he will not! Whether one is a lawyer or not, having regard to the width of the field, he must pay regard to history in approaching this matter. Again, the problem is affected by the inherent complexity of human affairs; the relationships between individuals are of infinite variety.
No legislator, no matter how wise he may be, can provide for all the situations that might arise between two persons.
I think that we all agree that any disturbance of a marriage may have repercussions in all kinds of directions - not only on the people connected with the marriage in the family but very often, unfortunately, on persons right outside the immediate family unit - and that the adverse effects of a breakdown of a marriage can have bad effects on one generation after another. Therefore, it must be accepted that a breakdown of marriage is a very serious thing.
I wish to say a word or two about the pronouncement by Church leaders in relation to divorce generally and this bill in particular. The emergence of the bill has brought statements from the leaders of the great Christian Churches. They have defined their outlook by saying that no civil authority has power to dissolve a valid Christian marriage which has been consummated. They deny the right of the parties to such a marriage to remarry but they concede that intolerable situations sometimes arise between married people which justify the intervention of the law to provide for the discontinuance of the marriage or termination of the obligation to cohabit, and to dispose of the complex questions of maintenance, custody of children and related matters.
This bill does not deal with the first proposition. It makes no concession in that respect. The Churches and the State are at variance on the question of the dissolubility of marriage. But there is in this bill a concession, in several respects to the viewpoint the Church leaders have expressed. Provision is made for judicial separation, which has all the effects of divorce except the dissolution of the actual bond and the freedom of the parties to remarry.
– Does not the honorable senator regard that as purely the attitude of the State towards, and in respect of, the Church view?
– I should like the honorable senator to let me complete the theme that I am developing. I propose to touch on the matter only lightly; I do not want to canvass the merits of it at all. I merely want to record the facts. There fore, I should prefer the honorable senator to allow me to complete what I wish to say on this particular matter. The second point at which concession is made is the specific provision that no minister of religion shall be compelled to remarry a person who has been divorced. Those are great concessions and valuable to the viewpoint that has been expressed.
Despite the bill, and despite any law that may exist, the Churches bind their members to their own principles, as they are entitled so to do, and decline to remarry people who have been divorced in circumstances not approved in the terms of their statements on the subject. But my view is that the question of the dissolubility or otherwise at the instance of civil authorities does not arise in relation to this bill. If the bill were rejected, the position would remain as it is under the laws of the six States. I merely raise the matter to mention it, and I conclude my reference to it by saying that whilst I personally subscribe to the viewpoint of the bishops, I pass no judgment whatsoever upon those who take a view to the contrary.
Having said that, I feel that I may address myself to the problems that I think I should look at. The three great questions that are before my mind as I do so are, first, whether the bill tends to prevent the breakdown of marriage; secondly, whether it widens the opportunities for divorce; and thirdly, whether it is an improvement on existing State laws. Looking at the first point, I say at once that I think that the Government, and the Attorney-General (Sir Garfield Barwick), in particular, have made an exceedingly sincere approach to the problem of preventing, as far as possible, the breakdown of marriage. Many provisions entirely novel to law of this structure are introduced in the measure, and I am satisfied that there has been a very firm and sincere attempt to meet that position.
I have already referred to what the Attorney-General said in his second-reading speech. I point to the financial support of marriage guidance councils, and to their availability to the courts in proper cases. When I was last in practice - about twelve years ago - marriage guidance councils were not very much in vogue. I have had no experience of them. Fortunately, I have never needed their services for myself. My own experience - and I realize that this is not a matter on which one can rely for a general proposition - has been that when parties go to solicitors’ offices, by the time they reach the courts there is very little hope of the salvation of the marriage. By and large, I think that when married people import third parties into a discussion of their differences the base of the marriage is gone; that is to say, the base of mutual respect, to which I referred earlier in my remarks, has been damaged. In my experience, a marriage would be very fortunate if it could survive after such damage. That is a personal experience; I do not generalize from it. I think I have stated in this place before that I have never handled a matrimonial dispute in which I have not made a sincere effort to try to reconcile the parties. I think that that is true of every lawyer practising in that particular field.
– That is general?
– I should say that it is quite general. Lawyers do that as good citizens, and from a sense of responsibility. I do not know of anybody practising in that field who would not feel himself bound to make some effort in that direction. But my experience did not encourage me.
I pass no judgment on marriage guidance councils, I do not know their work. I was very happy to read recently, in the report of the general secretary of a nationwide organization, the claim made quite positively that the organization, during the preceding year, had saved some hundreds of marriages. That may well be so. I do not contradict it. I hope it is true, and I hope that the work can be extended. I know that there are great questions in relation to that matter, such as whether fully trained social workers should undertake the work, and the part to be played by volunteers. Those are important questions that have to be resolved. There are organizations in the marriage welfare field which are not happy with the provisions of the bill. That, of course, is a matter to which we can address ourselves later.
A further matter that I wish to discuss is the duty that is imposed by this bill on the court to consider the possibility of reconciliation between parties at any stage, and the power of the court to adjourn the proceedings and appoint a marriage con ciliator, which must be all to the good. I have doubts, which I shall develop at the committee stage, regarding the wisdom of authorizing a judge of the court to enter, at any stage, into the turmoil of the proceedings by interviewing the parties in the absence of counsel, as is provided, and even with their consent, going back on to the bench and proceeding with the case. There are doubts in relation to that matter that I shall take the trouble to express at greater length when we reach the committee stage. But there is no denying the wisdom of the principle that judges are to address themselves to the possibility of holding the marriage, as a matter of duty. That is a distinct improvement.
Clause 84 provides that the welfare of the children is to be the paramount consideration in any matters relating to their custody, maintenance, welfare, and so on. We all must support and applaud that provision. There is further provision that no decree absolute is to be granted in a divorce proceeding until the judge has declared that he is satisfied that adequate provision, so far as that is possible in the circumstances, has been made for the children. After all, the children are the tragic figures of broken marriages. I think that the imposition of that duty, in those terms, upon the court is entirely to the good, i support it fully. Again, we have another effort to safeguard marriage in the provision that, except in rare cases, no petition can be presented for dissolution of a marriage within the first three years of the marriage. I think that is the difficult time for parties. I think it is a wise provision to let the courts come in at that stage, for in my opinion it is at that early stage that marriage guidance and conciliation can have a great deal of good effect.
I see in the bill a real attempt, with real prospect of success, to prevent the breakdown of marriage. I make to the Government the suggestion that the Government might have gone a little further. Quite frequently, one hears certain people in thz community ask, “ Why does the guilty party always go free? “ That puts it very imprecisely and very imperfectly, but there are those in the community who are offended at the fact that when one spouse sues the other for divorce and a decree absolute is given, the offending party, along with the party who committed no offence, is immediately free to remarry.
I concede immediately that there are many cases in which the loss of the other spouse’s society and the loss of association with the children in the family unit are the worst kind of punishment to one who has committed a matrimonial offence. That can be. But there are other types of cases where an individual has pursued a course of conduct for the express purpose of forcing his partner to sue him for divorce, which he wants for his own purposes, and the decree absolute given to that offending party is a reward of the course of conduct that he has pursued. 1 make the suggestion that at that point the courts might be empowered, having regard to all the circumstances of the case, and having regard to the matters of public interest that are involved, to impose conditions on an offending spouse in the category that I have indicated about his re-entry into marriage. I have known of a judge who, hearing the evidence of the petitioning wife, has said, “ I want no corroboration of this evidence. I have taken the opportunity to read the proceedings in the prior divorce of this respondent, and I find there the same pattern of cruelty, bashings and abuse as I have listened to from this petitioner.” He deplored the fact that when he made the decree absolute freeing the woman he could not do something about putting a brake at least upon the continuance of the respondent’s activities.
I suppose it is easy enough for men and women to dissemble their true nature. They are under no statutory obligation to disclose their previous matrimonial history, and a quite innocent person may, in ignorance, take as a partner some person whom he or she would not have taken had the full history been known. I know it is not easy to work out. I should not like to have to draft a set of rules governing the matter, but I would not hesitate to vest in the court a discretion to impose conditions. The courts would very soon tackle the problem.
One condition might be that a party was not to remarry without approaching the court, and the court could take steps to see that, in a proper case, the prospective bride or bridegroom was appraised of the circumstances of the earlier proceedings. I invite the Government to consider that conditions of that type might be imposed. It might be met by casting an obligation upon people in certain categories to disclose their prior matrimonial offences and, if they fail to do so, visiting them with the penalty that their marriage might be voidable at the instance of the other party.
One has only to consider that society is gravely affected by what goes on in the breakdown of a marriage. In Australia, we have only to think that the State is maintaining on widows’ pensions some 13,500 divorcees and deserted wives. As 9,000 of them have children, it will be appreciated that a vast number of people are thrown on to the State as a result of the breakdown of one marriage after the other. I repeat that at the moment the State is paying pensions to 13,500 deserted wives and divorcees. The problem is there and it has to be met.
I invite the Senate to consider whether it is prepared to take a step to prevent the man who has been guilty of drunkenness, of cruelty of the worst type, of bestiality and other crimes that are mentioned, or of desertion in certain circumstances, from benefiting at the expense of an innocent spouse. I mention desertion because there can be constructive desertion. By that I mean desertion in those cases where the conduct of one party to the marriage has been such as to force the other party to leave the matrimonial home. There can be exceedingly bad conduct, the reward for which may be the granting of an offending party’s freedom, the thing at which he has been aiming all the time. I think the sense of justice in a community would be satisfied if the court were given the power I have suggested, and I think that, over a period, the court would evolve rules that would offend no principles of justice, that would be in conformity with the public interest and would stand as a barrier to people who pursue a certain type of conduct or whose conduct is so bad that it should not be permitted to be repeated. I feel that people will be prevented from breaking their marriages if they know there is a discretion in a judge to say, “ I divorce you and declare absolute the decree, but, in the light of your grave matrimonial offence, there will bs a condition “. Leaving it to the judge’s good sense and discretion, binding him to observe public interest might, I think, cause many people to halt before wrecking a marriage. That might prevent many collusive marriages.
– Collusive divorces!
– I am mixing my subjects, lt might prevent many collusive divorces. I am afraid that my mind had raced ahead to another thought and my tongue was lagging behind.
I do not suggest a real analogy in the cases, but I do point out to the Senate that, as a Parliament, we are very tender of the rights of individuals when it comes to property. I remind the Senate that in the bankruptcy law we require an undischarged bankrupt, if he obtains credit for £20 or more before getting his discharge, to tell the person from whom he gets the credit that he is an undischarged bankrupt. If he fails to do that, he is liable to imprisonment for a year. And that relates to the paltry sum of £20! I ask the Senate to consider this thought: Has not society, and have not we, as the representatives of society, some kind of duty to protect the members of our society from people guilty of at least some types of matrimonial offence? I shall develop that thought later to the committee. I approve of the bill on that first ground. It answers the question that I posed to myself.
I come now to the question whether it widens the opportunities for divorce. I shall not, at this moment, embark upon a discussion of all the grounds for divorce or, in fact, of any of them. I shall be concerned at the committee stage to look at the reduction of the period of desertion from three years to two years. I shall be concerned about the extension of the proceedings for restitution of conjugal rights, adapted from the New South Wales law. I want to canvass in committee the question of divorce, on the ground of insanity and also to direct my mind to the provisions of clause 28 (m), which formerly was clause 27 (m), when the bill was in another place. I have views upon these matters that I shall develop and put to the committee, if we do go into committee on this bill, and
I shall be influenced by what I hear. 1 shall not forecast my thoughts at the moment; I reserve them.
This bill, in superseding State laws and providing for uniformity, does a service to the nation. I agree with the view that we are getting rid of a great number of conflicting provisions. The bill is an improvement in the respects that I have already indicated. I agree that we are now one nation, that our communications bring all of us very close together. I myself have been in five State capital cities, and Canberra - missing only Brisbane among the capital cities - in a period of less than 48 hours. We are one people. We are one nation. We are not any longer six separate States. We have not been since the First World War formed the true foundation of our nationhood. We have progressed from then.
In my view, the bill is essentially a committee bill. For the reasons I have given, I think that the bill should be given a second reading and that we should address ourselves to it in the committee stage. Where we think it is defective we should endeavour to qualify, modify, and amend it. I think it will be for the good of the nation if we have the better divorce law enshrined here, subject to the qualification of an approach in committee to the four points I have indicated. We must address our minds to the matter of endeavouring to improve the bill.
I cannot conclude without directing attention to the history of this legislation. In the first place, Dr. Evatt, who was then the Attorney-General, formed a committee that include Mr. Joske, to draft a uniform divorce law. The matter lay aside. Tt was under consideration for years subsequently. The Law Council of Australia addressed its mind to the problem and produced a draft bill. Not very long ago in another place Mr. Joske introduced a private member’s bill. I thought he showed great courage and great skill. The bill was dropped when the Government announced that it would itself sponsor a bill. I have no hesitation in saying that the bill we now have, prepared under the guidance of the Attorney-General, is a magnificent piece of draftsmanship. Everybody along the line whom I have named has had a part in shaping this measure. I welcome the approach to uniformity in divorce. I shall follow this bill step by step. I shall make my decision at each stage of the bill. At this stage I have no hesitation whatsoever - and for the information of the press I have never had any hesitation - in deciding that this bill should be given a second reading.
.- I join in this debate because 1 believe that this is a bill of very great importance to this Parliament and to the lives of the people of this country. As I am a bachelor, some people might ask what I would know about divorce and marriage problems, but I am particularly fortunate in having served in a public capacity for many years in the municipal sphere, long before I came here. Serving as mayor of my city, it was only natural that I should be very close to the people. They brought to me many of their very personal problems. As a consequence, quite a few years ago I became very interested in this subject. I well recall an occasion, long before I came to this Parliament, when I was travelling on an aircraft to Mackay. The then AttorneyGeneral, Dr. Evatt, was on the aircraft and T suggested to him, because of certain problems that had been brought to me, that we ought to have a uniform divorce law. Dr. Evatt showed his consistency of thought on divorce problems in the registration of his vote in another place last week.
I look upon this bill as being extremely important. It is probably the most important bill, from the point of view of the people, that has been brought to this Parliament since we came into office, and probably even for a number of years before that. We have considered many important measures, such as those in relation to banking, but the subject-matter of this bill goes deeper and more intimately into the lives of a great number of people than did any other bill that I can recall. The bill relates to a matter which, naturally, will always be a subject for contention. Therefore, I should like to take this opportunity of congratulating the Attorney-General (Sir Garfield Barwick) and the Government on the great courage that has been shown in framing the bill and on the wonderful job that has been done. I believe that for many years governments have more or less baulked at this problem. Irrespective of what one’s views might be as to details, we all ought to pay tribute to the courage of Sir Garfield in framing this bill and of the Government in bringing it forward.
I should like to refer to a private member of the Parliament, Mr. Percy Joske, the member for Balaclava. It was he who first made a great move towards bringing into being the legislation that we have to-day. In his own gentle manner, and with the aid of his great knowledge of divorce, he introduced a private bill on the subject. He showed courage, initiative and determination in an effort to do something valuable in this very human field. Whilst to-day the limelight has gone to the Attorney-General, the Government, and the members of Parliament who will put the bill through, my mind is conscious of the great debt we owe to Mr. Percy Joske. I pay him a very warm tribute.
– I think the value of his work is acknowledged generally.
– I am quite sure that it is. We must not lose sight of the purpose of the bill. It is introduced mainly to bring about uniformity. This is a very difficult problem. We have six States, each with its own divorce laws. It is therefore most difficult to introduce a uniform divorce law that will satisfy every one. One State may provide a ground for divorce that does not apply in another State. Even Parliamentarians from the latter State may say, “ We have not this provision. Why should we have it? “ People from the former State, on the other hand, may well say, “ Why should we lose this ground for divorce in order that we may have a uniform divorce law? “ That is the conflict that prevails. Therefore, if we give the matter proper thought, we must realize that there has to be compromise in relation to the grounds aplicable in all the States in order that we may achieve uniformity. Whilst it is very easy for us to talk about particular points, we must put ourselves in the place of the person or persons who framed the bill, and find out whether we could have done any better towards obtaining uniformity. Therefore, in approaching this matter from the wider Australian stand-point, T think we must take a broader view of the provisions contained in the bill. Some of the provisions may not particularly appeal to some of us because they may not be in operation in our own respective States; but if we are in favour of a uniform divorce bill, we have to compromise, even in respect of our own views, in order to have uniformity. I feel sure that most honorable senators agree that a uniform divorce code will be a good thing. We are one Australian people and therefore, in regard to something which strikes at the very core of our lives, surely there should be uniformity. Being Australians, let us take the Australian outlook on this bill in order to try to secure the uniformity which every one of us should desire in this very important matter.
The breakdown of marriages is something which greatly disturbs the hearts and minds of many people. Some people think this way, and some people think that way, and there are cross-currents, pressures and influences, with the result that very often public men do not express what they themselves really think. The fact that the Churches have entered into a controversy such as this has no doubt had an effect on a number of people. Those of us who are Christians, and I am a regular churchgoer, recognize the part our Churches play in our Christian lives. Therefore, no one can treat lightly what the Churches think. However, we must adopt the view on this particular matter that the obtaining of a divorce is of extreme importance to the individuals concerned; to them it means more than anything else in the world. This is a human story. It is something which has to do with the happiness of humans.
– Are not the
Churches interested in that?
– Unquestionably so, but in a case such as this individuals have to make the decision whether they want to go on living together or whether they do not. From my point of view that is the crux of the question. It concerns the individuals themselves, who should have the right to decide whether their marriage shall be maintained or not.
This bill makes ample provision, in its conciliation clauses, for saving marriages, where possible. The provisions are such that if the dispute that has taken place between two people is of no great depth, the conciliation facilities available to such people should enable them to mend their marriage. Where the rift is so deep that these conciliation provisions cannot repair the marriage, then what is the value of that marriage being maintained?
I come now to the conditions relating to the dissolution of marriage. There are certain conditions that we all accept - at least I presume that we all accept them - namely, adultery and desertion. However, there are two contentious provisions which probably are worrying most people. One provides that in a petition for divorce on the grounds of desertion, the period be reduced from three years to two years. Personally, I think that that is a very good provision. As I pointed out before, if a marriage is a failure, what difference does two years make as against three years? I repeat that we are dealing with human beings. I think that if people do not wish to live with each other, they should have the opportunity to say that they want to be divorced. If a person is deserted for two years, surely that is long enough to prove that the desertion is likely to be maintained. I am quite sure that if we could get the true records of the divorces that have taken place we would find that there would have been no difference if the period of desertion had been three years or two years. I feel that two years is a sufficient length of time.
In dealing with a question like this we should try to put ourselves in the place of the people concerned. I feel that if such a position arose in relation to the members of this chamber, they would agree, as individuals, that a period of two years’ desertion would be long enough to indicate that the marriage had been written off by the other party. Therefore, I honestly believe that the reduction of the statutory period from three years to two years will be of no great consequence to this nation but will be for the betterment of the people concerned.
We assert that it is an advantage for people to marry and have families. The longer the period of desertion we provide in respect of cases like this, the less likelihood there is of the people concerned being remarried. I believe that there is a stage in life when certain parties would have a better opportunity to be remarried if they did not have to delay too long. I think, therefore, that the two-year term is to be preferred from the remarriage aspect of people who will be divorced.
The second matter on which there is a great deal of contention is that covered by clause 28 (m) which provides for a separation period of five years. I have looked at this provision, and I agree with the statement of the Attorney-General that when people have been separated for five years you can say “ finis “ to the marriage. J know it may be said that one of the parties ,nay not want to be divorced although the other party does. I cannot see the sense in maintaining a marriage of that character. I think we must be realistic. I consider that if one of the parties wants to petition for a divorce under this paragraph he or she should be permitted to do so. I have talked to honorable senators from Western Australia about how this provision operates in that State. I find that, so far as one can discover, it has been very successful. It has been successful to the degree that it has apparently helped to reduce the ratio of divorces in Western Australia, and it has reduced the number of divorces granted on the ground of adultery. The provision allows the possibility of divorce, even where adultery has taken place, without any stigma resting upon, in particular, the children of the marriage. There are some human characteristics about this matter which appeal to me. In considering the subject of divorce we have to realize what actually goes on in the world. There are some legal men in this chamber, and they will probably support the view expressed by other legal men that in many of the cases that come before the divorce courts in which one of the parties has been found in compromising circumstances with another person, such matters have been arranged. If our existing divorce laws allow such arrangements to be grounds for divorce I think that they are absolutely contrary to the spirit which should underlie our legislation. I do not think that any of us who are concerned with the passing of good clean legislation wishes to have on the statute-book legislation which so restricts people that they are more or less forced into conduct of that kind. If we as legislators want our legislation to operate properly we should strive to limit such restrictive laws to the utmost.
The religious aspect of this subject has been emphasized, and, as I have said before, it is an important aspect, but we have to remember that although most marriages are performed in a church, the fact remains that each marriage must be registered with the civil authorities. As I passed through Brisbane on my way to Canberra I read in the daily newspaper that the number of marriages in registry offices is increasing. Whether that be so, or whether most people still prefer to have a church ceremony, the basic fact that all marriages must be registered with the civil authorities still remains. We cannot get away from the fact that every marriage is a civil contract, and whether performed in a church or a registry office, it must be registered with the civil authorities. The law which this bill seeks to alter in a number of ways, in order to provide greater uniformity in matters relating to divorce, is not a law made by the Church; it is a law made by men in the legislatures of the country. As these are man-made laws it is competent for them to be altered by men in the same way as they were made in the first place and passed into the legislation of the country. Who is there who will say that the different laws operating in the six States of Australia constitute ideal legislation? They cannot be ideal for the whole of Australia because the laws operating in the six States in matters affecting divorce are all different. I do not think that any one can claim that the existing laws on this subject are ideal.
A good deal has been said about the breakdown of marriages and we have been reminded that the contracting parties to every marriage enter into a contract that will last for their lifetime.
– The words in the marriage service used to be “ till death us do part”. They will remain if we do not pass this bill.
– The parties to every marriage promise to love, honour and cherish each other, and in some cases, the promise to obey also is included. 1 am not sure of the exact words, but their promise is one that they undertake to keep through life. But what happens in some instances? The promise to love the other party to the marriage is not always kept. Something has happened, and a change in affections has taken place. That is a breach of the vow taken at the time of marriage, and it often is the natural result of the parties’ own development.
– The honorable senator is getting out of his depth.
– Not at all. As I have said, something has happened and a change has occurred. That brings me to the very core of marriage.
– Or divorce, which?
– 1 am trying to show that although persons who marry take vows to do certain things during the whole of their lifetime, changes may take place, in some cases because of developments within themselves, such as growing old with a change in their feelings towards each other; and so the basis of the marriage breaks down. In some instances the change is such that it may be difficult to sustain the marriage relationship. We have to remember that we are living in different times from those in which most of our laws relating to marriage and divorce were passed, largely because people move about more to-day than they did a generation or two ago. There was a time when numbers of people lived in small isolated communities, and rarely moved out of them, but to-day people move about a great deal more; they enter wider spheres and meet more people, and in some instances married people realize that they made a mistake in their marriage. We may say that such people are foolish, but we know that these things often happen. In this matter we are concerned with human beings and their weaknesses. These are the human problems that are associated with the subject of divorce. When the attitude of people towards each other changes, the very core of the marriage is destroyed, as is the reason for the continuation of the marriage association.
– The children are still there.
– Whatever the legislation on the statute-book may be, it will not alter that state of affairs. The problem of the children is one that has to be faced in this connexion. Most people make mistakes, but there are some persons in the community who, if they had their way, would say that persons who make the mis take of contracting an unsatisfactory marriage must continue to remain man and wife, and that it is a mistake that no government can remedy. I am not one who holds that view. I believe that if people make a mistake they should have the opportunity to rectify it, even if the mistake is the one they make when they are married. I agree with Senator Ormonde that, in a broken marriage, children present problems, but I point out that the bill takes care that such children shall be provided for. That is a very important and humane provision. It is my belief that, if a marriage were unsuccessful, it would be better for the children to live with the partner to the marriage with whom they would be happier. That would be better for the children ultimately than living in an unhappy and divided household.
I hold the view that it is not good for children to live with parents who have no affection for each other, or even hate each other. In such a case, the parents get on each other’s nerves and there is, to say the least, an atmosphere of irritation and annoyance. In my view, the vibrations of the unhappiness of parents are felt by the children, and they can have the effect of developing within the children tensions which would not develop if the parents were separated and the children were allowed to live with the parent with whom they were most happy. I think that that is the humane approach to the problem of dealing with the children of unsuccessful marriages.
This bill, which touches the very core of the lives of our people, is of tremendous importance to the community. I believe that, in the long run, it will help many people to lead happier lives. I consider that the provisions relating to the publicity given to the details of divorce actions are very humane provisions. I have always been opposed to the details of divorce actions being published throughout the country. I believe that what happens between a man and his wife in their home, or - turning from divorce actions to actions for breach of promise of marriage - between a young man and his young lady, are the things that concern them more intimately than anything else. What happens between a man and his wife in their home is, in my opinion, something that concerns them only, and if they have to tell a judge about it when they are seeking a divorce, the details of their differences should not be widely published. Matters that affect only the people concerned, and possibly their families also, should not be spread abroad.
I am very glad that the bill proposes limitations on publicizing the details of people’s innermost lives. Would any one of us like the details of a family squabble to be published to the world? Of course, he would not. I believe that the AttorneyGeneral, by inserting those provisions in the bill, has taken another very humane action, and I applaud him for it. When people seek divorces in the future, especially in States in which at present wide publicity is given to divorce cases, they will feel very much easier in their minds, because they will be relieved to a great extent from the fear of the initimate details of their lives being widely publicized. We must recognize that, especially in small communities, such publicity could ruin people’s lives.
I am not a legal man, and I have not tried to deal with this bill from a legal viewpoint. I do not think of it in grand legal terms. I think of it as a bill dealing with the lives of the people of this country, as a bill designed to make some people’s lives happier than they would otherwise be. I believe that any measure designed to give people an opportunity to be happier or to make a fresh start in life is a measure that we should support. I strongly commend the bill because of its humane approach to the problems with which it deals. It is a bill dealing with human beings, and should be considered in that light.
If a husband and wife come to the conclusion that they made a mistake in marrying, if each finds that the nature of the other is not what he or she expected, if they believe that they cannot get along successfully together and that the best thing for them and for their children, if there are any, is to seek a divorce, what right have I, even as a senator, to say that they must remain married? I do not feel that I have any right to say that unhappily married people must remain married, even though they affect each other adversely, mentally and in other ways. I would rather take the broad human approach to their problems because, as a simple human being, I want as many people as possible to be happy. 1 believe that God intended everybody to be happy, not unhappy. Therefore, I think it is a Christian approach to the problem to say that if we believe that in certain circumstances divorce would make for the happiness of certain individuals, we should support the bill. I support it because of its humane approach to these problems.
.- As one who has had many years of experience of studying the living document as well as the written document, I am of the opinion that this is a most important bill. It deals with the very basis of human life. In the course of my long and varied experience of men and women in various walks of life, I have come to the conclusion that life in all its phases can exist in equilibrium only. That is true of all living matter. Everything must be in a state of balance. That applies particularly to human relationships. Where there is imbalance in human relationships, one of the most important phases of life is lost. In my opinion, most of the troubles that occur between individuals, and groups of individuals, have their origin in the imbalance of human and social relationships. I am fortified in this opinion by the writings of many authorities on the subject. Imbalance in human relationships affects married life more than anything else. The effects in the case of women are very pronounced. The following passage occurs in “ Testbook of Sociology “, which was written by two men who were well-known writers of their day on social relationships in America - James Quayle Dealey and Lester Frank Ward - and which was published in 1909 -
Throughout all human history woman has been powerfully discriminated against and held down by custom, law, literature and public opinion. . . Only during the last two centuries and in the most advanced nations, under the growing power of the sociogenetic energies of society, has some slight relief from her thraldom been grudgingly and reluctantly vouchsafed.
That is so. I believe that, in any industrial sphere, women do not enjoy economic and social status equal to that of men. They are treated as inferiors. The various industrial classifications that have been made support my contention. A well-known German writer of his day, August Bebel, in the preface of his book, “Women and Socialism “, on this subject, had this to say -
The female sex as such has a double yoke to bear. First, women suffer as the result of their social dependence on men, and the inferior position allotted to them in society; formal equality before the law alleviates this condition, but does not remedy it. Secondly, women suffer as the result Of their economic dependence which is the lot of women in general, and especially of the proletarian women, as it is of the proletarian man.
That book was first published in 1910, and subsequently 50 editions were published. His remarks were quite true. The truth of them was particularly evident during the period of the First World War, and has applied ever since. Inevitably, legal men place women in inferior classifications, despite the fact that women have performed very important duties connected with the defence of the nation. I recall that when T was Minister for Aircraft Production in the Labour government I was most impressed by the work performed by women in factories that I visited. In those days, whenever it was possible to do so, men operating machines were replaced by women who were paid at the male rate. I was told that such practices were against the awards, but when I inquired into these matters, in most instances I found that the-e was no relevant award. I cite the example of the operation of the mechanical micrometer. This important job can be performed by women equally as well as, and sometimes better than, it is performed by men.
At the beginning of my speech, I said that I have had considerable experience. I have visited thousands of homes in Victoria and in Western Australia in the course of my work. In many instances, the fact that men could not give their wives sufficient money to provide food and clothing for them and their children, as the men themselves received only a bare subsistence wage, led to great dissatisfaction, to say the least of it. In many cases, the matter ended in the divorce court. This was directly attributable to the fact that many deserted wives had been dependent on their husbands. Among the proletarian class - the lower-paid workers - the woman is expected to be subordinate to the man. The majority of the cases that come before the divorce court have their origin, I believe, in imbalance in economic relations, which leads to imbalance in social relations.
In an article, which appeared under the caption, “The Family”, which was included1 among others on other subjects in “ Whither Mankind? “ edited by Charles A. Beard, published in 1928, a well-known writer of his day in England, Havelock Ellis, had this to say about women and divorce -
The greater economic independence of women assists them in the task of sexual selection (marriage), and is found to be conducive to marriage, though it is also favorable to divorce when marriage is disrupted. The greater facility of divorce aids the formation of most satisfactory (marriage) unions.
That is to say, where woman has equal status with man, the tendency of man is to treat her with much more consideration than when man is dominant. That applies, too, when men occupy superior positions and other men are dependent on them for the right to work. Those who enjoy what is termed economic independence tend to become dictatorial and aggressive. Before long, there is trouble. Therefore, if we are to have happy married life, we must have balanced relationships. This bill does not go as far as that. It deals mainly with unification of the law and aims to effect minor alterations of existing laws. From my point of view, the bill is the lesser of two evils. It has been brought into being not because people want it but because the changing nature of conditions to-day has forced it into being. Women are becoming more and more prominent in the scheme of things, economically and socially. We have to adjust ourselves accordingly.
If I were asked to say in one word what constitutes the process of living, I would say “ adjustment “. If we fail to adjust ourselves to changing relationships and conditions we must be prepared to suffer the consequences. Honorable senators in this chamber must adjust themselves to the conduct of one another, within the bounds of workability; otherwise, there is trouble. In life, we can only get what we call fair treatment from our fellow men with whom we are living and working if we are on an equal footing. If one man is superior and another inferior, as in the Army and in other walks of life, there is trouble.
Senator McKenna referred to the need for men and women mutually to respect each other. That is true, but mutual respect is not possible in most cases in which the man is the dominating factor in the home, or if, as we frequently read in the newspapers, he withholds from the woman the treatment that she has a right to expect. In such circumstances, mutual respect goes by the board. The arrangement deteriorates into a domestic squabble and ends either in desertion or in the divorce court. The bill before us will not in itself remedy that state of affairs to the degree that remedy is necessary, but in my opinion it will relieve the position very considerably.
Quite a lot of people have had a good deal to say about this bill since it was first proposed in, I think, August last. People who occupy responsible positions in society have said, as a clergyman is reported to have said in this morning’s Melbourne “ Age “, that “ human nature being what it is, some marriages will break up “. There is a vast difference between what we call human nature and human behaviour. There is nothing very much wrong with human nature, but there is a great deal wrong with human behaviour. The behaviour of a child born in Australia and brought up in another country will be in accordance with the environment in which it has grown up. The behaviour of a child born in China to Australian parents will be that of those around it. It is because of that fact that children born into a vicious environment, such as that which exists in many family circles, become vicious. Such children do not behave as they are expected to behave by custom and by law, and in nine cases out of ten the children are punished for their behaviour, whereas society, which prepared the conditions which made the children behave as they did, is to blame.
We read of child delinquency. There is nothing wrong with most children, but the conduct of some children of povertystricken families, and also of some children of wealthy families, is different from that of children who live in a reasonably balanced environment. Therefore, the mere amending of the law, or the passing of this bill, will not end the trouble. The conditions under which children are born and edu cated and trained must be changed. If government authorities continue to know as little about the science of anthropology as the man in the moon - a state of affairs that exists in this country and every other country - when matters affecting social conditions are referred to them they will continue to act against any change for the better. These changes require that we adjust ourselves to them. Unless economic conditions, working conditions and living conditions in particular, change for the better, very little can be expected from this or any other law. The passage to which I have referred continues -
Man cannot be made moral by legal restriction.
That is true, but it would seem that many magistrates, judges and others, including many clergymen, believe that all we need to do is make a law and everything will be all right, that people will become more moral than they were before. That is not so. One noted biologist who worked with the Rockefeller Institute in Washington for 30 years said -
The science of man is the most important of all sciences and the least understood.
He dealt extensively with the position of men and women under existing conditions and, amongst other things, said -
The more eminent the scientist the greater the menace be is to the public.
That is true. Many scientists who excel in certain subjects have the idea that because they are specialists in one particular direction they are authorities on all subjects, and they become very annoyed when they are not accepted at their own valuation.
That is the position here. I suppose ail the honorable senators have received many letters, just as I have, in which people have sought to give the impression that they are able to advise on matters about which they have little or no knowledge. Senator Wood said that we were dealing with human beings. That is perfectly true, but the whole trouble in life is that under existing conditions men and women in industry are not looked on as human beings; they are looked upon as so many units of labour power to be used to the best advantage. They are subordinated, exploited and impoverished in the interests of trade and profit. The recipients of social services are reduced to the lowest level because they are not looked upon as human beings at ail. I remind Senator Wood that we are also dealing with human beings when we deal with men who are on strike, and all strikes have their origin in the unbalanced and very provocative relationships in industry.
Finally, I draw the attention of the Senate to the fact that this measure deals only with the effect, not with the cause. The things which are responsible for divorces, desertion and the other acts of which we complain will continue unless we deal with the causes as well as the effects. We should deal with the causes of desertion, and, to do so, it is essential that we have some knowledge of how to improve human behaviour as distinct from human nature. I offer the suggestion that if the Government approaches the matter in that way, the unbalanced relations that exist everywhere to-day and which are the cause of so many marriages breaking up must be considered. After all, marriages are the very basis of our social life and they should be protected.
I repeat that we are dealing with human beings not with the lower animals. The mere passing of a law will not improve the behaviour of people. I admit again that this bill could lead to that, especially as it seeks to make Australia’s matrimonial laws uniform but I do not visualize any great change for the better socially.
– Simply because of the unbalanced relations that exist where men and women who are working in industry are required to live on a subsistence wage, and where men and women are denied employment when they are prepared to work. So long as we continue to coerce them in every possible way, we shall never have any change for the better. The best we can hope for is the reaction we see in many other countries to-day.
I feel very keenly about this matter because I view it in the light of my long experience as a trade union organizer, and as one who has studied the living as well as the written documents. Before we can hope for any improvement, industrial relations must change for the better. There are many honorable senators with high academic qualifications but they have never lived among the men and women in industry. They have never worked in mines or on the wharfs and, because of their lack of experience of this side of life, they really believe that if they make a law it should be obeyed and that if the people disobey it they must be suppressed.
If that cannot be achieved, the law is amended or modified. One finds from reading that enslavement and ill-treatment of women have been worse in Eastern countries than in the West. But Eastern countries, in re-organizing their economies in order to make some progress, have had to consider the position of women in relation to marriage and in relation to employers. Those countries, like others, are making a virtue of necessity. If women had accepted the conditions to which they were subjected before the First World War, before they had a right to vote, a place in industry and a place in this Parliament, and if they had not organized themselves, assisted by men, their position would have been very much worse to-day. There are always three stages in a social reform. First, there is uncompromising opposition; secondly, in the light of experience and in the light of sustained discussion, there is s critical toleration; thirdly, in the light of success, there is complete and unanimous approval. Those are the three stages through which every social reform has gone. Divorce laws are no exception to the rule.
So I intend to support the bill as it stands. I shall do so because I consider it to be the lesser of two evils. Knowing the position as I do, I could not imagine the lawyers being prepared to do any more than they have done. As this bill is the best that can be done in the circumstances, there will be anomalies to be rectified, in the light of experience and sustained discussion, and further improvements or amendments will need to be made.
Finally, I am of the opinion that parliaments or governments operate on the same principle as does the wheelbarrow. They go just as far and as fast as they can bc pushed. When there is no pressure from below, governments will not move. As I have said thousands of times on platforms to working men and women who have complained of the way that they have been treated, all things yield to pressure. If there is no pressure, there is no result. I have in mind a dispute that occurred when I was secretary of the Leather Dressers Union in Western Australia during the First World War. I was able to prove that women were being underpaid. There was considerable opposition to what I had to say. When we were preparing to appear before the Arbitration Court and when I explained the position to the women, they were at first inclined to be a bit hostile. But in the light of the discussions that took place, when the position was explained fully to them they became better strikers than men, and they were prepared to stand their ground courageously as long as it was necessary to do so. Our efforts in that connexion were successful. On another occasion the Arbitration Court in Western Australia ruled that a woman, upon reaching 21 years of age, should receive an increased wage. But employers sacked such women and employed younger ones. We organized a strike and the women’s resistance to the employers was splendid. So much so was it, that we won the strike.
I mention these matters merely as asides, because this is essentially a women’s bill. No great social progress will be achieved in this country or any other country until women are placed on an equal status with men, economically as well as politically. They are on an equal status with men politically in this country, but not economically. When we have a balanced relationship, with women emancipated, we shall have progress. Not all people, of course, want progress; some want only change. When we reach the stage I have just described, we shall have the progress for which my Labour colleagues are looking and which we feel certain will come. I therefore support the bill, because it improves and strengthens the position of women.
.- I oppose the bill. I congratulate the Minister in charge of the bill, the Minister for the Navy (Senator Gorton), on the careful and temperate manner of his introduction of this most controversial measure. I thought his summary, sketched very, very clearly, in a relatively short compass, the plans and designs of the measure and put it in the very best light possible. I commend the three speakers who have already spoken. In a debate of this nature it is most desirable that the tone be kept at the normal high level that is expected in this chamber, without personal acrimony or personal abuse, because for obvious reasons a measure of this type is one upon which honest men, being sincere, can arrive at opposing conclusions.
– And women.
– And women. I accept Senator Robertson’s soft rebuke, although I am sure that most women will be with me in opposing the bill. My colleague, Senator Wood, claimed that, in truth and in fact the introduction of the controversial clause 28 (m), formerly numbered 27 (m), in somewhat similar shape in Western Australia had actually reduced the number of divorces. I should have thought that that would have stultified one of the purposes of this measure, because Senator Wood went on to say that the measure would bring justice and happiness to thousands of people who were denied it by present laws. He cannot have it both ways. I agree with the view of the three speakers who have preceded me that this is the most important measure ever to be debated in this Parliament. The very security of our homes and our families is at stake. The bill contains both good and bad provisions. The three-year moratorium provision in relation to the starting of divorce proceedings, the matrimonial guidance and conciliation ideas, and also the provision for the care of children are very good, but of course, those measures would appear more suitably in a marriage bill than in a divorce bill.
For myself, I think there is very little value to Australia in the rest of the bill. However, I congratulate the AttorneyGeneral upon the diligence with which he has prepared the bill and the erudition and scholarship which he has exhibited. I think the mere fact that the legislation introduces new and offensive principles of law which are repugnant to British justice, and strike a smashing blow at the sanctity of the Australian home and family is no criticism of the sincerity of the honorable gentleman. The hard core of the bill has been surrounded by a generally-accepted quantum of sugar-coating, but as the
Minister for the Navy (Senator Gorton), who is in charge of the bill in this chamber, states, the most important and difficult aspect of it is the settlement of the grounds upon which marriage may be dissolved.
This bill, contrary to one introduced into another place some time ago by the honorable member for Balaclava (Mr. Joske), virtually picks up all the grounds of the States and seeks to make them of universal application. One particular ground, now enshrined in clause 28 (m) in this bill, has never been tested anywhere in Australia in the precise terms and conditions in which it appears in this bill, despite its generic similarity to a ground which has been in use amongst 8 per cent, of our population for fourteen years.
Because of the reported skilful attempt by the Attorney-General to label all opposition to this bill as emanating from religious scruple, I think I should take half a minute to state my personal position clearly and definitely without equivocation. As a Catholic I accept the divinity of Christ. I do not believe Christ was joking when He said on a number of occasions, and in different words, “ Those whom God has joined together let not man put asunder”. Hence, for me personally, the matter is concluded. However, this is not a theological debate. We are here to represent and speak for all the people of Australia irrespective of their religious beliefs, or lack of them. Accordingly, my entire argument to the Senate will be based, not on my religious beliefs, or - even to use the offensive term - on my scruples, but on the secular test laid down by the AttorneyGeneral himself, namely, “What is the best thing for Australia that will give justice to the individual? “
When we look at the bill we should ask ourselves, “What does it do?” Well, it increases grounds for divorce in all States, and it will increase the number of divorces, on the experience of Great Britain, by three times within an estimated period of three years. Tn 1938 in England there were various divorce laws. When T say England, I mean the British Isles and I include England, Scotland, Wales, Northern Ireland and the Channel Islands. In 1938 the Chamberlain Government introduced uniform divorce laws, and within twelve months the divorce rate had increased by 300 per cent. In 1914 the divorce rate in England was only 4,500, but it sky-rocketed to 54,000 immediately after the war in 1947. I concede that that is not a fair comparison. In 1947 divorces reached a peak because of the dislocation of marriages and human lives caused by hostilities. The divorce rate in all countries after the war was higher than it is now.
The Government states, in effect, that it is quite fallacious to say that because it is increasing the ground for divorce, that will make divorce easier. If that is not so, what is the purpose of passing the legislation? On the one hand, the Government claims that it is not making divorce easier and that if the bill becomes law the number of petitions will not increase, whilst at the same time, with its tender solicitude for the deserted and the philanderer, it says, “We are going to bring aid and comfort to thousands of illicit unions which have all those qualities of love, permanence and children which make for a sound marriage, but which cannot be regularized because the wicked deserted wife refuses to capitulate to the paramour”. That is a fairly free translation of the Government’s position.
There is no doubt that the question of the status of marriage, divorce, lunacy, bankruptcy and similar matters should be made uniform by being placed on a federal basis. Some of them already are. That however, is one thing. In this matter, the Government has apparently decided that it is better that the divorce laws of Australia should be uniformly bad rather than they should be irregularly good. Take, for example, the very contentious ground contained in clause 28 (m) which provides for divorce by consent after five years’ separation, even against the will of the innocent party, and which is to be foisted on every State. I have little doubt that before the debate is ended in this chamber - my doubt is even lessened by the circulation of a document which the Minister has had placed on our desks - that there will be frequent reference to the outstanding Morton Royal Commission on Marriage and Divorce. The commission sat in England and was presided over by Lord Morton of Henryton It sat from 1951 to 1954 and presented a most comprehensive report in 1955.
Lord Morton is one of England’s premier jurists. He was a member of the judicial committee of the Privy Council which gave the Commonwealth leave to appeal against the High Court’s banking decision in 1948. He was also a member of the judicial committee which handed down final judgment in the banking case. It will be remembered that on that occasion Sir Garfield Barwick and the Leader of the Opposition in another place (Dr. Evatt) were on opposing sides. In July, 1957, I had the very great privilege of discussing the royal commission’s report with Lord Morton himself when he was in Melbourne. His Lordship expressed the view that the trend to easier divorce throughout the world had already gone’ too far, and he said the time might come when it would be essential to have no divorce. In a public address before the Law Convention in July of that year he said that it was time to call a halt in the trend to easier divorce. He conceded that easier divorce had relieved many cases of individual hardship - a point which I also concede - but stated that on balance more harm than good had been done, particularly to family life.
I hope that Lord Morton and his commissioners may be acquitted of any charge of having their findings dictated or coloured by what the Attorney-General calls religious scruples. Paragraph 38 of the commission’s report states -
This Report will contain no discussion of what may be called the religious aspects of marriage and divorce, but it must not be thought that these aspects have been overlooked. We have had evidence from Christian Churches and other religious bodies and have done our best to weigh that evidence, together with all the other evidence laid before us. We have, however, conceived it to be our duty to examine the problems before us from the point of view of the States, which has to legislate for all its citizens, whatever their religious beliefs may be.
I wish to refer further to the report itself. By a majority of nineteen commissioners to nil - I emphasize those figures in view of a statement that has been bandied around Australia in the last few days - the royal commissioners threw out the basis of clause 28 (m) in the terms and conditions in which it is embodied in the bill before us. Not one single, solitary commissioner of the Morton Royal Commission on Marriage and Divorce supported clause 28 (m) in the terms and conditions in which it appears in this legislation.
Sitting suspended from 5.45 to 8 p.m.
– Before the suspension of the sitting I had been referring to the fact that the Morton commission was opposed to the principle and detail now expressed in clause 28 (m) of this bill, and I expressed to the Government the hope that it would be acquitted of the charge of acting on religious scruple. Because that phrase has been bandied about a great deal in the last few weeks, I feel that the matter should be pursued a little further. We find objections to this type of legislation from countries to which we would not normally look for inspiration when drafting our laws.
After the Russian revolution, the Communist Government was determined to remove all vestiges of Christianity from Russia, and accordingly its legal code stated that all marriages in that country should be what we would regard as de facto unions, with the proviso that if the parties so required a union could be registered at the Soviet equivalent of a town hall and that, if it were registered, a certificate should be issued. There was no legal advantage as between a registered marriage and an unregistered marriage. Divorce was made just as simple as marriage. The petitioning comrade simply went to the town hall and filled in a form, which an official despatched to the other spouse, who was thus notified that he or she had been divorced. It is not difficult to imagine the disastrous social consequences which, even in a totalitarian State, flowed from that cavalier approach to marriage and divorce. Consequently, some years ago - I think it was just before the Second World War, but T am not sure of the date - the Russians decided that they would have to do something about the matter, and they tightened up their marriage laws. Oddly enough, the Russian marriage laws now are probably as tight as those existing anywhere else in the world. There is only one ground for divorce. The Russian law accepts the generic principle now expressed in clause 28 (m), inasmuch as it refers to the breakdown of marriage, but even the Russians draw the line at allowing an innocent spouse to be divorced without his or her consent. Does the Government suggest that the Russians are actuated by religious scruple?
The Kadar Communist Government in Hungary has committed every crime in the calendar. It has been guilty of the most brutal and bloody repression of a popular revolution in modern times. But the Hungarians have only one ground for divorce, and it is generically similar to that operating in Russia. Even the Hungarians, Kadar and all, draw the line at granting such a divorce without the consent of the innocent party. Does the Government suggest that the Hungarian Communists are actuated by religious scruples?
For some years now, Poland has been under - perhaps half under would be the better expression - the Soviet heel. The Polish divorce code is exactly the same as the Russian code, and even the Communistridden Poles draw the line at granting a divorce in cases of breakdown of marriage without the consent of the other spouse. Does the Government suggest that they are motivated by religious scruples? Very few of us would take the present Czechoslovakian State as a model of democracy, or indeed as a model to be adopted in anything, although I did hear one member of another place - I must say that I disagreed with him - say that he regarded the vote on this measure as being about as free as a Czechoslovakian election. In Czechoslovakia there is one, and only one, ground for divorce. It also embodies the generic principle of clause 28 (m), but, despite all their repression of freedom and their brutal contempt for the rights of the individual, the Czechoslovakian Communists have drawn the line at allowing a divorce to be granted without the consent of the innocent party. Does the Government suggest that the Czechoslovakian Communists are actuated by religious scruples? I hope that we will not hear any more of that expression.
Before leaving this subject, perhaps I should make a further reference to the remarks of Lord Morton and the other members of that royal commission. I shall do so because of a document which has been circulated in the Senate. It bears the signature of the Attorney-General, and the Minister for the Navy has informed me that it is intended to be one of the papers before the Senate in this debate. I shall outline very briefly what I say are the facts, and then leave honorable senators to make their own comparison of what I have said, supporting my remarks by reference to the report of the Morton commission, and what the circulated document says.
By a majority of nineteen commissioners to nil, the Morton commission threw out as a ground for divorce the principle expressed in clause 28 (m) of this bill, in the terms in which it is now drafted. The break up of the grounds which divided the commissioners may be of some interest, and perhaps of importance at a later stage of this debate. I shall give them in skeleton form now. I think that a break-up of the grounds is of importance, particularly in view of the unfortunate reference to the Anglican bishops that was made by the Attorney-General during the debate in the other place. He claimed that a majority of the members of the Morton commission supported the grounds embodied now in clause 28 (m). That claim was wholly unwarranted, and represented the grossest misrepresentation of the commissioners’ findings. Of nineteen commissioners, nine, including Lord Morton, the chairman, would not have a bar of those grounds at any price. Five commissioners were prepared to accept the separation ground and the breakdown principle for a period of seven years, on condition that an innocent party would not be divorced against his or her will. So, there was no support there for the grounds now embodied in clause 28 (m).
Four commissioners were prepared to accept those grounds, provided that the petitioner would be required to prove that the act of separation was in some manner or other the fault of the respondent. There was no support in detail there for what are now the provisions of clause 28 (m). Another commissioner, Lord Walker, who had rather radical ideas of his own, disagreed substantially with the other two groups of nine commissioners. He accepted the principle now embodied in clause 28 (m) on condition - his was a contingent acceptance - that it should be made the sole ground for divorce. He went on to say that he agreed that if his view were not acceptable - it was rejected by eighteen of the commissioners - there was a need for some principle, although he did not think that the matrimonial offence was the best principle. He said that this need required that the doctrine of the matrimonial offence should be adhered to as closely as may be without the new grounds for divorce proposed by some of the members. It is therefore completely inaccurate to say that any one of the nineteen commissioners gave specific support to the principle embodied in clause 28 (m) of this bill.
– Would you give me the reference to the place where it is reported that the Attorney-General said that those people did support the principle embodied in our clause 28 (m)?
– I shall be able to give you the reference towards the end of my speech, but I cannot do so now. The statement was made last Tuesday evening. As to the importance of the matters that were inquired into by the commission, I want to quote the findings and I want to make it abundantly clear that these were the findings of nine commissioners only, including the chairman. As honorable senators know, in ordinary High Court proceedings, if you break even and have the chairman on your side you have a majority. The findings also had the support of the late Dr. Roberton, who was a member of the committee and who sat from 1951 to 1954. She wrote a memorandum to the chairman saying that she agreed with these findings; but unfortunately she died before actually signing the report itself. I shall quote from paragraph 35 of the report. Although I do not agree with the report in toto, I will not omit awkward sections. I shall read the actual words of the report, which show the magnificent way in which the commissioners have expressed themselves in support of the authority which resides in the argument which they have propounded. Paragraph 35 reads -
The Western world has recognized that it is in the best interests of all concerned - the community, the parties to a marriage and their children - that marriage should be monogamous and that it should last for life. It has also always recognized that owing to human frailty, some marriages will not endure for life, and that in certain circumstances it is right that a spouse should be released from the obligations of marriage. There are, and always have been, differences of view as to whether in such circumstances the marriage tie should be dissolved and the parties set free to enter into new marriages, or whether the parties should merely be legally separated, without dissolution of the marriage tie.
In paragraph 36, the commissioners go on to consider what a marriage is in England. To the best of my knowledge, in federal jurisdiction in Australia, there is no statutory definition of marriage. If there is, I should be glad if the Minister would draw my attention to it. In paragraph 36, the commissioners say -
By the law of England and of Scotland marriage is the voluntary union for life of one man and one woman to the exclusion of all others. This means that on entering marriage husband and wife must intend that their marriage shall be for life. The State has, however, recognized that in certain circumstances it would be contrary to public policy and would inflict hardship on individuals if the marriage could not be dissolved. It has accordingly made provision whereby in circumstances defined by the law the marriage may be dissolved by the Courts and the parties set free ….
The commissioners then go on to say in paragraph 37 -
We have accepted these views on marriage and divorce as the basis of our approach to our task.
In regard to this particularly offensive principle of divorce by consent, Mr. Deputy President, I refer to paragraph 47 of the report, which reads -
There is a further factor in the problem of marriage breakdown, which is more dangerous, because more insidious in its effects, than any of the others. In fact, we believe it lies at the root of the problem. There is a tendency to take the duties and responsibilities of marriage less seriously than formerly. Yet if, as we have said, more is now asked of marriage, it follows that more, not less, should be put into it. The result of this outlook is that there is less disposition to overcome difficulties and to put up with the rubs of daily life and, in consequence, there is an increasing disposition to regard divorce, not as the last resort,-
I emphasize that - but as the obvious way out when things begin to go wrong. In other words, remedies which are intended for the relief of real hardship are used in cases where relief should be unnecessary if a proper view of their marriage obligations were taken by husband and wife.
I think that every honorable senator, no matter what his approach to this bill, will concede that this is a magnificent statement on the obligations of marriage in our community. In paragraph 50, the commissioners - by “ commissioners “ I mean the chairman and eight others - say -
We do not think that the remedy for the problem of marriage failure lies in making divorce more difficult. In our opinion, the roots of the evil go too deep for such a course to be effective in dealing with the tendency to look to divorce as the obvious way out.
Finally, in dealing with this aspect of the matter, paragraph 54 states -
It is our hope that a really marked extension in the work of education, pre-marital instruction, marriage guidance and conciliation would check the tendency, to which we have referred, to resort too readily and too lightly to divorce.
I interrupt myself there, Mr. Deputy President, to say that the good features of the bill that is now before this Parliament have been lifted substantially from the recommendations of the royal commission as set out in this paragraph. They are a magnificent conception of assistance to marriage guidance to the individual, conciliation, and the care of children. No sane person would challenge them. I shall repeat what I said earlier, namely, that the proper place for these provisions is not in a bill designed to dissolve marriage but in a bill designed to set out the rights and obligations of marriage. Paragraph 54 continues -
Unless this tendency is checked, there is real danger that the conception of marriage as a lifelong union of one man with one woman may be abandoned. This would be an irreparable loss to the community. There are some of us who think that if this tendency continues unchecked, it may become necessary to consider whether the community as a whole would not be happier and more stable if it abolished divorce altogether and accepted the inevitable individual hardships that this would entail.
– You will never get that.
– I invite all honorable senators who will be voting on this measure to obtain a copy of this report and to read paragraph 54 time and time again before casting their vote.
– What did the British Government do with the English prototype of clause 28 (m)?
– I cannot quote the English laws offhand, but they are very similar - but slightly more liberal, using “ liberal “ with a small “ 1 “ - than the divorce laws in the State of Victoria. In reply to Senator Ormonde’s specific question, I inform him that the British Government threw it out; it would not have a bar of the provision as contained in clause 28 (m).
– It was never suggested.
– I am speaking about the British Government; it would not legislate. I think I can sum up the views of Lord Morton, the chairman, and the largest of the three groups of commissioners, in regard to the proposal contained in clause 28 (m). They say - this is a translation; it is not word for word from the report - that no matter how this matter is hedged about, on the question of the breakdown of marriage through recognition of divorce by consent we believe that this would be disastrous to the stability of family life and to the nation. I now quote exactly the words of the report -
I only wish that the Government, before introducing this measure, had carefully read that section of the Morton report.
– Which paragraph is the honorable senator referring to?
– Who is the innocent party?
– I shall deal with that aspect in a moment; I am glad that the honorable senator has mentioned it. I put it to the Senate that this chamber of the legislature has a great opportunity to serve the welfare of the people of Australia. This is an independent House of Review and it is our function to protect State rights. Far too often uninformed critics claim that this chamber is either a rubber stamp, as it were, for the other place, or that we adopt a policy of obstruction. I believe that we have been presented with a splendid opportunity to display the true work of this Senate by correcting manifest injustices in the bill that is now before us; all the more so when we consider that the divorce laws of all our States will go into the discard when - and if - this bill becomes law. As a Victorian, I am most unhappy that the sane and conservative approach of successive Victorian governments is being put on one side and, willy-nilly, Victoria is being tied to Western Australian and New South Wales chariots, which appear to me to be driven far more recklessly. I know that the Senate will examine this measure and give it the treatment it deserves in a calm and dispassionate manner, without being influenced by the effect of a majority in another place.
Apropos the fact that we are dealing with laws for the whole of Australia, I think it places an additional burden on honorable senators when they realize that if we make a mistake, not one but all six of our States will suffer, and that any ground which we bring in to-day can be trimmed and reduced by amendment to-morrow. For example, a simple amendment could turn the five years referred to in clause 28 (m) into three years, and then on the Government’s desertion argument, to two years. The Government has selected extreme examples in discussing clause 28 (m). Government protagonists to whom I have spoken have always picked on the example of a couple who hate one another, who cannot stand the sight of one another and, in the interests of a fresh and sound union - I think that is what they say - the marriage should be dissolved. As a suburban solicitor, I say that that is an unusual state of affairs. I agree that in very many cases love may die. It may peter out and frigidity set in, but the cases in which husband and wife cannot stand the sight of one another or hate one another are, in my legal practice over the last twenty years or so, rather rare.
Great scorn, of course, is poured upon the non-divorcing spouse. He or she is accused of spite, sentiment or religious feelings. I do not know whether that is in ascending order of abhorrence or not. But let us be practical. Frequently in my practice I have had the case of a happilymarried couple, who have been married for ten or twenty years, when the roving eye of the husband lights on some attractive 36-24-36. His faithful wife, who has nurtured him in illness, borne and raised his children, and conducted his household, may present a somewhat unattractive, though sturdy, 40-40-40. In comes 28 (m), riding lustily to the rescue of the guilty party. A separation takes place, and despite the wife’s objections, the mistress is enthroned in her stead.
This position will get steadily worse, because if we are going to accept the reasoning which the Government has used on the desertion ground, why should we wait five years in order to help these thoroughly decent chaps? Let them make their fresh and sound unions, if I may borrow the Government’s words. Surely three years is enough - or why not two years? Why, the Attorney-General has said that one year of life is terribly important to these decent chaps. Let us make it a year. And so on it would go. I say to Senator Mccallum, who is interjecting, that in my experience the woman is usually the victim in this matter. Surely this line of reasoning, Mr. President, is more Pickwickian than Barwickian
The bill is riddled with inconsistencies, and there is no coherent thread running through it. If the sponsors were genuinely concerned with preserving the sanctity and the stability of marriage and of the home, as I have said, we might have expected a marriage bill to precede a divorce bill. Here, we are putting the cart before the horse. We are given grounds for dissolving something which has never been defined by statute. As I said during some little discussion with Senator Wood this afternoon, I am not entirely sure of the way in which the marriage lines run. I hate to think of how many years it is since I recited them, but as I remember, they run something like this: “ To have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, forsaking all others, till death do us part.” If this bill becomes law, those lines will have to carry a proviso something like this - if the Minister cares to alter the draft, I am in no way particular about that - “ Provided always, and it is hereby expressly agreed and declared, that if death shall not supervene within a period of five years, or such other and shorter period as Sir Garfield Barwick, from time to time may determine, I may terminate the above contract whether my spouse likes it or not.”
The Government is reported to have refused an amendment of clause 28 (m) which was designed to protect the innocent party. I know that people will say that the guilty ones should not have any initiative.
– But which is the innocent party?
– I am coming to that now. As the Government says -
To all who put this question, “Who is the guilty one? “ I say this is one of the hardest things to determine-
I am quoting now from Government sources -
For my part, courts of law are very ill-equipped to find out where the true guilt or innocence lies between warring spouses.
– That is a statement by the Commonwealth Attorney-General.
– I said it came from Government sources.
– But to have that statement made to the courts of the land by the Attorney-General!
– I regard it as appalling.
– I do, too.
– I was going to proceed to say that any country solicitor knows that that statement is not accurate. Every day of the week, stipendiary magistrates - not even judges - are determining this question in relation to nearly every maintenance summons with which they have to deal. It involves a simple decision on the evidence.
In the very same breath, the AttorneyGeneral is reported as claiming that clause 28 (m) says to the court, “ You must not give the guilty party a divorce in circumstances which would be harsh and oppressive “. Overlooking, for the moment, the meaning of the words “ harsh and oppressive “, how on earth are the courts to come to this decision if they are not able to determine which is the guilty party? Gilbert and Sullivan were certainly in on that one.
– Sullivan knew nothing about it.
– That is so. Perhaps Gilbert did the draft. Whilst the Government says that the simple inquiry referred to above cannot be undertaken by the courts because of its alleged difficulty, clause 31 requires the court to guess at what a madman would have done had he remained sane. The court is here asked to do something which is impossible. More years ago than I care to remember, I sat at the feet of the present Solicitor-General, who was then Professor of Law at the Melbourne University, and heard him quote the great sixteenth-century British jurist, Sir Edward Coke, as saying, “ The mind of man is not triable, for the devil himself knoweth not the mind of man “.
I think that the insanity ground in clause 28 (1) reflects loose thinking in suggesting that a country’s progress is to be measured by the number of its divorce grounds. For obvious reasons, not many people numerically will suffer under the insanity ground, but those who do suffer hardship from it will suffer real and very great hardship. I recall the case of a New Zealand woman who, in this decade, was divorced while insane. She made a complete and absolute recovery after nine years and was then discharged from the mental institution. She found that her husband had remarried and that she had no home, no husband, no money and no recourse.
The desertion, ground, which is being reduced in this bill from three years to two years, is flatly contradictory to the findings of nineteen members of the Morton commission. Not one of them would agree with two years for desertion. One would have thought that as the Government has leant heavily upon certain selected extracts of this report, when they were suitable, it would have paid some attention to the findings of this most distinguished commission when they ran counter to the general tenor of the bill. The Government says that any one who would be divorced in two years would also be divorced in three years, that this measure does not add a single customer to the divorce court. This, I think, is a quaint line of reasoning since the number of people who qualify is increased by 331 per cent. The Government says these people are simply enabled to come sooner. If this reasoning were valid, why wait two years? Why not make it one year? Why not make it six months or six weeks? It is simply a case of reductio ad absurdum.
I turn now to a question which is closely linked with divorce, particularly in the United States of America and Great Britain. The figures for Australia are as yet inconclusive, but they are alarming. In Great Britain, at the moment, 20,000 children under the age of 16 are affected by the divorce of their parents. In the United States, 200,000 children are being added to the list of divorce victims each year. In the United States, 12,000,000 out of the nation’s 45,000,000 teenagers are now living apart from their parents. I emphasize that in the United States 12,000,000 out of the nation’s 45,000,000 teenagers are now living apart from their parents! In that country, a study has been made of the link between divorce and juvenile delinquency, and it has been found that the rate of juvenile delinquency rises and falls with the divorce rate. In Australia, we have 8.000 juvenile victims of divorce each year. They are children of marriages which have been broken up by divorce. In 1956, in my home State - Victoria - a juvenile delinquency advisory committee, under the chairmanship of Mr. Justice Barry, reported to the Victorian Government that whatever tends to strengthen family life will tend to diminish delinquency and the converse is equally, unfortunately, true.
Some of my legal friends have been chipping at me, but I think I will be pardoned if I make short reference to the fact that this is really and truly a lawyer’s bill. I have seen it reported in the press that certain States are already asking the Commonwealth to provide them with the money necessary to pay the salaries of the additional judges who will be required to hear the additional petitions and do the additional work which will be involved in discharging their obligations if this bill should become law.
And what of the lawyers? I have the greatest respect for this ancient and honorable profession which so often in history has stood between the individual and tyranny, but I say just in passing that one cannot ignore the fact that legal fees will skyrocket when this legislation becomes law.
– How are they now?
– The lawyers are rather poverty-stricken at the moment. I take Victoria as an illustration again. The earnings of a small city office doing ten divorces a year will skyrocket from about ?1,000 to about ?3,000 gross a year.
– The figures I have support that contention. The honorable senator is at liberty to produce figures which rebut my contention. I do not say this in any offensive way at all. I am simply saying what will happen. We have as a guide the experience of England. Further, we were very willing to rush to Western Australia, which has 8 per cent. of our population, to quote the experience there as the result of legislation which is alleged to be similar to the proposed clause 28 (m). Why do we not take some cognisance of what happened in England?
– You would not call the change in the English divorce laws something which could be compared with the proposed uniformity of divorce laws in Australia, would you?
– Administratively, I would; on the grounds, I would not.
– There is a vast difference between the two.
– Order! Let the honorable senator make his speech.
– I am grateful for the assistance. I do not profess to be a constitutional lawyer, but, as I have remarked twice before, I disagree with the sequence of a divorce measure preceding a marriage bill. It may be that we are bound to examine the constitutional position in our deliberations. I am indebted to one of my electors - Mr. J. Dynon - who has reminded me of a statement made by Chief Justice Griffith in a decision in re the AttorneyGeneral of New South Wales versus the Breweries of New South Wales, reported in 6 Commonwealth Law Reports of 1908. That case actually had reference to a trade mark, but the point to which I wish to draw the attention of the Senate is that in their decision, the learned judges raised some important points of the tune of interpretation. The three judges were Griffith, C. J., Barton, J., and O’Connor, J. The decision in the case was a majority decision. Chief Justice Griffith said -
It is for this court to determine, when its interposition is sought, whether an asserted authority is or is not conferred by the Constitution. The meaning of the terms used in that instrument must be ascertained by their significance in 1901.
Mr. Justice Barton said ;
The Act- that is, the Constitution - must be construed as if we were interpreting it the day after it was passed.
Actually, the case was heard in 1908. Mr. Justice O’Connor said, in the course of his judgment, that some distinction was attempted to be drawn between the meaning of the expressions within the lawyers’ sense of the word and the interpretation put on it by the ordinary citizen. He said that there is no such distinction. 1 refer to that simply because I feel that it may very well be that, in some proceedings under this legislation which may be brought by way of appeal, it will be necessary for the court to decide what was the meaning of “ marriage “ in 1900, and, a fortiori, what was the meaning of “ divorce “ in 1900. Again, it may very well be, as Chief Justice Griffith pointed out, that we are not living in static conditions and there may be progress and changes. The thought 1 leave with the Senate is the urgent need for some authoritative statement as to what “ marriage “ means and what “ divorce “ means, because it should be clearly understood that if we say “ divorce “ means something which was not understood to be the meaning of “ divorce “ in 1900, that is an invalid exercise of Commonwealth legislative power. As I say, it may very well be that some unfortunate appellant will have to find that out the hard way.
For the reasons which I have expressed, although the bill contains much that is quite desirable, I believe that the evil principles it embodies far outweigh the good ones. I shall vote against the motion for the second reading, but if that is carried then in committee I shall move amendments designed to preserve and strengthen marriage as the basic institution of our society.
Throughout by remarks, I have consistently refrained from appealing to religious arguments. I will not deviate from that course now. I content myself with reminding the Government that the bishops of the early Christian Church were dealing with the laws of marriage nearly 2,000 years before this bill was conceived, and I remind the Government also that the successors of those self same bishops will be dealing with the laws of marriage 2,000 years after this measure has crumbled into the dust from which Part VI., at all events, should never have emerged.
.- I agree with the statement made by other honorable senators that the bill deals with a very important issue, affecting the social life of many Australians. It is introduced for the purpose of removing the present jigsaw puzzle of Australian divorce laws and substituting uniformity. As we are members of the Federal Parliament, one of our aims should be to have uniformity of laws. The bill is most desirable also as it seeks to foster the work of marriage guidance councils.
We are not debating whether divorce is right or wrong. We are debating only whether a uniform code of divorce for the Commonwealth is desirable or undesirable. The bill is designed to make every Australian equal, in the matter of divorce. By approving the bill as it stands, we shall attain that objective. Whether we live in Tasmania, Queensland, Western Australia, or in any other State, in the matter of divorce and marriage guidance we should have a uniform code. I am very pleased that the matter is being dealt with on a nonparty level, because this gives each and every one of us an opportunity of expressing his own personal views. I have said enough to indicate my attitude. I am not one who desires to make divorce easy. I know that divorce is one of our gravest social problems. This is so particularly in the case of a deserted wife and family.
Amongst the matters in which we have uniformity now are taxation and postal charges. I could enumerate others, but as these are not matters that relate to the bill, I shall not transgress by doing so. Senator Hannan said that he did not wish to introduce the religious aspect. Neither do I. I assure Senator Hannan that I want to keep as far away as I can from that aspect, but I do want to refer to a letter that I have received from the Archbishop of Sydney. It includes a statement issued by the Australian bishops who met in Brisbane last June. They commended the introduction of a uniform code of matrimonial laws for the Commonwealth. It is rather strange that, so far as I am concerned anyway, most of the pressure that any one has endeavoured to bring to bear has come from the Church. Many of us - I think most of us - have a great respect for our Churches. Probably most of us are deeply religious at heart and do not like to break religious or marriage vows. But there comes a time in the lives of some married couples when it is utterly impossible for them to live together. When that situation exists, there should be some means whereby the marriage may be dissolved.
Why should people in Tasmania seeking dissolution of marriage have to proceed on grounds- different from those that apply in other States?
The bill will meet a long-felt want. It will tidy up inconsistencies in the provisions of State divorce Jaws. A particularly pleasing feature of the bill is that it will reduce the total number of grounds for divorce. I think I am correct in saying that there are now in the various States about 30 grounds for divorce. The bill proposes that the number of grounds be reduced to fourteen. That is a very desirable feature. Although there is to be a reduction in the total number of grounds, I realize that the number of grounds now existing in some States will be increased. It is reasonable to suppose that if this bill becomes law the divorce rate will rise in the first year or two thereafter. It seems to me that that is inevitable. The divorce rate in Australia has decreased over a period of years. There has been a consistent decline since 1947, which was a peak year. Taking this in conjunction with the considerable rise in population since 1947, we seem to have reached a fairly desirable situation. I am somewhat concerned myself to think that there will be an increase in the number of divorces as a result of this bill, but we must realize that frequently changes in legislation bring about an increase in the number of offenders against the particular legislation.
It is not my intention, nor my desire, to touch on the legal aspects of this bill because I feel that there are men in this chamber - they have been here for a number of years - who are better fitted to deal with that particular aspect than I am. I want to confine myself to the issues from the point of view of the layman. If I do that, I will have served the purpose for which I am addressing myself to this bill to-night. I might say that I would prefer to be dealing with a bill which would remove many of the causes of divorce rather than with this bill which makes divorce possible. There are a number of causes for divorce. I think that probably the main causes are bad housing, a poor economic situation, and illness.
Housing, I feel, is one of the greatest contributing factors to divorce. It very often happens, particularly at present when there is a shortage of housing, that young married couples have to live with their in-laws. 1 have one of the best mothersinlaw in the world. She is a wonderful old lady.
– She must be wonderful to tolerate you.
– Any honorable senator who has a better mother-in-law than 1 have can consider himself most fortunate. However, I would not care to live with my mother-in-law because I know that living with in-laws does cause friction in a family. A number of people live in cramped quarters, such as tenements and buildings of that nature and such conditions do not contribute towards a happy married life. 1 think all honorable senators will agree with me when I say that. It is within the power of this Parliament to greatly relieve the housing situation. It may mean that a few more million pounds will have to be granted to the States to relieve the housing shortage which now exists in a number of States.
To substantiate my statement let me quote from a judgment of Mr. Justice Dovey of the New South Wales Divorce Court in which he said -
It is a sad thing to have to say but of all the couples whose marriages break up in the first three to five years - sooner in some cases - the fact that they have been living with one or other of their in-laws is responsible in the great majority of cases.
I feel that that statement does substantiate what 1 have said about housing. I suggest that no one in this Senate would be prepared to contradict a statement by such an authority as Mr. Justice Dovey on that particular matter.
The economic situation of many young couples, and very often of couples who are older too, may also be a contributing factor to divorce. If the economic situation of workers could be improved it would obviate the necessity for mothers to go out to work to supplement the family income. We realize that many mothers have to go out to work in order to supplement the family income. That, in my opinion, is one of the greatest factors contributing to child delinquency in Australia. Rents are very high in Australia. In fact, I should say that the man who is renting a reasonable type of house is very fortunate if he pays no more than £4 a week. In some cases rentals are higher than that. Where a man has rive or six children, and probably is earning only £16 or £17 a week, it is utterly impossible for him to maintain his family on a reasonable standard unless his wife goes out to work. If the economic situation could be somewhat improved 1 would say that that would remove one of the causes for divorce. 1 mentioned also that sickness is another factor which very often, in the first place, causes some dissatisfaction between parties and leads to a break up and eventually to divorce. This, again, is an economic question, particularly if the breadwinner happens to be ill for a considerable time. Very often the only income the wife has is the money she receives under the social services scheme. We all know that the amount which is made available to a woman with a family is very meagre indeed. If a rent of some £4 a week has to be paid out of the social service payments, plus hospital and medical fees for the husband, and the remainder used to feed and clothe the family, it is obvious that the wife will get into considerable financial difficulty. This Government could quite easily correct that situation by granting free hospital benefits and free medical care as was done by the Labour Party when it was in government. I suggest that that is one of the matters to which this Government could well address its mind. I have known of cases of a husband who has spent some time in a hospital endeavouring to rehabilitate himself by indulging in gambling. He does so in order to obtain an extra few shillings to reduce the debts that have been incurred as a result of his having been in the hospital. In a number of instances men have turned to embezzlement and robbery in order to maintain themselves at a reasonable standard after having spent some weeks in a hospital.
– Any man will know that he cannot maintain himself by robbery.
– There have been cases of the kind that I have mentioned. The honorable senator who has interjected will agree with me when I say that on many occasions newspapers record the fact that men commit robbery, and then plead that they have done so because they have fallen into debt while being laid up in a hospital. The honorable senator may have his own opinion on this subject; 1 have mine. I venture to predict that many differences of opinion will be expressed before we have disposed of this bill. On that point we can agree. 1 desire briefly to refer to two provisions of clause 28, namely, paragraphs (k) and (m). The latter has been referred to as a provision which enables divorce by consent, but with that contention I strongly disagree. It is true that that paragraph does provide that a divorce can be granted if the parties have been separated for five years, but it also provides that a divorce cannot be granted if there has been a matrimonial offence.
– It may not quite provide for that, but the paragraph does provide that a petition under this Act may be based on the ground “ that the parties to the marriage have separated and thereafter have lived separately and apart for a continuous period of not less than five years immediately preceding the date of the petition, and there is no reasonable likelihood of cohabitation being resumed”. That is the exact wording of paragraph (m) of clause 28. The bill also provides that if a matrimonial offence has been committed the court may withhold any consent to a dissolution of the marriage.
– That is right.
– That being so, the exception which I take to this clause is reasonable. Take the case of a husband who walks out of the house and leaves his wife. If, after a period of five years’ separation he then sues for a divorce under the provisions of clause 28 (m) and it can be proved to the court that during those five years he has committed a matrimonial offence, he cannot obtain a divorce.
– He may not obtain a divorce.
– I suggest that most judges would not agree to a divorce being granted if it were proved that there had been a matrimonial offence. The husband could walk out and take unto himself some nice young blonde, and that would destroy any ground for a divorce under the clause.
I should like to relate that provision to clause 28 (k) which deals with the restitution of conjugal rights. The paragraph reads - that the other party to the marriage has, for a period of not less than one year, failed to comply with a decree of restitution of conjugal rights made under this act.
Let us look at those two paragraphs in the light of collusion between the parties. I think that all honorable senators would agree that some divorces are obtained through collusion. In my opinion there is no doubt at all that that is so. I realize that there are many other grounds, but the fact remains that many divorces are obtained by collusion. As I see the bill, it will be easier to obtain a divorce under paragraph (k) than under paragraph (m). It only needs one of the parties to a marriage to walk out of the house and say: “ All right; sue me for the restitution of conjugal rights. I will not comply with the court order, and we can then get our divorce at the end of twelve months “. I suggest that the provisions of clause 28 (k) are far worse than those contained in 28 (m) in the event of there being collusion.
I was very interested in the information circulated among honorable senators by the Minister in charge of this bill, showing the number of divorces which had been granted in Western Australia under the law of that State providing for a divorce after separation of the parties for five years. It is rather significant that under provisions similar to those contained in clause 28 (m) of this bill the divorce rate in Western Australia has gradually decreased since 1947. That is completely in line with the divorce rate in the other States of the Commwealth In 1947 the number of divorces granted in Western Australia under the five-years separation provision was 24.3 per cent, of the total divorces in that State. Such divorces rose in 1948 to 28.5 per cent., but in 1958 there were only 108 divorces under that provision and the percentage had fallen to 20.1. The average is 24.9, which is a reduction of 4.8 per cent. I do not think that that is a reasonable situation so far as this clause is concerned.
Let me refer to another matter. I know of cases of a husband walking out of his home and going to another State. It has been most difficult for the wife to locate him, to obtain a maintenance order against him and to have the order properly executed. Quite often in such cases the woman is put to considerable expense. In many instances the husband forms an illicit union with another woman and takes an assumed name. The wife cannot locate him at all, and then has to depend upon social service benefits for maintaining herself and her family. In many cases, it would be much better for the community, in my opinion, if one of the parties to an illicit union were able to obtain a divorce and marry the other party. I say that because, as a result of unions of this type, children are born, and they are stigmatized as illegitimate. I do not believe there is any greater social problem facing any person than that which faces a person who was an illegitimate child. Therefore, we should do everything we can to bring about a situation which will assist in reducing the number of illegitimate children bom in Australia. Many illegitimate children grow up to be very good citizens, but they are always conscious of the stigma of illegitimacy. Many people who are now living together, not being married to each other, are unable, because of the divorce laws operating in the States in which they are living, to obtain a divorce from their wives or husbands so that they can become married. This Parliament would do a good job if it passed this bill and brought about uniformity of divorce laws throughout Australia.
.- My submission on this bill is that uniformity of Australian divorce laws is desirable, but that justice in those divorce laws is essential. The bill will deserve support only if it provides for justice to be done, and if unjust provisions, which would provide a loophole for the evasion of justice, are removed from it. In my view, it would be a great advantage if the bill were referred to a Senate select committee. My intention in suggesting that course is certainly not to prevent the passage of the bill. My intention is that the Parliament shall clarify the complex issues that are involved and which have not, I say with the greatest of respect, been squarely presented to us so far.
I feel that the time is opportune for me to express my views on the debt that the Parliament owes to Sir Garfield Barwick for entering the political arena and making available, in the public interest, his unquestionably exceptional talents and great experience. I believe that the clarity of his exposition of the bill in the lower House fully confirmed his reputation as an advocate. Nevertheless, I believe that the Senate would do itself great credit if it examined, on a proper balance basis, some of the provisions that Sir Garfield Barwick advocates without qualification. I wish also to express our indebtedness for the lucid and clear manner in which Senator Gorton, the representative of the AttorneyGeneral in this chamber, explained the bill last Friday isolating for us the main features which remain in contention.
This, Sir, is surely an important occasion. In 1959 this Parliament is seeking to exercise a power which was inserted in the Constitution in 1900. That power was not inserted because of great prescience on the part of the founders of the Constitution. Let us be realistic. None of the States wished to clutch closely to its bosom the nettle of divorce laws. Divorce legislation is not exactly a good political vehicle. Therefore, we have the situation, as was stated by the Attorney-General in the lower House, that the Australian Constitution is unique in that it gives to the Federal Parliament power to legislate in respect of divorce and matrimonial causes. My view is that, as that power is in our Constitution, there is no substance in the claim that it is a detraction from the rights of the States for unified divorce legislation to be passed through this Parliament. From my point of view, that issue was settled when this power was inserted in the Constitution in 1900.
The bill comes before us as a Government measure, and I heard somebody say this afternoon that that gives us an opportunity to vote according to our consciences. Sir, I insist that the fact that the bill comes before us as a Government measure is a recognition of the rights and duties of honorable senators on this occasion. 1 claim the same right and duty on other occasions. I claim that members of the Parliament should always vote according to their consciences, allowing for individual convictions being over-ridden in those cases where a majority of their party colleagues can perhaps, by persuasion, bring that about. We are free to vote according to our consciences on this as on every occasion.
Reference has been made, by way or cheap satire, to the fact that the AttorneyGeneral saw fit, before the debate commenced in the other place, to circulate no fewer than 56 amendments. I say that that is a great tribute to the Attorney-General. It is an indication of the balanced and impartial mind of the man who was charged with responsibility for the passage through the other House of this controversial legislation of a non-party character. In his painstaking way, he gave audience to individuals and organizations throughout Australia, and then, after persuasion, adopted views which led him to amend the bill in no less than 56 places. It is a great tribute to the architect of legislation that he regards amendments as acceptable, lt is a sign of the arrogant man and the dictator when bills are regarded as unamendable. It enhances, not detracts from, the stature of the architect of this legislation that 56 amendments were accepted. I do not have an exact memory of each of them, but I believe that each of them improved the measure. Perhaps the 57th, 58th and 59th amendments will have equal good fortune. I hope that this debate will be pursued in a calm atmosphere and in a spirit of perseverence in order to establish justice in a matter that concerns the innermost interests and souls of the community - whether they be those of women or children or men. I hope that before this debate closes we will be able to evolve amendments that will cure the objections - rank and rancid as they are at the moment in a few respects - to the measure.
I approach a consideration of this measure, Mr. President, with the utmost respect for the viewpoint that we heard expressed - I believe most impressively and with conviction - by my colleague, Senator Hannan, from Victoria, especially when he laid bare his soul to the Senate as to his conviction on and his ecclesiastical view of marriage. I give that viewpoint the greatest respect. I claim to be entitled to none of it. I approach this problem from the secular standpoint entirely - as a matter of justice and nothing else - that man will administer to man as a matter of justice concerning the affairs of families in vital respects.
The institution of marriage, with its conception of a life-long opportunity and obligation, is the basis of the strength of our community. The strength of the community in every respect will be weakened if there is maintained at all costs the strict sanctity of marriage - the indissolubility of marriage - and if marriage is degraded to the condition of copulation that exists among the apes. You will detract from the strength of the family as a unit in the community unless you draw the line by law - not by the discretion of an individual judge, but by law that defines the proper occasions upon which one party to that solemn social contract of marriage is justly divorced from the other. It is the definition of that line that demands our utmost goodwill and persistence in arriving at a determination.
This life-long contract, Mr. President, is enjoyed by men, but it is conceived chiefly for the protection of women and their children, because a woman who submits to matrimony has an inalienable right of protection - physically, economically and personally - and the children have a primaeval right to the shelter that should be provided by the parents. They have an entitlement to respectability in the community. New Zealand judges have said, in passages that have not yet been referred to in this Parliament, but which I have read with great interest and which have fortified me immensely, that in the interests of wives and children the life-long obligation to protect the matrimonial status is chiefly required.
The man is the earner of the family. He secures in the majority of cases - which are growing less as the demands of our taxation laws have to be met - the economic independence, usually in his own name; and twenty years of domestic affection and service simply bring to the wife - what? Nothing by way of independence in respect of property; the husband accumulates the fortune in his name. Do you not think that we are entitled to survey the protection of the woman who is to be divorced even though she is innocent? She is a victim of hysteria, maybe, or she has religious convictions - not scruples - that deter her from ever approaching, or defending herself in, a sordid divorce court. Is she not entitled to just consideration from this House of the Parliament for the’ purpose of defining the property rights if for no other? She does not go into the market place. She turns a house into a home, and she bears children.
Whatever the male of the species may feel as to his freedom, the female is unnatural unless she accepts the obligations of protecting them through the fat and through the lean. The life-long conception of marriage is chiefly for the protection of the woman and the children. Those who come along and vaunt the idea that if the male can be divorced and the female can be divorced you should not have the slightest regard to the difference of their position, do not know what the situation vis-a-vis the two spouses of the matrimonial obligation is. Never forget that our Parliament - in another place exclusively, but happily not here exclusively although predominantly - is composed of mere males. I believe, Mr. President, that the principle of unifying our divorce laws will bring an advantage to this country, from the point of view of its social welfare. There is another view, and that is that family life is such an intimate characteristic of the community that important matters affecting it are best determined by parliaments which are nearer to the heart of the community. I refer to the State parliaments. The view that divorce law and the law as to maintenance of wives and the custody of children is better moulded by State parliaments, is one that I intuitively, and after consideration, fully respect.
I am driven to reflect on the position that one State in six - Western Australia - has adopted a loose provision as to separation for five years, and that another State - New South Wales - has adopted an unmentionable provision whereby divorce may be obtained by decree after 21 days. Let me add that neither the Attorney-General nor his predecessor brings any conviction to my mind in excusing that ground by saying that the courts are so congested that a litigant cannot expect to obtain a decree for at least two years. What an appalling apology for an excuse! One is daunted somewhat in accepting the principle of universality of divorce by the contemplation that we accept those provisions from Wes- tern Australia and New South Wales. I hope that we shall not accept them unmodi’fied. The New South Wales provision has > already been substantially modified by the Attorney-General. The Western Australian one has been mangled, but I hope that when we consider it fully here it will be improved, because there are many considerations of justice in relation to it.
Taking it all in all, the principle of uniformity is, I feel, desirable in the national interest. I accept that general principle. But, Mr. President, in expressing a uniform law, let us make it precise; otherwise the administration of that law, being committed to the supreme courts in every State, will speak with many tongues and divided counsel. There will be different interpretations and dispositions of justice to individuals, than which there is no more rancorous sore in the State system of justice. We must express the rules as precisely as they can be expressed.
Whilst there is value in the idea of uniformity, as I said at the beginning of my remarks, my theme is that the paramount essential condition of the acceptance of a uniform divorce law is that it should be just. There is great value in the fact that, in the future, the courts will have to concern themselves, in relation to domicile, only with the question of Australian domicile. I read a statement, made during the course of the debate in another place - a blissful and, I think, unsubstantiated statement - that the concept of domicile is somewhat artificial. The concept of domicile that I put before the Senate is a fundamental concept. Domicile is the place where the spouse’s permanent home is. I submit that that is the proper place to determine the continuance or termination of the family. It seems to me as fundamental as any reality in this situation. There is a real value in the fact that when a wife is deserted in Tasmania and the husband goes to another State, unless special provision were made, she would have to pursue him to the State where he had established his permanent domicile. Happily, most of the States have made special provision to cure that situation, though there is some question, I think, as to international recognition of decrees. The provision regarding Australian domicile is an advantage, but it is not an unmixed advantage. If a husband clears out with the handmaiden of the kitchen and establishes a home in Western Australia, and if, after five years, he petitions for divorce in Perth, it is not of much comfort to his lawful wife, deserted in Tasmania, to know that’ she has to litigate in Western Australia, with all the expense, inconvenience and undesirability of doing so in that environment. But that notwithstanding, the pro-‘ vision for Australian domicile is an advantage.
I have heard it stated that the provision of the bill relating to maintenance orders alone would justify the passage of the bill. For the last 35 years, the magistrates’ courts of Tasmania have had the ability to garnishee a defendant’s wages if he does not pay his maintenance. Surely it would not be beyond the wit of Western Australia to adopt a similar practice without the aid of federal legislation. I am not detracting from these provisions, but let us put them in their perspective of history and experience. There are other advantages in the bill, particularly the adoption of most of Mr. Joske’s well thought-out provisions, if I may presume to say so, regarding the granting of maintenance. If the obnoxious provisions in the bill which threaten, not a denial of justice but the actual imposition of injustice, could be eliminated, the bill would deserve to be passed. In committee, or select committee, consideration could be given to the question of restitution of conjugal rights and divorce after twelve months’ decree; to the proposal to reduce the period of desertion from three years to two years; to the proposal to define, I suggest artificially and in a novel way, constructive desertion; and to the proposal to deny, in any case, a jury in the adjudication of divorce. On page 2773 of “ Hansard “, the Attorney-General (Sir Garfield Barwick) is reported as having said -
Who is the guilty one? This is one of the hardest things to determine and, for my part, courts of law are very ill-equipped to find out where the true guilt or innocence lies between warring spouses.
If that is the view of the Attorney-General, it enhances the case for the retention of juries as an aid.
I pass all those matters by in order togive undivided attention to the crucial provision in the bill. I refer to the so-called separations paragraph. It will be noted’ that the Attorney-General said that the bill’ draws upon two concepts, one the old concept of matrimonial offence as a basis for a dissolution, and the other the new theory of breakdown of marriage. In studying this problem I think it is extraordinary to find the way in which we are supposed to reconcile the idea that divorce should be granted for desertion without just cause and excuse. For instance, divorce may be granted for desertion for three years because of cruelty. I emphasize that here “ cruelty “ does not mean rolling pins flying about and black eyes. Indeed, some thoughts have got to the stage where using one’s handkerchief over the porridge would almost suffice. Further, it is suggested that a divorce may be granted in circumstances in which the court would presume death. How do such combine with the ideas expressed in the separations paragraph which has been amended to read that a petition for a decree of dissolution of the marriage may be based on the ground -
That the parties to the marriage have separated and thereafter have lived separately and apart for a continuous period of not less than five years immediately preceding the date of the petition and there is no reasonable likelihood of cohabitation being resumed?
I regret with, I hope, clear emphasis the failure on the part of speakers during the debates in this Parliament to date, to discuss that matter with relation to the experience that is available to us from respectable quarters. We have experience in New Zealand, but it has not been expounded to this Parliament. There are unfortunate fragmentary references to it in the AttorneyGeneral’s second-reading speech, but the situation is incompletely expressed. That completeness of expression may lead unsuspecting and simple minds to a false conclusion. There is also experience in Western Australia, but I make bold to say that clause 28 (m) of this bill, as explained to this Parliament, has not been accurately expounded with relation to the Western Australian provision. I venture the opinion that if the differences between the two are considered - and I know the Senate will consider them - we shall be led to the conclusion that the proposal before us requires amendment.
Further, although we are not bound to do so, I suggest that we shall do ourselves credit if we heed the recommendations of the royal commission on divorce in England presided over by Lord Morton of Henryton. We should do well to give consideration to the opinions on grounds for divorce arrived at by the nineteen members of that committee, many of whom were highly trained men, after an inquiry lasting three years. If we disregard all those features, I shall be profoundly disappointed.
In 1921, the New Zealand Parliament decided that divorce may be granted if the parties are parties to an agreement for separation, whether made by deed, or other writing, or orally, and such agreement is in full force, and has been in full force for not less than three years. A further ground for divorce given by the New Zealand Parliament was that the parties are parties to a decree of judicial separation made in New Zealand, or to a separation order made by a stipendiary magistrate in New Zealand, or if any decree or judgment has been made in any country that the parties are not bound to live together provided that the decree is in full force and has been in full force for not less than three years.
Those grounds express almost precisely the theme of the so-called separations clause contained in the original bill submitted to the House of Representatives. The amendment agreed to by the House of Representatives expresses exactly the same idea, lt gives as a ground for divorce separation for five years if there is no probability ot reconciliation.
As I have said, the provision passed by the New Zealand Parliament in 1921 provided for three years. In that year, the court of appeal in New Zealand had to consider whether these grounds of divorce were available to the guilty as well as the innocent party. The decision had relation to the position of parties who were subject to a separation order. The court looked to the legislation under which a separation order could be granted. It found that a separation order could be granted if the defendant left his wife without means of support, if he deserted her, if he was guilty of cruelty to her, or if he was guilty of adultery.
As the legislature of New Zealand had not taken care to deny this separation ground to one of the parties, but had said that it was available to either, and as the legislature had specifically contemplated divorce pursuant to a decree for separation, the court was driven to the conclusion that the legislature meant that divorce on the ground of separation was available at the petition of the guilty party as well as the innocent. The court so pronounced, and I believe nobody would dispute the complete logic of the court’s decision. That was in October, 1921, and the New Zealand community was so vocal in protest that by April of the following year the New Zealand Parliament passed a provision that if, upon the hearing of a petition praying for relief on the grounds to which I have referred, the respondent opposed the making of a decree, and it was proved to the satisfaction of the court that the separation was due to the wrongful act or conduct of the petitioner, the court should dismiss the petition. So the New Zealand legislation has remained ever since. That is despite the fact that in 1953 the New Zealand legislature chose to add another ground on the basis of separation, which was more closely parallel to the separation provision in this bill, and was expressed in these terms -
That the petitioner and respondent are living apart and are unlikely to be reconciled and have been living apart for not less than seven years.
The provision that a decree should not be available but should be refused, as a matter of absolute, statutory command to the court, if the wrongful act or conduct of the petitioner caused the separation, applies to the new seven years separation provision introduced into New Zealand in 1953.
How have the courts applied the provision that no decree shall be pronounced in favour of a petitioner who. by his wrongful act or conduct, has caused a separation? The courts have interpreted a wrongful act or wrongful conduct of the petitioner to mean a departure from the standards of morality which the community accepts as proper as between man and wife, not necessarily requiring the proof of a matrimonial offence, in the sense of a statutory contravention. Is it not a matter of creditable reflection that we can draw upon New Zealand, the cradle of so much progressive jurisprudence, not only in this but ako in other fields of law? Take the testator’s family maintenance legislation, wherein New Zealand led the way. The Australian States copied the New Zealand legislation in fifteen or twenty years, but it took morethan 50 years for England to be penetrated, by the idea. England adoptee! the New Zealand reforms in that respect ia 1957, New Zealand had introduced them about 1900, or a few years earlier. New Zealand is a source to which we can go with, great profit when we are considering social justice.
Now, Mr. President, let me turn to the Western Australian experience. In Western Australia, we are told, there is a provision which has not accelerated the rate of divorce, and the experience of which is acceptable to the community. As Senator Hannan said, the experience of 8 per cent, of the population is worthy of consideration. In Western Australia the relevant provision is separation of the parties to the marriage for a continuous period of not less than five years immediately preceding the commencement of the action, where there is no reasonable likelihood of cohabitation being resumed. That is language which is not at all distinguishable, as I understand it, from the language of clause 28 (m). But the Western Australia legislature decided that in a suit on that ground the court may, in its absolute discretion, grant or refuse the relief, except where the court is precluded from granting relief by reason of an absolute bar, provided that in every case, before granting an order nisi, the court sees that provision is made for such maintenance of the defendant and any children and the care and custody of any such children as in the circumstances the court thinks proper.
Section 26 of the Western Australian act of 1948 provides especially for this ground of divorce. It provides also that it shall be an absolute bar to granting divorce on this ground if the plaintiff has, in the five years preceding the commencement of this action - notice this, because the Attorney-General has emphasized repeatedly this provision, but has not provided the Parliament with information as to the Western Australian requirement in relation to the period of five years preceding - the petitioner has been guilty of adultery or sodomy or bestiality, or been convicted of the attempted murder of the defendant or assault of the defendant with intent to inflict grievous bodily harm, or been in prison for offences, which I need not mention, or if the petitioner is in default, when the action is commenced, in respect of maintenance payments under any antecedent court order or under any agreement for payments of maintenance for the defendant or any child of the marriage. In any one of those cases, the court is precluded from granting a decree. It is commanded by the legislation to refuse a decree. If the petitioner has not, over five years, been up to date with maintenance for wife and children, or if he has committed adultery in that period or been guilty of some instances of cruelty, it is an absolute bar denying him relief. I speak with emphasis, having taken some precautions and consulted very high authority to check my impressions as to this legislation, but I speak in the presence of Western Australian senators. Therefore, I speak with emphasis to provoke correction if I am in error. The commission of adultery during the period of five years immediately preceding the petition is an absolute bar, but if at any time during the marriage, prior to that, the petitioner has been guilty of adultery, cruelty, or habits and conduct which have conduced or contributed to the matrimonial offence complained of, or if there has been unreasonable delay, then the court in its discretion may refuse him a decree. When I read statements in support of this bill to the effect that one of the great advantages of the federal bill over the Western Australian bill is that one is entitled to invoke the consideration of adultery, whether before or during the five years period, I feel that such statements are deficient and the advocacy is misleading. As to the Western Australian experience, a member of this Parliament who wished to justify the wholesale acceptance of this bill said to me, “ Oh, you have to leave a lot to the courts. I agree that in accepting the bill I am trusting the courts. You do not disparage them, do you? “ I replied, “ Certainly not “. However, I add that ships are boards and sailors are men, and that benches are but boards and judges are but men. The interpretation the judges will give to the language depends upon what we precisely express in the bill.
I bring to the attention of the Senate for its thoughtful consideration the first case, which to my knowledge came before the High Court under this Western Australian separation provision. It is the case of Main
When the wife petitioned Mr. Justice Wolff for a divorce from that man, His Honour was so horrified that he said, in effect, “ Surely this new statute does not compel me to grant a divorce against that man “, and he refused to grant the divorce. The case went to appeal to the High Court consisting of a strong court. The High Court asked what guide the legislature had given it and said that it felt compelled to overrule Mr. Justice Wolff because once separation for five years had been proved, and it was unlikely that the defendant would recover, then unless the respondent could put himself in the position of obtaining the benefit of an absolute bar or a discretionary bar, the court was bound to grant a decree. So the court held.
I say to the Senate: Can we retain the respectability of a civilized outlook if that is the degraded conception of the obligations of matrimony, whatever the public interest is conceived to be in such a circumstance? If, in sickness, I, as a spouse, can not expect comfort from my spouse, but can expect, with the assistance of this Parliament, a divorce, what a degraded concept of civilization are we contemplating!
However, if the Senate is prepared to consider amendments that will improve that situation it still may be able to succour the separated in the public interest, which seems to be - I am bound to say - the chief preoccupation of those who sponsored this provision. It is true, Mr. President, that clause 36 of the federal bill uses the words -
Where the court is satisfied that, by reason of the conduct of the petitioner, whether before or after the separation commenced, or for any other reason, it would, in the particular circumstances of the case, be harsh and oppressive to the respondent, or contrary to the public interest, the court shall refuse to make the decree sought.
The clause says that the court, not may, but shall refuse to make the decree which is sought! Those words “ harsh and oppressive “ are not derived from any facet of divorce law known to me. I invite the Minister to elucidate their origin in divorce law if they have an origin there. As I know them, they are taken from the conceptions of equity in relation to equitable transactions, moneylenders’ bargains, expectant heirs’ bonds or fundamental equity. They will need more exposition. Their use obviously requires conduct on the part of the defendant which is harsh and oppressive. Some judges may say, “ Show me her person, and unless the branding iron has been applied, I am not sure that the conduct has been harsh and oppressive “. Of course, I exaggerate there, but if the words used in the clause were not “ harsh and oppressive “ but, “ unjust to the respondent “ the clause would deserve discussion.
Then there is the other condition as to public interest. In committee I shall take the opportunity, if the committee will be so good as to listen to me, to refer to decisions where the public interest has been construed in modern times in divorce courts to require the loosest relaxation of marriage. The idea is growing that the chief people whose interests constitute the public interest are the illegitimate children, de facto wives and the adulterer himself to the submergence of the interests of the lawful wife and the legitimate children who are disadvantaged once a man is divorced and makes the sound and fresh union to which Senator Hannan referred, thus taking on himself the obligation to keep two families. When you bring the second family into the realm of legal dependence, you create an intolerable situation, because it is impossible to discharge the obligation to that family with justice. Therefore, the legal rule should be defined in such a way as will ensure justice to those to whom the matrimonial obligation has been committed.
I said that we could look to England for some guidance. The Morton commission considered this subject at length. Lord Morton of Henryton and Lord Justice Pearce, whose reputation in law and jurisprudence are well known to all lawyers in the House, subscribed to this statement -
If the principle that a marriage should be ended if it has irretrievably broken down is followed to its logical conclusion, then it must be accepted that a spouse who had committed no recognized matrimonial offence could be divorced against his will. In our opinion, this would be so plainly unjust as to be in itself conclusive against the introduction of any ground of divorce which had this result.
The nine members of the commission who subscribed to that paragraph went on to deal with the matter further. Incidentally, I can think of nothing more infantile than discussing whether those who take the opposing view have a majority with their nine commissioners, by reason of a posthumous or pre-death letter written by the now deceased nineteenth commissioner. Whether the number is nine or ten does not matter. Let us consider the recommendations on the basis of what they are and who put them forward. Let us give them the weight that they deserve and then say which of them we will accept. Lord Morton, Lord Justice Pearce and another seven commissioners also said - . . . to give people a right to divorce themselves would be to foster a change in the attitude to marriage which would be disastrous for the nation.
Those views were expressed by those eminent gentlemen and, with respect, I adopt them. They said also -
The argument that divorce by consent provides a dignified and honorable means of release is perhaps the most insidious of all. There could be no subtler temptation to divorce than the belief that there was a wholly blameless way of terminating a marriage. In our view it is not the function of the law to provide such a means of release; its proper function is to give relief where a wrong has been done. To go beyond this and provide an easy way out would be actively to assist in what can only be regarded as a socially calamitous act. (Extension of time granted.) I am obliged to the Senate for its indulgence, and I shall take but little of the extra time extended to me. Those nine members of the commission went on to say that divorce on the separation ground would have a most disturbing effect on family life. They said further -
To vest in a husband or wife the right to divorce a spouse who, ex hypothesi, had committed no recognized matrimonial offence, and who did not want a divorce, would result in grave injustice.
They referred to that right as an instance, unique in law, of giving to a wrongdoer the right to take advantage of his wrongdoing.
Witnesses had urged the view that it was difficult to determine the line between innocence and guilt, and had said that it would be unreal and artificial to pretend to determine such an issue in a divorce case. The group to which I have referred, which included Lord Morton and Lord Justice Pearce, scouted that idea and said that that, in effect, was what the courts were for. The court that has to determine whether conduct is harsh and oppressive is the court that has to determine who is the guilty party and who the innocent. I deplore with all the force at my command that in advocating this provision in the House below - and “ below “ is the proper term in this instance - and asking rhetorically, “ Who is the guilty one? “, the leader of the administration of the law in this country said -
This one of the hardest things to determine, and, for my part, courts of law are very ill-equipped to find out where true guilt or innocence lies between warring spouses. You just cannot get into the house, and you cannot get into the bedroom.
– Leave out the bedroom. Do not be unfair.
– I am quoting. I had never heard it suggested before that speech was made that justice would be advantaged by getting into the bedroom - that that was an aid to the dissolution of a marriage.
– You cannot tie Car. down on that.
– I think that the reference was very unfortunate, and I should like to suppress it. I am obliged to Senator McCallum for identifying himself so vehemently with the view that I am putting. I recognize the difficulty of determining who is the innocent party and who is the guilty party, but, whenever it is necessary to determine that issue, a court is regarded as the best agency. The courts are not perfect - they have obvious imperfections - but they are the best agencies for this purpose known to man. The contributions that they have made to a solution of this problem in England have enhanced the reputation of British justice, not only in relation to the administration of divorce laws but also in relation to equally complex issues. When 1 find a provision that a ground for divorce shall be two years” desertion without just cause or excuse, and when I find committed to the judiciary the responsibility of determining whether certain facts constitute just cause or excuse.
I do not consider that the suggestion ot impotence in the judicial process contained in the speech that I have quoted is very cogent. Therefore I plead with the Senate, on the basis of the New Zealand legislation, on the basis of the Western Australian legislation and on the basis of the thoughtful report of the Morton commission, to introduce into this bill a provision that will prevent an innocent wife from being divorced at the instance of her husband, when the only cause for a divorce is that they have lived separately and apart for five years.
– She could crosspetition, which would prevent her from being divorced.
– The Minister in charge of the bill says that she can crosspetition. I am obliged for the reminder that there is a provision to the effect that she can cross-petition, and that if she does, and proves a matrimonial offence on the part of her husband, who lodged the principal petition, the court is required to dismiss his petition for divorce on the ground of separation and to grant her a decree on account of the offence that she has proved. That is a contribution to the position, but we pet the wounded spirit. We get the affectionate mother who, not for spite, but because of shrewd sagacity, perceives that, if she gives freedom to the delinquent husband and he establishes those hostages of fortune with the second wife who would have an equally legitimate claim to his earnings for maintenance to the claim that her children have, no court in the land could do justice by her children.
There are cases based on religious scruples as they have been called - deep religious convictions. I speak of that matter with respect. There are women who maintain a lingering hope that, despite all faults, the union will be restored. There are people who, through misconduct, are made victims of hysteria and who, by divorce on a ground so unjust as this would probably have one refuge only - that in a lunatic asylum.I speak not without some experience in this jurisdiction, a jurisdiction which, I think, evokes, as does the criminal jurisdiction, every interest that humanity can produce. I say that if this provision can work individual injustice primarily to those for whom the institution of life-long matrimony was devoted - the women and the children - then it is our duty to protect those cases from being visited with that injustice.
I look forward, Mr. President, to the further discussion of the bill. Although, as is my custom, I have stated my viewpoint for the purpose of making it plain, I should like to say that all my views are capable of being moulded by contrary or qualifying arguments. I believe that this Senate, in committee or through a select committee, has a rare opportunity to review this legislation - not to destroy it, but to improve it.
– It is not my desire to cast a silent vote on this bill; it is much too important a measure for that. I desire to inform the Senate that I intend to vote for the second reading of the bill. But in committee, if certain clauses are submitted as they are printed, I shall vote against them.
– I think all honorable senators will agree with me when I say that it is not an easy task for one to make a contribution to this debate almost immediately after the brilliant exposition that we have heard from Senator Wright. I do not intend to speak at any length either to-night, of necessity, or even to-morrow when the second-reading debate will be resumed.
We have been told that this is a nonparty measure, but it is in fact a government measure. I do not think we can escape the fact that, with collective responsibility, and government at the executive level being what it is, the non-party aspect of this bill becomes very narrow. Having regard to the added circumstance that the political party to which I belong in the State that I represent has made dispositions and carried resolutions concerning the efficacy of the legislation before us, I rather feel that we have not, in the full sense, embarked on a non-party excursion.
I want to say only one thing in regard to the non-party approach to this measure. It demands of all of us tolerance and understanding of the viewpoints of other persons. I regret to say that I did hear remarks and references made in another place which I believed reflected on the views that had been expressed by some people. As this is the only point with which I shall be able to deal to-night. I want to make it perfectly clear that I honour, and I will continue to honour, the views that are expressed by other members of this chamber. I shall not challenge their sincerity, and I believe that no honorable senator will challenge my sincerity when I express any views. Mr. President, I ask for leave to continue my remarks at a later stage.
Leave granted; debate adjourned.
Motion (by Senator Gorton) agreed to -
That the Senate, at its rising, adjourn till to-morrow at 2.30 p.m.
Motion (by Senator Gorton) proposed -
That the Senate do now adjourn.
.- I regret to have to detain the Senate but I must do so because I am concerned over a matter which, I believe, could gravely affect the educational future of many young citizens of this Commonwealth. A couple of weeks ago, I addressed a question to the Prime Minister (Mr. Menzies). I asked whether it was the intention of the Government to increase the number of Commonwealth scholarships available to universities to compensate for the very large increase in the number of students now seeking such scholarships. There has been a very considerable deterioration in the percentage of scholarships available because there has been only a slight increase in their number but a marked increase in the number of students at the matriculation stage who are seeking such scholarships.
I have received a reply from the Prime Minister through the Leader of the Government in the Senate (Senator Spooner). I have been informed that it is true that over the next five to ten years there will be a considerable increase in the number of boys and girls leaving school and, consequently, in the number who will be competing for Commonwealth scholarships. The answer says that the matter of the number of Scholarships to be made available annually is one that the Government keeps under review. It was a very courteous answer, but not very informative.
I have received representations from a well-known education authority in Victoria. He tells me that the apparent failure of the Commonwealth scholarship scheme to keep pace with increasing enrolments in matriculation classes, and so fulfil one of its primary aims in equalizing opportunities for education at the tertiary level, is a matter of great concern to parents and organizations interested in education. The States have spent considerable sums in opening new high schools, and there has been a big increase in the number of matriculation students at high schools. Yet in recent years the Government has done little’ or nothing to raise the number of Commonwealth scholarships available in accordance with either the average increase of the population or the number of young people now seeking scholarships.
Let me cite figures that have been supplied to me. They are subject to correction, perhaps, but they were supplied by an authority in my State for whom’ I have considerable respect. The figures indicate that in 1952, 27.5 per cent, of the entrants for the matriculation examination received Commonwealth scholarships. This year, only 16.9 per cent, will do so. Next year, unless something is done, only 14.04 per cent, will do so, which means that, under this Government, the percentage of Victorian students with Commonwealth scholarships will drop from 27.5 per cent, in 1952 to 14.04 per cent, next year. That is a most serious situation for young people and for the Commonwealth.
We are told continually of the necessity for this country to have trained scientists, trained engineers and trained teachers. While we are being told that that is necessary, the Government is almost halving the encouragement that it gives to deserving, but perhaps not financially well-equipped, young people to obtain a university education. According to the figures that have been supplied to me, there will be about 4,000 applicants for scholarships in Victoria next year. Of the 4,000, about 2,000 probably will reach the standard to qualify them for scholarships. Allowing for those who obtain scholarships and give them up, thus permitting others lower down the list to take them, it is expected that 940 students will reach the standard of qualification necessary to obtain scholarships but will not get them because the Commonwealth is not making a sufficient number available.
I understand that a slight increase in the number of scholarships is scheduled for this year. I hope that within the next week or two we shall hear of a big increase. I have been a teacher and I know how young people look forward to the prospect of entering the university and qualifying in that way. I regard the figures that I have given as tragic. I hope that the Government will investigate them and verify them; but whether or not they are verified, I believe they are substantially true. There is an obligation on the Government, in the interests of the Commonwealth, to legislate immediately for an increase in the number of Commonwealth scholarships, in accordance with the increased number of students now seeking such scholarships.
Question resolved in the affirmative.
Senate adjourned at 10.34 p.m.
Cite as: Australia, Senate, Debates, 24 November 1959, viewed 22 October 2017, <http://historichansard.net/senate/1959/19591124_senate_23_s16/>.