23rd Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Alister McMuilin) took the chair at 10.30 a.m., and read prayers.
– I direct a question to the Minister representing the Minister for Primary Industry. In view of the fact that harvesting operations are well under way in the northern wheat-growing areas of Western Australia, as well as in many other parts of Australia, can the Minister say when he will be in a position to announce the terms of payment of the first advance on the crop?
– I think it would be better if the answer to that question came directly from the Minister for Primary Industry. I shall bring the matter to his attention and ask him to let the honorable senator know the position by letter.
– I direct a question to the Minister representing the Minister for Labour and National Service. Over a period of some months the Minister has stated on several occasions, in answer to questions, that the implications of the Hursey case on the Hobart wharfs were the subject of discussion between himself and the Prime Minister and that, pending the completion of such discussions, he was not in a position to make any statement on future policy. Will the Minister advise, first, whether a decision has been arrived at; secondly, if a decision has been arrived at, what is the position; thirdly, if no decision is yet available, will one be available before the Parliament rises?
– I do not know the stage reached in discussions between the Minister for Labour and National Service, the Prime Minister, and other Ministers on this highly complex matter. I shall ask the Minister for Labour and National Service whether he is in a position to make a statement on the matter, and let the honorable senator know the position.
– My question is addressed to the Minister for Customs and Excise. On page 93 of the report of the Collector of Customs, recently made available by courtesy of the Minister, the following paragraph appears: -
Research work has been carried out to help find a simple and inexpensive way of policing the diesel fuel duty. The line of approach has been, to establish figures which can be regarded as reasonable estimates of consumption in relation to units run by exemption certificate holders. Consumption over these estimates is regarded as suspect, and worth investigation.
Can the Minister say whether this method has yet been adopted and whether, if consumption of diesel fuel in any individual case is above these estimates, the exemption certificate holder is definitely suspect? As this estimate is, to say the least, only a rough and ready method, can the Minister say what steps are then taken? Is the user given the opportunity to explain the reason for the quantity used?
– There are some 120,000 diesel fuel certificate holders throughout the Commonwealth and they are covered by some 10,000 selling points. The returns from the selling points give the Department of Customs and Excise the total quantity of diesel fuel sold under exemption certificates. The returns from the certificate holders in the first place indicate the amount of fuel they had been using over the previous twelve months, the number of units they have, and so forth. Those returns give the department an indication of the amount of fuel the certificate holder normally uses. The purpose of the system which has been adopted by the department is to ascertain, as a base, the normal amount of fuel used in each unit, and the number of units used, other than road vehicles, by each certificate holder. Any quantity used over and above that rough and ready base is then a matter for investigation by the department. Full opportunity is given to any certificate holder to explain his position. He may well have bought additional plant or he may be able to give some proper explanation. At the present time there are some 800 certificate holders who have been asked to give an explanation under this system.
– I wish to ask the Minister for National Development a question. Is it a fact that the Government makes finance available to the mining industry in the Northern Territory for approved projects? Can the Minister advise me whether this new policy has been taken advantage of to any great extent, and whether, because the Development Bank will be coming into operation early in the New Year, advances can be made available through that instrumentality for mining in the States on projects approved by the mines departments of the States so that our mining industry can be developed and thus increase Australia’s income derived from the sale of exports?
– In the Northern Territory a system is in operation under the control of my colleague, Mr. Hasluck, under which assistance is given to mining projects. The system runs parallel to that in operation in most States of the Commonwealth. Most State governments have arrangements whereby in approved circumstances mining can be helped.
The Commonwealth does not provide finance for mining operations. Its approach is different in that it provides the services of the Bureau of Mineral Resources which undertakes geological and geophysical surveys and makes the information available. On some special and rare occasions the Commonwealth may do the drilling, or assist the drilling, for a project. The Commonwealth’s contribution is in the provision of basic services and it is, I think, a very real contribution. Only the Development Bank can say what policy it will adopt after it has been constituted, because, as Senator Scott knows, it will have a good deal of autonomy. I shall be surprised indeed if it does not include the mining industry among the primary industries that it aims to help.
– Can the Minister representing the Minister for Social Services say what percentage of the women in receipt of widows’ pensions come within the category of deserted wives?
– I cannot give the information to the honorable senator off the cuff, but I shall get it for him.
– Can the Minister representing the Attorney-General tell me how many maintenance orders arising from matrimonial offences are in force in the various States, and how many orders have been made against defaulting husbands?
– No. I think the question should be put on the notice-paper, because it will require such a detailed answer.
– Has the Minister representing the Minister for Air seen a report, published in the Melbourne “ Sun “ of yesterday, about the very poor standards of the accommodation that is available to Royal Australian Air Force aerodrome construction personnel in Darwin? Is the Minister aware that the accommodation facilities for married personnel are so inadequate that in many instances the Air Force authorities post married1 men to Darwin for fifteen months only, because the posting means that they are separated from their wives? Will the Minister seek an assurance from his colleague that these conditions will be rectified as soon as possible?
– I saw the press report to which the honorable senator has referred. I understand that the Minister for Air also has seen it, and that he is examining the position. Doubtless he will make a statement on the matter in due course.
asked the Minister representing the Minister for Trade, upon notice -
– The Minister for Trade has supplied the following answers: -
asked the Minister representing the Minister for Trade, upon notice -
– The Minister for Trade has furnished the following replies: -
asked the Minister representing the Postmaster-General, upon notice -
Postmaster-General has furnished the following replies: -
asked the Minister representing the Postmaster-General, upon notice -
Postmaster-General has furnished the following replies: -
asked the Minister representing the Postmaster-General, upon notice -
Will the Postmaster-General give consideration to allowing a concession rate of say SO per cent, of the normal postal charges on parcels and mails posted to and from missions and approved charitable institutions?
Postmaster-General has supplied the following answer: -
Careful consideration has been given to similar suggestions from time to time. It has been considered, however, that a postage concession along the lines desired is not practicable. There are many bodies and institutions in the community which perform work of a very worthy nature and, if any attempt were made to extend preferential postage rates on the basis of the aims or purposes of organizations, almost insuperable difficulties would arise in endeavours to determine those to be admitted to and excluded from the arrangement. The general principle used in fixing postage rates is to treat all members of the community equally. While I am sure that the PostmasterGeneral would like to help, in view of the fine work performed by the organizations the honorable senator has in mind, he regrets that the request cannot be granted.
asked the Minister representing the Minister for Trade, upon notice -
– The Minister for Trade has now provided me with the following answers: -
asked the Minister representing the Postmaster-General, upon notice -
Postmaster-General has furnished me with the following information: -
asked the Minister representing the Postmaster-General, upon notice -
Postmaster-General has given me the following replies: -
asked the Minister representing the Postmaster-General, upon notice -
Postmaster-General has forwarded me the following information: -
asked the Minister representing the Minister for Immigration, upon notice -
– The Minister for Immigration has furnished the following answers to the honorable senator’s questions: -
– Where can we get the pamphlets?
– From the Minister for Immigration.
– On 25th November, Senator Drake-Brockman asked the following question, without notice: -
Is the organization known as the Australian Medical Insurance Company registered under the Commonwealth Hospital Benefits Scheme? In view of the fact that the company has notified some of its clients that they have been transferred to a friendly society, and that this society denies that they have been transferred, will the Minister inform the Senate of what has taken place, as many clients of the company in Western Australia are worried over the present situation?
I undertook to bring the honorable senator’s question to the notice of the Minister for Health. The Minister has now furnished the following reply: -
The Australian Medical and Accident Insurance Company Limited - commonly known as the A.M.I. - is not registered under the National Health Act for either medical or hospital benefit purposes. Although it has conducted medical and hospital benefit insurance for some years, the company decided in 1938 that it would discontinue this activity.
In October, 1958, an arrangement was made between the company and the Friendly Societies Health Services of Western Australia - which is an organization registered under the National Health Act for the payment of Commonwealth medical and hospital benefits - for the transfer of the company’s Western Australian members to the registered organization. The arrangement provided that the company would forward details of contributors and contributions to the Friendly Societies Health Services, that the Friendly Societies Health Services would notify each contributor of the proposed transfer, and that the transfer would not become effective unless the contributor gave his consent to his transfer.
The arrangement also provided that persons who before 13th October, 1958, had paid premiums to the company covering a period after that date would not be transferred to the Friendly Societies Health Services until the end of that period. The A.M.I, would pay any benefits to which the contributor became entitled during that period.
Difficulties occurred between the company and the Friendly Societies Health Services regarding the transfers and the arrangement was repudiated by both parties in August, 1959.
In any case where a member of the A.M.I, has actually been transferred to the registered organization, no difficulty will arise regarding payment of benefits. In other cases the matter is one between the member and the company. As the A.M.I, is not registered under the National Health Act, its members are not eligible for Commonwealth medical benefits and Commonwealth additional hospital benefits, and the Commonwealth is not in a position to take any action in the matter.
I would like to stress the importance of members of the community joining a registered nonprofit medical and hospital benefits organization, and thus obtaining both Commonwealth and fund benefit towards meeting the cost of medical and hospital expenses.
– I lay on the table of the Senate for the information of honorable senators a copy of a report on the first ten years of operation of the Fulbright programme in Australia. Today, it is exactly ten years since the Leader of the Opposition in another place, as Australian Minister for External Affairs, signed an agreement with the Ambassador of the United States to use for the advance of educational and cultural relations between Australia and the United States a sum of five million dollars from funds standing to the credit of the United States in the final financial balance-sheet of our wartime cooperation.
– I lay on the table of the Senate the following paper: -
Advance to the Treasurer - Statement for the year 1958-59 of Heads of Expenditure and the amounts charged thereto pursuant to section 36a of the Audit Act 1901-1957.
Honorable senators will recall that, in accordance with arrangements approved by Parliament in 1957, this statement is to be tabled in lieu of the old Supplementary Estimates of Expenditure.
That the statement be considered in Committee of the Whole.
Reports on Items.
– I lay on the table of the Senate the reports of the Tariff Board on the following subjects: -
Cotton canvas and duck,
Waterproofed cotton piece goods and waterproofed canvas and duck,
Plain clear sheet glass,
Antimony and antimonial products,
Electrically operated human hair clipping machines,
Circuit breakers and switch units,
Electrically operated cloth-cutting machines,
Marking and stamping devices,
Slide viewers, slide projectors and bulb type flash guns,
Abrasive cloths and papers,
Mosquito repellents, and
I am also tabling three other Tariff Board reports on the following subjects: -
Passenger-type motor cars, which do not call for any legislative action. The board’s findings have in each instance been adopted by the Government.
– I bring up the report of the Parliamentary Standing Committee on Public Works relating to the following work: -
Proposed erection of a Mail Exchange at Roma-street, Brisbane.
There is an urgent need for a mail exchange building at Roma-street, Brisbane, to overcome the considerable congestion that is already evident in mail handling in Brisbane, and to centralize the mail exchange activity in that city. The committee found that the site of the proposed building was eminently suitable, in view of the area to be served. The estimated time of construction of the building is 18 months. It is hoped to reduce this time in order to advance the commencement of a supplementary project, the erection of the Edison Telephone Exchange, Brisbane, on which the committee submitted a report yesterday. We found also that the future development of mail handling in Brisbane will be adequately catered for in the proposed building.
Ordered to be printed.
– I present the following report of the Public Accounts Committee: -
Forty-fourth Report - Treasury Minutes on the Twenty-fifth, Twenty-sixth, Twenty-eighth, Thirty-second, Thirty-third and Fortieth Reports - together with summaries of these reports - and move -
That the report be printed.
One of the problems faced by all parliamentary committees is how to ensure some effectiveness from the reports which are the results of their labours. In the case of the Public Accounts Committee there are two main ways in which this is being achieved. One is by the publicity associated with the public nature of the committee’s activities. The other is by an arrangement the committee has with the Treasurer, which provides for a positive follow-up of the committee’s reports at the departmental level - the area of activity with which the committee is mainly concerned. The arrangement is similar to that which has functioned in relation to the English Public Accounts Committee’s reports for many years and in turn has very recently been adopted by the committee appointed by the Victorian Parliament.
The agreed arrangements provide that the Treasury, in due course, should inform the committee in a Treasury Minute of the results of the Treasury’s follow-up of each of the committee’s reports. The minutes are provided in the knowledge that they will be presented to the Parliament.
This report, the committee’s forty-fourth, covers six of those minutes, together with summaries of the reports concerned. These six minutes, which deal only with a small section of the reports submitted by the committee in the seven years of its life, do, 1 suggest, represent real evidence of the substantial benefits that are accruing from the work which the Public Accounts Committee is doing under its charter from this House and the Parliament.
Question resolved in the affirmative.
Motion (by Senator Spooner) agreed to -
That the Senate, at its rising, adjourn till tomorrow at 10 a.m.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Paltridge) read a first time.
– I move -
That the bill be now read a second time.
By this bill it is proposed to create an additional statutory office of Second Commissioner of Taxation. The powers and functions of the new office will be the same as those now vested in the single office of Second Commissioner. As honorable senators know, the administration of the taxation laws of the Commonwealth, with the exception of those relating to customs and excise, is at present vested in a Commissioner of Taxation assisted by a Second Commissioner. Subject to some exceptions which are not material for present purposes, the Second Commissioner exercises all the powers and functions of the Commissioner.
This arrangement has prevailed without substantial alteration since 1916. In the meantime, however, the imposition of additional taxes, such as sales tax, and the broadening of the field of Commonwealth income tax under the uniform system introduced in 1942, have led to heavily increased responsibilities. Experience has shown, particularly in recent years, that it is beyond the capacity of a Commissioner and one Second Commissioner adequately to discharge the duties and responsibilities of administration of the taxing laws under present-day conditions. The position has been met as far as possible by delegating authority to Assistant Commissioners, Directors and Deputy Commissioners for the carrying out of duties and functions that normally would have been performed by statutory officers. At the same time, many other duties, such as regular visits to States for discussions and inspections, have had to be curtailed, whilst attention to forward planning and development has had to be largely neglected.
The Government considers that relief for this situation must be found and believes that this relief will be achieved if immediate steps are taken to create another statutory office of Second Commissioner. To this end, it is proposed that the Taxation Administration Act be appropriately amended to provide the additional statutory office required. I commend the bill to honorable senators.
Debate (on motion by Senator Willesee) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Paltridge) read a first time.
– I move -
That the bill be now read a second time.
Under the Superannuation Act the Commonwealth has for almost forty years provided a contributory scheme of retirement benefits for its employees and their dependants. Originally the act provided pension benefits only which were payable on the retirement of a contributor on reaching the maximum age or on his prior invalidity or death. In addition, pensions to widows and children under sixteen years of age were paid on the death of a pensioner. These conditions have remained unchanged but over the years there has been a number of changes in the maximum pension payable, the value of the unit of pension and the basis of financing the scheme. Most of these changes have resulted from economic changes since the last war and perhaps the most significant is the basis of financing the scheme. Until 1947 the employee and the Commonwealth met the cost of pensions in equal shares but currently the Commonwealth provides fivesevenths of each pension and the employee the remaining two-sevenths.
In 1937 the scope of the act was widened to include a provident account, the main aim being to provide some cover to employees who were medically unfit for pension benefits. Contributors to the provident account pay contributions amounting to one shilling in each pound of salary received by them and receive retirement benefits in the form of a lump sum. Here, too, the Commonwealth supplement has increased in the post-war years.
The act provides that the fund shall be actuarially controlled and that investigation as to the state and sufficiency of the fund shall be made at the expiration of each period of five years. The actuary is required to report to the Superannuation Board the result of his investigation and to state whether any reduction or increase is necessary in the rates of contributions payable to the fund or in the proportion of benefits payable by the Commonwealth. Where his investigation discloses a surplus he is required to state what additional benefits, if any, could be provided out of the surplus. Past investigations have resulted in some increased benefits, for example, the additional pension payable to a contributor who continues to work beyond his normal retiring age, and on one occasion, in 1942, a small increase in rates of contributions. The Commonwealth Actuary has recently concluded the seventh quinquennial investigation of the fund which disclosed a surplus the disposition of which will be referred to later in this speech.
The principal purpose of this bill is to provide a new table of pension entitlement for contributors to the superannuation fund. The proposals are designed to restore the basis of pension entitlement adopted by the Government in the 1954 legislation when it was decided that the pension entitlement of officers on lower and middle salary ranges should be stabilized at 70 per cent, of salary, of which the Commonwealth would meet an amount equal to 50 per cent, of salary, and that for those on higher salaries the proportion of pension to salary should reduce to a limit which, in relation to the scale of pension units, was 40.9 per cent, of salary for those whose salary was £4,000 per annum.
Since the 1954 amendment there have been substantial changes in salaries. While these salary increases have automatically entitled many employees to contribute for a higher money pension, the percentage of pension entitlement to salary over a significant range of positions has declined. Thus, those officers, the salary of whose positions was at the end of the range entitled to a pension of 70 per cent, of salary in 1954, are to-day able to contribute for a pension which represents only 59.6 per cent, of salary. More senior officers have been more severely affected and at the upper limit the pension entitlement has deteriorated from 40.9 per cent, of salary to 27.3 per cent, of salary.
It is proposed to restore the 1954 position by applying the principles laid down at that time to present-day salaries. This results in an increase in the scale of units of pension from 36 to 54 providing a new maximum pension of £2,457 per annum, representing 40.9 per cent, of a salary of £6,000 per annum, which is the salary payable to officers who in 1954 received £4,000 per annum. An adjustment is also proposed in the salary level up to which the maximum percentage of pension entitlement to salary - 70 per cent. - is available so that additional units of pension will be available to all existing contributors whose salaries exceed £1,365 per annum. The pension value of each unit will remain unchanged.
There will be no alteration to the present basis of financing pensions. Contributions are calculated to provide two-sevenths of the total cost of benefits, the remaining fivesevenths being met by the Commonwealth. Therefore, in respect of the new entitlement, contributors will be required to pay in contributions sufficient to meet twosevenths of the increase in the benefits.
All contributors pay the same total amount of money towards each unit of pension. However, those with fewer years to serve until reaching the retiring age must pay a greater rate of fortnightly contribution. Thus, in a change such as that now proposed, existing contributors who are nearing retirement will be required to pay a much higher fortnightly rate of contribution for each additional unit than contributors who still have, say, fifteen or twenty years to serve. To assist older contributors to take up the additional units available to them, the bill provides for those who are within eight years of retirement and whose fortnightly contributions would otherwise be excessive to defer portion or all of the additional contributions until retirement, when many will be entitled to a lump sum in respect of furlough from which they can pay the outstanding amount. This provision is consistent with the recommendations made by the Allison committee, in its review of the Defence Forces Retirement Benefits Act, to permit those contributors who are approaching retirement to pay a portion of their contributions in a lump sum on retirement.
In conjunction with the introduction of the new scale of 54 units, it is proposed to introduce a principle which, while new to the Superannuation Act, is a feature of many similar schemes. This is to make the pension entitlement of a contributor dependent, to some extent, upon the length of service of that contributor. At present, a contributor who has given a lifetime of service to the Commonwealth receives no greater benefit than does a contributor on the same salary at retirement who has completed less than ten years of service. Future entrants to the fund will be permitted to contribute only on the basis of the 54-unit scale if their prospective service exceeds twenty years. Those whose prospective service is less than ten years will contribute on the basis of the existing 36- unit scale, and those who will serve between ten and twenty years will have a greater entitlement proportional to service in excess of ten years. I emphasize that this pro vision has no application to any existing contributors to the fund and is related solely to those who will become contributors in the future.
Another major change is in relation to the widow’s pension, which is at present one-half of the pension payable to the contributor. As mentioned in the Budget speech, the Government has carefully considered the position of pensioners and has decided that, in respect of all existing pensions, the benefit for widows shall be increased from one-half to five-eighths of the full pension. The cost of this increase will be met by the Commonwealth, but the bill provides that the portion of any surplus revealed at the seventh quinquennial investigation of the fund which is attributable to married contributors who have retired or died will be applied towards the cost of the increase. The five-eighths widow’s pension will be a basic feature of the superannuation scheme for all future contributors, who will be required to pay contributions at an increased rate in order to provide this new benefit. Those who are now contributing to the fund will have an option to take up the additional widow’s pension, provided they meet their proportion of the additional cost in extra contributions.
In calculating future contributions to the fund, both for the new entrants and for new units of pension for the existing contributors, revised rates of contribution have been compiled by the Commonwealth Actuary following the completion of his seventh quinquennial investigation. The rates to be paid by those existing contributors who decide to take up the additional widow’s pension in respect of their existing units take into account the portion of the surplus revealed by the valuation which is attributable to those contributors.
As honorable senators are aware, there is provision in the Superannuation Act 1922- 1958 for contributions to a Provident Account, providing lump sum benefits. The contributions of employees are accumulated at interest and supplemented by the Commonwealth. The rate of interest at which contributions are accumulated is being increased from 3 per cent, to 3f per cent.
Der annum. This will increase the ultimate benefit to contributors to the Provident Account by three times the increase resulting from the higher rate of interest as the lump sum payable from the Provident
Account is equal to three times the amount of contributions paid by the contributor plus interest thereon. Of this amount, the Commonwealth contributes two-thirds.
Other amendments are proposed in the provisions relating to the Provident Account. At the present time, contributions are based on the actual salary of the contributor, whereas contributions to the Superannuation Fund are based on the maximum of the salary range of the contributor. This provision was introduced for contributors to the Superannuation Fund several years ago, in order to avoid a number of successive adjustments as a contributor advanced through his salary range by annual increments. It has resulted in considerable administrative savings and, in addition, provides a slightly better benefit to the contributor who dies or retires before he reaches the maximum of his range. It is now proposed that similar conditions should apply to contributors to the Provident Account. There are occasions on which a person becomes entitled to contribute but, before actually commencing contributions, suffers death or invalidity. At the moment, potential contributors to the Superannuation Fund have the benefits of the act extended to them in these circumstances, but potential contributors to the Provident Account do not. The bill makes similar provision for the potential Provident Account contributor.
There is also a number of minor amendments contained in the bill. Provision is being made to admit, as contributors to the fund, married women whose husbands are incurably insane. The Government felt that these women were in no better position than widows. As widows already may contribute to the fund, it was decided that these married women should be permitted to contribute on a similar basis. The Superannuation Board includes as a member a representative of the contributors, whose term of office, in common with other members of the board, is seven years. In response to many representations by and on behalf of contributors, provision is made in the bill to reduce the term of office of the contributors’ representative to five years.
The act also permits contributors to take up reserve units of pension at the rate appropriate to their age next birthday when they make such an election. These reserve units are not effective for pension purposes until such time as the contributor elects to transfer his reserve units, instead of paying additional contributions to take up additional units. Thus, contributors can pay for units from an early age at a low fortnightly rate in advance of their future entitlement, when the rate will be substantially higher. This provision, which has been a part of the act since 1947, has provided some solution to the problem of a contributor becoming entitled to take up a number of additional units late in life, when he receives a substantial promotion. It has been widely used particularly by younger contributors, and in view of the large number of units now available it has been decided that the permissible number of reserve units should be increased from four to eight.
A widow who is receiving a pension under the act may become a permanent employee of the Commonwealth and therefore become entitled to contribute under the act in her own right. At present she would lose the whole of the Commonwealth share of her pension on becoming an employee. As a male pensioner who is reemployed by the Commonwealth has his pension reduced to £500 10s. per annum, or one-half of his pension, whichever is the greater, it is proposed that a comparable restriction should be applied to widows who become employees. Thus, instead of losing the whole of the Commonwealth share of her pension, a widow who becomes an employee and is in receipt of a pension on a five-eighths basis will have her pension reduced to £312 16s. 3d. per annum, or a one-half pension, whichever is the greater, and a widow whose pension is on a one-half basis will have her pension reduced to £250 5s. per annum, or a onehalf pension, whichever is the greater.
Consistently with the Government’s policy of providing uniform superannuation rights for as many Commonwealth employees as possible, the bill also provides for the provisions of the act to be extended to members of the Police Force of the Australian Capital Territory, whose benefits are provided now under a separate ordinance. At present, certain ex-members of the Forces, who, immediately following their discharge from the Forces, become permanent civilian employees of the Commonwealth, are permitted to transfer their rights under the Defence Forces Retirement Benefits Act to the Superannuation Fund. The bill extends this right to similar ex-members of the Forces who are unable to gain permanent Commonwealth employment as civilians but who are engaged in a temporary capacity by the Commonwealth in circumstances in which they will be likely to serve for at least a further seven years.
The other amendments are of an administrative or consequential nature. I commend the bill to honorable senators.
Debate (on motion by Senator Willesee) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Paltridge) read a first time.
– I move -
That the bill be now read a second time.
The bill which I have pleasure in introducing brings into being a comprehensive revision of the retirement benefits for members of the defence forces. It arises from the decision of the Government in 1957 to establish a committee to review the entire pay and retirement benefit conditions of the services. The committee was formed under the chairmanship of Sir John Allison, to whom I pay a tribute. The Government is greatly indebted to him and to his fellow members of the committee for the time and thought which they have given to the examination and resolution of all the difficult problems involved in these matters.
The present Defence Forces Retirement Benefits Act, which came into force in 1948, was designed to meet the special conditions relating to service in the forces, such as lower retiring ages, varying ranks, and the need to maintain a high standard of medical fitness under the differing conditions of service applicable to officers and other ranks. This act introduced a scale of pensions for officers which increased in amount with rank and which were based primarily upon the maximum pensions available at age of 60 to a member ot similar salary in the Public Service, reduced to allow for the earlier retiring ages. For other ranks, the pension was based on a period of 20 years’ service after age of 20 and provided for additional amounts of pension for longer service.
Where the officer or other rank did not qualify for pension by reason of his length of service, he was entitled to a gratuity according to the scales laid down in the legislation. In addition, a comprehensive scheme of invalidity benefits was provided as well as a half pension for a widow. The contributions paid under this act by members of the services were precisely the same as in the case of the Commonwealth Public Service for retirement at age 60, and related to the member’s rate of pay and the age at which he became a contributor or obtained a pay increase.
Since 1948, amendments have been made from time to time to meet changing conditions and to maintain an alinement between pensions and pay, but the basic principles which I have briefly outlined had not been re-examined prior to the appointment of the Allison committee.
The problems facing the Allison committee were difficult. On the one hand, it was necessary to have regard to the needs of the services and, on the other hand, it was necessary to examine the alinement of any variations in benefits which might be proposed with the benefits available in other spheres. In addition, at the time when the original scheme was introduced, the lack of experience as to the rates at which exits occurred from the post-war services as a result of death, invalidity or withdrawal, rendered it impossible to adopt a firm contribution basis.
The report by the committee has produced a satisfactory answer to these main problems. New rates of pensions are proposed. These pensions have been calculated by taking the pensions which are appropriate in the Civil Service at the age of 60 years and applying a scale of percentages to determine amounts appropriate to the earlier retiring ages of the services. The
Civil Service pensions to which I have referred are those contained in the Superannuation Bill which is before the Senate. These pensions are at the rate of 70 per cent, of salary at the lower and middle salary ranges, decreasing to approximately 40 per cent, of salary at the highest level. For the information of honorable senators, 1 point out that the scale of percentages used to determine the earlier retirement pensions for the services is that which was adopted for the purpose of the 1948 act.
As regards the increased benefits which will flow to existing contributors from this bill, both in their present ranks and on subsequent promotion, additional fortnightly contributions are provided for in the bill. These contributions are designed so that, over the remaining service of the members, the same proportion of the cost of the increases in benefits will be met as will be met by future members.
A special problem arises in connexion with those serving officers and other ranks who are approaching the time when they would normally retire from the services. For these members the additional contributions payable in their short remaining period of service may be substantial. The bill provides that if a member is within eight years of retirement he has the right to elect as to whether of not he takes up the whole of or part of his increase in pension. In addition, if he elects to take up any part of his increase and his total contributions would exceed 10 per cent, of his present salary, if an officer, or 5 per cent, if an other rank, he may enter into an arrangement with the Defence Forces Retirement Benefits Board to defer payment of his additional contributions until retirement.
The further problem, to which I referred earlier, has been to lay down a proper basis upon which the contributions payable by members of the defence forces should be determined. As I have explained, the original contribution basis was not founded on any actuarial assessment of the various risks of mortality, &c, experienced by the forces. The committee has recommended that the time is now opportune, in view of the knowledge gained under the present legislation, to place contributions on a proper footing.
The bill provides, therefore, that future entrants to the scheme will pay contributions designed to meet, on the average, 221 per cent, of the cost of their pension benefits in place of the 15 per cent, that has prevailed in the past. The proportion of the cost of benefits met by contributors to the superannuation fund is 29 per cent., but the committee adopted the view that a lower average proportion was justified in the case of the services on account of the earlier ages at which service personnel retire.
For existing contributors to the scheme, the committee accepted the principle that accrued rights should be preserved. These members will, therefore, continue to pay their current rates of contribution for the benefits provided by the existing act for their present ranks.
The options available to serving members with long service have caused some problems in defining their future pension entitlements. However, the basic principles adopted are straightforward. Thus the member who is not promoted will be entitled to the pension provided under the present act, plus the proportion of the increase proposed by this bill for which he has elected to pay additional contributions. If he should be subsequently promoted he pays further contributions for, and receives further benefits in respect of, that promotion. The Allison committee recommended that on promotion this officer should be allowed to contribute, at his election, for all or part of the pension rights he had previously declined subject to a satisfactory medical examination. The bill provides accordingly. Honorable senators will realize, of course, that these special concessions are restricted to a small sector only of serving contributors. For the majority of contributors the benefits will be the pensions contained in the schedules in the bill.
The Government indicated in the Budget speech that it was proposed to allow superannuation contributors the opportunity of contributing for an increased rate of pension for their widows. As I have said earlier, the present rate of widow’s pension is one-half the pension payable to the member. This will be increased in future, on a contributory basis, to five-eighths of the member’s pension. A similar extension of benefit has been granted to contributors to the Defence Forces Retirement Benefits Fund. However, whilst future entrants to the forces will be required, as a matter of course, to pay the appropriate contribution for a five-eighths widow’s pension, existing contributors will be given the right to elect whether or not they wish to contribute for the increase. The Government has also decided that the increased widow’s pension will be available to existing widows and to widows of existing pensioners. The cost of this increase will be met by the Commonwealth.
The bill also gives effect to a number of other changes. Existing pensions are now related to the rank held at retirement and ignore, except in a few special cases, the actual age at which an officer retires. The Allison committee decided that this principle could not be supported as it was inequitable to require one officer with a late retiring age to pay much more in contributions for the same pension as is available to another officer of equivalent rank, but with an early retiring age. The Government has adopted the recommendations of the Allison committee that future service pensions should be related to the actual retiring age for the rank, in addition to the rank held.
Provision has also been introduced to meet the service problem that it is not always possible, for manning reasons, to retire an officer at his retiring age. Increments to the pension will now be granted for service up to two years beyond the retiring age for the rank held. In addition, such an officer will be covered for invalidity benefits during this period of extended service.
As I have mentioned previously, gratuity benefits are provided under the existing act for members who retire before having sufficient service to qualify them for pension. Under the present act these gratuities are based upon years of service, and range from £20 a year for six years’ service for an other rank member, to a gratuity of one and onehalf times the contributions paid by an officer, or an other rank, with more than twelve years’ service. The Allison committee considered the present basis of gratuity payments. The committee considered that a system of gratuities which was based on a stated amount for each year of service was, with some upward adjustment, preferable to a system based on the various levels of contributions paid by different contributors. This conclusion is undoubtedly a proper one, as the present system under which the older entrant to the services received an inflated gratuity, compared with the younger entrant, merely because of the larger contributions which he has paid, is not sound.
The bill provides that all gratuities, in future, will be calculated as a set amount, dependent upon class of member, for each year of service. It also provides, as with pensions, that accrued rights under the existing act will be preserved for serving members. This principle has necessitated some technical provisions in the bill to ensure a smooth junction between the old and new rates of gratuity.
The bill also provides that a member who retires at his retiring age, or on completion of his engagement, may commute up to one-third of the pension which he is normally entitled to receive. This is an extension of the provisions of the existing act which allow a member to commute one half of an amount of pension appropriate to his rank in the 1948 act. The change recognizes the fact that levels of retirement pension have steadily increased over the years, and will enable pensioners to obtain a reasonable lump sum, in lieu of part of their pension, for resettlement purposes. As in the present act, the commutation will be subject to the approval of the Defence Forces Retirement Benefits Board.
A further provision has been included in relation to pensioners who become reemployed by the Commonwealth. The provision is similar to that which is included in the Superannuation Bill which is now before honorable senators for consideration. Briefly, a pensioner may now receive pension up to an amount of £500 10s. per annum and become employed by the Commonwealth, without suffering any reduction in his pension. The comparable pension for a widow is £312 16s. 3d. per annum.
Since 1948, the women’s services have been re-established, but the existing act provides benefits, similar to those for male members, only for the nursing services of the Air Force. The opportunity is now being taken, therefore, of extending retiring benefits to women’s services generally. The members of the women’s services who will be permitted to contribute to the scheme will be all members who agree to serve for a minimum period of six years. Special provisions are included to allow serving female members who become contributors to purchase past service which will count in determining their pension entitlement.
The committee also gave consideration to the serious problem which has arisen for the services from time to time in endeavouring to retain trained personnel who have completed an initial six-year engagement. As an incentive to serving other rank members to re-engage, the bill makes provision for a payment of £300 in cash to be made to all other rank members at the end of their initial six-year engagement, provided they have agreed to serve for a further six years. This payment is only an advance payment of their ultimate gratuity or pension and will be deducted from the benefit to which the member will become entitled, except where he becomes an invalid, or dies in service leaving a widow.
At the present time some Navy and Air Force personnel are not contributing for the full benefits provided by the existing act or, in some cases, are not contributing at all. Unlike other members with a deferred pay entitlement in 1948, they elected not to transfer their deferred pay to the Defence Forces Retirement Benefits Board in 1948 for paid up benefits under the act. The bill will give these members a further opportunity to elect to contribute to the scheme provided they now transfer their deferred pay entitlement to the board and pay the arrears of contributions which have arisen. Also some Army personnel who entered the service before 1948 are not contributing to the fund, and are not entitled to deferred pay. The bill similarly provides a further election for them to become contributors.
The Superannuation Act has, since 1947, made provision for contributors who held unencumbered life insurance policies to apply to transfer them to the Superannuation Board. In these circumstances, the board, if it accepted transfer, would pay the premiums under the policies as they fell due. On maturity of the policies, the proceeds would be paid to the contributor, less the premiums paid by the board, accumulated at interest. A similar provision is included in this bill, to allow service personnel a similar concession. The provision should be particularly valuable in the case of existing contributors who may have heavy life insurance commitments, and who, consequently, may have difficulty in paying premiums, as well as the additional contributions under this bill.
I have outlined in some detail the main provisions of the bill. There are also a number of machinery adjustments which have been found to be necessary as a result of the changes now being introduced. The opportunity has also been taken to remove some sections which are now redundant.
In an important sense, the measure now before the Senate may be regarded as complementary to the new pay code which was introduced last year. While that code reestablished the standards of service pay and allowances which the uniformed services might expect during their careers, this bill brings forward an up-to-date system of retirement benefits which will be available to them at the end of their terms of service. The Government regards this bill as an essential part of its programme for an efficient , and effective defence force for the Commonwealth. If it is true, as I am sure we all believe, that the efficiency of the defence force depends significantly on the quality of service personnel and on the readiness with which recruits of a high standard come forward for service in the forces, then I think a measure such as this forms a vital part of our defence programme. I therefore recommend the bill to the favorable consideration of honorable senators.
Debate (on motion by SenatorO’Byrne) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Henry) read a first time.
– I move -
That the bill be now read a second time.
Mr. President, the bill now before the Senate proposes to validate duties of customs in respect of the following Tariff Proposals: -
Customs Tariff (Federation of Rhodesia and Nyasaland Preference) Proposals No. 1 of 19th November, 1959;
Customs Tariff Proposals Nos. 9, 10, 11, 12 and 13 of 25th November, 1959; and
Customs Tariff (New Zealand Preference) Proposals No. 2 of 25th November, 1959.
Because Parliament will shortly go into recess and could be prorogued, in which case the proposals would lapse, it is necessary to validate the collection of the proposed duties. This bill validates the collection until 30th November, 1960. I expect, however, that before that date expires, the proposals will be reintroduced and, in that event, they are required by law to be enacted or again validated before the expiration of six months from the date of the second tabling.
As honorable senators are well aware, the Government, with the full co-operation of the Opposition, has been able to give to honorable senators ample opportunity to debate tariff legislation and I see no reason why this happy state of affairs should not continue into the New Year.
I commend the bill to honorable senators.
Debate (on motion by Senator Willesee) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Henty), read a first time.
– I move -
That the bill be now read a second time.
Mr. President, the reasons for this bill are similar to those associated with the Customs Tariff Validation Bill 1959 on which I have already spoken. This bill provides for the validation until 30th June, 1960, of the collection of excise duties made in pursuance of Excise Tariff Proposals No. 5, of 25th November, 1959. As was the case with Customs Tariff Validation Bill 1959, this bill is purely a machinery measure. I commend the bill to honorable senators.
Debate (on motion by Senator Willesee) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Paltridge) read a first time.
– I move -
That the bill be now read a second time.
The principal purpose of this bill is to increase the benefits provided by the Commonwealth Employees’ Compensation Act 1930-1956 and to introduce a provision for the payment by the Commonwealth of certain ambulance and travelling expenses. The amendments result from a review of the legislation carried out by the Government and an examination of the comparable legislation of the States. A summary of the increased benefits is as follows: - The lump sum benefit upon death is to be increased from £2,350 to £3,000. In respect of lump sum benefits for specified injuries, the present maximum is increased from £2,350 to £3,000 with proportionate increases for other specified injuries. The increased weekly payments in respect of incapacity for work are - Employee, from £8 15s. to £10; wife, from £2 5s. to £2 10s.; dependent child under 16, from £1 to £1 2s. 6d.; and employee who is a minor, from £6 10s. to £7 5s. Maximum compensation is increased from £2,350 to £3,000. The limit on medical expenses is raised from £200 to £350. The maximum of £350 applies to the aggregate of medical expenses and the new benefits of ambulance and travelling expenses. The Commissioner for Employees’ Compensation will retain the discretionary power already provided in the Act to authorize payments in excess of the £350.
Provision is being made for the payment of certain ambulance and travelling expenses. The weekly payment in respect of incapacity is sufficient to include the normal fares that are incurred in consulting a physician, obtaining medicines at a chemist or attending at a hospital. On the other hand, there are occasions on which much heavier payments may be involved, and the provision is designed to give some assistance towards these extra payments.
Those employees who are retired on superannuation pension, as a result of their incapacity, are now required to accept a lump sum benefit in redemption for the liability to make weekly payments. The act will be amended to give to the employee a choice between a lump sum payment and continuing weekly payments. Another amendment will extend the time within which an appeal may be made against a determination. The existing provision requires the notice of appeal to be given within thirty days from the date of the determination. This will be altered to thirty days from the date of receipt of the determination by the employee. There is specific provision in the act at the present time for the giving of notice of an injury by accident and the making of a consequential claim for compensation. The bill extends the same provisions to disease.
The increased benefits will be paid not only in respect of future incidents. They will apply also to those who are now receiving weekly payments. They will also be payable to those who are incapacitated hereafter by injuries or disease occurring prior to the date of the legislation and for which liability is accepted. The remainder of the amendments are of a drafting and consequential nature.
I commend the bill to honorable senators.
Debate (on motion by Senator Willesee) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Paltridge) read a first time.
– I move -
That the bill be now read a second time.
The Seamen’s Compensation Act originally came into operation in 1911 since when it has been amended on five occasions, the last being in 1954. The act applies to seamen engaged in interstate trade and commerce, except masters, mates, engineers and radio officers who are eligible for compensation benefits under their respective awards. Seamen in the intra-state trades are covered by the State workmen’s compensation acts.
On each of the previous occasions on which the act has been amended the monetary benefits have, where necessary, been varied to bring them into line with corresponding benefits prescribed in the Commonwealth Employees’ Compensation Act and the various State compensation acts. The former act is again being amended to provide increased benefits, and it is therefore proposed similarly to amend the Seamen’s Compensation Act, keeping the amounts of weekly payments, lump sum payments, maximum compensation, &c, identical under both acts. The monetary benefits under the Seamen’s Compensation Act might be grouped into three categories, namely, incapacity payments, death payments and medical expenses. I propose to deal with the increases in that order. As to incapacity payments, it is proposed that the existing weekly compensation payment of £8 15s. be increased to £10. The additional weekly payment of £2 5s. in respect of a wife will be increased to £2 10s. and the weekly payments in respect of a child from £1 to £1 2s. 6d.
For certain specified injuries lump sum payments are prescribed, the maximum being £2,350 as, for example, for loss of sight or of both hands or both feet. This amount will be increased to £3,000, with proportionate increases in the amounts of lump sum payments for other injuries specified in the Third Schedule to the act. The maximum amount payable in respect of any one accident is to be raised from £2,350 to £3,000. This limitation, however, does not apply in cases of total and permanent incapacity. Also, in the case of an injury that results in death, or in one of the major specified injuries, any weekly payments made are disregarded in determining the amount of the lump sum payment to be made.
The amount of compensation at present payable in death cases is £2,350 if the seaman leaves dependants. This amount is being increased to £3,000. The amount that may be paid in respect of medical expenses is to be raised from £200 to £350. Such payments are additional to compensation and in exceptional cases the Minister may approve payment of a higher amount.
Certain administrative amendments to the Commonwealth Employees’ Compensation Act are also to be made, and it is proposed to effect certain corresponding amendments to the Seamen’s Compensation Act, together with certain administrative amendments desirable in respect of that act alone. There has always been some doubt regarding the application of the provisions of the act providing for notice of accident and time within which a claim may be made in the case of a claim where the seaman has contracted a disease. An amendment is included in the bill setting out more clearly the requirements which relate to notification and claims in such cases. Another amendment makes provision for the taking of depositions in respect of injured seamen at an overseas port in a foreign country before an Australian or British Consular Officer instead of a British representative as hitherto. Because of the growing complexity of modern medical treatment an amendment is to be made allowing fees payable to medical referees to be determined according to the circumstances, with the advice of medical authorities, instead of being prescribed. Also, an amendment ls being made to enable a seaman who had lodged a claim for compensation to be required to undergo medical examination as well as a seaman who had given notice of accident or who was in receipt of compensation payments.
The bill includes the usual provisions, as in the Commonwealth Employees’ Compensation Bill, regarding the application of the higher benefits to cases where the injury, accident or disease occurred, or was contracted, prior to the date of effect of the new legislation. The bill is recommended for the favorable consideration of all honorable senators.
Debate (on motion by Senator McKenna) adjourned.
– by leave - I desire to inform the Senate that the statement I am about to make in relation to Australia’s defence policy is in the exact terms of a statement now being made by the Minister for Defence (Mr. Townley) in another place, and that, therefore, I am adopting his exact phraseology. The statement is as follows: -
Cabinet has completed its consideration of the new three year defence programme. The decisions taken are related to the requirements of the strategic situation. This takes into account trends in the international situation, the assessment of possible threats to our security based on the best available intelligence, and the plans developed in conjunction with our Commonwealth partners and our allies in Anzus and Seato to meet various contingencies that could arise.
We have seen no reason to vary the broad strategic principles on which our defence policy has been based since the previous review of 1957. Events since then, including the top-level EastWest talks that have been held this year, which now seem likely to culminate in a summit conference, have served to confirm our previous views. These principles are briefly as follows: -
Global, or full-scale, war remains not impossible, but unlikely, as a deliberate act of policy. However, limited wars could break out in various unstable areas.
The primary aim of our defence effort should therefore be the continual improvement of our ability to react promptly and effectively with our allies to meet limited war situations. The forces maintained for this purpose also enable us to fulfil a worthwhile role in the cold war, e.g., the stationing of forces in the Commonwealth Strategic Reserve in Malaya. At this point I might mention that the Prime Minister of the Federation of Malaya, during his recent visit to Australia, welcomed the presence of our troops in his country, as they gave a feeling of security to the Malayan people and helped them to plan for peace and prosperity.
Finally, Australia is a small nation, with limited resources. The most effective way of ensuring our safety is through association with allies in the collective defence arrangements which have been developed in our area of strategic interest. We, therefore, continue to attach the highest importance in our defence policy and planning to participation in British Commonwealth defence co-operation, Seato and Anzus. It goes without saying that membership of these arrangements, which give us the benefit of defence in depth from possible aggression, carries complementary responsibilities. We must maintain an effective capability to honour our treaty obligations in the future as we have in the past. We all hope that the United Nations will become more and more significant in the prevention of war and the settlement of international disputes.
At the outset I give a brief review of the defence programme. The objectives of defence policy are achieved through the defence programme, which makes provision for the organization and equipment of the forces to enable them to fulfil their approved roles. In determining the scope of the programme, and the financial resources that can be allocated to defence, Cabinet must have regard to the requirements of other sectors of the economy, to ensure that economic stability and national development are not prejudiced by a disproportionate expenditure on defence.
The present financial year is the final year of the three year programme which was announced in 1957. As it is essential that the Services should be able to plan ahead in the organization of their forces, the ordering of equipment and the commencement of other essential capital projects, the decisions taken in the present review cover a new three year period.
The strategic role of the Navy is to ensure the defence of sea communications, and to co-operate with allies and sister services in general operations of war. Our naval policy places special emphasis on anti-submarine capabilities. The naval programme has been reviewed against these requirements, and the need to plan ahead for the replacement of units as they become obsolescent, having regard, al the same time, to new developments and trends in naval warfare. This is a special problem in the case of the Navy, because of the length of time and high cost for construction of major new units.
Our examination of the measures required to be initiated now for the provision of the most effective naval force possible, within available resources, has raised for consideration the future of the Fleet Air Arm. This comprises the aircraft carrier “ Melbourne “ with its front line establishment of five squadrons of Sea Venom fighters and Gannet anti-submarine aircraft. These aircraft will be worn out by mid-1963. The higher-performance, more sophisticated aircraft which would replace them could not operate from “ Melbourne “, but would require a more modern and faster carrier. A replacement carrier of a modern type, that would be suitable to our requirements and within our budget, is not available from any likely sources. The construction of a new carrier for the R.A.N, could not be seriously considered; the cost would be completely prohibitive, and the time required for new construction would not meet our needs. In any case, the position is that naval aviation is now a complex and costly enterprise, both in respect of carrier and aircraft. It is therefore extremely doubtful if it is possible for a small navy such as the R.A.N, to keep pace with modern developments in this field, without unduly prejudicing other essential defence activities, not only from the joint service aspect, but within the Navy itself.
After close examination from all points of view, and the fullest consideration of the views of its service advisers, Cabinet has reached the decision that the Fleet Air Arm will not be re-equipned when the present aircraft reach the end of their service life in 1963. Until then, however, and this point is emphasized, the carrier “ Melbourne “ and its aircraft have a useful operational role, and will continue in full service with the R.A.N.
In addition to the Fleet Air Arm, the operational fleet comprises: -
Three Daring class ships, the last of which joined the fleet this year. These vessels, which were built in Australian shipyards, are considerably larger than the destroyer and are very efficient units.
Two Battle class destroyers.
Three fast anti-submarine frigates.
Training and survey ships and miscellaneous small craft.
Work is proceeding satisfactorily on the construction in Australian shipyards of four new type anti-submarine frigates, and two of these will come into service during the new programme period. This provides a modern and effective fleet, at ready availability. It is well suited to carry out the Navy’s tasks, and maintain the fine tradition of the R.A.N. Two ships, of the destroyer/frigate type, will continue to serve in the Malayan area as part of the Commonwealth Strategic Reserve.
In addition to the ships in commission there is a reserve fleet of destroyers, frigates and other vessels. Those which can be brought into operational service in the event of war are maintained at varying degrees of readiness. Those whose useful service life has ended will be disposed of.
Cabinet has also considered possible new naval projects which might be commenced in this programme. Prominent among these is the proposal for the introduction of a submarine force in the R.A.N. Information placed before Cabinet indicates that the trend in major navies is towards an increased proportion of their fleets being underwater, whether for interdiction or anti-submarine tasks. Oddly enough, the submarine has apparently become a most effective anti-submarine weapon. Obviously the introduction of a major new arm of the service requires the fullest consideration, and considerably more information than is now available, before a decision can be reached, including the possibility of construction in Australia. The Minister for the Navy has been directed to make further investigations, with a view to the submission of a detailed report covering type, costs and other relevant data.
At the same time, further inquiries will be made into other possible new requirements, which could include such projects as the surface-to-air guided weapon destroyer, the provision of guided weapons for existing escort vessels, modern minesweepers, &c. It can be seen that the final form of the naval programme cannot be determined at this stage. All the items mentioned are modern, but they are complex and extremely expensive. It follows, therefore, that before any decisions are reached the most searching examination must be made of every relevant aspect. These inquiries will be completed as soon as possible.
I come now to the Army. In the Government’s previous defence review in 1957, the major emphasis was placed on the need for mobile and readily available forces, adequately provided with modern equipment. The Navy and the Air Force have always been able to react quickly in the event of emergency, but the Army, which has a more difficult problem of organization, has needed considerable time to complete its preparations. This time will not be available in present-day conditions. In the case of the Army, therefore, priority was given to building up the regular Brigade Group, in addition to the battalion in the strategic reserve in Malaya. It obviously takes time to raise and train a force of this type, but the objective has been substantially achieved. The strength of the brigade group has been raised from 2,300 in February, 1957, to its target strength of 4,100. It has been intensively trained, and has conducted brigade formation exercises on an extensive scale.
The experience of the past two and a half years has confirmed the soundness of the Government’s policy, and has pointed to the strong desirability of proceeding further with the re-organization of the Army. The aim is two-fold; first, to improve the capability of the regular forces to respond swiftly and effectively to the demands which might be placed upon them. Second, with the regular forces more readily available, the next logical step is to make the reserve forces more readily available. This matter has been under close examination by the Army authorities and the Government for some time, but it became apparent that further progress in the desired direction was frustrated by the heavy maintenance, training and administrative burdens imposed on the Army by its present tasks and form of organization. One of the major problems for the Army has been the increasing proportion of the vote required for maintenance, that is for pay and allowances, clothing, food, accommodation, training of the forces. Maintenance expenditure now absorbs 80 per cent. of the total Army vote. This has meant a corresponding reduction in the amount of the vote available for capital equipment, at a time when equipment has become more costly than ever before.
The inescapable conclusion has emerged that there must be a major re-organization of the Army to enable it to concentrate on the provision and equipment of the type of forces required by the strategic situation, and therefore some present Army commitments must be reduced. This is the unanimous view of the Chiefs of Staff, and accords with defence thinking throughout the world to-day.
These considerations required a searching reappraisal of the future of the residual national service training scheme, which, it will be recalled, was cut back in 1957 to a selective call-up of 12,000 trainees annually. The scheme was introduced at a time when global war appeared far more likely than it does to-day. It has provided for the Army a pool of some 200,000 men, with basic national service training and with some years of more advanced training in the C.M.F. At the present time, however, national service greatly handicaps the development of a more effective Army because of the excessive demands it makes on both man-power and money, without adequate compensatory military advantages. Almost 3,000 regular Army personnel are involved in the administration and training of national servicemen, and the scheme requires the maintenance of command and administrative organizations which are materially larger than would otherwise be necessary. The total annual cost of national service training is over £9,000,000 a year, which represents a subtraction of one-seventh of the present Army vote from higher priority military tasks, particularly the provision of modern equipment.
A further complication is that national service men complete their periods of training in C.M.F. units. There is therefore in the C.M.F. a mixture of troops, some of whom are volunteers tor overseas service and others who are not liable for overseas service. Thus, if an emergency developed and it became necessary to mobilize, extensive re-arrangement and cross-posting would be necessary within the C.M.F., and this at a time when any delay might be dangerous.
The Government has accordingly decided, after a most careful review, that national service training should be suspended. There will be no further intake for full-time training, and the January, 1960, call-up will not proceed. However, part-time training of national service personnel now serving in C.M.F. units will continue until 30th June, 1960. In reaching this decision the Government is not unmindful that national service training has had other than purely military advantages for the young men of this country, but it has also taken into account that only about one-fifth of those reaching the age of eighteen each year are trained under the present scheme. Of course, national service training cannot be viewed in isolation, but only as one of many elements in the overall defence plan.
I turn now to our proposals for the future organization of the Army, which are linked with, and in part depend on, the decision to discontinue national service training. In regard to the Regular Army, the Government has decided that -
The strength of the Brigade Group will be increased from its present level of just over 4,000 men to a new figure of 5,500.
A third battalion will be added to the existing two battalions, increasing the tactical flexibility of the brigade in operations.
All three battalions will be raised to full tropical establishment.
A logistic support element of 3,000 men required to support the brigade will be raised, instead of being organized as at present largely on a shadow basis in headquarters and depots.
The three-battalion brigade group will be additional to the battalion group which we maintain in Malaya. This re-organization, together with the related equipment proposals referred to later, will be completed within the new programme period. Australia will then have in the Brigade Group a unit which, while relatively small, will be the most effective Army formation ever established in this country in peace-time - a thoroughly trained, readily available, wellequipped force.
I have already said that the present strategic situation requires the ready availability of both the initial and follow-up forces. It is in the provision of follow-up forces which can become operational in a short period that the C.M.F has a most important part to play, and the
Government has given close attention to building the C.M.F. into a strong and efficient force. The present strength of the C.M.F. is a little over 50,000, of whom some 30,000 are national service men completing their training, and some 20,000 are volunteers. The weaknesses of a C.M.F. organized in this way have already been mentioned, namely, that in the event of this or future governments requiring to use these units, rearrangement and cross-posting of volunteer and national service elements would have to bc undertaken.
The Government has decided that, with the suspension of national service training, the planned strength of the re-organized C.M.F. will initially be 30,000, all volunteers in the Australian Army tradition. This means an increase of 10,000 over the present volunteer strength of the C.M.F. The force will have an order-of-battle of six infantry brigade groups, with appropriate combat and logistic support forces, replacing the present framework of three C.M.F. divisions. The force will be so organized, in keeping with current strategic priorities, that some C.M.F. brigade groups will be available in a very much shorter time than has previously been possible for C.M.F. forces. Others will provide the basis for any expansion of the Army which may be desirable or necessary, according to circumstances.
The Government has considered how the efficiency of the C.M.F. may be increased and how service may be made more attractive. It has been decided that C.M.F. training will be integrated with that of the regular units. C.M.F. periods of camp training will be carried out as far as possible with elements of the regular Brigade Group, and large-scale combined exercises will be held periodically. Integration will be aimed at to the maximum extent practicable in all such combined training, including the functions of command. The Government is deeply conscious of the fact that many of our most distinguished war-time leaders came from the C.M.F., and should come from it in the future. The Minister for the Army is now examining the practical arrangements for this proposal, the full details of which will take time to finalize as it will mean re-arrangement of both A.R.A. and C.M.F. training programmes.
Two further measures will be taken to strengthen Army organization. A scheme is being worked out by the Army to provide a reserve of exregulars on a similar basis to that existing in the Navy and Air Force. This will provide a gradually increasing pool of fully trained man-power available to supplement the regular forces in any emergency.
Training in the Australian Cadet Corps provides a foundation of military knowledge and discipline for a fair percentage of the youth of Australia and develops in the cadet desirable citizenship qualities. There is constant pressure from the schools to expand these units. It has been decided to increase the strength of the corps by 5,000 to a new total of 38,000, and the necessary provision will be made for this in the new programme.
The concept of more readily available Army forces requires the provision of an adequate scale of modern equipment, and an amount of almost £30,000,000 is provided for this purpose in the new programme. More than half of this - some £15,000,000 - will come from local Australian production. Priority is given to equipment for the Brigade Group, which will complete its re-equipment with the Australian-made F.N. rifle by July, 1960, and with the 105-mm. howitzer about the same time. Considerable quantities of a wide range of modern weapons, ammunition, armoured vehicles, radio, radar and stores of all types will also be acquired during the programme period. These will include among new items a sustained fire machine gun, and the 105-mm. pack howitzer, which breaks down into components for easy transport. Having in mind the type of terrain in which the Army may have to operate, the mobility of the Brigade Group is to be greatly improved by the provision of a substantially increased scale of light aircraft support (fixed and rotary wing), and amphibious and water craft, from the larger ocean-going landing ships medium type to smaller types of amphibians for maintenance and port operations.
Provision is also being made for the procurement of considerable quantities of modern types of equipment for the C.M.F., which will, for example, be substantially equipped with the F.N. rifle by the end of the programme period. Where wide issues of certain types of specialized new equipment cannot be made throughout the Army, a number of such weapons will be held at centres where both regular and C.M.F. units can train with them. This has proved to be a successful arrangement with the Centurion tanks located at Puckapunyal, which are used by A.R.A. and C.M.F. armoured units. This practice will be followed wherever practicable.
Constant attention will be given to the possibility of improving the standard of equipment by the introduction of new weapons, including, for example, Army types of guided weapons, as they are developed and proven suitable to Australian requirements.
As I have already said, some 3,000 regular army personnel are engaged in the administration and training of national servicemen. With the cessation of national service training, and the reorganization of the Army, there will be reductions in head-quarters, administrative, maintenance and training units. As many as possible of the personnel affected by these changes will be absorbed in other postings. Undoubtedly there will be a proportion who, because of age and qualifications, cannot be suitably placed, and their accelerated movement out of the Army will be necessary. The precise number involved will not be known until reorganization has progressed further. At the same time, there will be a movement in and training of young men to build up the combat units. The general effect will be to improve the ratio of combat to support troops. The Minister for the Army has in hand the detailed working out of these arrangements, and further information will be made public as progress is achieved.
The strength of the Regular Army as a result of the decisions now taken will be 21,000, with an order of battle comprising the infantry brigade group and its logistic support force, the battalion group serving in Malaya, a battalion of the Pacific Islands Regiment, and appropriate head-quarters and administrative staffs, maintenance and training units. The C.M.F. will have a strength of 30,000, organized into six infantry brigade groups with appropriate combat and logistic support elements.
A further proposal designed to increase the efficiency of the Army in modern conditions is currently under consideration. This relates to a re-organization of the operational units in the order of battle, both A.R.A. and C.M.F. on lines similar to the United States Army, which is based on the pentomic division, comprising five strong battle groups, instead of the divisionbrigadebattalion structure. Advantages of this new form of organization are stated to be greater flexibility, and therefore greater suitability to mobile war conditions; the saving of man-power without loss of combat efficiency. The capacity to co-operate with other British Commonwealth forces would be retained. Re-organization of the Australian Army along these lines would be accomplished within the strength figures I have already given.
The Government is convinced that the decisions on the Army which I have announced accord with the present strategic requirement, and will produce regular and C.M.F. forces well organized, trained and equipped, which will be able to play a prompt and effective part with our allies in any hostilities in which we may become involved.
The main operational elements of the Royal Australian Air Force are three bomber squadrons equipped with Australian-built Canberras, three fighter squadrons equipped with the Australia-! Avon Sabre, two maritime reconnaissance squadrons, two transport squadrons, and two control and reporting radar units, with a third to be installed this financial year. A force of one bomber and two fighter squadrons is stationed at Butterworth, as part of the Commonwealth Strategic Reserve in Malaya. The twelve C.130 transport aircraft approved in the last programme have all been delivered and are in service, and have contributed most significantly to the mobility of the Austraiian forces.
The selection of a suitable replacement for the Avon Sabre fighter is an important requirement in Air Force programme planning. In the last programme the Government deferred a decision on this matter, as a suitable type was not available Since then the Government has approved the re-arming of the Sabre with the Sidewinder airtoair missile, and this has greatly increased its capability in the day fighter role. The Sabre also continues to be a most effective aircraft in the ground attack role.
Nevertheless, the re-equipment of the front-line fighter squadrons with a suitable replacement of the Sabre remains an important objective. The R.A.A.F. and the Government have kept themselves fully informed on various new types of fighter aircraft in service or under development overseas, hut the position has not yet been reached when we feci we can make a final selection with confidence. The type selected must have a d:iv and night all-weather capability with supersonic speed, and in addition must meet our distinctive Australian requirements, arising primarily from our geographic position and the great distances in our area of interest. The problem of selection of a suitable replacement is therefore not simple, and the Government is not prepared to gamble on such a costly project. However, types of aircraft which might meet our needs are expected to become available in the programme period. Provision has been made for a commencement in the latter part of the period of the acquisition of new fighter aircraft. The type to be selected will be determined by Cabinet at the time, on the basis of a full submission by our technical advisers.
The question as to whether any new type of fighter is to be purchased abroad or manufactured in Australia will depend upon many considerations which are not yet clear, although we recognize the importance of maintaining an aircraft construction industry. No decision is being made until we have finally determined what type of aircraft we will adopt.
The maritime element of the R.A.A.F. at present consists of one squadron cf P.2V.5 Neptune air craft, and one squadron of Lincolns. The Nep tunes have proved to be outstanding maritime aircraft and are particularly suited to a country like Australia, with its long coastline. The present Neptune squadron, based at Richmond, New South Wales, has a regular exchange of training exercises with Neptunes of the United States Navy. The Lincolns have now become obsolete, and it has been decided to re-equip the Lincoln squadron with twelve P.2V.7 Neptunes - an improved version of the P.2V.5. The P.2V.7’s, fitted with the most modern anti-submarine equipment, together with the present P.2V.5’s, which have recently been modified to the higher standards, will provide the R.A.A.F. with a modern and effective antisubmarine force. The new aircraft will be located in Townsville, the north Queensland base.
Since our earlier decision to introduce the first R.A.A.F. surface-to-air guided weapons unit, investigations have been proceeding for selection of the most suitable type, and a strong technical mission visited the United States and the United Kingdom earlier this year. The Government has decided to purchase the British Bloodhound Mark I. surface-to-air guided weapons system, including missiles, launchers, associated equipment and spares. The Bloodhound is a semi-active homing system which has been accepted by the Royal Air Force. Although complex, it is capable of air transport in R.A.A.F. Hercules aircraft. Australia has been associated with the development of this weapon at Woomera. Most satisfactory arrangements have been made with the United Kingdom authorities for the participation of R.A.A.F. personnel in practice firings of this weapon, both in the United Kingdom and at Woomera.
The purchase of eight helicopters, to meet an Air Force requirement for search and rescue and Army requirements for light liaison duties and casualty evacuation, has been approved. Provision is also made for commencement in the programme period of the construction of an additional air base in the Darwin area.
I now come to the Citizen Air Force, at present comprising five squadrons. The technical complexity of modern aircraft requires full-time and specialized training of pilots. The accepted view to-day is that it is not possible for pilots to become combat-worthy in modern types of aircraft by intermittent, part-time training. The Government has reluctantly accepted the logic of this view, so far as flying duties are concerned. But the personnel of the C.A.F. are extremely capable and experienced in many other tasks in the R.A.A.F. lt has been decided, therefore, that the five Citizen Air Force squadrons will be converted to a non-flying basis, and that their personnel will in future be trained in those R.A.A.F. functions which they could usefully perform in time of emergency.
The Permanent Air Force element of these squadrons - some 400 men, comprising the greater part of their strength - will be used to form a fourth permanent fighter squadron. This will be equipped initially with Vampires, later re-arming with Sabres. The formation of this extra squadron in Australia will enable rotational replacement of personnel in the two fighter squadrons stationed in Malaya.
An active defence research and development programme will be continued. The major part of this effort will be on guided missiles in conjunction with the United Kingdom. We are carrying out an intensive series of trials of a variety of weapons, including the Black Knight ballistic missile, several of which have been fired with great success, and the longer range Blue Streak, for which major facilities are being prepared in the Woomera area and up as far as Talgarno on the north-west coast. Several important devices to meet the particular needs of the Australian Services are also under development.
In respect of defence production the F.N. rifle programme for Australia and New Zealand is proceeding according to schedule. A substantial order for the Australian-developed Malkara antitank weapon has been placed by the United Kingdom for the British Army. Numbers of the highly successful Jindivik target aircraft - also developed in Australia - have been sold overseas, with the prospect of further orders. St. Mary’s factory is in production, and provides, as intended, a war-time capacity such as we never had before. Government factories have been modernized and equipped to meet the Services’ requirements, and this work is continuing as new weapons are developed.
A series of advisory committees, comprising leading Australian industrialists, meets regularly to advise the Minister for Defence and the Minister for Supply on industrial mobilization matters, and to ensure that the Government is kept apprised of those aspects of industrial expansion which may well vitally serve defence needs in the event of war. In this respect. I would like to make special mention of the valuable work being done by the Chairman of the Joint War Production Committee, Mr. Ian McLennan, and many other Australian leaders of industry, who, in an honorary capacity, give us the benefit of their wide experience.
As for the financial aspects of the programme, I have already indicated the Navy programme, has not been finally determined, pending further investigation into and consideration of possible new projects. A precise figure of the cost of the new defence programme which I have outlined cannot, therefore, be given at this stage. Honorable senators will remember that the Estimates recently passed by this Parliament provided £192,800,000 for the current financial year. That figure may be exceeded in subsequent years of the new programme period, but . this will depend on decisions yet to be taken. The final figure, of course, will be indicated in the budget preceding each programme year.
I come now to defence administration. It will be recalled that the Prime Minister announced last year some important changes in defence organization. Briefly, the Minister for Defence and the Department of Defence, who have always had the functions of policy formulation and coordination, were given a clearly defined authority over the defence group of departments - Navy, Army, Air and Supply - to see that defence policies are effectively carried out. In addition, greater economy and efficiency in the Services were to be achieved, through integration of activities and the development of common services to the greatest practicable extent.
This arrangement is working extremely well in practice, and a smoother and more efficient administration has resulted. For example, inspection services have been closely co-ordinated, resulting in substantial economies in man-power, and similar action will shortly be taken in respect of design functions. Investigations a’re well under way into the practicability of integrating a wide range of other Service activities. Furthermore, a major study of the possible application of electronic data processing to Service stores, personnel, finance and other functions is now nearing completion. This is all forward thinking, based on the belief that in the future all arms of the Services will, and indeed must, progressively become more closely knit.
In conclusion, let me say that the decisions I have announced have been reached by Cabinet after a most comprehensive and searching examination of all the issues involved. Cabinet takes into account all the wide range of complex considerations in the formulation of defence policy - military and strategic, external affairs, financial and economic. Naturally, much of the information is highly confidential. We have the benefit of advice from our own advisers - ali highly expert- in these various fields. Scientific and technological developments in weapons and methods of warfare are increasingly important in these days. These must also be closely scrutinized, in conjunction with our scientific advisers. In addition, due to the exceptionally close relations developed with our Commonwealth partners and our allies in Seato and Anzus, we enjoy the great advantage of completely frank exchange of views with them on mutual problems and plans. This takes place regularly at all levels - military, official and ministerial. During the last few months, for example, we have had the opportunity of talks, during their visits to Australia, with General Festing, the Chief of the Imperial General Staff, Air Marshal Pike, the Chief of the Air Staff, designate, of the Royal Air Force. Admiral Felt, the United States Commander- in-Chief, Pacific, and Mr. McElroy. the United States Secretary of Defence.
A study of the new proposals shows that the Government has placed emphasis on two major points: First, to have our forces, regular and citizen, more readily available than they have been in the past; and secondly, to provide them with modern equipment - in greater quantity and more varied type. This review has involved some important changes, but they are all in conformity with the policy that has been followed during the past two and a half years. In fact the further changes now announced are a logical development of that policy, which we are convinced is the right one for Australia in present strategic circumstances.
Defence programming and planning cannot be Static. Changes are inevitable as a result of changing world conditions, and the almost bewildering rapidity with which new weapons and techniques are now developed. The Government will keep the defence programme under constant review. Progress in the achievement of present objectives will be closely watched. Flexibility will be maintained, and any adjustments necessary will be made, if these are required in the national interest.
I lay on the table the following paper: -
Defence Review - Ministerial Statement, 26th November, 1959- and move -
That the paper be printed.
Debate (on motion by Senator McKenna) adjourned.
Sitting suspended from 12.46 to 2.15 p.m.
Motion to Disallow Regulations
– I move -
That the amendments of the Australian Broadcasting Commission (Staff) Regulations, as contained in Statutory Rules 1959, No. 80, and made under the Broadcasting and Television Act 1942- 1956, be disallowed.
The motion that I have proposed on behalf of the Opposition does not, on the face of it, present the really basic issues that are involved in this matter. I hope that every honorable senator takes an interest in a matter that is concerned with such very great issues, from a parliamentary viewpoint as well as from an administrative viewpoint. I approach the matter first, by indicating that it involves a great parliamentary principle. I shall trace the history of the regulation-making power in regard to the Australian Broadcasting Commission, and I shall explain the effect of amendments on the original regulations. Finally, I want to put before the Senate what lies behind the seemingly innocuous changes in the amendments that we are considering.
Let me deal first with the question of principle that is involved from the Senate viewpoint. We in Australia are very familiar with statutory bodies such as the Australian Broadcasting Commission. Those bodies serve a most useful purpose. Their use, in fact, is inevitable, because having regard to the complexity of affairs to-day, it is impossible for any Minister to be able to keep his hand on the day-to-day administration of a great concern like the Australian Broadcasting Commission. Therefore, ministerial and parliamentary authority must be delegated. We have a vast number of statutory bodies functioning in various fields in this country. Mostly, we import from outside the Public Service the men who constitute such bodies. That is because those men are specialists in particular fields, especially technical fields, as in the case of broadcasting and television. Normally, one does not rear that race of administrative being inside the Public Service. Whether the men who are appointed to those bodies are appointed on a full-time or a part-time basis, one of the things in which they are always interested, as private individuals, is the degree of autonomy that they will have. They want to know whether they will have freedom to exercise their own personal skills, and they want to make sure that they are not dominated by a Minister or a government without knowledge of their specialty.
The conflict is eternal and will continue to rage on the basis of the degree of autonomy that such authorities should be given, as against ministerial control and also ministerial responsibility to Parliament. All those matters are involved. Although there is every kind of variation, from the situation in which the Minister has the lightest control, under authority conferred by the Parliament, to that in which he can exercise a complete veto, the Parliament all the time must preserve its position of responsibility and authority. With the bills that we have put through relating to statutory authorities, the degree of autonomy that should be conceded to them, and the tenure of their members, we have had great variation.
There are two elements in the matter. I point out that in relation to a body like the
Australian Broadcasting Commission, in respect of which a high degree of autonomy would be demanded and granted, the Parliament has a special duty to be vigilant regarding the exercise of the autonomy that is granted. Autonomy is conceded where a body such as the Australian Broadcasting Commission has to exercise independent judgment, and where it has an obligation to be objective in the presentation of news and in matters of religion and politics. Such a body has great responsibilities that must be exercised impartially and objectively. When we concede such great power to a body, it behoves us in the Parliament to be extra vigilant as to the way in which that great power is in fact exercised.
I have made the suggestion before from this place, and I repeat it, that select committees of this Senate should perhaps be in continuous session to review periodically - maybe every three years at the least - the functions of these bodies to which we have allowed so much power to be delegated and to which we have conceded such a degree of autonomy. That was the thought in relation to the Australian Broadcasting Commission when the Labour Government was in power. The law in relation to Australian broadcasting was revised and consolidated in 1942. Part IV. of the 1942 act, which contained a number of sections, provided for the setting up of a Parliamentary Standing Committee on Broadcasting. That was a famous committee which did a lot of work that attracted considerable attention. Parliamentary authority over the commission was exercised through the appointment of that committee, which included men from all political parties in the Parliament. Section 85 of the 1942 act authorised the committee to consider, and to report directly to the Parliament upon, any matter which either House of the Parliament, by resolution, referred to it. So that, in giving the great concession of power to the commission, the Parliament said: “ Nevertheless, we will have a committee of parliamentarians to which we may refer the investigation of any particular matter. That committee constitutes the watchdog of the Parliament”.
The Minister was given power to refer important matters to the committee. As I have said, the committee did great work.
It functioned until the defeat of the Labour Government in 1949 and the advent of the Menzies Government. The latter government, however, never re-constituted the committee, and when the law was consolidated in 1956 - just three years ago - it repealed the whole of Part IV. of the Australian Broadcasting Act. In other words, it discarded the safeguard and the line of communication that had been established very carefully between this Parliament and the Australian Broadcasting Commission in its administrative and technical functions. At the time, the Opposition indicated that it thought that that was a mistake. I hope that, by the time I have concluded my remarks, many honorable senators will agree that it would be of great advantage, in the present circumstances, if the committee were still operating.
I come now to the actual regulation with which we are concerned. I do not know whether honorable senators have it before them. Statutory Rule No. 80, which we seek to disallow, has only four clauses. The first one makes four amendments to regulation 5 of the Australian Broadcasting Commission (Staff) Regulations. The first two proposed amendments are of consequence. The second two are merely correcting references to sections that are procedural. Then we come to regulation 2, which is of consequence, and to regulation 3, which again is of consequence.
At this stage, I should advert to the fact that in 1945 the then Minister - Senator Ashley - referred to the Parliamentary Broadcasting Committee draft regulations relating to the staff and persons in the service of the Australian Broadcasting Commission. Those draft regulations, which were most comprehensive in their scope, dealt with every aspect, such as the setting up of departments, the basis of the creation of various departments and divisions, the distinction between permanent and temporary staff, conditions of service in every particular, the protection of the staff with promotion appeal boards, and disciplinary appeal boards. The pattern is quite familiar.
The committee took its work exceedingly seriously and gave a very comprehensive report Which put under the microscope every one of those draft regulations. It took something like two years to complete the work. The reasons for the delay were well set out in the report.
But the point is that where the commission itself was authorized to determine salaries, the watchdog of the Parliament - the committee to which I have referred - was employed and it did magnificent service in analysing down to the last detail all the principles that should operate.
In 1947, the regulations that we are talking about were promulgated, and the matters to be amended have stood up to the present time. The effect of the significant alterations in the first amendment is to take out of regulation 5 two definitions - that of Controller of a Division and that of Director of a Department. Let me read them to the Senate. The first definition reads - “ Controller of a Division ‘ means the officerincharge of the Programme Division or the Administrative Division of the Commission, or the officer in charge of any other Division of the Commission.
The second reads - “ Director of a Department “ means the officer in charge of any of the following Departments of the Commission: -
Drama and Features;
Youth Education, and, if the Commission so determines, the officer in charge of any other Department of the Commission.
There is also a definition of “ Senior
Officer “ which is repealed by proposed regulation 2. That is also set out in detail, and reads - “ senior officer “ means -
The only other regulations to which I need to advert are regulation 20 and regulation 21 which the proposed amendments also purport to vary. They set out the departments into which the Australian Broadcasting Commission is to be divided, and
I think I should put them on record. Regulation 20 reads -
The service of the Commission shall consist of four Divisions, as follows:–
The Administrative Division;
The Programme Division;
The Clerical Division; and
The General Division
Regulation 21 reads -
The Administrative Division, the Programme Division, and the Clerical Division shall consist of such positions in the service of the Commission as the Commission directs shall be included therein respectively and the General Division shall consist of all other positions.
I regret that I have had to read those in detail, but the position would not be understood if I had not put them.
The Senate will realize that great care and particularity were exercised by the Broadcasting Committee when examining the regulations. The committee, with great care, divided the commission and its services into particular departments and divisions. What the proposed regulation seeks to do is to repeal completely the two paragraphs dealing with the division into departments and divisions and the definitions of “ Controller of a Division “ and “ Director of a Department “, and to discard the definition of “ Senior Officer “ which stood in the regulations from 1947 until recently, and in which the matter is set out with particularity, and, in place thereof, to insert merely one new provision which reads -
A senior officer shall perform such duties and have such responsibilities as the General Manager determines.
I emphasize the words, “ as the General Manager determines “. Regulations 20 and 21, which divide the commission into departments, are to be repealed and they are to be replaced with provisions giving complete authority to the commission. In other words, the new regulation 20 is to read -
The service of the Commission shall consist of such Divisions, Departments and Sections as the Commission determines. not “ as determined by the GovernorGeneral in Council after a report from a Parliamentary committee “, a structure that had stood from 1947 till 1959. With the new divisions and the new departments we have a new term - “ sections “. They are to be determined now by the commission. The proposed new regulation 21 reads -
The Divisions, Departments and Sections shall consist ot such positions in the service of the Commission as the Commission determines.
The Senate will see from what I have said that the effect of these proposals is, in one blow, to destroy a structure that had been carefully built up under the authority of our parliamentary committee, and to leave the determination of who is or who is not a senior officer to the commission, to let it carve the commission’s activities up into suitable departments, divisions and sections without any particular approval from this Parliament.
One might say, “ Well, that does concede great power, but already great powers are conceded “. But one will not understand the effect of these radical changes until one has some understanding of what lays behind them. To understand that, I must take the Senate to the fact that there were two plaints before the Public Service Arbitrator, one dealing with the payment of overtime to officers of the commission, and the other dealing with all the rates and terms of employment of senior officers. They were run separately, and they have separate histories. The one relating to overtime stems from a directive order by the commission, made a few years ago, that officers in certain categories were to be paid no overtime at all. No matter how irregularly they worked, no matter how many hours they worked, there was to be no overtime. They were mainly the people concerned with the presentation side of entertainment, and it transpired that many executive officers were moved over into that field. I can accurately say that there was a most violent conflict, down a period of years, between the staffs association, a body registered with the Commonwealth Arbitration Commission, and the Australian Broadcasting Commission. It was so violent that it completely disrupted relations between the commission and its staff. They have been completely at loggerheads for years. The situation in the end reached the position where the commission and its staff were headed for disaster. There was complete rigidity on the part of the commission. It adopted a most uncompromising attitude. I do not ask the Senate to rely on my submission on that matter. In February, 1958, Mr. Birkett, the Assistant Public Service Arbitrator, took it upon himself to take a most unusual step - he so described it himself. I shall read only the first paragraph and for the reason that will appear later. Mr. Birkett said -
In opening this very important conference I think I should make what I believe to be some pertinent comments concerning the proceedings out of which the conference has arisen and as a result of my own personal observations. These comments are not for publication - they are strictly confidential and for the ears of the parties alone.
That is what was intended, but the confidential nature of that submission was preserved. The officers of the organization and staff members, feeling that they had reason to suspect that the comments of the Arbitrator would never reach the members of the commission, made sure that they did by sending copies to those members. That may have been a breach of form.
– I have an actual copy and I understand that it was one that was circulated. I want honorable senators to understand that I would never from my place in the Senate quote from a document that was confidential regardless of the use that I could make of it. But this document did not remain confidential. It ceased to be fully confidential at the instance of the Australian Broadcasting Commission itself. In June, 1958, the commission sent one of its representatives, a Mr. Duckmanton, who, at the moment is, I believe, its assistant general manager, to make a statement in relation to that confidential utterance of the Arbitrator in open conference, objecting to it and discussing it in considerable detail sometimes paragraph by paragraph. The report therefore ceased to be confidential insofar as the commission published any portion of it when objecting to what it contained. Again, it ceased to be confidential when the Arbitrator had comments to make upon that submission by the representative of the commission. Moreover, the association’s representative, in due course, adverted to it in proceedings that are recorded and are filed in this Parliament as official documents.
In case any one thinks that I am breaching a rule in quoting in this chamber a document that is confidential, I emphasize that I have taken care not to quote from any document anything that I fear might include something that has not been dealt with in open session. Although I could take a great deal of licence I do not propose to read from the document anything the author of which intended should be confidential. I shall advert to it only insofar as extracts from it have been dealt with in various proceedings. I want to be meticulous about this matter. The Arbitrator’s criticism ‘was given on the 6th February, 1958. On 4th June, the commission, through Mr. Duckmanton, submitted its statement asking that it be incorporated in the public record. Thai was done. It is obvious that the commission resented the strictures which came from the Arbitrator. The Arbitrator, in turn, had his comments to make upon that submission. A few of those comments I propose to place before the Senate. The view that I put to the Senate is that the Arbitrator has made it completely plain that relations between the members of the staff and the commission had been deteriorating seriously down the years until they were at the point of disaster for every one concerned. He pinpointed the rigid opposition of the commission to move from its stand.
When dealing with the Arbitrator’s criticism in February, 1958, the commission, in a public statement, apologized for the circumstances that had existed. It expressed regret for the fact that many members of its staff were compelled to work for unduly long periods, and it claimed that various matters, including legal opinion on the matters in dispute, had not come to its notice. The Arbitrator took that matter up on 29th September. I am now looking at the account of the proceedings given on page 1771 of the transcript of the proceedings. It opens with this statement -
Before proceeding with the outstanding matters, gentlemen, I have what I consider to be a most unenviable duty to perform, yet one which must in equity and justice be performed. It is, insofar as I am aware, a very rare occasion on which the presiding officer of this tribunal has to comment upon a statement made, by leave, during the proceedings relating, among other things, to what, of the very nature, are domestic affairs of a Commonwealth authority. The authority saw fit to seek leave and to make the statement in a public proceeding.
I emphasize the words, “ in a public proceeding “. The statement continues -
I refer to the statement made before me on behalf of the commission by Mr. T. S. Duckmanton on 4th June, 19S8, while acting as co-representative, with Mr. Cunningham, of the commission and the Postmaster-General.
At that time I was not as well informed of the circumstances dealt with in the statement as I have since become. It would, I feel, be entirely wrong of me in the light of my present knowledge to allow to pass unchallenged the whole of the contents of that statement, for I have exceedingly grave doubts concerning the consistency of some of them with the facts as I now know them.
He traversed the position thoroughly. From page 1772 of the transcript 1 quote one further brief extract. He said -
I suggest to the members of the commission that they will find among the official papers to which I have above referred staff matters of major importance, which appear, on the face of those papers, to have escaped submission for consideration by the commission. On the fact of those official papers it may quite well be, as so it does appear, that while in some, but not all, cases certain information had been placed before the commission, other and what appeared from my reading of the papers to bc important and relevant information had not.
There is one significant passage dealing with the suppression of information and the giving of information to the commission that I shall read. It is also on page 1772 of the transcript. It is as follows: -
It should be recorded that a submission and a recommendation that such a conference be held was made by the Chief Personnel Officer in 1956 (prior to the association’s application being filed in that year) and in that submission are set out his reasons.
I ask the Senate to recall that the personnel officer had made a recommendation that the commission should confer with the association -
That submission is among the official papers. The recommendation was disapproved at a level lower than that of the commission. Part of the material in the chief personnel officer’s submission appears to have reached the commission via a report by the general manager, after the association’s application was filed. That report does not include the chief personnel officer’s recommendation, and it is on that report that the very precise instructions of the commission to the chief personnel officer and other officers as to the attitude to be adopted by them to that application is recorded.
That is a very serious matter, a very serious allegation. I shall read the concluding paragraph of the Arbitrator’s statement. He said -
The official papers cover the period 1947 to 1958, and although incomplete in certain respects, are sufficiently indicative of circumstances wim which, having regard to that statement, I can only assume that the members of the commission were not fully informed. The alternative to that assumption is an extremely serious one which I do not propose at this stage to comment upon.
The alternative, of course, was that the commission had authorized its representative to lie about the matter. I mention this, strongly, to indicate that great issues are involved and that there is very bad feeling between the parties, the staff and the commission. As persons responsible for administration, we must be gravely concerned with that. One more development to which I should refer, before I come back to the regulation itself, is the proceedings held on 9th October, 1958, when a very extraordinary step was taken by the Assistant Arbitrator. In opening the proceeding!!, he expressed concern about sundry matters and, addressing Mr. Moses, the General Manager of the Australian Broadcasting Commission, who had been acting as the commission’s representative in putting its viewpoint before the Arbitrator, he took the extraordinary course of saying to somebody who was in the nature of counsel, “ I propose to serve you with a subpoena to appear as a witness at this stage “. Mr. Moses said that there was no need to serve him with a subpoena, that he would appear without it, but that he asked for an adjournment so that he could consider his position. Then the Arbitrator took him in hand and cross-examined him on matters of suppression of information that should have been available to the commission. He put him through the most gruelling crossexamination. Anybody may read it. There are many pages of it, commencing at page 1515. I merely take the Senate to the conclusion of the proceedings. The Arbitrator concluded with these questions, which will give an impression of what was in his mind. Addressing the Genera! Manager, he said -
You would admit that your reports and recommendations to the commission leave a very strong assumption that you did see them?
In other words, the General Manager’s veracity was put in issue. That was one of the issues in this matter. In justice to the General Manager, I must say that he replied -
Had those reports been drafted by me, then you could say that. The fact is that many involved technical matters, and I consider that legal recommendations are technical matters, have to go to the commission. I am not qualified as a lawyer and I assumed, quite frankly, that as we had so many legal people on the staff involved in the making of those recommendations that I was putting the best legal advice to the commission.
All I can hope to do in a brief period is to put before the Senate the broad effect that the reading of these documents has had upon my own mind. They are available, and one cannot pick up these transcripts without being gravely disturbed at what is going on. The association complains that the hearing of this plaint of the senior officers took place in the board room of the commission, and that the General Manager, their chief, acting as representative of the commission, was present, with the personal file of every officer who gave evidence in support of the staff’s application, and used the personal file of each man to cross-examine him and to demolish the value of his evidence. Again, nobody has to take my word as to that. Most stringent comments were made by Mr. Galvin, the Arbitrator, when in due course he made the awards.
There were two awards, one relating to the overtime matter and the other to the broad claim of the senior officers. This is a matter that runs to some 80 pages of very close type. The Senate will understand that I cannot attempt to give a clear picture of the effect of that, and of necessity I make a few selections or point to a few paragraphs. At page 101 the Arbitrator pointed out the enormous difficulties he encountered in the search for truth in this matter. He complained of the unnecessary delays caused by the introduction of irrelevant matter. At page 102, he stated -
The usage of the proceedings of this tribunal for the purpose of criticism by an advocate of the efficiency of the administration or of an officer or for the purpose of taking an officer of that service to task with respect to his efficiency in that capacity is deplored.
In order to keep the record straight in favour of the association, I mention that at page 101, after complaining about the obstruction, he immediately proceeded in these terms -
I state categorically that in the circumstances the evidence adduced from the witnesses for the association as it related to the claims before me seems on the testimony given by them under crossexamination and the evidence adduced from the witnesses for the respondents . . .
The respondents being the Australian Broadcasting Commission -
Time simply does not permit me to read any more extracts than this one from page 103 of the award, at which Mr. Galvin stated - 1 am also hopeful that I shall not in any future case be confronted with a situation similar to that in the present case, in which I am forced to disregard the will of the legislature as expressed in its statutory rules (the Australian Broadcasting Commission (Staff) Regulations) concerning the organization of the commission’s service and the allocation of duties, powers and obligations within that service. While the Parliament has seen fit to permit me to make determinations inconsistent with certain of the laws and regulations of the Commonwealth, I am unable to conclude that it intended me to disregard its will in relation to matters of organization of the service of an authority of the Commonwealth or the allocation of functions within that organization. On the advices I have received from the acting SolicitorGeneral and the respondents in these proceedings, I disregard the regulations on these matters with reluctance.
The Arbitrator then went on to provide, in page after page with the utmost particularity, for the senior officers of the commission. He dealt with their salary ranges and the whole of their conditions. All of these increases were settled as recently as April of this year when the award was made. They are now to be set aside by a regulation that abolishes every department and every office and leaves the matter at issue to be determined by the commission or the General Manager. In other words, here is an authority not only demanding, but being allowed to take, pursuant to this regulation, autonomy and power never contemplated by the law from 1947 until the present time - a period of some twelve years. That power is given to the commission by the terms of this simple-looking regulation which abolishes the departments, strikes out all classifications and leaves the disposal of the officers to the commission.
– How is the statutory authority for this action you have described?
– The purpose of this motion is to find out how it can be justified. I have not seen any justification for it. I am searching for that justification and I hope I will learn of it from the Minister.
– Is there a statutory authority for this action you have described?
– I follow the honorable senator’s point. The authority is Statutory Rule No. 80. It is made pursuant to the Broadcasting and Television Act under the regulation-making powers of that act. The Minister, of course, gives his approval to it. It is made by the GovernorGeneral in Council and has government sponsorship.
It is certainly to be assumed, from all practical considerations, that the amendments were proposed by the Australian Broadcasting Commission itself. I do not think they originated in the mind of the Minister. My fear is that the Minister does not understand what he has been made a party to. The making of this innocentlooking regulation vests complete power in the commission and in the General Manager over the allocation of duties. The mere publication of the regulation enables the commission to tear up an award which was made as recently as April and which took years to get, after the most extreme bitterness between the General Manager and some of those associated with him on the one side, and the senior officers on the other. If that is correct, it is deplorable.
Obviously the Parliament, when it originally set up this body, put a watchdog upon its activities. It determined, through its committee, the very shape and form of the commission and the type of officers who would govern it. All that is now to be wiped aside and complete power is to be put in the hands of the commission, the General Manager and other members. The staff is to be placed at the mercy of a person who subjected them to the most gruelling cross-examination, not on the conditions of their work, but on a personal basis. Perhaps I should not say this, but I have been told by the association that the men who gave evidence are being victimized, and the belief of the association is that each one of them is a marked man. This regulation leaves every one of them completely at the mercy of the General Manager who can move them from position to position and can raise or lower their classifications completely at will on recommendation to the commission only.
The one opportunity the Parliament has to do anything about this matter is for one of its members to move a motion of this type. I would say to the Senate that it should do something if only because of what has been described by a responsible arbitrator as the drift of disaster that has gone on for years. Let us leave out doubts as to the veracity of witnesses. Let us forget that matter altogether and just consider the discord that exists. The Arbitrator pointed to the utmost rigidity of the commission in its attitude to its staff. Here is a great public institution set up by this Parliament and charged with a most important social function in television and broadcasting, yet this is the state of affairs that exists between the commission and its executive officers on the one hand and the staff on the other hand.
– Why has not our
Regulations and Ordinances Committee brought this matter up?
– I would say that that committee is not involved to the slightest degree. It is concerned, amongst other things, only with whether there is power to make a regulation; it is not concerned with, propriety of a regulation. This is a matter of policy with which that committee is not in the least concerned.
– You are suggesting, I think, that the commission or the Minister has the power to take the arbitral function of the Public Service Commissioner in relation to the employees of the commission?
– Let me put my point quite clearly. This award was made in April of this year and it dealt with the classification of every officer. Now, by one stroke, this regulation empowers the General Manager to ignore completely those classifications and to start all over again.
– Not via the Public Service Commissioner?
– No. The Public Service Commissioner does not come into this field at all.
– He agrees with the action of the Australian Broadcasting Commission under this regulation.
– Not at all.
– He agrees with the regulation that the Australian Broadcasting Commission has drawn up and says that he would have drawn up the same thing if he had had the power to do so in the matter.
– In relation to these circumstances?
– I have no knowledge of that.
– You should be better informed.
– That has not come to my knowledge. I repeat that in a perusal of these proceedings there comes to the surface the evidence of the terrible disruption that has taken place in the commission, and it must have an effect upon the efficiency of the organization.
– Have there been many staff resignations during the last ten years?
– I have no information about that.
– You are completely uninformed.
– I have no information on that point. I have never made a particular study of the activities of the Australian Broadcasting Commission. 1 avail myself very little of the facilities extended by it in either radio or television services. I seem to have my time fully occupied. I have led in this debate primarily for the purpose of laying down the broad outline and initiating the fundamental principles. That is my main purpose. I am putting the position as I see it after my perusal of the document, and after reading the award. I put the case on that basis. I shall be followed in due course by Senator Amour, who at one time was the chairman of the Parliamentary Broadcasting Committee. I think there are only two members of the last committee still left in the Parliament - Senator Amour and Mr. George Bowden. They rendered wonderful service.
– I think Mr. Falkinder was a member.
– The seventh report of the committee, to which I have referred, lists the names of the members. They are Senator Amour - the Chairman - Mr. Jos. Francis, Senator Herbert Hayes. Senator R. H. Nash, Mr. George Bowden,
Mr. W. G. Bryson, Mr. C. Chambers, Mr. J. Allan Guy and Mr. David Watkins
I have based my discussion of this matter upon the broad principle involved, upon the history of it, and upon the dangerous effects that flow from putting too much power into the hands of the members of a statutory authority or the leading executives of the authority.
The regulations were tabled in the Parliament on 8th October, 1959. On 26th October, the press, radio and television committee of the Australian Labour Party invited Sir Richard Boyer, the Chairman of the Australian Broadcasting Commission, Mr. Moses, the General Manager, and Mr. Hamilton, the Controller of News, to come to the offices of the committee in order to discuss generally radio and television programmes and other matters affecting the commission. It is extraordinary that at that meeting no mention was made of the matters to which the Leader of the Opposition has referred to-day. In view of the fact that the regulations had been tabled some time before that meeting, one would have thought that if, as the Leader of the Opposition alleges, dissatisfaction was rife amongst the staff of the commission, the members of that Labour Party committee - Labour members of this Parliament - would have made complaints at the meeting either to the chairman of the commission, or to the other two officers present. The members of the committee made no representations on the matter at all. They did not even suggest that they would seek the disallowance of the regulations. Therefore, it appears that members of the Opposition have engineered this debate in order to raise matters that are not dealt with in the regulations. They have used the method of seeking the disallowance of the regulations only as a means of enabling them to refer to certain events that occurred some time ago. We have no assurance that what has been alleged by the Leader of the Opposition is accurate. I know that quite a different picture could be painted if we delved into all the records. I have given some of the facts on two or three occasions in reply to questions.
I do not think any honorable senator will contradict me when I say that the Australian Broadcasting Commission has done a wonderful job of work. It has established a reputation for fair dealing, not only in this country, but also throughout the eastern part of the world. It has made no distinction in this country between a political party that is in power and a party that is not. The commission has rendered a valuable service to the public, and it has set an example to the commercial broadcasting and television organizations by presenting good programmes and catering for people of all types. The activities of the commission have expanded over the years, and it is now by far the largest organization in this country engaged in radio and television broadcasting. The commission’s radio broadcasts are received, not only throughout Australia, but also, through the shortwave station, in the countries of the Far East. It has a tremendously large audience in those countries to the north of us which are of such great importance to the free world. I have made those remarks to fill in the background to the picture.
There is no doubt that the techniques and methods of transmission, as well as many other activities in the fields of television and radio, are changing almost daily. I am speaking now mainly of television, which is a new addition to the services provided by the Australian Broadcasting Commission. It seems to me that a huge organization such as the Australian Broadcasting Commission must keep itself up to date and in the front rank, instead of dragging behind the commercial stations. It has been found necessary to alter quite a number of the commission’s administrative details. As an indication of the change that has been made, I mention that the staff of the A.B.C. has been increased from 1,140 in 1947 to approximately 3,000 to-day. The commission has six symphony orchestras, two dance bands and two choruses. The ramifications of the commission are very great. I emphasize that the administration of the commission must be kept right up to date and be as flexible as possible. It is for that purpose that the statutory rules we are discussing, which amend and repeal some of the Australian Broadcasting Commission (Staff) Regulations, were promulgated. It is felt that better administrative facilities will be achieved by this means.
The need for some internal reorganization among the commission’s senior staff, arising largely from the introduction of television and the overall growth of the organization, was first discussed by the commission in 1957, but action was deferred until the General Manager, Mr. Moses, returned from an overseas visit, during which he was requested to examine the internal structure of overseas broadcasting and television organizations. The General Manager’s involvement, for more than five months, in the A. B.C. . Senior Officers’ Association claim before the Public Service Arbitrator in 1958 further delayed a consideration of this matter. The Leader of the Opposition referred to this claim during his speech. However, in June, 1959, after the matter had been discussed at several meetings, the commission decided to adopt a new organizational structure. At that time, Mr. President, I should say that that was very necessary.
The commission had in mind these two main objectives: The creation of an organizational structure which could cope with the requirements of a service which had grown considerably since the introduction of television, and which seemed likely to expand further in the future; and the provision of relief for the General Manager, whose work has increased considerably in volume in recent years, by implementing a much greater measure of delegation of responsibility. As to the first objective, I point out that television facilities in this country are expanding rapidly, and it is necessary for the commission to keep abreast of the expansion. As honorable senators know, at present the Australian Broadcasting Control Board is hearing applications in Melbourne for television stations licences in Canberra.
An effect of the statutory rules will be to free the General Manager of a certain amount of work, which will in future be performed by other senior officers of the A.B.C. under delegation.
Although variations arise from special circumstances, most large organizations now adopt an organizational structure based on the principle that the chief executive should have a line of senior assistants, each of whom is responsible to him for a major activity or group of activities. This is being done in all large organizations of any note at the present time. Frequently, these senior assistants are not all of equal status, since the activities they control are of varying degrees of importance within the organization. Organizational structures of this type are to be found among the Commonwealth departments. For example, the Director-General of Civil Aviation has six immediate assistants, four being AssistantDirectors General, one the Director of Civil Aviation, and one the head of the department’s public relations activities. An organizational structure of this kind is to be found also in the Department of the Treasury and in the Department of External Affairs. The Canadian Broadcasting Corporation, which is an organization very similar to the A.B.C, has seven officers working directly under the chief executive - the president; four of them are vicepresidents and three are divisional general managers.
The A.B.C. has decided to adopt an arrangement whereby the General Manager will, in future, have the immediate assistance of seven senior officers - this is provided for by new regulation 10 - each of whom will be responsible to him for a specific group of the commission’s activities, and to whom a substantial degree of responsibility for the daily operation of the radio and television services has been delegated. These seven senior officers are - Assistant General Manager (General); Assistant General Manager (Programmes); Assistant General Manager (Administration); Controller, Finance; Controller, News Services; Controller, Technical Services; and Director, Publicity. It has been found necessary to alter the departments and duties specified in the old regulations which were made about four years ago. Things have changed so much in the field of administration since 19SS that it has been found necessary to replace the groups set out in the old regulations, which include music, news, and that kind of thing with the new designations I have mentioned. With the introduction of television, it became necessary for the commission to establish an engineering section, which has now grown into a very large department of the commission. As honorable senators will appreciate, it is necessary for this branch of the commission’s activities to function with a high degree of efficiency.
The former position of Assistant General Manager, to which specific responsibilities have now been attached, has now been re-designated Assistant (General) Manager; the former positions of Controller of Programmes and Controller of Administration are now re-designated Assistant General Managers; and the heads of the news, technical services, and finance sections have been designated Controllers, these activities having been established as separate divisions. The head of the commission’s publicity activities, which also cover publications and public concerts, has been designated Director. This re-organization of senior staff was foreshadowed by the general manager when he acted as the commission’s advocate in the Australian Broadcasting Commission Senior Officers Association’s arbitration proceedings in 1958. There are good reasons why Mr. Moses acted as the commission’s advocate at that time. He considered that it was necessary for him to do so because of his knowledge of the whole of the broadcasting and television activities of the commission. He is one of the few men with such wide knowledge, and he placed this knowledge before the Arbitrator.
As I have said, the regulations have been introduced in order to streamline and to make more flexible the functions of the commission. It has been said that the regulations bestow absolute power on the General Manager. I point out that the General Manager is only a component of the commission. There is a board, with a chairman, and it is that board, not the General Manager, which is responsible for the overall functions of the commission. I point out, also, that far more latitude is given under the act to the various officers than honorable senators opposite seem to think is the case. All the officers of the commission have the opportunity to appeal to an appeals board. Sections 49 and 50 provide full scope for appeals, on the same basis as public servants may appeal. Similarly, with promotion. Employees of the commission may appeal against promotions, just as public servants may appeal. Therefore, the Leader of the Opposition did not state the position correctly when he said that employees of the commission were wholly subject to the direction of the General Manager, who could make them or break them, as he liked. That is entirely wrong. I assume that sections 49 and 50 were based on similar sections in the Public Service Act.
For some time past, the commission has been aware of the need to revise certain sections of the staff regulations which were originally promulgated some twelve years ago. This need for revision has arisen largely from the introduction of television and the greater diversification of the commission’s activities in recent years. Flexibility in the commission’s organizational structure is essential if the commission is to discharge effectively its functions under the Broadcasting and Television Act. Amendments of the regulations have been made wifi a view to bringing about such flexibility, without in any way reducing the statutory rights of the commission’s officers.
During the hearing of a log of claims for increased salaries by the Australian Broadcasting Commission Senior Officers Association in 1958, the assistant to the Public Service Arbitrator drew the commission’s attention to the fact that the allocation of duties and responsibilities as between certain officers, which had been accepted for several years, was inconsistent with the provisions of the staff retaliations. Tt had been decided, for example, that the then Assistant Controller of Programmes should have a special responsibility for television programmes in the early stages of the commission’s television service and that, because of the importance of this work, he should be responsible directly to the General Manager. This very reasonable administrative arrangement was not strictly in accordance with the terms of the staff regulations, and the General Manager, whilst acting as the commission’s advocate, therefore gave an undertaking to the
Arbitrator during the course of the hearing that he would seek to have appropriate amendments made to the staff regulations. This has been done, without, as has been previously stated, affecting in any way the statutory rights of the commission’s officers. I suggest that the commission would not so act if it were not sure that that was the proper way to act. lt should be emphasized that the amendments were discussed by the General Manager with the executive of the Australian Broadcasting Commission Senior Officers Association before they were put into effect, and were accepted by the executive without any reservations whatever. On 15th December, 1958, during the arbitration proceedings, Mr. Moses stated -
I have discussed with the Senior Officers Association the commission’s proposal regarding the alterations to the regulations and I am pleased lo be able to inform you that they have expressed their agreement with these proposals. In other discussions regarding these amendments I was able to assure the association’s representatives that no significant change in the duties, responsibilities and status of any senior officer will be made, cither by an interpretation of the Australian Broadcasting Commission staff regulations, or by any operational instruction or directive, or by any other means, without prior consultation with the Australian Broadcasting Commission Senior Officers Association. I have also discussed this mattei with our chairman who has indicated to me that it would be appropriate for me to give such an undertaking.
That is an extract from the arbitration proceedings. It is on record, and those who wish to see it may do so.
For many years past the General Manager has had only one immediate assistant, the Assistant General Manager but, with the growth of the service, an increasing number of departmental and section heads have been working directly to the General Manager’s office. In 19S8, the number was 14, not including five State managers. The heads of the Programme and Administrative Division were among the officers working directly to the General Manager and were designated “ Controllers “. The News Department worked under the control of the Editor-in-Chief through the Assistant General Manager to the General Manager, as did the Publicity and Publications Department but, on all important matters, the heads of the News, Publicity and Publications Departments saw the General Manager. The Finance Department, and the newly-formed Engineering Department, worked directly to the General Manager. Other departments and sections working to the General Manager included those concerned with Concerts, Buildings, the Organization and Methods. All three A.B.C. offices overseas dealt directly with the General Manager, whilst the heads of all the specialist Programme Departments had direct access to the General Manager on matters of programme policy.
I am sure honorable senators agree that it would be expecting too much to expect the General Manager to be able to exercise close supervision over the work of all the departments and sections of the commission. The work is to be shared by senior officers who will now be responsible for the work of the various sections and departments. This is the practice followed in the Public Service. It makes for more flexible and better administration. All that the proposed amendments seek to do is to enable the commission to move with the times instead of persisting with what was modern only up till 1947.
Tremendous advances have been made in both television and broadcasting in the last ten or twelve years. The commission is endeavouring to bring the whole of its administration and services up to date, for it realizes that it must compete with the television and broadcasting programmes prepared by private enterprise. It should be our desire to give the lead in these fields, but we cannot hope to do that unless we have sound and flexible administration. I repeat: All that these proposals seek to do is to confirm a power which the commission has already under the act. They are designed with a view to giving better service and promoting more amicable working relations amongst the employees. With a number sharing the load, those who are given responsibility will have the opportunity to prove their worth. We believe that in this way a better feeling between the executive officers and the staff working under them will be promoted. I ask the
Senate to agree to the proposed new regulations because the Government believes they are necessary.
– First, let me congratulate the Leader of the Opposition (Senator McKenna) upon the manner in which he put the case for the staff of the Australian Broadcasting Commission. The Minister for Repatriation (Senator Sir Walter Cooper), who has put the case for the PostmasterGeneral (Mr. Davidson), sought to convey that the Leader of the Opposition must have known that the committee of the Australian Labour Party which deals with control of propaganda by the press, radio and television, did see Sir Richard Boyer, Mr. Hamilton and Mr. Moses in order to discuss these matters. I tell the Senate that I gave to the Minister the file from which the Leader of the Opposition quoted and he kept it for three days. I asked him to see the Attorney-General (Sir Garfield Barwick) and the PostmasterGeneral and discuss the contents of that file with them. Whether he did so, I am not in a position to say.
For over twenty years, I have served in the Senate to the best of my ability and according to my conscience. This is an occasion when I rise to speak on a grave matter which concerns basic principles of honesty and justice. Unless I have badly misjudged some of my friends opposite, I am confident that when I have concluded my remarks they will at least join me privately more in sorrow than in anger at the thought that an instrumentality from which both sides of the Senate are entitled to expect honesty, can be shown to all but the most biased to have let us down miserably. I regret having to name that instrumentality. I refer to the Australian Broadcasting Commission.
My right and my qualifications to speak about the Australian Broadcasting Commission are well founded, being based on eighteen years’ experience connected with the operations of the commission. That experience started with my membership of the Parliamentary Broadcasting Committee - known as the Gibson Committee - in 1941 and continued, through my chairmanship of the committee, for five years. During that time I obtained a very keen understanding of the administration and manage ment of the Australian Broadcasting Commission. During that time also I have made a close study of broadcasting and television in Great Britain and the United States of America.
I am one of several who, to the present day, have maintained close contact with the Australian Broadcasting Commission, not only as listeners and viewers, but also as keen and often disgusted observers of its management and administrative activities which, under an act of this Parliament, should have been conducted in conformity with the spirit and letter of the seventh report to Parliament of the Broadcasting Committee. That report was the basis on which the Australian Broadcasting Commission (Staff) Regulations were framed.
The mistake which the Australian Broadcasting Commission has made and still persists in making is its refusal to accept the fact that it is subject to the Parliament of this country, especially insofar as its administrative principles and practices are concerned. This attitude was reported to the Parliament on page 4 of the committee’s seventh report, but the position is even worse to-day. It has become imperative for the managers of the Australian Broadcasting Commission to be completely at liberty to snap their fingers at the Parliament and observe or ignore regulations or sections as it suits them, because at last the long-suffering staff of the commission and the Public Service Arbitrator have refused to tolerate any longer the flagrant abuse of their powers by members of the commission. The Arbitrator who is, without question, independent and impartial, has pointed out instances of grave mismanagement and gross dishonesty on the part of the administration. Determinations of the Arbitrator, which have been tabled in this Parliament for our information reveal a scandalous state of affairs in the administration of the commission. That body wants a blank cheque from the Parliament to do as it likes administratively. As reported in “ Hansard “ of 24th October, 1957, at pages 1726 and 1727, the Deputy Leader of the Opposition in the House of Representatives, Mr. Calwell, said, “ I think there is a scandal attached to the administration of the Australian Broadcasting Commission “. He went on to refer to “ the sickening and ‘ slimy ways of its general manager, Mr. Moses “. The independent opinion of the Arbitrator confirms that of Mr. Calwell when he expressed that view in 1957.
It is a pity that the commission chose to ignore the criticism of the honorable member for Eden-Monaro, Mr. Allan Fraser, and his suggestion that the ventilation of instances of industrial dishonesty and injustices should encourage the commission to improve its management and administration. The remarks of the honorable member for Eden-Monaro are recorded in “ Hansard “of 11th September, 1958, at page 1186. The trouble is, of course, that the commission boasts that it can ignore the Parliament and its warnings, particularly when its chairman has become accustomed to relying confidently on his friends to provide alibis, and defend him. I am not alone in my belief that if Sir Richard Boyer has not strained certain personal friendships to the point of political embarrassment this Government has no conscience, and is simply dishonest.
The present crisis has come to a head, first, because Mr. Duckmanton, the young sporting announcer Sir Richard Boyer had chosen to replace Mr. Moses as soon as that became decently possible, has now been shown by the Arbitrator to possess the same dishonest and unscrupulous streak which has been, and still is, so characteristic of Mr. Moses and his administration. The twig has been bent, and Mr. Duckmanton is the prize pupil of Mr. Moses. Sir Richard Boyer, of course, would be quite prepared to overlook this characteristic in return for Mr. Duckmanton’s personal loyalty. However, this man has been exposed by the Arbitrator, as is clear from a study of the transcript of 29th September, 1958, at pages 1771 to 1774, where it is shown that, while having access to certain files of the commission, he, contrary to the facts disclosed therein, read a statement to the Arbitrator on 4th June, 1958, which had been endorsed by the commission and which he passed off as a complete representation of facts justifying actions by the commission and Mr. Moses. He would probably have got away with that but for the fact that some weeks later Mr. Moses, while bullying and abusing one of his senior officers in another case before the Arbitrator, exhausted the Arbitrator’s patience, with the result that the Arbitrator finally demanded that certain files to which Mr. Moses was referring should be handed to him. The transcript also reveals that Mr. Moses refused the Arbitrator’s requests for those files until finally he was forced to hand them over. A perusal of the files showed the Arbitrator why Mr. Moses had refused to hand them over. They disclosed that the statement of Mr. Duckmanton on 4th June, 1958, was a fabrication and a deliberate act of administrative dishonesty calculated to defraud and mislead. Any Commonwealth public servant would be disciplined, and perhaps sacked, for such dishonesty, but in the Australian Broadcasting Commission Sir Richard Boyer promotes him to be assistant general manager in charge of all administration, and virtually general manager of the organization. If this is the kind of individual who is given power over the staff of the commission, it is no wonder that, with Mr. Duckmanton and Mr. Moses occupying the positions they do, the staff is distrustful, apprehensive and fearful concerning their future. I have no doubt that if honorable senators will read the serious criticisms of the Arbitrator in the transcript to which reference has been made, they will agree that there is indeed a scandal in the administration of the commission, particularly when read in conjunction with the caustic criticism of Mr. Moses recorded on page 102 of Determination No. 11 of 1959 and the Arbitrator’s cross-examination of Mr. Moses, as recorded on pages 1514 to 1533 of the transcript for 9th October, 1958.
I appeal to the Senate to take notice of what I have said, because it is the truth as I know it. I say to the Senate that all the people who work with the Australian Broadcasting Commission and who fully believed that some day they would have control of a division of its activities are now left without any hope, because, under the legislation that this Parliament is asked to pass, Mr. Moses can bring in to the commission from outside the service any person he chooses, place him in any position, and leave him there. After a while he can increase that person’s salary, and later, when some one else moves out, he can place that person in the vacant position without advertising the vacancy. We have had one instance of that being done, and we do not go beyond it for an example. Honorable senators may remember the employment of Mr. Buttrose as a publicity officer who destroyed the “ A. B.C. Weekly “ and, later, introduced the “ T.V. Times”. His commencing salary was £2,000 a year, recently it was increased to £2,500. Under his management the commission is spending many thousands of pounds of public money in advertising the “ T.V. Times “ and commercial television. That is one instance showing what can be done. The Senate should know why the Australian Broadcasting Commission requires the services of a publicity officer at £2,500 a year, when it already has at its disposal all necessary means of obtaining the publicity it needs. According to the Minister, the staff of the commission numbers over 3,000. All of those good folk have done a good job. lt is they - not the commission, the General Manager, or the senior officers - who have built up the Australian Broadcasting Commission. The loyal work of that staff has made the commission most valuable on the broadcasting side.
– I take part in this debate briefly, but for a specific reason. I start by congratulating the Leader of the Opposition (Senator McKenna) upon adopting an attitude that we have been accustomed to expect from him in the debates of this chamber. He made a completely clean and factual speech. My only regret is that he was not properly briefed. He had the case for, but he had not been told anything of the case against, the proposition that he, on behalf of the Labour caucus, put to the Senate.
What is the reason for this motion to cancel these regulations? It must be one of three - first, to improve the Australian Broadcasting Commission set-up; secondly, to restrain the powers that be in the commission and to take authority away from them; or, thirdly, to belittle the commission. Surely it cannot be Australian Labour Party policy to belittle the commission. If Labour were in power, there would be only one socialized broadcasting and television service in the Commonwealth. So Labour cannot want to close down the A.B.C. It cannot want the commission to be brought into public disrepute. In accordance with its socialist approach, it praises the commission and the Australian National Airlines Commission, which conducts TransAustralia Airlines.
So what is the purpose of this campaign? If honorable senators will hark back over the years they will find that there has been a campaign by a small but vocal and influential section of the Australian Labour Party against the heads of the A.B.C. I had noticed in some of the leaders of the Australian Labour Party a personal, vindictive dislike for the General Manager of the commission, so I started to make inquiries. I heard a few rumours as to the reason why this campaign was under way. It was a campaign against people who had little chance to reply, because Parliament can be used as a coward’s castle. Having heard sufficient to interest me, and believing it to be my public duty to find the truth, I went to Sydney and, by appointment, met the General Manager of the commission, Mr. Moses. I told him all I had heard and what I feared as to the damage- that might be done to the commission as a broadcasting organization and to the excellent men who controlled it. I said: “ You may tell me nothing, if that is what you want to do, or you may answer my questions and tell me what is untrue. You are a busy man. You may put me in contact with a senior member of your staff whom you authorize, in my presence, to give me answers to my questions.” So I got the factual, official story which, as the Minister pointed out, was available to the Australian Labour Party if it wanted to know that story. But the vocal section of that party, comprising persons who were plotting and alleging things against the commission, did not want to know the truth and did not want any one else to know the truth.
By way of interjection to the Leader of the Opposition - I want to make this clear - I asked whether, in the files from which he was quoting, there was a photostat. In no way did I wish to imply that in my opinion the Leader of the Opposition would quote from a document from which he should not quote. But I do believe that the Leader of the Opposition, in good faith on his part, could be put in possession of a document and not be told that the document was stolen. I do not say that he has such a document, but I believe that papers are getting about that were stolen, or of which photostat copies were made, from the files of the A.B.C. Only half the story has been told.
The Senate will have noticed that in the two speeches that have been made from the opposite side, very little was said about changes in regulations. The speakers merely implied that there had been wrongdoing by senior officers of the commission. Let us look at the facts. The A.B.C. has gone through two periods of rapid growth, the first after the Second World War, and the second in more recent years with the advent of television. There was on each occasion a very great expansion. The commission had to grow. Any governmental or business organization that has such a rapid growth must have growing pains, and only a fool would deny that there were growing pains within the commission. We are told that there was dissatisfaction between the commission and the staff, and between the senior officers and the junior officers, and we were led to believe that a cessation of the commission’s activities was almost possible because of the dissatisfaction.
What are the facts? I understand that the turnover in the staff of the commission in the last ten years - including female members who left because of marriage - has been one-half of one-half per cent. 1 doubt whether any organization of comparable size in Australia has had such a small turnover of staff in ten years. That shows that there is not much depth, foundation, or sincerity in the charge that the commission’s staff is dissatisfied or that the commission is dealing in any way unfairly with the members of the staff.
It is a fact that the staff association is not happy now. That is why this motion is before the Senate and why a similar proposal has been put in another place. A few knockers have been knocking, and they have been listened to. The Leader of the Opposition in the Senate and, to be fair, the Leader of the Government, too, know that in all political parties and big organizations there are always knockers. They are the few vocal, dangerous personalities in any show, whether it be political, governmental, or a section of private enterprise. Their knocking has found fertile ground in members of the
Australian Labour Party. I believe it has been admitted openly and is recorded in “ Hansard “ that the Deputy Leader of the Opposition in another place has a personal dislike of the General Manager of the Australian Broadcasting Commission who, I believe, would have been sacked if a Labour Government had been in office long enough for the vindictive vendetta to take effect. What are the facts? This man, who is chided with being an Englishman, was General Manager of the commission in 1935, when I was employed by it, and he has held that post ever since. But he was not occupying his office at a time when Labour could have got at him; he was overseas fighting for Australia. Yet he is chided with being an Englishman! In all my parliamentary experience, I have never known anything lower than the attempts that have been made to besmirch this man.
I believe that the Australian Broadcasting Commission, being a Government entity and spending a lot of the taxpayers’ money, should be criticized in the Senate when criticism is merited, but as members of the Parliament we all have a public duty to perform in respect of the commission, including the members of it and all the staff from the senior officers down to the lowliest message boy, because this great vehicle of entertainment and education is owned and controlled by the Government. It always meets with great competition from private enterprise in television and broadcasting. The more the Labour Party or this Parliament does to belittle the Australian Broadcasting Commission - to stir up strife within it - the more harm it does to the commission in the public mind. That does a disservice to the people of Australia.
I think that the commission is under a handicap. The Australian National Airlines Commission has not this worry of having to submit its regulations to the Parliament, as is the case with the Australian Broadcasting Commission. I do not say that the Australian Broadcasting Commission should be free of this responsibility, but I do not think that the framing of new regulations should be used as a reason for the public airing of a private vendetta of a small section of people. But as to the regulations, it is pretty obvious that they are necessary.
As honorable senators know, the Public Service Board has no power over the regulations of the commission; but those regulations which we are being asked to disallow were placed before the board. 1 believe I am correct in saying that the board said, in effect, “Well, knowing your set-up, if we did have power to make regulations, those are the regulations we would have made for you to work under “. In other words I believe the Public Service Board is fully in favour with the maintenance of these regulations, because allowance has to be made for the expansion of the commission, and the appropriate chain of authority has to be provided from the commission, through the General Manager, down through the varying divisions. I believe we would be doing a shocking thing in this Senate if we were to disallow the regulations that have been framed for the good of the Australian Broadcasting Commission, and for its efficient working. I ask the Senate firmly to reject the motion that the Leader of the Opposition has placed before it.
– I desire to put one fact on record. The Labour Party did not manufacture this case, as has been suggested by Senator Marriott. Nor did it steal any document; I do not think he suggested that it did. Nor did the Labour Party manufacture the documents. The case that has been presented by the Labour Party was stated to it, not by a disgruntled group of people, but by the representatives of the organization.
The Labour Party in this matter was approached by the union through its officials. Members of the party met those officials in conference and heard the case that they presented on the documents, and that is why the motion has been submitted. I repeat that we have not manufactured this case, nor did we have any cheap reason for attacking Mr. Moses or anybody else. Our case has been put in the interests of the employees who suffer the usual disabilities that employees suffer in these public service organizations, once-removed, if I can use that term. These employees do not have the protection of the Public Service Board - the major body - and they usually work in very close contact with their employer, who virtually becomes the man who fixes their wage rates. That state of affairs car* create great difficulties for an employeeIt has possibly created difficulties for employees in the Senate who work in such close association with their employers. As was mentioned last night they work overtime that they probably should not be working, and would not be working if they were employed by an outside employer. That is one of the great difficulties with these secondary public service bodies. I experienced this kind of difficulty in the Joint Coal Board, not personally, but in union relationships, and I know that all these boards experience the same trouble. If somebody wants to get ahead, well, he gets close to the manager. If he is not doing too well and he takes a stand against things he is said to be one of a disgruntled minority.
– Or a Communist.
– They do not go that far in the Australian Broadcasting Commission. The fact is that the staff of the commission has been very unhappy for a long time, and the union has taken the matter up with the Labour Party. After all, it is the duty of the Labour Party to do what it can. I assure Senator Marriott that there is no personal reason why the Labour Party wants to get at the Australian Broadcasting Commission or Mr. Moses. It is complying with the request of the union and its representatives. That is what this motion amounts to, and nothing more!
– in reply - I wish to reply very briefly to the debate. I express my disappointment with the answer received from the Minister for Repatriation (Senator Sir Walter Cooper). The case that I put up was based on official documents that are available to everybody. Nothing could be stronger than the comments that the Public Service Arbitrator made during the hearing and in the course of his award. He took the unprecedented step of setting down the steps and pointing to the obstructions and difficulties that he encountered.
I missed hearing some of the Minister’s speech, unfortunately and unavoidably, and I apologize for that. Subject to what might have been said in my temporary absence, the case made by the arbitrator has not been answered by- anybody on the Government side, including the Minister. This is not a case of the Opposition putting up an argument on behalf of the association. The whole case I put was documented and based upon decisions of arbitrators. That case has not been answered because, in fact, it is incontrovertible. If we, as a Parliament, are prepared to wash our hands of the responsibility for the organization and administrative set-up of the Australian Broadcasting Commission - a body of vast importance - then we must be prepared to accept the charge of irresponsibility, because in fact that is what we will be doing. We will be avoiding the great responsibility that rests upon us in relation to this statutory body if we allow it to please itself as to its administrative set-up and to do what it likes in relation to its staff. As a matter of fact, apart from anything said by the arbitrator, and apart from anything that has happened, I put the case on the parliamentary principle that we have that responsibility.
The Minister indicated that the General Manager of the commission had presented a demand for the new set-up. The association has never argued that, in view of the advent of television, it was not necessary to create more departments - engineering sections, finance sections and the rest. The complaint that I make from my place here on behalf of the Opposition is that if these details are known, let them be enshrined in regulations and not be at the whim of the commission or the General Manager. I think that the Parliament will be unfair to the staff if it throws it entirely on to the mercy, as regards the placing and moving of the members, of the commission and the General Manager. We have a responsibility to exercise oversight in that matter.
I make one comment only in reference to the suggestion that one of the documents - from which incidentally I did not quote except to read the introduction - might have been stolen. The suggestion was repudiated by Senator Ormonde. I say from this place that the first I heard of that suggestion, as honorable senators will realize, was in this chamber. I was told, before basing any case upon them, that the documents from which I have quoted had been in the hands of the Postmaster-General for days. I am not aware that the Postmaster-General made any complaint to this effect, and I should be amazed if the suggestion that has been made has any foundation. The contents of the document were in public issue, the Arbitrator replying to them, the association replying to them and the commission initiating discussion of them.
I find, having listened to the debates, that the case presented on behalf of the Opposition has been inadequately answered. However, we on this side have discharged our responsibility as parliamentarians by putting this matter on the tapis and leaving it to the good judgment of the Senate.
Question put -
That the motion (vide page 1882) be agreed to.
The Senate divided. (The President - Senator the Hon. Sir Alister McMullin.)
Majority . . 7
Question so resolved in the negative.
Senator Sir NEIL O’SULLIVAN.Honorable senators will recall that the Constitutional Review Committee tabled a report in October, 1958, containing recommendations for constitutional alterations on a wide range of subjects. Because of insufficient time, the committee was unable then to set. out in detail the reasons for its recommendations. This year, the committee was reconstituted for the purpose of preparing a full report in support of the recommendations it made last year. I now table the committee’s full report, which I commend to the earnest consideration of honorable senators.
Ordered to be printed.
Motion (by Senator Sir Neil O’Sullivan) - by leave - agreed to -
Debate resumed from 25th November (vide page 1852), on motion by Senator Gorton -
That the bill be now read a second time.
Upon which Senator McManus had moved by way of amendment -
Leave out all words after “ That “, insert “ the bill be referred to a select committee of the Senate “.
– In the platform of the Australian Labour Party we have a plank, “ Uniformity of marriage and divorce laws”. On that matter, we on this side of the chamber are a solid body, but we are undoubtedly at variance on the Matrimonial Causes Bill. It has been decided that each member of the Parliament shall speak as he thinks and vote as he pleases on this bill. Many of the members of our party have very strong views on divorce. We acknowledge that, and we say that they have a perfect right to hold those strong views, but we say also that they should acknowledge that other people have the right to hold other views. When a person opposes something on religious grounds, it is sometimes difficult to combat his arguments. As we know, religion takes various forms in this country and in other parts of the world. Men, by their upbringing, and possibly by the condition of their mind, have a certain viewpoint.I was not surprised when I heard our friend from Queensland, Senator Sir Neil O’Sullivan, say -
I consider that divorce is not only a great social evil, but also a violation of the Divine Law.
He also said -
I, for one, was not surprised to hear that Senator Sir Neil O’Sullivan holds those views, and I believe that our friend on my left, Senator McManus, as well as other honorable senators hold similar views sincerely. However, I should like to say, in passing, that there are people in the community - many thousands, perhaps millions - who do not hold those views, but they are just as sincere as the honorable senators I have mentioned.
I should like to point out firmly, without malice, that church leaders do not hold a monopoly in relation to morality. One of the finest men who ever came into this Senate was a Queensland senator, an agnostic, whose private life was beyond question, and who was basically a most religious man. Sometimes one feels hurt when men such as he are sneered at by people who conform to certain religious practices. Every one is entitled to his view on a particular religion; he has a right to his view and we respect that right. I, therefore, appeal to those who hold certain views to respect the right of others to their views.
As I said last night, this debate has been conducted by those who hold intense religious beliefs, those who hold no religious beliefs in particular, those who are for the bill, and those who are against the bill on various grounds, without acrimony or bitterness. I understand that when the measure was before another place, once or twice some members got a bit heated. Generally speaking, this debate has been a good one - it has been conducted on the highest level.
Yesterday, when in accordance with the request of our Whip I held the floor for a few moments because a number of members of the Opposition were absent, I fell foul of our friend from Tasmania, Senator Marriott. I do not know whether that was because we had been enjoying the pleasures of the palate too much. I made a certain statement and immediately I was attacked by Senator Sir Neil O’Sullivan and Senator Tangney, so I withdrew it. I had been told that a certain cleric had made a certain
Statement. I told the Senate about this and immediately the honorable senators I have mentioned stated that it was not true - that the bishop did not make such a statement. This morning, I spoke to the gentleman who had told me about it and he said, “ I will give you the cutting from the newspaper “. He is a member of the House of Representatives. One of my colleagues who was present at the time also said that he had a cutting on the matter that he would give to me. I now hold that cutting in my hand and I shall read it in fairness to myself. I do not want to exacerbate the position in any way in relation to religious viewpoints. 1 am not attacking anybody’s religious viewpoint. But I do say deliberately that some clergymen bordered on impudence when they made certain statements. What I attributed to a bishop was reported in the press. Of course, I know that the Minister for the Navy (Senator Gorton) told me the other day that I should not believe everything I read in the press. But the fact remains that this statement appeared in two newspapers - the Melbourne “ Sun News Pictorial “ and another which, from the look of the print, was the “ Sydney Morning Herald “. The report in the Melbourne paper reads -
Bishop Fox, auxiliary to Archbishop Mannix, said on Saturday that those members of the House of Representatives who had voted for the divorce bill had forfeited all right to be called Christians.
There was a similar statement - almost word for word - in the other newspaper. I know that gentleman of the Church get very excited on these matters and sometimes they breach the divine injunction “ Judge not lest ye be judged “. They say things that ordinarily they would not say. f suppose that if one spoke to Bishop Fox about the matter he would apologize, almost, for making that statement.
I look at it this way: I am an ordinary layman. I hold no particular place, shall I say, in any particular Church. I say this - and I say it definitely - that as far as I can see the men who are supporting this bill are highly moral men who are desirous of doing their best for the community. Even though they are in a different political camp from myself, I would be the last person in the world to say that they are not Christians because they do not agree with me.
I believe that there is a need for tolerance in this matter and I say to honorable senators on both sides of the chamber that I support this measure because I believe that the greatest good will come from it and I think that many people will continue to suffer if the bill does not become law. Let us all be fair and tolerant in this matter. 1 cannot agree with the remarks that have been made by Senator Sir Neil O’sullivan, who is not in my court in dealing with this question of divorce. We must acknowledge that divorce is here and that it is essential. We should, as far as it is possible to do so, improve our social relationships in order to reduce the number of cases that come before the divorce court.
I am one of those who agree with Senator Cameron’s contention that one of the major reasons for divorce and upsets of marital relationships to-day is an economic reason. The world is going through a period of rapid development. As all people who have studied history know, both economics and society go through periods of development. After the feudal and chattel slavery period there came the advent of manufacturing, followed by financial capitalism. T believe that as surely as night follows day. in time financial capitalism will be replaced by some other system. Wherever we look throughout the world there is an upsurge because of this development, and it is becoming more widespread and confused. Youth of to-day is questioning the views that were held in medieval times. We have to understand that. I do not say that all divorce is due to economic reasons, but I am sure that every member of this Parliament has had the experience of people whohave been forced to live with people whodo not really want them in the house, calling on him or her to inquire about obtaining individual housing. Often this, state of affairs leads to trouble, marital unhappiness and, ultimately, divorce.
I was very interested to hear the remarks that were made by Senator McManus. Although he is opposed to us, he is a man who stands firmly on his feet and I believethat he feels that he has presented a very clear case. However, I do not agree with his arguments. Both Senator McManusand Senator Cole are against divorce on principle. Senator McManus stated that” one of the reasons for divorce was a physical one. That is true. We need greater knowledge in regard to the marital relationship than we have to-day. Some years ago, I read the works of Havelock Ellis, one of the greatest sexologists the world has ever known. He wrote six volumes on the psychology of sex. They are very interesting works, as Senator Dittmer will know. Ellis pointed out that there was a difference, ranging from 100 degrees to zero, in the matter of sex. Otto Weininger, a German of great ability, who unfortunately committed suicide before he was 40, had a knowledge that was most profound. He endorsed Havelock Ellis’ views. I remember reading of Weininger that his knowledge was so great that when, at college, he took photographs of girls and asked his friends to pick out and mark the ones they liked, almost invariably the ones they picked were the ones he had marked. He was a master of sex sciences, and he had studied sex. He supported Havelock Ellis in many of his views
In this matter of divorce, we have to get away from sentiment and teach our young people about sex, as we are to-day. So far as I can see, there is greater knowledge of sex to-day than ever before in the history of man. We have to teach these things before marriage, so that men and women will understand them. The marriage guidance councils which this bill proposes to foster undoubtedly will do splendid work. If we train our young people in the art of love, of which Havelock Ellis spoke in a very interesting chapter in one of his books, we shall be doing a lot of good instead of merely mouthing sentimentalities about this or that.
I want to pay a tribute to one or two honorable senators who have spoken on this bill. Last night, I listened with great interest to my colleague and fellow worker on this side, Senator Willesee, who put up a very good case for those opposed to the bill. I did not agree with what he said, but he is a clear speaker and put his case very well indeed. I also want to pay a tribute to our good friend, Senator Laught. I think that he put a good case and that it was to the point. I am sure that it was a far better case than I could put, because I get into generalities, whereas he got down to details. I particularly liked Senator Vincent’s contribution.
If I were addressing the multitude outside, perhaps I would say: “ Here we have Senator Vincent, a Western Australian on the Government side, and here we have Senator Willesee, Senator Tangney, and Senator Cooke, who also come from Western Australia, on this side of the chamber. Senator Vincent says that he has had great experience of divorce in the law courts, and he approves the Western Australian provision. I have listened to our friends on this side who have attacked that provision bitterly. Whom am I to believe? “ I suppose that the people I was addressing would say, “ You should believe the people on your own side”. But we are standing on our own feet now. We have no party allegiance. I think that the man who has had experience in the courts, such as Senator Vincent has had, is to be believed. I believe that if this measure, including clause 28, is passed, it will have a very good effect on those Australians who are desirous of bringing about a separation and regaining their freedom so that, perhaps, they may live with some one else in holy matrimony and not have to live in so-called sin.
I want to say a word in regard to Senator Wright - the Sir Henry Irving of the Senate - dramatic, forceful and, I should think, very well informed indeed. As I said to Senator Courtice, one thing that Senator Wright did was to give us the facts in regard to New Zealand. I was not aware of those facts, and I thank him for informing me. At the same time, Senator Wright was against the bill while I, at the present time, am all for it. The honorable senator surprised me by his speech. Over the years that we have heard him speaking in this chamber, he has lauded the courts and the judges and has called upon us poor, benighted legal pagans on this side to take cognizance of the purity of the courts, and of their integrity. But now, he wants to put in the bill certain provisions that will ensure that the judges do their duty.
Under the bill, the judges are to be given certain powers to enable them to meet the circumstances of children or other injured parties in divorce proceedings. Because of the teaching that I have had from Senator Wright over the years, I think that the judges are quite capable of doing that, without the inclusion in the measure of too many words such as those suggested by the honorable senator. It will be remembered that he said that he wanted to clarify the position. Let us see how he proposes to clarify it. I do not say that all his proposed amendments are wrong, by any means, but one such amendment reads -
Add at the end of the paragraph (a) “provided that if it is proved that the separation was in part due to unreasonable conduct of the petitioner the court shall dismiss the petition “.
I ask the honorable senator: What is unreasonable conduct? A lawyer whom I know, who is not far from this place at the present moment but whose name I shall not mention, once said to me, “ Gordon, I delight in arguing about words “. He went on to say, “We had a case once during which a certain word cropped up. The lawyer who was opposed to me had a different interpretation of certain words from mine. We debated for four hours about that word, and I loved every minute of it, but I beat him.” I asked, “ Who won the case? “ “ Oh “, he said, “ the other fellow “. We on this side do not want too much law. We want everything to be plain and straightforward. We do not want terms like “ unreasonable “, about which lawyers like Senator Wright could argue for years. I am reminded of the monks of old who were studying casuistry. They debated for weeks on how many angels could dance at once on the point of a needle. They did that because then it was good practice in the art of argument. I am satisfied that the divorce lawyers of Australia could argue for weeks on the subject of unreasonableness.
I have spoken of physical incompatibility. There are other incompatibilities, of course. I want to bring forward a case or two as a layman. I am not a lawyer. I suppose that if I had been trained as Senator Wright has been trained, I might make a decent fist of discussing the bill. I want to ask Senator Wright, Senator McKenna, Senator Cooke, or any other honorable senator who may care to listen, about clause 28. I understand that if two persons have separated, at the end of five years one of them may obtain a decree absolute, proceed to marry some one else and thus, perhaps, legitimize a union that had been made with another person. I put this case because it can affect individuals in- two- ways. Tears have been shed about the children and about the men and women who have certain religious views. But what about an innocent man? Let me mention one case. I am a pattern-maker by trade. At one time I could not get work at my trade. Five pattern-makers were wanted and there were eleven unemployed in Brisbane. I got a job at a place where people got into debt. The deeper they got into debt the more pleased was the boss, and I had to get those people out of debt. The more quickly I got them out of debt, the more was I paid by the boss. My job was to collect debts. I might say in passing, too, that when the basic wage was £3 a week I was drawing £8 a week, and that was very good.
One day I had to call on a woman who had bought certain goods and I had to see her about payment. Believe me, I thought she was a very nice woman! She was also a religious woman. On the day on which I called, a frying pan just missed my head. I spoke to the neighbours about her and they said, “ She gets drunk every so often. She throws things at her husband, too.” I saw the husband and he said he did not know which way to turn. He was a very decent man. On another occasion when I called, this woman gave me one of those conversation lollies. On it was printed, “ I love you “. Of course, I blushed! I blush very easily. She said, “I do not mean it the same way as you do. Go home and look at your bible “. I think she told me to look at a verse in the Bible which told how God loved the world. She was a deeply religious woman, but every so often she went on the drink. Her husband did not know what to do. She wanted to go back to Scotland, and I said to the husband, “ Let her go “. He said, “ I haven’t got the money “. I was instrumental in helping him get the money. I put in a couple of quid. He sent her to Scotland, and when she got there she wanted to come back. I then said to the husband, “ Go for the lick of your life “. He sold his furniture, and I have not seen him from that day to this. He was a good honest working man and he was tied to a woman like that. Suppose that woman was opposed to- divorce: Why should the husband be penalized with a woman such as that? If clause 28 is amended to allow one party to- object to- a divorce, it will mean that a man placed in those circumstances will be tied to such a woman for life without any redress.
An eminent lawyer in this building told me of two people who got married and the wife said, “ I will continue my business “. In the course of time, she became pregnant and said she was going to get rid of the child. The husband said, “ If you do, I will leave you “. She got rid of the child, he left her, and they have been apart for twelve years. But, it is no use denying that virile men and women cannot be kept apart. This man met another woman, lived with her, and she had two children by him. He said, “ I shall be glad if this bill is passed because then I can have my illegal marriage made legal and I can have my illegitimate children legitimized “. I ask those honorable senators who oppose the measure and who have spoken about injustices to men and women to say what remedy they would offer in a case such as that. I stand solidly behind clause 28. I say that every man should vote solidly for it, because it will give those people who are now compelled by law to live in so-called sin and perhaps have illegitimate children the right to obtain a divorce after having been separated for five years. Goodness gracious me, the parties do not see one another for five years! Yet, just because a man or woman will not consent to a divorce some honorable senators would penalize the other party for the rest of his or her life. 1 do not care what honorable senators’ views may be on other matters. My secular view on divorce is that we should stand solidly for the principle of playing the game by these unfortunate men and women, and I think there are hundreds o! thousands in Australia who stand for it. Why should we force a man to remain continent for the rest of his life? It is all wrong.
I do not propose to say anything derogatory of the Churches, but I do believe that the Churches must alter their attitude to and their approach to certain questions with the passage of time. Even though they have been almost totalitarian in their outlook, allowing no one to defect, circumstances demand that they alter their attitude at times. Years ago, I read of a Scottish
Calvanist who would not work on Sunday, who would not even play the piano on Sunday. Even in my own home in Scotland the blinds were drawn and the piano was locked up on Sunday. We were not allowed to have the Sunday newspaper, nor were we allowed to play cards, lt was a day of woe, a day of gloom. But it was even worse in other parts of Scotland. There one had to go about all day with a long face. One could not do a thing, lt is a wonder that people ate there. Of course, they did eat, but they were not allowed to cook on Sundays. Things have changed there since. The Church would not allow any work on Sunday, but if Sunday was a fine day after much rain, the gathering of crops was permitted.
The other day, I was interested to read in the “ Sydney Morning Herald “ a very startling article headed, “ The Population Bomb - A Sombre Outlook “. It said -
There will be another million people in the world a week from now and another SO million in 12 months. Given the present rate of increase, the world will have to try to support more than twice as many people at the end of this century as it is supporting now.
We have to face up to that proposition in Australia, although we do want a higher population here. What impressed me most about the article was the statement in the last paragraph, and I shall read it because it is germane to and in consonance with many of the arguments that have been developed in the course of this debate. It reads -
The agencies which have tackled the problem, however, have all emphasized the value of birth control as a brake on the population explosion. In New York recently, the World Council of Churches endorsed birth control by any means.
What a difference to when I was a lad 50 years ago! Why, our local parsons would have died of shock if anything like this had happened then! But circumstances have changed so much now as to compel the Churches to alter their attitude and outlook. The article continues -
The Anglican Churches took similar action at Lambeth last year. In the Roman Catholic Church, the rhythm method has been widely accepted during the past few years. In tha United Nations, the Swedes are now leading a campaign for widespread birth control. In America, the Public Health Association endorsed the principle the other day, for the first time in its 87-year history.
The point I want to make is that, owing to altered circumstances in this and other countries, the Church is compelled to adopt a different attitude.
– That argument is 200 years out of date. It died with Malthus.
– I am putting my case. I know you have very strong views, and 1 do not want to upset you in any way. The honorable senator certainly has a right to his views. I am trying to express my views in a reasonable way. Before I rose to speak to this bill I decided that I would suppress my sense of humour and speak seriously. 1 hope that honorable senators will see the point I am trying to make, namely that in the development of our society there come changes in the relations between different sections of the community which lead to a different approach to the various problems that have to be faced. And so I say that even the Churches have been compelled by the force of economic development to adopt a different attitude towards some matters. Owing to the economic development that has taken place, men and women are desirous of gaining more of the things that the country produces. The newspapers which I buy regularly, and particularly those published for reading on Sundays, contain advertisements showing the beautiful things that are for sale. There are also catalogues containing particulars of attractive articles available to the community. A woman sees these things, and she says to her husband that she would like to have some of them. Perhaps it is a washing machine or a bedroom suite that she desires. You cannot blame her for desiring these things but it may be that her husband is not in a position to pay for them. In that event the woman may say, “ I will go back to work “, and she does so. That is true not only of Australia but of other countries also. About four years ago I paid a visit to the Old Country where I saw children on their way to school with a latchkey hanging round their necks. I spoke to my nephew, and he told me about their improved standard of living, which he said was largely due to the fact that his wite went to work. My point is that changed conditions in industry have led to many changes in the homes of the people. The time has passed when every woman stayed at home, washed the clothes and cooked the meals, and did little else. The home as we used to know it is being destroyed by the very development of our economic system and the force of economic circumstances. One result of this is that the number of divorces is increasing. I know that there are many reasons for that increase, but the change that has taken place in our home life is one of them. However, let us get away from sentimentality, and approach this problem fairly in the interests, particularly, of those people who are compelled by our present hard core laws to do the wrong thing, with the result that in many cases their children suffer. Clause 28 of this bill will undoubtedly bring about a change in the lives of many people when it becomes law.
I am impressed by the statement of the Attorney-General (Sir Garfield Barwick) that the judge in a divorce case will have the right and the power to protect the interests of the children. He will also have the power to look after a person who has been done a wrong. If any honorable senator can show me that proper safeguards are not provided in the bill I shall listen to what he has to say. In my opinion, this is a splendid piece of legislation to be introduced into this Parliament after 50 years of federation. The founders of the Constitution must have visualized the need for divorce when they placed in the enactment power for the Commonwealth to legislate in this field. The Labour Party’s platform provides for uniformity in laws relating to marriage and divorce. For 50 years we have talked about these matters, but nothing has been done until now, largely because politicians are so dependent on votes. They know that they must do this, or not do that. However, we in this chamber have every right to speak of these matters and to tell the truth as we see it.
This measure was discussed at length in another place, and we are told that there will be no restriction on debate in this chamber. I was afraid that I might be stopped from speaking, but no such attempt has been made. However, I have every sympathy with the Government’s desire to get the bill through, and so I shall provide the Minister in charge of it with an opportunity to respond splendidly, as I know he will do, to the arguments that have been advanced by the enemies of this modern divorce law.
.- I approach the consideration of this bill at this late stage in like manner to that of a worshipper who, before entering his temple, leaves his shoes outside the door as a symbol that in the spiritual presence of the Deity unnecessary things must be cast aside. 1 approach this subject in a similar manner. I feel that we should be able, for the purposes of this bill, to set aside for the moment the particular religious beliefs that we hold, however dear to us they may be, and approach the consideration of this measure objectively with a view to accentuating its positive rather than its negative aspects. On this occasion we are free from party ties, and so are in a position to judge for ourselves with independent minds the various aspects of this bill. I may be challenged, and asked what I know about marriage or divorce. Fortunately, I do not know a great deal about them.
The debate has shown that some people seem to place an over-emphasis on divorce in our society. As I look about among my friends and acquaintances, I am forced to the conclusion that I do not know many people who have been divorced. I do not know of any divorces in my family circle. This is a social problem which we should view in its right perspective, lt is often said that a person on the sidelines can see the game better than can those participating in the struggle in the arena. We are in the position that we can take that view of the subject before us, and make our contribution to the debate accordingly. My general attitude to this subject is that in our Australian society divorce is the exception rather than the rule, and that happy marriages are very common. Most people who contemplate marriage regard it as a sacred contract, and they enter it for better or for worse, for richer or poorer, until death do them part. However, I am realistic enough to know that the majority of men are extremely lucky in the choice of the women they have taken for their wives. I believe also that most women consider themselves lucky to have the husbands that they have. We have heard during this debate of individual instances in which marriages have broken down, but in my view the emphasis has been on the negative side rather than on the positive side. The bill is of very great importance as it shows the degree to which we as a Parliament are prepared to face up to our responsibility in this important problem of social welfare. When this measure goes on the statute-book we shall have passed a milestone in our social welfare legislation.
This is one of the first non-party debates we have had in the Senate. Each of us has had the opportunity to speak as long as Standing Orders allow and in doing so to give his own personal opinion. The experience has shown me the great value of the party system of government, because if every measure that came into this chamber was subjected to as many varying expressions of opinion, the Parliament would become a shambles.
– A Tower of Babel.
– That is so. We have had an insight into the cause of the instability of governments in France, where the national Parliament is composed of many independents, with pressure groups behind them and with many little caves. I respect the views that have been expressed on this measure, although I disagree completely with some of them. The right to express them has been freely granted. The matter covered by the bill is so delicate and personal that it would not have been fitting to have it subjected to a bloc party vote.
I pay a tribute to the honorable member for Balaclava (Mr. Joske), in another place. I believe that he was the architect of this measure and that with great courage, humility, legal and political wisdom, and forensic skill he moulded, from the various State divorce laws, the basis of this measure. It is a great pity that the bill does not come before us as his own personal bill. When it takes its place on the statutebook of the Commonwealth, his name will always be indirectly associated with it, and it will be a landmark in the history of a maturing Commonwealth. I hope to see it take its place with other uniform legislation such as uniform road safety and traffic codes. We have seen uniform quarantine and other laws and now, after 59 years of federation, I hope that we shall see & uniform matrimonial causes .law.
Some extreme statements have been made, although with great sincerity. I should like to dissociate myself from the contention in some quarters that those who support this bill are un-Christian. To carry that argument to its logical conclusion, every parliament in the British Commonwealth, or even in the world, could be called unChristian. Therefore, I must reject that view. After all, the matter raised by many honorable senators was sorted out 400 years ago at the time of the Reformation. As an Australian, I must observe the laws of the land, which are secular in character.
Senator Laught mentioned that variations amongst State laws make possible one law for the rich and another for the poor. A person who can afford .to do so may go from one State to another to take advantage of a particular ground for divorce. He has a big advantage at law over the person who, through economic circumstances, must remain in his own home State. Uniformity will foster the basic principle of British justice that a law should apply equally to the rich and to the poor.
A positive side of the bill is that there is incorporated in.it provision for assistance to organizations that apply themselves to keeping marriages unbroken. I should expect such organizations to get in touch with me, or the Parliament if, after closely watching the working of this legislation, they saw anomalies, which I think are bound to arise. It would be then the bounden duty of Parliament to amend the legislation to ensure that justice appeared to be done and was done. The proposal to sponsor and finance marriage guidance organizations is a progressive step in Australian legislation. The bill takes a wide, bold, and generous view of the human factors involved in marriage. It highlights the welfare of both husband and wife and the vital importance of family life as the social core of the community. It directs itself boldly to consideration of the welfare of children involved in matrimonial crises.
Figures have been cited to show that the incidence of divorce has declined over the .past 20 years. I have a firm conviction that this measure will accelerate that decline. I do not hold the view held by many others that it will accelerate the divorce rate. I believe that the decline that has been evidenced will continue and that many shaky marriages will be kept from going on to the rocks altogether.
Mention was made of the practice of a particular Church of holding pre-marriage guidance or pre-Cana conferences. I feel that the spirit of the pre-Cana conference on the religious level has been for the first time incorporated into the matrimonial causes legislation. That is why, in my opinion, the legislation is a wonderful advance. I understand that pre-Cana conferences provide education and preparation for the most important step that two young people can ever take in their lives. There is no greater adventure than marriage and nothing that I know of for which one needs such a thorough tuition. My experience is that many people never bother to get this guidance or advice. I do not know whether the pre-Cana conference is a feature of other religious denominations, but I know the importance that attaches to it in one particular religious denomination. I am therefore very pleased to see the spirit of the pre-Cana conference incorporated into this legislation.
This has been done by encouraging the setting up of marriage guidance councils by supporting them from Commonwealth funds. The purpose is not, as some people would give us to understand, to help divorce, but to reconcile people. I have had the personal experience and the joy of reconciling people who have come into my office. I had the experience of a husband, a personal friend of mine, coming to see me. Then, a day later, the wife, who was also a personal friend, came to see me. I heard both sides of the story, and in a simple and humble way tried to help both parties. I can tell honorable senators that I do not know of any greater pleasure than that which comes from bringing together people who are contemplating separation and enabling them to live a happy married life. The fact that the process of reconciliation is to be given wider scope in this legislation is very praiseworthy.
I wish .to say a few words about the positive side of this measure. Senator Wright on many occasions has spoken along these lines, and I feel sure that he will agree with what I am about to say. The judges of the courts who will implement this legislation are men of the highest integrity. They will continually interpret the spirit of this act and will take into account the views that have been expressed by every speaker in the debate. They will understand so much better where their responsibility lies than perhaps we laymen do. I feel, too, that judges will be given a much greater incentive to reconcile people and will be able to do a tremendous amount of good even after the matrimonial crisis reaches the court. I have a strong feeling that this legislation will prevent hundreds and hundreds of cases from ever reaching the courts.
Then there is the other side of the question. Incompatibility has always been a misfortune in marriages. If we were unreal enough to say there should be no divorce or separation we would have much more mental sickness, misery, brutality and even murder. Therefore we must face up to the realities of this matter.
This is a positive bill. It seeks to guide young people by providing that even though they may have the reaction immediately after marriage that it would be better to be home with mum or dad, that costs are too high, or that they are incompatible, they cannot take proceedings for divorce until three years after the marriage. 1 think that young people need that discipline. Many young people are growing up sadly lacking in discipline in many respects, and this bill will provide that discipline which is long overdue. It will discipline them by saying, in effect, “ You stay where you are and get on with the job; try to make a success of your marriage “.
I support this bill because I believe it is based on very firm grounds. Firstly, it seeks to make uniform divorce laws - something that I subscribe to as a party man. It sets up an organization for the first time in the Commonwealth that will bring about reconciliation, something which I believe will strengthen the institution of marriage. It will show the rest of the world that the Australian Parliament is well aware of its responsibility and is dealing with this matter in an efficient way.
– At this stage of the debate it is, I think, my function to try to answer the points which have been raised in the course of the discussion from one side of the chamber or the other. It will give me some pleasure to be able to express in a rather more personal way than was perhaps provided when I introduced this bill my own feelings and convictions about the matter we are discussing in the Senate. If I do this, as I shall try to do it, dispassionately and quietly, I hope no one will take that quietness to mean that the convictions are not deeply held. The decibel is not to be used as a measure of the strength of the conviction. Let me explain my personal beliefs on the basic question which we have to consider, and on which other people have expressed their beliefs. It is the question of the dissolubility or indissolubility of marriage. I state clearly that I believe that marriage is dissoluble under the civil law. I believe also that all that should be in our minds when we are considering the grounds on which, under the civil law, a court should be able to dissolve a marriage is whether those grounds are just, reasonable and, in the personal opinion of each of us, will make for the greatest good of the greatest number.
I appreciate, as do other members of the Senate, those religious convictions which, because they take as a starting point the belief that marriage is indissoluble, affect the attitude to this bill of the person holding them, sometimes explicitly and sometimes implicitly. I have full respect for those whose convictions lead them to oppose the bill, and I have full respect for the convictions themselves, but I make it clear that my respect for those convictions does not extend to a belief that I, who do not hold them in that form, am in any way bound by them. In relation to this bill, my respect for those convictions does not extend to a belief that a party to a marriage who does not hold those convictions ought to be in any way bound by another party to the marriage who does hold them. That is the basis on which I approach the bill and seek to discuss its provisions.
Before I discuss the bill in detail, I shall comment very briefly on three matters which - unfortunately, I think - have been raised against, as it were, the credit of the author of the bill rather than of the bill itself. I shall comment on those matters because I believe that Sir Garfield Barwick is too eminent a lawyer and too great a man to be unjustly berated in this place without answer, and also because a lingering belief in some minds that the statements about what he has done are true and may colour the approach to the bill. We have been told that, in an endeavour to persuade people to accept his opinions on this matter, he misquoted in some way the report of what is known as the Morton Commission, and also that he treated cavalierly and rather rudely some statements about the report, or a part of it, made by the Anglican bishops.
Nothing could be further from the truth. Sir Garfield Barwick has never said or implied, as some people have sought to suggest, that the Morton Commission was in favour of the principle now embodied in clause 28 (m) of the bill. Let me explain what gave rise to this incident. The Anglican bishops, exercising their right, circulated a statement indicating their opposition to clause 28 (m), and quoting the opinions expressed by nine of the nineteen signatories to the report of the Morton Commission. Sir Garfield Barwick stated in the lowe’ House that the majority, or, at any rate, a large number - let us leave majorities out of it - of the members of the Morton Commission believed that the principle of enabling divorce to take place without having first to prove a matrimonial offence was a good principle. T.n fact, ten of the nineteen signatories to the report of the Morton Commission subscribed to that principle in one way or another. That was all that Sir Garfield Barwick said. At the same time he pointed out to anybody who was interested that there were two bodies of opinion on the subject among the members of the Morton Commission. I think that, in view of his position, he was not only entitled to mention that there were two bodies of opinion but also was compelled to do so in order to present a proper case. He has also been attacked in this debate because of another statement that he made. It has been described - I think by Senator Hannan and Senator Wright - as an appalling statement to come from the Attorney-General of the Commonwealth. The statement referred to the question of guilt. It was in these words -
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.
Sir Garfield Barwick was not talking about the inability of the courts to establish guilt in a case which turned on whether a matrimonial offence had or had not been committed. He was not talking in that legal, semantic sense, but in a higher sense, as a man, and in the context of a passage from the Morton report quoted by others. The passage was -
We see no benefit to society, to the individual or to the State in maintaining marriages in name which are no longer and, on all foreseeable estimates, will never be, marriages in fact, and which secure few or none of the purposes for which marriage was designed.
He pointed out that a marriage can break up, not as a result of the kind of offences that would be sought to be proved in a court, but for other reasons, and he asked, “ Who can say who is the guilty party? “ And who can?
There was also a suggestion that Sir Garfield Barwick, seeking to lead unsuspecting minds astray, did not fully and properly present to those who would have to consider this bill all the facts regarding the provisions similar to those in clause 28 (m) that are to be found in the New Zealand legislation and the Western Australian legislation. Senator Wright brought out the facts of those other provisions, and suggested that they should have been brought out more fully by the AttorneyGeneral. Well, Sir, all I can say about that matter is that I have here the document, explaining all the grounds for dissolution, judicial separation and nullity suggested in his bill, which was distributed to every member of the House of Representatives before the bill was debated there. On pages 9 and 10 of that document there are set out with full particularity and in complete detail the facts regarding the laws of New Zealand and Western Australia, which were brought out by Senator Wright in this place. I do not claim that Senator Wright should not have brought out those facts, but I want it to go on record that they were presented to the Parliament by the Attorney-General when he was introducing the bill. He did not seek to suppress anything.
I want to consider now some of the more minor points that have been raised during the discussion of the bill. One honorable senator asked me to elaborate the fact that an organization could receive a subsidy only if the major portion of its work was directed to marriage guidance. Clause 13 of the bill shows that a branch of an organization can for all purposes of the bill be regarded as the organization, so that a branch of, let us say, the Brotherhood of St. Laurence or any organization we have in mind-
– Such as the Red Cross.
– Quite. Such organizations could form branches to deal with marriage guidance and they would become eligible for a subsidy. The reason for doing that was that if there was a great organization which spent only a small part of its total effort on marriage guidance, the Attorney-General did not want to have all its accounts presented to him, but only that section of the accounts dealing with what he is concerned with - marriage guidance. In his opinion, which is all I can give, it is constitutional for the Commonwealth Government to make grants in this way for this purpose.
Another point that was raised at this time, Sir, again by Senator Wright, was that we should be more precise in laying down the law - that we should draw a more clear line rather than leave discretion to the judges, and that a result of not doing so might well be that the supreme courts In the States would speak with different tongues and that would result - if I quote my friend correctly - in a rancorous sore in the body legal.
– Because of the resentment that comes from individuals through discrimination.
– Quite. Sir, I am informed that above all the supreme courts of the States is the High Court of Australia and from a decision of the supreme court of any State in this matter, appeal lies to the High Court, with its permission. I am told that if this difference of interpretation happens - as it well might happen - the High Court would undoubtedly do as it has done in the past, that is, regard its function as being to try to bring some uniformity into the law by allowing appeals on grounds of differences of interpretation, and thereby settling the matter for all the supreme courts. If that is so - if the legal advice I have that that is so is accurate - this matter would clearly not present any difficulty. If, indeed, some other system were adopted and if some federal court of divorce were set up, it would be necessary to have a judge in every State, and undoubtedly the same sort of difference of interpretation and opinion of individuals would arise. The appeal would go to a higher court and the differences of interpretation would be ironed out by that higher court. It would be the same as the proposition here. I do not think that the Senate should fear that danger over much.
– Would there be any provision by which destitute people could appeal?
– I hope to come to that point a little later, perhaps when I am dealing with clause 28 (m). Sir, another point that was raised on all sides during this debate was that if this bill were to become law, as it stands, then undoubtedly divorce would be made very much more easy. I do not think that that suggestion, in spite of the statistics which were quoted as to the number of grounds in the different States, can be said, in fact, to be wholly true. In some respects, divorce would become much harder. I speak, of course, of divorce where there is consent on both sides. In other respects, it would become a little easier.
In New South Wales, if this bill becomes law and supersedes the law of that State, it will be much harder for a divorce by consent to be granted in that State, because no longer will it be possible for a suit to be brought for the restitution of conjugal rights and three weeks afterwards a suit to be brought for divorce. It will undoubtedly be much harder to get a divorce in that State, which has the largest population of any State. It will, I think, be rather harder in all States in that, before a divorce can be granted under this bill when it becomes law, provision has to be made by the judge for the children and for the divorced wife before the divorce can be made absolute. At the present time a divorce can be granted and the argument on what can be done for the wife and children can take place afterwards. When this bill becomes law, that matter must be settled first.
Some people believe - I think this was said last night by way of interjection - that many people might take on new responsibilities or shed their old ones more readily when they are not brought face to face with pecuniary sections. Now, those provisions must be considered first. Divorce will, I agree, become easier to the extent that somebody who has been deserted will now, admittedly, be able to institute a suit for divorce after two years instead of waiting three years. But, after all, it is women, in the main, who are deserted by men, in the main. Most people, I think, believe that to be so. If this bill should be designed as marriage - we are told - was designed to protect women and children, then is it not offering better protection to a deserted wife battling for herself and battling for her family to allow her, of her own free will, and only if she wants to do so, to bring a suit against a deserting husband after two years instead of having to wait for three? I should think that it would be better. Certainly, it is quite cleat that these terms of time for desertion have a close affinity to the regard that is had to a man leaving his wife without any maintenance and without any support. Who, in this chamber, is going to say that if a woman’s husband goes off and leaves her cold - leaves her flat with no means of support at all; and does not pay a penny for her support for two years - she has not got a pretty reasonable ground to try to get rid of him, and that if in that time she has met a better man she should not start a new life with him?
– And the initiative lies with her.
– The initiative lies with the deserted person - whether the man or the woman.
Another point that has been raised in this debate, Sir, is the question of insanity. This is just a matter for the individual using his or her own judgment. We have heard from Senator Hannan of somebody who, after nine years in a lunatic asylum, recovered from her insanity and came out. I do not suppose, in spite of what has been said jocularly, that this is a usual experience. I imagine that most people who have been in a lunatic asylum for nine or ten years are unlikely to come out. In my judgment, it is the right of a woman or of a man afflicted in that way, if she or he so desires, to seek to be free to start another life.
Where the balance of injustice would lie in such a case is for each to say, but 1 am certain that the greatest good for the greatest number would come if a party to a marriage could be free of somebody who, as is described in the terms of this bill, has been insane and is insane at the time of the petition, and is unlikely ever to recover.
Sitting suspended from 5.47 to 8 p.m.
– Before the suspension of the sitting, I had endeavoured to set out the method by which and manner in which I approach the provisions of this bill, and to answer, as best I could, some of the points which have been raised during the course of the second-reading debate. There were and are no doubt a number of minor points left unanswered.
For instance, Senator Benn raised a matter in which Senator Tangney has evinced some interest - the ability of a wife sued for divorce to finance the costs of her action should she wish to defend the suit. It is quite right that there is no clause in this bill requiring that finance shall be provided for that purpose. But I am informed - here I speak on a brief - that it is required by common law that a husband shall furnish necessaries for his wife, and it has been held that solicitor’s costs would be a necessary. Whether that is the basis for the practice which is carried on in the States, I do not know, but I am informed that the practice in the States is for the rules of the courts to provide that in such cases the husband must finance the costs of a wife wishing to defend such a suit. There is authority in a later clause of this bill for the drawing up of rules, and I am informed that if such rules are incorporated in the new law they will be similar to the rules of the State courts and a wife wishing to defend such a suit will be able to demand that her husband shall pay for it, and her husband will not be able to bring the suit until he has.
– Suppose she wishes to bring a suit herself?
– The same provision applies, and for the same reason should she be a petitioner instead of a respondent.
– And if she cannot find him?
– If she cannot find him, the matter becomes rather more difficult. Although we have sought to cover as many contingencies as we can in this bill, that one appeared to be too difficult to legislate for.
– It is a frequent one.
– But it is still a difficult one to legislate for. The point I am answering is that if he can be found the matter raised will be covered by the rules drawn up in the normal way.
Then there is the matter of constructive desertion, with which f shall not deal now because I think that, strictly speaking, that is something which could be dealt with more adequately in committee. Honorable senators know that it is proposed to alter to some extent the present law relating to constructive desertion. At the moment, a husband who throws rolling pins at his wife may be held to have caused his wife to desert if it is shown that he acted in an unbearable way and that he acted with the intention to cause his wife to desert. In this bill, the necessity to prove animus or desire to cause the wife to desert is removed. But again 1 think that is a matter strictly for debate in committee.
Reference has been made to presumption of death. That will be discussed more fully in committee. All I say here is that I believe honorable senators should be very careful to search their souls deeply before they extend unnecessarily - and they alone must interpret what “ unnecessarily “ means - the time within which a man or a woman may remarry when the husband or wife is presumed to be dead. If you lay down in a bill of this kind a certain definite period, you come up against cases such as the one we remember - that of the disappearance of “ Ian Crouch “ from South Australia. She was lost, probably by pirates’ action, possibly by typhoon, and all aboard her were presumed to have died. She has never been heard of again. It is for honorable senators here to say how long wives of men lost in those circumstances are to be condemned to live unprotected and celibate before they can remarry.
We have been asked to be more precise in the directions we give to judges. Again, when we come to the particular clause or clauses to which that suggestion is applied, we shall discuss the matter more fully. But I point out that here, too, traps lie in being too precise. For instance, take a marriage that has broken up after a number of years. Assume that during the years before the marriage broke up there was accumulated in the husband’s name a fortune, that the fortune was due not only to the efforts of the husband but also to the efforts of the wife, either in partnership with the husband or in protecting him in his home while he accumulated that fortune. The amount of assistance that the wife may have given to the accumulation of that fortune must vary from household to household. Do not let us attempt to be so precise as to say that 30 per cent., 40 per cent., or even 20 per cent, must be settled on the wife after divorce. Leave to the judges as much discretion as possible in these things. They are skilled in these matters: they are accustomed to exercising discretion, and, unless there is very good reason for withdrawing it from them, I think they should exercise discretion in such matters.
I move now to the clause which has caused so much discussion during our consideration of this bill. I refer to new clause 28 (m) which provides that if 3 marriage breaks up. that if a man or woman walks out of a home without necessarily committing a matrimonial offence - unless the act of walking out of the home is to be construed a matrimonial offence - then, after five years, that man or woman on the petition of either, and subject to certain safeguards, can be divorced even if the other partner to the marriage does not wish the divorce to take place. It is claimed that this will lead to great injustice.
– It has done so. in Western Australia.
– It is claimed that it has led to great injustice. I want first to narrow the field, if I can, to see just where this injustice is supposed to lie, and then to consider how much of an injustice it is, compared with the injustice which now exists in the law as it stands. I think that clearly in all cases in which a husband and wife are agreed that to both of them marriage, any longer, is intolerable and that rather than one or the other committing or pretending to commit a matrimonial offence, they are prepared to separate, wait for five years, and then one or other to bring a divorce suit on this ground, no injustice could be said to be done to either party. So the only instances in which injustice might be said to be done are cases in which one party or the other objects to the suit being brought, objects to being either the divorced or the divorcing person.
– What about the children?
– I thank the honorable senator for that interjection. Whenever this matter is brought up, I am asked, “What about the children? “. What are we considering? We are considering a marriage in which surely, in every ordinary man’s experience, at least months and probably years of bickering and unhappiness in the home have led to one or the other party walking out. We are then considering a period of at least five years before a suit can even be brought. Are children necessarily better in conditions of unhappiness for years, separation for five years, no marriage, no parents living together, than they would be by the mere declaration under civil law that a set of facts, which in fact does exist, does exist.
– What about the children if there is a divorce?
– If there is a divorce, they may or may not be better off. I do not know how, after years of bickering and years of separation, this ground can affect the children of a home that is already broken.
– What about their maintenance?
– Their maintenance is taken care of in part VIII. of the bill. The matter comes down to the injustice being perpetrated on some man or woman who objects. What form does this injustice take? It does not take the form of financial injustice. Under part VIII. of this bill, a divorce on this ground or on other grounds cannot be granted until the judge is satisfied that the respondent and the children are looked after to the limit of the means of the man, if the petitioner is a man, or, in some odd cases, of the woman, if a woman is bringing the suit. I am informed that an order made by a judge before a decree is granted can be collected now, universally - not only in one or two States - by garnishee, but no longer will the divorced wife have to sue her husband because he has not paid, get paid, then three months later sue him again because he has not paid, or put him in gaol when he does not pay. No longer will she have to do that. A garnishee order will be the first charge, at source, on the wages or salary of such a man.
So there is no financial injustice, particularly as there is given to the judge the discretion to make a lump sum settlement, or some other settlement, of funds accumulated by the partnership when it was working. The provision is not unjust on any basis that it puts a man or woman in the position of being a divorced person against his or her will, because it is expressly provided that in a case brought by a man who walked out of a home, a wife who objected to being called a divorced woman could, by cross-petition, take action herself at her husband’s expense and be the divorcing partner - if it makes any difference to the status which one you are. It is left again to the discretion of judges to see that a decree granted on this ground is not one that can be described as harsh and oppressive.
I shall be asked exactly what that means. I cannot answer, but I guarantee that the people who are not lawyers in this Senate, as I am not, or even the ones who are, know what they would consider to be a harsh action or an oppressive action, and I think the judges can be counted on to come to the same conclusion. There may be cases where it can be clearly shown that a man or woman has gone out of his or her way to make a marriage intolerable, where a man, perhaps, has brought into the home some other woman and lived with her in the home before his wife finally got sick of it and left him. A decree for divorce against the wife in those circumstances with that provocation would, I suggest, be regarded as a harsh and oppressive decree and against public interest, but to define and describe what that means must be left to the judges with the general interpretation of this bill.
So it is not a matter of financial injustice. A woman cannot be put in the position of being divorced on this ground if she does not want to be, but she may be the divorcing partner. She cannot be treated harshly and oppressively. A decree cannot be granted if the judge believes that to grant a decree would be against the public interest, and the cost to which the wife is put must be met by the husband. The children must be looked after. So where, in these cases, does the injustice lie? It lies clearly in any outrage purely to the religious convictions or other feelings of a man or woman who objects to a case being brought on this ground. All of the men and women in such cases would not be treated with injustice. Some of them, as we all know, would have contributed or, in some cases, have taken a leading part, towards making the home impossible to live in.
Let us narrow it down still further. Some of them, against whom no imputation can be made, might have their religious convictions or other feelings outraged. I have already made my stand clear, Sir, on the point of hurt to the religious convictions of one party or the other. I respect those religious convictions, but I do not see why a man or a woman who have not got them should be bound, in law, to a person who has them. In the eyes of the person who has those convictions, and in the eyes of the Church to which he belongs, he is still married and will be treated accordingly, but I do not see why, for the purposes of civil law, somebody who does not have such convictions should be for a lifetime bound to celibacy because someone else has them. There are other reasons, of course, why one or the other may not wish to take action. I believe that feelings of vindictiveness or of spite in some cases affect the judgment or actions of some men and women in matters of this kind. I do not think any one of us would agree that a person should be condemned to a life of celibacy because of the spite or vindictiveness of somebody else.
Finally, there is the case of a woman - perhaps a man, but mostly a woman - wilh a feeling, not from religious convictions, and not from spite, that she does not want to be a woman who is openly known as a person whose marriage has been broken irretrievably. If injustice lies in saying to such a man or such a woman, “ You can no longer warm yourself with the shreds and patches of what is in fact a broken marriage, you can no longer pretend that what does not in fact exist does exist “, then that injustice must be balanced against the injustice of condemning some possibly - or probably - blameless man or woman for life, to live without children, in honour, without a wife or husband as the case may be. It is again a matter for each one here to decide where the greatest injustice really lies.
Senator Wright read to us a case to indicate that great injustice could occur. It was the only finite example put before us of an injustice that had occurred.
– It is the only finite example that has been read in this Senate.
– If your patience is not exhausted yet, I have other examples to which I shall refer.
– Allow me to answer what you have said, and I shall answer later what you are going to say. Senator Wright quoted a High Court case which concerned, if honorable senators remember, a man who had collapsed, was taken to a home and had remained there for six years. He was entirely paralysed, and although rational could not speak. He was in the position where he would never take his place in the world again. He was a man who left behind him a working woman with a child. She had to support herself, her child and him, and she did so for six years. Then, under this ground which we are discussing, she sought to free herself from this paralysed man - for all we know with his consent. Her petition was refused by the Western Australian judge, but upheld by the High Court. In giving their judgment the High Court judges said -
The petitioner’s husband has no doubt suffered a great misfortune, but on her side it has resulted in the destruction of her marriage. Her situation has been and, if a decree were refused, must always remain that of a wife whose ties to her husband can depend only on memory of the past, and pity for his condition and on a sense of obligation. While he lives there is no prospect of relief. She is free from all fault or blame.
If injustice lies through following those words of Latham J., Rich J. and Dixon J. of the High Court rather than in hurting the feelings of some man or woman who wants to retain a pretended marriage which no longer exists, then I am on the side of the injustice. But it does- not, in mv opinion, lie there.
I do not know how the members of this Senate are going to vote on this question. Throughout Australia to-day there are men who have left their homes for good reason-
– And bad.
– And bad. Ten years later, perhaps, they meet some one and want to set up a home but are denied doing so unless they live in sin and have illegitimate children. There are women throughout Australia in precisely the same position under the law as it exists at present. If it is unjust to help those people - and I speak of the greatest good for the greatest number - then honorable senators will vote against this bill. If it is just to help these people, if it is good for the community that they should be able to bring up legitimate Australian children, then honorable senators will vote for the bill. The matter is in the hands of every honorable senator in this Senate. We have in the hollow of our hands the happiness of these people and I hope that honorable senators will support the bill in toto. (The division bells having been rung) -
The PRESIDENT (Senator the Hon. Sir Alister McMullin). - The question is, “ That the words proposed to be left out be left out “.
– The Senate is discussing the motion to refer the bill to a select committee. On that question I wish to speak briefly, if I am in order.
– The honorable senator cannot do so now as the division has been called on.
– Mr. President, I was on my feet long before you called on thi division and I submit that I am entitled to speak on this motion, which is separate from the motion for the second reading of the bill.
– Is it the wish of the Senate that the division be called off? There being no dissentient voice, the division is called off.
– This will allow everybody to speak again.
– According to individual discretion, yes.
– Order! The honorable senator may proceed.
.- 1 rise to speak on this matter because it has been suggested that the proposal to submit the bill to a select committee is merely a means of destroying the bill. I dissociate myself completely from that purpose. But 1 do think that consideration of the bill by a select committee would be of great advantage. No one is unaware of the fact that in the fading days of this Parliament there is a desire - restrained, I am glad to say but nevertheless most evident - to finish the consideration of this bill. But more than that, the debate in the Senate has revealed the existence of completely inconsistent provisions in the bill. A great number of divorce grounds are expressed in the measure that are based wholly and solely upon the principle which the Minister for the Navy (Senator Gorton) who is in charge of the bill, has rejected, namely the principle of matrimonial offence.
– Order! The honorable senator may debate only the proposal to refer the bill to a select committee. He will not be in order in discussing the provisions of the bill at this stage.
– If you will hearken to me, Mr. President, and understand what I am saying, I think that you will admit that my remarks are relevant. I hope that my words will compel honorable senators to come to the conclusion that this bill, instead of being considered by the Committee of the Whole, should be referred to a select committee because the philosophy of matrimonial offence is inconsistent with philosophy that has been propounded by the Minister and which is enshrined in clause 28 (m). The incorporation of two inconsistent concepts in one bill is a matter that demands revision by a select committee.
Further, there is the ground for divorce because of non-compliance after twelve months with an order for restitution of conjugal rights. A period of twelve months is now specified, Mr. President, in respect of a ground for divorce which the Minister himself, replying to the debate, trenchantly condemned. It is a matter for serious consideration whether the laudable lengthening of the period of 21 days - which has been such a disgrace in New South Wales - to twelve months is a sufficient safeguard for the institution of marriage. I am referring to these questions because I think - and I am asking the Senate to hear the argument - that they can be properly considered and decided only by a select committee. Consideration by a select committee would be of great advantage compared with the way in which a committee of this Housemay consider the questions this week and next week.
Let us look at the escalator. A period of twelve months is specified in respect of non-compliance with an order for restitution of conjugal rights, a period of two years in respect of wilful desertion without just cause or excuse, a period of three years in respect of cruelty, and a period of five years in respect of a guilty separation. After that period of five years divorce may be enforced upon an innocent respondent unless it would be harsh and oppressive to her to do so. Could not any legislator do himself real credit by trying to harmonize these conflicting considerations - by giving more thought to a reconciliation of these inconsistencies - in. a select committee?
A select committee could consider the imponderable problems that underlie the separation ground. It could consider all the welling injustices that the experience in New Zealand reveals and all the problems that the experience in Western Australia reveals. It could consider and delicately balance all conflicting considerations. That is what this legislature will do if it is sensitive to the claims of the minority of the people who would be victims of the injustice to which clause 28 (m) would give rise. If we are not willing to spare the time to take these problems into the thoughtful atmosphere of a select committee, we shall have less satisfaction than we would wish to have at the passing of the measure.
Next, not a word has been said here about the integration of the State laws with regard to testamentary disposition and testators’ family maintenance with this proposed federal disruption of families legislation. Furthermore, those of us who have read the thoughtful comments made by Mr. Justice Piper at the last allAustralian Legal Convention, held in Perth, will realize that great disadvantages are to be expected in the administration by State courts of this federal divorce legislation. Mr. Justice Piper pointed out that the State courts are dependent on their protonotaries and registrars for the actual administration of the subordinate decisions in divorce cases. On Mr. Justice Piper’s word, the protonotaries in South Australia carry through 80 per cent, of the business, ! and the judges do only the final adjudication on decrees. It is Mr. Justice Piper’s view - not my view only - that the most recent interpretation of the federal judicial power precludes a State supreme court, operating under an invested federal power, from employing its subordinate officers in any judicial matter. I think that the operation of this legislation in those respects is a matter that is particularly appropriate for consideration by a select committee.
There is another argument in favour of the reference of the bill to a select committee. We heard the Minister, in replying to the debate, extol the provisions that would preclude a judge in divorce from granting a decree unless he certified that, in his opinion, proper arrangements, according with the situation of the parties, had been made for the custody and welfare of the children. That is a provision that deserves to be extolled. It is a provision that we owe to the genius of Lord Morton’s commission. We adopted it from that commission holus-bolus, but I have not yet heard that debt acknowledged in this debate. The British Parliament passed legislation to give effect to that provision last year. But, Mr. President, it was thoughtfully submitted to the all-Australian Legal Convention in Perth by two justices of State supreme courts that the implementation of the provision in this country would need careful consideration to ensure that the State supreme courts, in giving effect to it, would operate with utility and despatch. I do not rely only upon my judgment in these matters. I am never so inspired as when I have the respectable opinion of an experienced jurist to quote, lt is not 1 who distrust the judges. I detract not from their traditions. I simply come into this place heedful of what they have said about the necessity to ensure that there will be machinery for the State courts to do the job that they will be asked to do in giving effect to the purposes of this legislation. I think that that is a facet of the legislation most appropriate for consideration by a select committee.
Now I obtrude upon a not too reluctant House, 1 hope, my last thought. It arises from the fact that in the second-reading debate one honorable senator advanced the view that if a man should leave his matrimonial home, go down the street and live with the lady of his new fancy, beget children, obtain a divorce from his wife under clause 28 (m) after five years of separation and then marry the favoured lady, the illegitimate progeny of the second union could be legitimated by that marriage. That view was disputed. That dispute came strangely to my Tasmanian ears because I did not know that there was a provision in the Tasmanian Legitimacy Act, now 50 years old, that precluded the legitimacy of those progeny by reason of the fact that they were conceived and born at a time when in respect of one of their parents there was an impediment to lawful marriage. I have been greatly fortified, Mr. President, because I have inquired from the highest legal authority in this city and I am told that in New South Wales, Victoria and South Australia there is a bar to legitimacy if at the time of the birth of the child there existed any legal impediment to the intermarriage of the parents of the child. In Tasmania and Western Australia, there never has been any such bar, and in Queensland the bar was removed in 1938.
All I want to do is to make a most respectful submission that any one of the matters to which I have referred deserves the valuable attention that would be given to it by seven or eleven members of this chamber sitting as a select committee. The inquiry need not occupy more than two months. That committee could then express its views in proper, logical and complete form - nol the incomplete and truncated form in which necessarily - I do not mention this by way of complaint - the footnotes appeared with the amendments that were circulated to us a month ago. There could then be circulated a report as to the experience of New Zealand and Western Australia in the matter of these important facets of the new ground of separation. We could also consider, in the light of the judicial comment, the difficulty felt by Mr. Justice Piper concerning the proper despatch of business if it were necessary to act within the cloak of the federal judicial power. We should consider how the supreme courts are to operate this provision with regard to the custody of children. We should consider the provisions of the Testators Family Maintenance Act, and other property inheritance rights which we may disrupt or recognize in the measure that we are passing here now; and we should take into consideration the proper understanding of how, in the light of this measure, these illegitimate children, who occupy such a focal point in the new conception of public interest, will be cared for.
For all the reasons I have mentioned, Mr. President, I submit, not in any attempt to destroy this measure, but for the purpose of considering the matters I have mentioned and improving the bill, if it were referred to a select committee, the final product would be more advantageous than can be obtained by relying on the consideration given to the subject by a Committee of the Whole.
Senator HANNAN (Victoria) [8.431. - I think that a calm, rational committee such as is envisaged by Senator Wright would be far more likely to produce justice in this matter than the heated debate of the last few weeks. I have no intention of traversing the individual items which would be improved by a hearing conducted by a select committee, but I cannot put it out of my mind that the Government has claimed with a certain amount of pride that this measure has been on the stocks for five months. I remind the Government that the magnificent commission presided over by Lord Morton of Henryton sat for four years and took a complete year to produce the excellent report which has been quoted so much during the debate both here and in another place.
The features of that report have already been mentioned by Senator Wright. Most of the benefits that are conferred by this bill have been lifted almost entirely - there are only a few insignificant exceptions - . from the recommendations of the Morton commission. I think that this is a matter that we should not overlook. The commission has been relied upon very heavily by the Government to support the aspects of the measure which suit it, and the report and the findings of the commission were completely suppressed or distorted when they ran counter to the present measure. I support the amendment.
– I also wish to support the proposal to appoint a select committee.I do so because this measure is so complex–
– Order! Thehonorable senator is out of order in addressing herself to the amendment because she has spoken since it was moved by Senator McManus.
– Mr. President, will you explain with more clarity the reason why it is not in order for Senator Tangney to continue?
– I think it is quite clear that, up to the time that Senator McManus moved his amendment, the debate ranged over all the proposals in the bill. Honorable senators who have since spoken have addressed themselves to the amendment. This is a simple explanation of the position.
Question put -
That the words proposed to be left out (Senator McManus’s amendment) be left out.
The Senate divided. (The President - Senator the Hon. Sir Alister McMullin.)
Majority . . . . 34
Question so resolved in the negative.
Question put -
That the bill be now read a second time.
The Senate divided. (The President - Senator the Hon. Sir Alister McMullin.)
Majority . . . . 37
Question so resolved in the affirmative.
Bill read a second time.
Clauses 1 to 13 agreed to.
Clause 14 (Reconciliation).
– This clause and the provisions relating to marriage guidance are the pegs on which the hat of the next Liberal leader has been hung in his association with this bill. I particularly wish to refer to this clause because a Tasmanian senator, referring to it and the succeeding clause, stated that to say, as he contended I had said, that they would be temporary only, would be to cast a slur on the members of the judiciary acting in these cases. At no time did I refer to these particular clauses other than to say that the provision in respect of marriage guidance organizations and conciliation stood to the credit of the AttorneyGeneral. It was the one bait that was to lure the people into acceptance of some of the obnoxious clauses contained in the bill. It was the sugar coating surroundingthe pill of bitterness. For that reason, and for that reason only did I mention it. I mentioned it in terms of commendation. On no occasion -did I reflect on the judiciary in any way. Later in his speech the same honorable Senator said - 1 have in mind the criticism that was made by one of my own colleagues, Senator Dittmer, who said that this bill will cause blood to run from ‘tired mothers and tears to flow from sorrowing children.
Those words were mine, but they did not relate to this clause. They referred to a statement by Senator Wade that in the process of time this bill would be regarded as a white paper. 1 said it may be regarded as a white paper, but that it will be a white paper stained with blood from the hearts of sorrowing mothers and wet with the tears of deserted children. The honorable senator said that he quoted my exact words as he ‘had written them down. He must have been careless ‘in his writing, or his listening could not have been perfect. I should be ready to make free my specialist experience if at any time he needs or desires it. The honorable .senator also said -
When honorable senators make statements such as the statement by Senator Dittmer to which I have referred, I wonder whether they have actually read the bill.
I assure the Senate that I did read the bill. Possibly -I did not have as much free time available to me as the honorable senator did. He probably has sufficient feathers left after I have plucked some from him to permit of his flying north.
.- I appreciate Senator Dittmer’s explanation because he has made the position much clearer than he did in his earlier speech. >1 must, however, correct a -misquotation on his part. I still have a feather left and a leg to stand on, and in addition sufficient power in my voice to correct the mistake made by the honorable senator. He said that I said that his remarks had cast a slur on the judges. I said no such thing, lt is not in my speech. I repeated what Senator Dittmer had said that the provision for the children would only be temporary. Honorable senators will find that statement in his speech. I said that it was a matter for the judge, in respect of certain clauses in this bill, and I quoted clause 70 where a divorce could not be made absolute until such time as the judge was satisfied that ^provision had been made for the .children and the spouse.
The CHAIRMAN (Senator the Hon. A. D. Reid). - Order! We are dealing with clause 14.
– I am dealing with clauses 14 and 15 where -provision is made-
– The honorable senator will deal with clause 14. He is not dealing with that clause when referring to the children. He will deal with clause 14 which concerns conciliation and has nothing to do with the custody of the children.
– The honorable senator has no feathers left.
– Senator Dittmer in his remarks , on clause 14 quoted me and I am now quoting him back by repeating what he said in relation to that clause. If I am out of order, Senator Dittmer was just as much out of order. I will continue my remarks.
– You will continue to deal with clause 14 or resume your seat.
– I shall continue, but before I resume my seat I wish to say that under clause 14 certain provisions are made for reconciliation. In that clause -it is laid down that a judge or a guidance counsel can come in and make certain recommendations. Again I say that, to describe as temporary a provision which enables a judge to come in, and endeavour to do his utmost to bring about reconciliation that will protect the children, is to cast a slur on the judges acting in these cases.
Clause agreed to.
Clause 15 -
Where a Judge .has acted as conciliator under paragraph (b) of sub-section (1.) of the last preceding section but the attempt to effect a reconciliation has failed, the Judge shall not, except at the request of the parties to the proceedings, continue to hear the proceedings, or determine tha proceedings, and, in the absence of such a request, arrangements shall be made for the proceedings to be dealt with by another Judge.
– I move -
Leave out “.except at the request of the parties to the proceedings,”.
I do so because I am somewhat concerned about what is, in relation to other matters, a relatively minor aspect of the bill. If this suggestion is carried, I shall move later that the words “ in the absence of such a request “ be left out.
This clause refers back to clause 14(1.) in which, apparently, there was some need of reconciliation. The preceding clause authorizes a judge, whenever he thinks that there is a prospect of reconciliation between the parties, to adjourn the proceedings. It authorizes him to nominate certain people to endeavour to effect a reconciliation. But it also authorizes him, with the consent of those parties, to interview them in chambers, with or without counsel, with a view to effecting a reconciliation.
I point out that there is always danger in any litigious matter in a judge seeing the parties, or even counsel, unless both parties anl counsel are present. I do not think I recall a single civil matter in which the judge has interviewed parties. I realize that this is a matter of marital relations and that it is in a somewhat different category but the clause we are considering provides that where a judge has acted as conciliator and the attempt has failed, he shall not, except at the request of the parties to the proceedings, continue to hear the proceedings or determine the proceedings, and, in the absence of such a request, arrangements shall be made for the proceedings to be dealt with by another judge.
The effect of the amendment I propose, if carried, will be to make it mandatory that if a judge embarks as conciliator himself in the course of proceedings he can no longer continue with the hearing.
I point out the procedure set out in the bill. It is that the judge may, dispensing with counsel, interview the two parties. It may well be that in the course of the discussions in the judge’s chambers, an admission adverse to the interests of one of the parties, or some statement which, though not actually amounting to an admission, may be relevant, may be made by one of the parties in the judge’s presence without that party being conscious of the effect of what he has said. Let us assume that the conference is over, and that it has failed. Counsel would inquire from the parties what had transpired. Not realizing the significance of what had occurred, counsel might be induced to recommend the parties to continue with the same judge. That advice might be very wrong when based upon what his client has told him. 1 would expect that if a judge had an admission under those circumstances nothing on earth would persuade him to continue with the hearing even if the parties requested it, if he felt his mind had been coloured. But the danger is that parties can misunderstand a judge; they can misunderstand what is happening; they may give different versions of the interview before the judge to their various counsel. My point, as I see it, is that not only must justice be done as we would expect a judge to do but justice must also appear to be done.
If it transpired at any stage of the proceedings that some damaging admission had been made and the judge had continued with the hearing, it might well be felt that justice had not been done. It is very difficult, when an admission has been made or when any fact emerges in the course of the intimate discussion in the judge’s chambers, for a judge to eliminate it from his mind. I have no objection to a judge being authorized, if he feels that the effort is worth while, to call the parties into conference, with their consent. I do not like his ability to bar the presence of counsel. I do not think, either, that the presence of counsel would help if there is a real prospect of reconciliation.
My own view is that there are so many dangers, traps and pitfalls in this process for a judge that I doubt whether any but a very unwise judge would embark upon it unless he were quite certain that it was going to succeed. If he proceeds and it fails, and the parties feel that his mind may be coloured one way or the other, the whole of the proceedings up to that point of time fail, and they have to be taken again with consequent costs to the two parties and, dependent upon the stage the proceedings had reached, the costs may be very substantial.
I think the bill will not be adversely affected if the words I propose be left out are left out and if we provide that once a judge intervenes as conciliator, and a reconciliation is not effected, he may not continue in the case.
– I can see the force of what Senator McKenna has suggested, but I point out to him that if his proposal were placed in the bill it would, I think, tend in very many cases to nullify altogether the provision of clause 14 (1.) (b) Which enables a judge to take this conciliatory action. 1 put it to the honorable senator that judges do not sit only in capital cities. They might sit in Broken Hill, or some small country town in Australia. In such circumstances, a judge might think, the case having reached a certain point, that he had a good chance of effecting a reconciliation if he called the parties into conference. As the bill stands, he can do so, and, if the conference breaks down, and if he has impressed both the parties with his integrity, and if he himself feels his mind has not been coloured, he can go back on to the bench. Under the honorable senator’s proposal, he cannot do that. In such circumstances, in a small town in the country, if a judge thought he could effect a reconciliation, he would have to Say to himself, “ But if 1 call these parties into conference with me I may not succeed in what I think I can do. If I do not succeed, even though they both still want to come before me, I cannot call them before me; 1 have to put them to all the expense of another trial and all the delay involved in another trial.” I think there are very few judges who, in that situation, would be inclined to put the parties to that risk. The honorable senator’s proposal would, at any rate, greatly reduce, if not nullify, the effectiveness of this reconciliation condition, particularly in outlying towns. For that reason, it cannot be accepted.
– I am obliged to the Minister for what he has said. I have already put the view that a judge is unlikely to use this authority in any circumstances at all unless he is quite certain of the result before he embarks upon an attempt at reconciliation. Let me put to the Minister that a judge may at any time adjourn any proceedings that are before him. The normal process in a matter like this, where he is hesitant and does not want to em barrass the parties, would be to propose an adjournment to counsel. He would direct them to confer with their clients to see whether a reconciliation was possible, and he would nominate one of the counsel to notify him of the result. He would make one of them the bearer of the result of the conference so that his mind would not be coloured as to which one had declined to conciliate. I should like the advantage of hearing the opinion or experience of anybody else in the committee who is interested. I think, quite frankly, that the clause itself is a placard. Any judge who involves himself in a personal issue of this kind is exceedingly unwise. He ought to stay out of the turmoil of these things. In this manner he would draw himself in. My amendment, if carried, would not prevent him from making an effort. It is designed to prevent him from continuing with the case if his effort fails. So I would hope that the Minister would consider what I have outlined as the normal process that a judge would follow even if this clause were not in the bill at all. It is unquestionable that if a judge saw the prospect of success he would follow the course 1 have outlined.
– Only in deference to the submission of Senator McKenna, I rise to make a number of observations upon this clause. I think that the amendment proposed is ill-advised. I recognize, as does he, the extreme delicacy of the situation when a man who assumes judicial responsibility takes unto himself the role of conciliator. If, in the secrecy of chambers, in the absence of counsel advising the parties, he is the recipient of a confidence, that is a great embarrassment to his continuance of judicial duties. But to prevent him, if he felt he were not embarrassed, from resuming, at the request of both parties, the hearing of the case in a judicial capacity, may cause very great financial expense to the parties for no actual advantage at all. I think it is wise that the bill should provide that resumption of judicial capacity shall not be attempted except with the consent of both parties.
– It is more than consent. It is at the request of both parties.
– A good deal could be said, of course, on both sides of this question. Senator McKenna’s amendment has some virtue because it is not a good thing, in principle, for a judge who has carried out the role of mediator again to resume the role of judge. But I should like to point out to Senator McKenna a factor that he may not have taken into consideration. He mentioned the embarrassment that might be caused or the difficult situation that might arise if one of the parties in the course of the conciliation discussion were to make some remark which it would not have been prudent for him to make in open court, thereby prejudicing his case if it were resumed. I appreciate that that could happen. Something might be said that would not be admissible in evidence. But if that did happen, one could well accept the fact that no judge would then insist on going on with the case as a judge. I think that no judge would in those circumstances insist upon hearing
Matrimonial Causes Bill.-
I am therefore inclined to leave the situation as it stands, although as a matter of general principle I am not particularly happy about a trial judge’s entering into proceedings as a negotiator at any stage. I agree with Senator McKenna that only in a very few cases would this happen and then the judge would be fairly certain that the reconciliation discussions would succeed. In that connexion, I ask the Minister a question. Clause 15 reads -
Where a judge has acted as conciliator under paragraph (b) of sub-section (1.) of the last preceding section ….
Does that include the case where a judge has carried out the provisions of paragraph (c) of sub-section (1.) of the preceding section, that is to say, where he has nominated an approved marriage guidance organization?
– I spoke briefly on this aspect in the second-reading debate, and I have given considerable thought to the matter since. In fact, I have done what most lay people would do in the circumstances. I have talked to those who I consider have better judgment than I on the subject, and 1 have tried to decide what I felt about it. I did not know that Senator McKenna was to move an amendment, and also a consequential amendment, in relation to the matter. In the second-reading debate I referred to quite a long debate we had in this place on another bill. An examination of the record of that debate would show, I think, that the parties who are now insisting upon the dual functions of the judge in divorce comprised the body of political thought that opposed similar dual functions under that legislation, and vice versa. When Senator Wright was speaking, I tried to draw a nice distinction between an actual request and mere consent. That is the point that influences me on the balance not to support the amendment. As I understand the position, the parties must, uninhibitedly and without any
prompting, make a specific request to the judge to continue with the hearing. In the light of what has been said, particularly by Senator Vincent, although I did speak in the broad against this provision, I am now prepared to accept it as it stands.
– 1 support the amendment that has been moved by Senator McKenna. Some people may not think this an analogy, but there is a good deal of conciliation done in trade union proceedings. There one finds a clear distinction between the conciliator who tries to conciliate but cannot make a decision, and the commissioner who can make a decision. I think that discussion of a problem by a conciliator with interested parties is much freer and easier if the parties are told by the conciliator, “ I am here to help you, but I am not going to impose any decision upon you later on “.
It is true that the judge cannot continue except at the request of the parties to the proceedings. However, after he has heard what they have to say, if one of the parties agrees that he should continue, it is sometimes pretty difficult for the other one to say, “ I am not going to have you “. Sometimes a very timid oman would be awed by the presence of the judge in the course of the proceedings. If the other party was anxious for the judge to continue the more timid party might feel that she should not really oppose the suggestion that the judge hear the matter further. I think that in all these cases it would be better for the judge not to do the conciliating himself but to refer the matter to a trained marriage guidance officer, who, I think, would be much better fitted for the task. That is analogous with the example I gave of trade union conciliation where certain people do nothing but conciliate and others are entitled to hear a case and make a decision.
Speaking as a layman, and one with very little knowledge of legal affairs, but with a little knowledge of conciliating, 1 say that the proposal of Senator McKenna appeals to me and I propose to support it.
– I do not want to delay the committee on what is a relatively minor matter, but I- should like to offer three or four comments. First; I am obliged to honorable senators who have addressed themselves to the proposed amendment. Secondly, I would say that it would be a very futile conference presided over by a judge, if the judge did not go away from the conference with his mind coloured in one way or another. The mere fact that the clause requires the consent of both parties before the judge can resume the hearing does not impress me. I pose the difficulty of counsel in advising a party on what course to follow when he himself will not know what has happened before the judge.
The last point I want to make is this: I think the procedure I outlined as being available, regardless of anything in this clause, is always- open, to a judge. My own firm impression is that this procedure does not advance the normal work of a judge at all. He would follow the course I outlined if he thought reconciliation was possible by adjourning the proceedings, instructing counsel to arrange a conference, and nominating one of them to tell him the result. That course is available to the judge quite apart from this bill. We are dealing with a matter of principle and my only concern has been to deal with the principle that is involved here. I am completely confident that no judge with any sense will ever use that process.
– It is not mandatory for him to exclude counsel.
– It is not mandatory, but the possibility is there. I would think that if he did embark on a course of reconciliation he would exclude counsel if he wanted to conciliate. If counsel are in the room the whole atmosphere of tha court is preserved.
– The whole atmosphere is much more conciliatory.
– I do not think so. I have figured in these conferences and one still remains the champion, of one’s client at all costs and at all times. I know of no stronger advocate of his client’s case than the honorable senator himself. I do not think that there is much at stake, but seeing that a matter of principle was involved, I thought I would move the amendment- which is- now before the committee.
.- I desire to ask a question about this important section of the bill. Will the Minister advise me as to when the conciliation proceeding will take place? Will it take place after the petition has been filed, or after the actual hearing has commenced? If it takes place after a petition has been filed, well and good, but if the parties wait until the case has been presented to the court,I think it is too late.
– The conciliation proceeding would take place after the case had begun and when the couple had come before the judge. It would be impracticable for a judge, whose days are fairly full, to attempt to reconcile the parties before they arrived before him.
– Is there any provision in the bill for that?
– Not for the judge to do it. There is provision in the bill for assistance by marriage guidance councils who would be expected to do something of that kind.
In reply to Senator McKenna, I say that I do not think that to deny the judge the ability to call a couple before him and seek to bring about a reconciliation with or without counsel would help the bill. Rather do I think it would be somewhat of a drag upon a judge’s capacity to effect a reconciliation. We should look to the good sense of the judges themselves and remember that they cannot go on with a case after attempting reconciliation unless at the request of both parties. Senator McKenna agrees with me that if a judge thought his mind was coloured by what he had heard, he would not go on with the case. If the situation arose towards the end of a conciliation attempt where it seemed to the judge that the attempt was likely to break down, it would appear to me that he would call counsel in at that stage to ensure that a timid woman was not overawed in any way. On the whole, I do not think that the dangers mentioned by Senator McKenna really exist. I. think that there is a possibility of reconciliation if the clause remains as it is.
Question put -
That the words proposed to be left out (Senator McKenna’s amendment) be left out
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
– Order! Senator O’Sullivan crossed the floor to the side of the “ Ayes “ after the tellers were appointed. That is distinctly out of order. He must go back.
Question so resolved in the negative.
Clause agreed to.
Clauses 16 to 20 agreed to.
Clause 21 - (1.) Subject to this Act, a marriage that takes place after the commencement of this Act, not being a marriage that is void, is voidable, where, at the time of the marriage -
either party to the marriage is -
– I move -
Leave out sub-paragraph (iii) of paragraph (b) of sub-clause (1.).
The sub-paragraph that I propose shall be left out provides that it shall be a ground for voiding a marriage if either party to the marriage is subject to recurrent attack;, of insanity or epilepsy. Clause 49 imposes restrictions upon the operation of that provision. It provides that a decree of nullity of marriage shall not be made upon any of the grounds specified in paragraphs (b), (c) and (d) of sub-clause (1.) of clause 21 unless the court is satisfied, first, that the petitioner was, at the time of the marriage, ignorant of the facts constituting the ground; secondly, that the petition was filed not later than twelve months after the date of the marriage; and thirdly, that marital intercourse had not taken place with the consent of the petitioner since the petitioner discovered the existence of the facts constituting the ground.
I put this matter before the committee, not arguing it as a matter of vital importance, but asking for it to be considered. I think it deserves serious consideration. It is proposed that recurrent attacks of insanity or epilepsy shall be a ground for divorce. The words “ recurrent attacks “ would, I expect, be interpreted to mean two or three attacks at unspecified intervals over an unspecified period. I have seen attacks of epilepsy, and I have never regarded them as something that would lead me to reject a spouse. Of what order would the recurrent attacks of insanity be, of what length and of what type? What is the criterion? I believe that the introduction of these disabilities as a ground for voiding a marriage is a matter for the thoughtful consideration of the committee. That is as far as I go.
– I think that Senator Wright has put the matter very properly and very carefully before the committee. As he has said, there are these disabilities and a number of other disabilities. If :i man who has them marries without disclosing to the person he marries that he has them, they can later be a ground for voiding the marriage.
– They may develop after marriage?
– You mean that the attacks may develop after marriage?
– The ground says, “ at the time of the marriage “. It is a provision which has been in the English law since 1937, so I am informed.
– This is a particularly indefinite clause. First, we have “ subject to recurring attacks of insanity or epilepsy “ being regarded as a measure of significance, but there is no definiteness about it at all. As to insanity, there is no mention of degree, such as whether a person has to be committed to an institution. That may be acceptable to many, but in regard to epilepsy we are in an entirely different field. It is quite possible that the people who are getting married, in the enthusiasm of their love, do not look up this much vaunted Barwick act and may not know that their marriage can be voidable on this particular ground.
Epilepsy has been defined medically as falling in two categories - one of a major type and the other of a minor type. It may be known to some that a member of this chamber was subject to recurring attacks of epilepsy. Fortunately for him, he has enjoyed a happy marriage, and his wife did not seek to have the marriage voided. The public has not seen fit to reject him though he has been here for many years.
In this clause, I think, the Government is guilty of careless thinking. Is this provision being made simply because it has been in the English law since 1937? Should there not be some determination in relation to epileptic attacks, their frequency and the effect on the health of the person; whether the person concerned can fulfil the requirements of married life and how the economic potentialities may be affected because of the disease? After all, many honorable senators who are keen readers will realize that many of the major figures in history have been epileptics but have been able to carry on useful lives. In many instances, they were not only able to carry on but were married and. in addition, were able to provide for many mistresses on occasions. Yet, in this modern age, the Government has seen fit to include this indefinite ground. Certainly, T believe that Senator Wright is thinking in terms of the attacks developing subsequent to marriage. Even though the clause provides that a marriage shall be voidable on the ground that the disease existed at the time of the marriage, I think the chamber should give quite serious consideration to eliminating the clause or at least to making the provision definite, because I do not know how the unfortunate judge is going to decide the question of voiding a marriage on this particular ground.
– I should like to answer the point that has been raised by Senator Dittmer. The marriage is only voidable - this is significant to Senator Dittmer’s submission, I think - if the petition was filed not less than twelve months after the date of the marriage. This indicates that it was voidable when he or she first discovered to his or her astonishment that the person he or she had married had suppressed some vital information before the marriage and marital intercourse had not taken place with the consent of the petitioner since this was discovered. I think that one -must consider the effect on the other party on discovering what really he or she could have been expected to be told before the marriage took place.
.- I feel .that with the advent of modern drugs to treat this illness, as Doctor Dittmer says, it should not be made a ground for a voiding of marriage. After all, if you are going to specify epilepsy, why should not diabetes and a whole lot of other diseases be a ground? A marriage partner could not possibly be aware of their existence unless he or she were told.
– But. this is a case where a party is not told.
– That is right. There are a lot of other diseases that 1 feel would have provided a far stronger ground. By the use of the modern drugs phenobarbital with dilantin, mesontoin mysolint, prominal tindionl, epilepsy is now capable in most instances of being contained. I refer particularly to the question of epilepsy caused by head injuries sustained in motor accidents. These days, many cases of epilepsy are completely cured by surgical operation to remove the cerebral scars. On this point, Sir Charles Symonds, K.B.E., CB., D.M., F.R.C.P., Physician-in-charge, Department of Nervous Diseases, Guy’s Hospital; Physician, National Hospital for
Nervous Diseases, Queen-square, and one o’f the premier experts in the world on this disease had this to say at page 403 of his “Refresher Course for General Practitioners “ - this will interest Senator Dittmer-
– That is outside my sphere.
– Sir Charles
Symonds stated -
After all this, they will need some encouragement and may fairly be told that there are many cases in which the liability is so slight that it is entirely controlled by medicines and the attacks cease; that if they cease for three or four years -
I realize, of course, that a twelve months period is specified, but this is the description of the disease with which we are dealing - they will probably not recur; and, further, that there are many more cases in which, though the attacks continue, they are so infrequent as to interfere very little with the patient’s life, and their occurrence is known only to his intimates. It may be explained that the proportion of serious cases is small, and -
This, Mr. Chairman, may terrify you - that one person out of every two hundred suffers from this malady in some degree.
I refer the Minister, if he is interested in taking the matter further -
– Is that world wide?
– I presume that the treatment of epilepsy is the same throughout the world. I should like to go on a little further to the passage that indicates that epilepsy does not prevent a man, in some instances, from living a normal life. In this connexion, Sir Charles Symonds stated -
It is important that the epileptic patient should so far as possible lead a normal life, but there are a few general rules to be mentioned . . . the patient should not go too long without food. If he is to be exposed to such risk he should carry sweets or chocolate to fill the gap. Extreme hydration is another known precipitant. The ingestion of an abnormal amount of fluid at any one time should, therefore, be avoided. Attacks are apt to occur after a night short of sleep,
So if the patient has a late night, he should have a late morning -
Excessive physical fatigue may sometimes lead to an attack and should be avoided. This does, not mean that the patient must not take part in games and normal exercise, only that he should not over-exert himself when untrained.
It is not only the epileptic who cannot exert himself when untrained. I do not know how many members of this Senate would care to have a crack at the fourminute mile. We are not trained for that. If we attempted it, I think the result would be disastrous.
I put to the Minister that the request for the removal of this ground has not been made frivolously or without due care and attention. The epileptic is not a leper. He should not be excised from the community and put in a particular category. In thu age of medical progress, in which so much interest is taken in the less fortunate members of the community, I think it is grossly unfair to have such a provision. That attitude is also reflected in the view that this bill takes of mental illness. People who suffer from mental illness are, according to the bill, virtually to be segregated and placed in a prescribed class. I ask the Minister to accept Senator Wright’s amendment. After all, we are dealing with a part of the bill which, I think, has almost universal support.
– I think that Senator Wright has rendered a service in directing our attention to this matter. I had not considered this particular clause until he circulated his amendment. I think that the committee will appreciate that I personally have not had very much time to consider it since the amendment was circulated. I ask the Minister whether he can define what is meant by “ recurrent “. There may be authority for the use of the term, but if there is, I do not know of it. Would “ recurrent “ mean three times a year, or once every three years?
– It would have to be so many times in one year.
– In the absence of information that the Minister may be able to give me, recurrence could mean once every three years or three times a year.
– No. It has to recur within the first year after marriage.
– I am afraid I cannot accept that explanation. I say to the Minister, with respect, that a wider definition than that is required. I know that, according to clause 49, insanity is regarded as recurrent if it occurs every third year, but what happens if it occurs in the middle of the year? The Minister’s argument, in those circumstances, would not fall within clause 49.
I rose at this stage really to make a contribution on the subject of insanity. I made some inquiries recently and ascertained that there had been enormous development in the provision of drugs suitable for the treatment of this unfortunate disease. I learned of a case quite recently concerning a woman who was hopelessly insane and had been so certified. In the words of the Minister, in his second-reading speech, everybody would know she could never recover. That was the verdict that had been pronounced on this lady until, after eight years in the refractory ward, in the most abject condition of insanity and the most deplorable state, one of the new tranquilliser drugs, Largactil, was experimented with in her case. To-day, she is minding the children of a leading psychiatrist, a leading specialist in mental health. She is now 85 per cent, recovered - after eight years in the refractory ward! The new theory of chemo-therapy–Senator Dittmer will know more about it than I do - is that frequently insanity is due to the lack of some particular chemistry in the brain. The use of tranquilliser drugs in very heavy dosage has been proved to have the effect of restoring mentally ill people almost to normal. The case that I have cited was quoted by the leading specialist of whom I speak, in the course of a public address not very- long ago.
So, we have to face the fact to-day that the research that is available and is continuing all the time in what might be termed recurrent cases, leads me to believe, with my inexpert knowledge, that if a drug like Largactil - and there are many others of the type - can- restore a woman who, everybody would say, was completely mad, to 85 per cent, normality, I should think that a little chemo-therapy in a recurrent case could keep the condition under control all the time. That seems to be so, in the light of present-day treatment and medical research. I am informed that the prospects of this approach to the treatment of mental illness are very bright. Therefore, I am given cause to hesitate before approving this ground as one upon which marriage may be voidable, notwithstanding the qualification of clause 49.
– Surely the provision refers to the case in which, say, a woman finds that she is married to a man who suffers from recurrent epilepsy or insanity, of which she was unaware when she married him. 1 suggest that she would not be very interested’ in whether the epileptic or insane condition could be treated by drugs, or whether her husband could be brought almost to a normal state, because she would want to avoid having children by her husband in those circumstances. Had she known about the condition before her marriage, she probably would have said to herself, “ 1 do not want to have a husband who may give me children who will inherit epilepsy or insanity “. I submit that the clause is designed for the protection of people in such circumstances.
Provided that such a woman has not had marital intercourse with her husband since she was informed or found out about his condition, she has a ground for divorce, and I think, rightly so, because she probably never would have undertaken the marriage contract at all if it had been disclosed to her that her prospective husband suffered from recurrent insanity or epilepsy. I think that the clause is proper and safe and that in the circumstances it should remain in the bill.
– The Minister for the Navy (Senator Gorton) misunderstood me. Perhaps I did not make myself quite clear to him, although I thought I had done so. 1 appreciate the limitations applicable to the voiding of the marriage, but what I was referring to was the indefinite nature of the term “ recurrent “ in relation to epilepsy, which actually occurs in degrees. One form is so mild that it is called petitmal and very often does not necessitate the use of drugs at all.
– Is it hereditary?
– Not necessarily, but it is a characteristic which can recur. As we have heard, epileptics may lead useful lives. 1 think that the Government should consider seriously the decision to makeepilepsy a ground for voiding a marriage. 1 have known cases in which there has been no recurrence, but I admit, of course, that the number of such cases of which I am aware would not justify the conclusion, necessarily, that epilepsy does not recur in those families. It is a disease that is definitely controllable, and it is true that the people who are subject to it can lead useful jives. I should like to have definite information from the Minister. Honorable senators will remember that the Minister tried to justify the clause on the ground that similar provision had been made in the English law in 1937. Again, we have the same feature of this bill, in that the Attorney-General has gathered all the acts of Australia willy-nilly. Apparently he has also had a look at the English actHe has looked, too, at the Joske bill. Then he has thrown them all in together and has made a bill with which to glamorize himself before the public.
,- I feel sure that the Minister will be interested in Sir Charles Symonds* views on the transmission of epilepsy. At page 408 of his book, “ Refresher Course for General Practitioners “, he states -
The risk of transmission to offspring is serious only if there is an inherited tendency on both sides. There is evidence which suggests that a person may carry and transmit the liability without any personal or family history of epilepsy, but is then likely to show an abnormal E.E.G.
A normal E.E.G. in the non-epileptic partner is therefore an additional safeguard. If the result of these inquiries is negative the risk of an epileptic having epileptic offspring is practically negligible.
– I think I owe it to those honorable senators who have spoken to reply briefly to the points they have made. I cannot give a definition of “ recurring “. I doubt whether there is any authority on that, but, as I say, this provision has been in the English law since 1937.
– Since 1950.
– I am told that it has been in the English law since 1937. No doubt authorities would have been mentioned in cases that have occurred during that time. I can only emphasize again that, to me, at any rate, it does seem that if a man marries a girl without letting her know that he is subject to these things which might or might not be passed on, and which I agree do not stop a man from living a full, useful and proper life, but which are things a girl should know, then he has married her without her having had a proper opportunity of freely exercising her will.
I think Senator Hannan knows that this matter was the subject of evidence given before the Morton royal commission in England. That body did examine the question. I do not take the report of that commission as being anything other than the recommendation of nineteen intelligent people who examined the question, but I do emphasize that those nineteen people unanimously decided that a provision identical with the one we propose should remain in the English law. Apparently it has worked satisfactorily in England.
– Is it in any Australian law at the moment?
– Not that I know of.
– We have a somewhat similar position in sub-clause (2.) which relates to a mental defective. On what is it decided that a person is a mental defective? A mental defective may be anybody with an intelligence quotient of under about 90.
– Do you understand what an intelligence quotient is? For the benefit of those who are not sure of what an intelligence quotient is, I point out that it is the standard adopted in arriving at the intelligence of a person. The first step is to ascertain, by examination, what is known as the mental age of a person. That mental age is then divided by the common logical age and the result is the intelligence quotient. A very bright person would have an intelligence quotient of something in the neighbourhood of 135. A brilliant person would have an intelligence quotient between 165 and 170. They are the exceptions and, after listening to him, I should say that Senator Wright would be an exception. The intelligence quotient of the ordinary normal person is between 100 and 112. A person with an intelligence quotient of 85 to 100 could and often does lead quite a normal life, but the person who has an intelligence quotient in the neighbourhood of 50 is definitely a mental defective and must be cared for. The bill provides that a marriage is voidable if either party to it is a mental defective at the time the marriage takes place. I should say that if one party to the marriage has entered into the marriage without knowing that the other party is a mental defective, that other party must have an intelligence quotient of at least something between 80 and 90.
– Does not clause 21 (2.) define what a mental defective is?
– My point is that if one of the parties to the marriage has not known that the other party is a mental defective, that other party must be very close to being normal.
– Then what will their children be?
– That is a very important question. What will their children be? Some of the brainiest people in the world have been born to mothers and fathers of below average intelligence. That is an established fact. I want to know where we are to draw the line in declaring a person to be mentally defective. I suggest that it is going to be very difficult indeed to do that especially when the normal party to the marriage does not know that the other party is a mental defective. In such cases, the mentally defective party must be very close to being normal.
– Having regard to the fact that this is an entirely new provision to Australian law, and as its terms are exceedingly vague. I am prepared to support the proposed amendment.
Question put -
That the words proposed to be left out (Senator Wright’s amendment) be left out
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 2
Question so resolved in the affirmative.
Clause, as amended, agreed to.
Clauses 22 to 27 agreed to.
Clause 28 -
Subject to this Division, a petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be based on one or more of the following grounds: -
that, since the marriage, the other party to the marriage has committed adultery;
that, since the marriage, the other party to the marriage has, without just cause or excuse, wilfully deserted the petitioner for a period of not less than two years;
that the other party to the marriage has wilfully and persistently refused to consummate the marriage;
that, since the marriage, the other party to the marriage has, during a period of not less than one year, habitually been guilty of cruelty to the petitioner;
that, since the marriage, the other party to the marriage has committed rape, sodomy or bestiality;
that, since the marriage, the other party to the marriage has, for a period of not less than two years -
been a habitual drunkard; or
habitually been intoxicated by reason of taking or using to excess any sedative, narcotic or stimulating drug or preparation, or has, for a part or parts ofsuch a period, been a habitual drunkard and has, for the other part or parts of the period, habitually been so intoxicated;
that, since the marriage, the petitioner’s husband has, within a period not exceeding five years -
suffered frequent convictions for crime in respect of which he has been sentenced in the aggregate to imprisonment for not less than three years; and
habitually left the petitioner without reasonable means of support;
that, since the marriage, the other party to the marriage has been in prison for a period of not less than three years after conviction for an offence punishable by death or imprisonment for life or for a period of five years or more, and is still in prison at the date of the petition;
that, since the marriage and within a period of one year immediately preceding the date of the petition, the other party to the marriage has been convicted, on indictment, of -
having attempted to murder or unlawfully to kill the petitioner; or
having committed an offence involving the intentional infliction of grievous bodily harm on the petitioner or the intent to inflict grievous bodily harm on the petitioner;
that the other party to the marriage has habitually and wilfully failed, throughout the period of ‘two years immediately preceding the date of the petition, to pay maintenance for the petitioner -
ordered to be paid under an order of, or an order registered in, a court in the Commonwealth or a Territory of the Commonwealth; or
agreed to be paid under an agreement between the parties to the marriage providing for their separation;
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;
that the other party to the marriage -
is, at the date of the petition, of unsound mind and unlikely to recover; and
since the marriage and within the period of six years immediately preceding the date of the petition, has been confined for a period of, or for periods aggregating, not less than five years in an institution where persons may be confined for unsoundness of mind in accordance with law, or in more than one such institution;
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 the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.
That the clause be considered a paragraph at a time.
Paragraph (a) agreed to.
.- The committee will have an amendment that I have circulated in relation to this paragraph. The substance of it is that the period of two years shall be altered to the term applicable in every Australian State with the exception of Tasmania which prescribes a two years period in the case -
– Order! There is another amendment which must first be considered.
.- I move -
After “petitioner”, insert “continuously”.
It is very necessary that one should not obtrude too much on the committee’s attention and I was indebted to Senator Hannan for leading, although in the actual verbiage of the paragraph my proposed amendment comes a few words before bis. I submit the amendment for the attention of the committee because I am not by any means sure that it is essential to insert the word “ continuously “ in order to maintain the intention of the paragraph. In all expressions of desertion as a ground for divorce that come to my mind, the words used are “ without just cause or excuse deserted the petitioner and without just cause or excuse left him or her continuously deserted for a period”. I know that if the word “ continuously “ is omitted the most probable construction that would occur to me would be that the Parliament was referring to a continuous period. But my thought is provoked by the discussion in the Morton report. It was put forward quite strongly before the Morton royal commission that continuous periods that aggregated two years should be considered as constituting this ground.
My motive in bringing this forward is a reference in the High Court judgment in the case of Mayne v. Mayne, where in reference to a period of separation of five years the court made the observation that presumably, or undoubtedly, a continuous period of five years was intended. I dispute not the interpretation that I raise. I simply raise it, and if the Minister in charge of the bill says that there is no need for this amendment to give expression to the intention, and that the intention is beyond doubt,Ishall abandon it at once.
While I am on my feet, I want to add only that I should be most obliged if, before this paragraph were passed, the Minister clarified this situation for the committee. I think I am right in saying that the English provision in relation to desertion as a ground for divorce in Herbert’s bill of, I think, 1937, refers to the period of desertion as being the period next before the presentation of the petition.
– Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Chairman do now leave the Chair and report to the Senate.
Question resolved in the negative.
– I was about to say that that is the relevant period in England. If under the federal bill desertion commenced in 1960 and continued until 1962, and then the petitioner requested the respondent to return, what is the effect of that request made after the completion of the desertion period? Does it disqualify the petitioner from relying on that period? I think this raises a very debatable question in view of the novel provision in this bill that we will have to discuss, and to which the Attorney-General referred in his second-reading speech. In cases where parties are living apart, even pursuant to a separation agreement, if one of the parties is the recipient of a bona fide request on the part of the separated spouse to resume marital relations without any qualification as to the period of time between the commencement of the agreed separation and the request for resumption, that party is deemed then, on refusal to have engaged in wilful desertion. I have just forgotten the name of a House of Lords case that was heard about 1937. I would be obliged if somebody could recall the name to my mind.
In regard to the request basis in terminating desertion I think the committee should be informed as to the relevance of the period vis-a-vis the presentation of the petition and whether it is to be in any way connected to the period next preceding the petition or whether it becomes absolute upon the expiry of a definite period of desertion and remains unqualified by a bona fide subsequent request to resume the relationship.
– T am informed that the word “ continuously “ is not necessary for the court to hold that two full years - one after another - are required before a divorce action can be brought. If a party left home for a year and then returned to cohabit for a week, the time of desertion has to begin all over again. There has to be two full years.
.- I move -
Leave out “ two years “ insert “ three years. “
The purpose of my amendment is to increase the period of desertion proposed in the bill from two years to three years, which is the period of time which exists in all Australian States and in England, with the exception that Tasmania has a twoyear period in the case of a deserted wife. I feel that we should be particularly loath, Mr. Chairman, to change a law of this nature which has been in existence for very many years. There is a Latin tag the translation of which says, “ Let us be unwilling to change the laws of England “. The reason for that is that the burden of showing that the law should be changed rests upon the person propounding the change.
In respect of the grounds of desertion, the much-mentioned Morton commission had something to say. It is a great grief to me that the Government, which has leaned so heavily on Lord Morton in cases where it suited the Government, has completely ignored the recommendations of the entire nineteen commissioners who dealt with the matter in England. The recommendation which emanated from that committee was that the three-year ground should remain unchanged. I intend to quote from the report at page 43, paragraph 138. Perhaps, first of all, I should make it clear, because of certain things that have been said in regard to other quotations from this document, that this is the unanimous decision of the commission. Referring to the length of time of desertion the commissioners in paragraph 138 said -
Most witnesses were content that the period for which desertion must run should remain at three years. No witness suggested that the period of continuous desertion should be lengthened but there were several proposals that it should be shortened, on the ground that it is a hardship for a deserted spouse to have to wait for three years and that there is little prospect of a husband and wife coming together after, say, twelve months have elapsed from the initial desertion. We are all of the opinion that it would be most undesirable that the period during which desertion must run should be less than three years.
In paragraph 139 five members of the commission - Lord Morton, Sir Frederick Burrows, Mr. Lawrence, Mr. Mace, and Lord Walker - said -
Five of us are doubtful whether on balance the introduction of desertion as a ground of divorce in England has been a benefit to the community. We have noted that in recent years the number of petitions on the ground of desertion has amounted to nearly half the total number of divorce petitions presented. To us this suggests that this ground may often provide an easy way out for those who fail to take their marital responsibilities seriously and to show a proper spirit of give and take in married life. We appreciate, however, that if this ground were abolished there would be many genuine cases of hardship for which no relief would be available and that a number of persons would either commit, or pretend to commit, adultery in order to obtain a divorce. Accordingly, we are in agreement with the majority that desertion should remain a ground of divorce.
I have quoted the whole of the two paragraphs including four or five lines which are against my proposition. I commend to the committee the amendment which I have moved. Its aim is to maintain the present required period of three years for desertion so that no greater inroads will be made into family life in Australia than can be made at present under the existing legislation in relation to desertion.
– The first thing 1 should like to say about this matter is that I do not think anybody should put forward as a reason in itself for incorporating a provision in this bill the fact that the Morton commission has or has not made a recommendation along those lines. If we get into the false position of either accepting or condemning the decisions of the Morton commission, we are not accepting our responsibility as a legislature. This Parliament is the authority that has to make the decisions, not the Morton commission.
– But it is good to have an authority to back your argument, is it not?
– I am coming to that point. The only virtue for us ot the Morton commission is that a number ot good and true’ people took a long time to make a few decisions, some very silly - Australia would not have a bar ot them - and some very wise. I suggest that any one who is interested in the Morton report should read it thoroughly, and then accept the arguments only for what they are worth as arguments. The findings of the Morton commission are quite incidental to our deliberations to-night.
Now I turn to the question of desertion for two years and upwards. I think we should be clear in our minds about what desertion means. Desertion is something very different from separation. Desertion has been defined as an act by one party to a marriage with the intention to seve the matrimonial relationship permanently. An intention to desert the other spouse, not only to break the relationship, is of the very essence of desertion. A married couple can separate quite amicably, and neither of them is guilty of desertion. The essence of desertion is an intention by one party to put an end to the marital relationship, against the wishes of the other party.
That is the reason why. I suggest, a shorter period of time in relation to desertion than in relation to separation is just to the parties. I think we are concerned with the justice of these things. In Western
Australia, a divorce on the ground of separation must involve a separation of at least five years, and in New Zealand, seven years. If the matrimonial offence of desertion has occurred - if one of the parties to a marriage has decided, against the wish of the other, to break the relation permanently - the innocent party should have the right to do something about it within a reasonable time. I do not think that it. would be of much assistance to innocent parties to make the necessary period in these cases three, four or five years. If the matrimonial offence of desertion has been in existence for two years, the innocent party should be allowed to take proceedings for divorce. I believe that a period of two years is more than enough.
– Have not you heard of reconciliation after two years?
– I have taken part in many reconciliation cases, but very rarely is there reconc.liation after one spouse has deserted the other. Reconciliation occurs more frequently when the parties have separated. Desertion is very different from separation, and only on very rare occasions is reconciliation possible when desertion has occurred. In a case of desertion, it would not require desertion, for even two years to establish the rights and wrongs of the case in the minds of the innocent party and of a judge in a court of law.
The Minister referred to an important economic factor in this connexion. Whatever period we specify, an innocent wifewill be debarred during the whole of that period from obtaining proper economic relief from her husband. She should be entitled to obtain justice as soon as is reasonably possible.
– I disagree strongly with my honorable and erudite colleague as to the prospects of reconciliation in a case involving a petition, for divorce on the ground of desertion. I think the statistics show that the desertion ground is responsible for approximately 40- per cent, or 45 per cent, of the marriages that are dissolved in Australia. Having regard to my experience over the last twenty or 22 years, I certainly could not agree with Senator Vincent that reconciliation in cases of desertion is very rare indeed. The percentage of reconciliations is reasonable, although I would not say it is good.
The line of thought by Senator Vincent in relation to this clause and the line of thought by the Attorney-General in another place is something like this: “ We shall not increase the number of divorce petitions by reducing the period of time in cases involving desertion. We say that if a person would take proceedings in such a case after two years, she would have taken it after three years, if that were the necessary period. We shall not bring a single additional customer to the divorce courts. All that we shall do is to enable them to come sooner.”
It may well be - I feel sure that my colleague will advance the proposition - that I am a little obtuse in these matters, but I should have thought that if you reduced by 33i per cent, the period necessary to found a petition on desertion, you would automatically increase the number of such petitions by at least 33i per cent. That is a matter, not even of logic, but of a simple sum in arithmetic. Some honorable senators do not seem to agree with me. Perhaps they ‘ will explain my arithmetical error. I think that the simple method of testing the argument that is advanced by those who support the proposal for a twoyear period is the method of reductio ad absurdum.
– That is what you are reducing it to. You cannot deny it.
– Thank you. That was the most that I could hope to do. It would be just as logical for Senator Vincent to argue that we should reduce the period to two months, because that would only be enabling petitioners to come to the court sooner. Why not make the period two weeks? I say that the Government’s line of reasoning on this matter is absurd. If the bill is to be passed, it is better that it should make sense than that it should remain in its present form, supported by the wholly fallacious arguments that have been presented in favour of this provision. I think that any one who can put two and two together, who has passed second grade arithmetic at school, will accept the proposition that if you cut off the quantum of time necessary by one-third, you increase those who qualify by one-third. If any learned honorable senator who perhaps has studied Einstein’s Law of Relativity or some other abstruse mathematical exercise can show me the error of that, I shall be prepared to listen.
.- I think it is time that we introduced the human touch into this debate and dealt less with the legal phraseology of the Morton report. We are dealing with Australian human beings. I am amazed by the way in which people talk about marriage and what the period of desertion should be before one of the parties may petition for a divorce. It is all very well for people who are cosy and comfortable to talk about a period of three years being satisfactory, but what about the people who are closely concerned with this matter? Many of them would welcome the shortening of the period, as proposed in this bill. We are dealing with human beings and with- a human problem. There are human weaknesses. When legal men talk about a longer period-
– It is not a longer period-.
– The honorable senator is asking for a period of three years, whereas the bill proposes a period of two years.
– It is a three-years period now.
– I am confident that the average person will appreciate the new provision when this bill becomes law. Regardless of what individuals may feel about the length of the term, I remind them that we are legislators and we are making provision for the greatest good for the greatest number of people. I have spoken to people in the country about this measure and I find that the bill, particularly this clause, is most popular indeed. It is all very well for people in comfortable circumstances to ask for a- period of three years but what of the deserted wife and mother who is in difficult economic circumstances? Why should she have to wait for a long period when circumstances could arise in which if she were free she could re-marry? That is the Christian outlook that some people tell us they are adopting in this matter. This is what may be called a human bill, dealing with human beings. Let us have in it a little bit of warmth for the people whom it concerns.
We have heard a lot about desertion for a period of two years as a ground for divorce. When the petition is presented to the court, various processes are observed and then the decree is made. By the time the marriage is dissolved, a quite considerable period of time has elapsed. We should not forget this aspect of the matter. The people who are most voluble about retaining marriage and who urge a longer period of desertion as a ground for divorce are encouraging subterfuge. We know that this goes on because of the way in which petitioners are hamstrung, and due to the stringent provision of the law in Australia. Any average person of the world knows that these things go on. We know that if a person wants to obtain a quick divorce, he or she puts up a framed adultery case. Senator Vincent, who is a legal man, was honest enough to say that this takes place. We know it takes place. I can see that my friend from Tasmania, Senator Wright, does not like what I am saying, but everybody knows there are framed-up cases in the divorce court.
– Whom did the honorable senator say had framed cases?
– I said that there are framed cases.
– You are not suggesting that lawyers frame cases as a practice, are you?
– I am not suggesting that lawyers do that; I would not suggest such a thing to the legal fraternity, but we know that these cases are set up and in them divorce is granted within a much shorter period than two years. The more stringent we make the conditions of the desertion ground, the more prevalent will be this practice. Therefore, I contend that lengthening the period of desertion would not make for a cleaner and better divorce law. We have to keep all these things in mind in dealing with this legislation. If we adopt a positive approach to this subject and treat it with less fear but with a greater appreciation of the problems that confront human beings, we will come to the conclu- sion that it is desirable to retain the twoyears period of desertion as a ground for divorce under the bill.
.- I am one of those souls whose passion has welled so high as to drift him into matrimony. I applaud the spirit that comes from celibacy - my friend from Queensland, Senator Wood - inviting us to consider the emotions of humanity. I say to my colleague that I have enjoyed the stimulants that come from having children around about me and a wife to look after me. These things keep even a legal man steadfast in pursuing a course to try to ensure that this bill will fructify. It is most important that the lawyers in this chamber or we who review subordinate legislation from below always keep clearly in our minds the express word of the law to see that people are not mistaken about it. The objectivity of the great judges in our courts permits them to be governed only by the express word of the law. They do not trust their individual predilections as against the written word of the people’s representatives in Parliament.
The only question here is one which should not excite us to irascibility, but which, as Senator Wood from Queensland has said, should promote the feelings of the soul. What are these things? Marriage as an institution can be broken down by too facile provisions for divorce. The period of time required for the desertion ground is one of the conditions that all legislators, without exception, regard as a safeguard to the security of marriage as an institution. It is just a question of exercising our judgment in this chamber to-night to determine whether a period of two years or one of three years shall be prescribed. That is the only issue. I say, Mr. Chairman, that he will be somewhat presumptuous who will seek to condemn the experience of the Parliament of Great Britain on this subject so recently expressed, as 1937, and confirmed by the unanimous report of the Morton commission. The recommendations from that commission have not been rejected by any member of this chamber, and from the report have come many of the best provisions in this bill. That very thoughtful review by nineteen persons of varied experience unanimously recommended the retention of the three-years period of desertion as a ground for divorce. Going to the Australian States, we find that every one of them up till now has retained the three-years period - there has been no proposal to abridge the time - save in my own State of Tasmania. Tasmania made an exception in favour of women, but resolutely retained the three years for desertion, during which married men are expected to abstain. Bachelors are admired, of course, for abstaining for longer than that, without any possibility of corruption. These are matters of public interest. When we have the United Kingdom resolutely agreeing to the retention of three years, and every Australian State, with the partial exception of Tasmania - and the nights are very cold down there - retaining the three-year period, I think that we should preserve the proper safeguards, especially for the tropical climes.
– We all realize that the three-year period has almost universal application, and that it was included in the Joske bill. The Attorney-General, when speaking in another place, said that, with the dilatory approach of the courts, it would be more than three years before a petitioner was granted a divorce. Did the procrastination or the dilatory approach of the courts determine the wording of this bill? Was the Minister, though in favour of the threeyear term, obliged to provide for a twoyear term simply because of legal delays? If so, surely that was a wrong approach. After all, delays are capable of rectification. Surely delays in legal processes should not determine the wording of a bill.
.- I have always been an admirer of the great mind of Senator Wright, my colleague and friend, but I think I should say a few words in reply to his comments on the clause that we are discussing. I admit to being a bachelor, but 1 am also a legislator and an elected representative of the people. Whilst I am single, I am able to apply a singleness of purpose to the study of such questions as that with which we are dealing. It may help to clear the mind of the committee if I say that a bachelor is not in such a bad position to judge the merits of a clause such as this, because a bachelor has no pecuniary interest in the matter. He can therefore take a detached view.
The views of bishops and other members of the clergy have been referred to during the debate on this bill. I suggest that some of those people also are not married, because they are not permitted to marry, and for that reason perhaps they should not be regarded as being better able to express views on this subject than I am. As I stated in my speech on the motion for the second reading, in the course of my public activities I have had considerable experience of human problems. Therefore, I have no qualms whatever in expressing views as to the propriety of this clause. I am strongly in favour of the bill. Whilst I may not be able to claim that I am qualified to speak on divorce because I have taken part in the marriage ceremony, I know probably more about desertion than most other honorable senators in this chamber.
– I ask the Minister whether the Government received representations from any class in the community for the reduction from three years to two years and, if so, from what source or sources the representations came. What effects does the Government claim that this provision will have on one of the main purposes of the bill - the upholding of marriage?
– I am informed that the Government has not received direct representations on this matter, though, as has been mentioned here before, the proposition was contained in the Law Council bill when it was drawn up. The answer to Senator Dittmer’s question is that the Attorney-General, as he indicated in his speech, believes that two years is long enough for a woman to be left to fend for herself, or for a man to be left. He pointed out, in passing, that in fact a petitioner does not get a divorce immediately at the end of those two years. In his opinion, as in mine, two years is a sufficient length of time. This matter being one of individual opinion, I think closer discussion is not necessary. It was discussed in the second-reading speech.
– In point of fact, would not the period really be three years instead of two?
– Yes, that is quite true. The suit could not be commenced until the end of the three-year period.
– Is there authority for the proposed reduction of the period, other than the view which the Minister expressed just now, that it was the opinion of the Attorney-General that two years was long enough?
– I was asked by Senator Dittmer whether the AttorneyGeneral believed it should be two years or three years. That was the answer I gave.
Question put -
The words proposed to be left out (Senator Hannan’s amendment) be left out.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . 16
Question so resolved in the negative.
– I should like to present specifically to the Minister a question as to when a petition by either party to desertion must be presented. I pointed out that in England the period of desertion must be that period next preceding the presentation of the petition. Under this clause it is simply any period since the celebration of the marriage. I suggest that once the two years’ desertion becomes complete, even though there is a delay of six or eight years before the petition is presented to the court, no request on the part of one party can deprive the other party of an accrued period of desertion. That seems to me to be thoroughly inconsistent with the purpose of the bill as it is expressed in the very anomalous provisions in clause 30.
– Will the honorable senator elaborate his point a little further?
– Suppose desertion commences in 1960 and expires in 1962. A request by the party in desertion to come home again in 1965 is of no avail to defeat a petition of that desertion commenced in 1970. I speak subject to correction on this matter. I put the proposition quite positively. If it is to be denied on the responsibility of the Attorney-General’s Department, I am not here to engage in legal disquisitions against such adversaries. But I put it forward with some degree of responsibility and bring to the minds of those who may consider it the case of Pratt v. Pratt in 1939 Appeal Cases.
This is an important matter when one tries to reconcile the anomalous position which has been incorporated, I think for the first time in Australia, in clause 30. I will take the position again where husband and wife this time do not desert each other in 1960, but enter upon an agreement for separation. This goes on until 1965. She gets accustomed to other environments, friends and other lives. He indulges in other company, not adulterous. He does not disqualify himself by any matrimonial offence from his right to ask her to return. Under this bill, if he bona fide asks her to return after five years’ separation and she refuses the chivalrous request that she return and submit herself, she then begins, within the terms of the act, a period of wilful desertion.
It seems to me that you cannot aline, consistently with justice, those two inconsistent positions and I submit that it is because we have not given attention to the incorporation of the English idea that the relevant period for desertion, without just cause and excuse, is the period next preceding the presentation of the petition.
– As I understand the position from Senator Wright on one side and my advisers on the other, there seem to me to be two distinct questions tied up in the matters he has posed. One is a case in which desertion has taken place and the other in which agreement for separation has occurred. As far as I can follow what the honorable senator said - and I hope he will correct me if I am in error - the case he stated to the Senate was this: If a man marries a woman then deserts her and stays in a state of desertion for two years and then is asked to come home–
– No, he asks to come home.
– If he asks to come home, subject to your correction, as long as the two-year period has run, it is too late for him.
– The request would be ineffective?
– That is so. That answers the point on desertion. The other question which the honorable senator asked related to separation under clause 30. This was a case where, after five years, one party asks the other to return and the other one does not return. Then, in two years’ time, from that date, the party who has asked the other one to return can bring an action for divorce.
Paragraph agreed to.
Paragraphs (c) to (j) agreed to.
.- I move -
Leave out “ one year “, insert “ two years “.
We are dealing now with the restitution of conjugal rights. There is a very definite reason for my proposal. The New South Wales ground of non-restitution of conjugal rights is to be made available to a number of States which previously did not have either the benefit or burden - whichever one looks at it - of the provisions.
I understand it is the proud boast of the Government that this is the one and only ground for divorce that has been made harder in one State. I refer to the fact that the New South Wales period of 21 days is to be increased to twelve months. Since this debate began, we have had almost incessant references to the wisdom of the legislators in Western Australia who discovered a new ground, which will be debated later. I refer to the breakdown of marriage. We have been led by people who are experienced in handling legal matters in that State to believe that Western Australia has the panacea for all matrimonial ills. In Western Australia, the period relating to restitution of conjugal rights is three years. I have not gone that far in my proposal. I have suggested that the Government meet me half way and provide a two-year period.
If Western Australia is to be quoted as an authority for making great incursions and inroads into the fabric of our matrimonial society, then I think it should be used as a shield and protector of that fabric to the extent that it can be a witness on our behalf. I refer to the three-year period obtaining in that very progressive State, and I appeal to the committee to accept my proposal that the period in this bill be increased from twelve months to two years.
I understand from some of my New South Wales colleagues that the ground of restitution of conjugal rights should not be written off altogether as a racket; it is not, although, in some instances, it has been abused. In its original derivation from the old ecclesiastical sources, it was intended to rebuild marriage and I submit that we can to a certain extent take that as meaning reconciliation in these days. Because of the short period in New South Wales, and the method by which it can be operated, undoubtedly this ground was abused to some extent there, but I am informed by one of my colleagues that 40 per cent. of the parties concerned obeyed orders for the restitution of conjugal rights. That is not an inconsiderable number. I say, therefore, that if there is any good in this ground for the dissolution of marriage in the sense that it restores marriage, then by all means let us explore it. I ask the committee to go the whole way with me and amend paragraph (k) by increasing the period from one year to two years.
.- I point out to Senator Hannan that the two-year period for which he is asking is the period after which people may obtain a divorce for desertion. I think it would be wrong to prescribe the same period for the restitution of conjugal rights.
Senator Hannan has also pointed out that even with the present 21-day period in New South Wales 40 per cent, of the people who have left home have obeyed orders for the restitution of conjugal rights. I should say that if 40 per cent, of the marriages are restored when the period is 21 days, it is logical to argue that a higher percentage would be restored if the period were extended to twelve months. But to extend it to two years would be inconsistent with the period we propose for desertion. As the Minister pointed out to Senator Wright, the bill provides that if a deserting spouse wanted to return home after two years, the petitioner for divorce on the ground of desertion could refuse to agree to his return. In those circumstances, 1 suggest that one year is a fair and reasonable period.
.- I do not wish to delay the committee long on this paragraph, although I do hope that the committee will look upon it as a very important provision which spreads throughout the Commonwealth the idea that you can abridge time by obtaining a decree tor the restitution of conjugal rights and then, at the end of the prescribed period, obtain a divorce for non-compliance with the decree. I compliment Senator Wood upon his reply, but 1 suggest he rather misapplied his comparison of the provision for restitution of conjugal rights with that relating to divorce on the ground of desertion. Why should there be an opportunity to use a shorter period as a basis for dissolution of marriage on the ground of non-compliance with a decree for the restitution of conjugal rights than applies to the ground of desertion?
In the case of desertion, the committee has adopted a period of two years, and I am not canvassing that in the slightest degree. We start off on that basis, and the point I want to put to the committee is that no sensible distinction can be drawn between a ground for divorce based on absence in non-compliance with a decree for restitution of conjugal rights and the ground of desertion which applies when one person deserts the other, without the consent of the other, and without just cause or excuse. The only difference is that you go to the court to get a decree and the court is then satisfied, in giving the decree for restitution of conjugal rights, that the petitioner has not committed adultery or disabled himself by the commission of a matrimonial offence. He has also to satisfy the court of his sincerity in wanting restitution of conjugal rights and the court then orders the other spouse to restore conjugal rights. It seems to me that that is a precise way of determining a period during which the respondent is in desertion, and I feel that there is some merit in the argument that the two periods should be the same.
Senator Hannan has made an appeal to my mind in pointing out the fact - which I had not noticed - that, hitherto, Western Australia has prescribed a three-year period of non-compliance with a decree for the restitution of conjugal rights as a ground for divorce. If we are to accept Western Australia as a precedent to some extent - I hope we shall qualify that when we come to paragraph (m) - there is great value in reflecting this viewpoint upon this cognate matter of the restitution of conjugal rights. The Senate is engaging most purposefully in the consideration of this measure, for which I am very much indebted. Let those of us who come from other States put fairly and squarely to ourselves the acceptability of the New South Wales viewpoint that noncompliance with an order for a certain period is a basis for dissolving the marriage.
– It would be abhorred in Tasmania.
– Not only in Tasmania, but also in many other States. This creates quite an element of surprise and shock, and I think that no real argument can be advanced to the committee that would justify our prescribing a two-years period for desertion and a lesser period after which non-compliance with an order for restitution of conjugal rights would provide a ground for dissolution.
– I should like to make a brief contribution to the debate on this amendment. I have in my mind that this ground, in a most obnoxious form, has been available in the New South Wales jurisdiction, although it is not a ground for divorce in any of the other States.
– It is in Western Australia.
– What is the period?
– Three years.
– It is only 21 days in New South Wales. I have in my hand an article in the “ Australian Quarterly “ by D. M. Selby, Challis Lecturer in Divorce at the Sydney University Law School and president of the Marriage Guidance Council of New South Wales. Obviously, he is a person in New South Wales who should know what he is talking about. After outlining the procedure for restitution of conjugal rights in New South Wales, he makes this comment-
– When was he writing?
– In September, 1959, in relation to this bill. He stated -
Such procedure lends itself to collusion between the parties but much loose talk on the subject seems scarcely to be justified. Judges are reported to have said that ninety per cent, of such cases are collusive though there is, of course, no accurate measure of what proportion are collusive. At least the fact that considerably less than ninety per cent, of restitution decrees are followed by proceedings for divorce or judicial separation indicates that this figure is exaggerated.
Undoubtedly many of the cases are collusive. It is regarded by some as a quick, easy and “ clean “ way to obtain divorce by agreement. Members of the legal profession must, at times, have a pretty shrewd idea that their client is guilty of collusion and there are times when Judges are not too astute to inquire as to a petitioner’s sincerity.
One could expect that man to be knowledgable on the matter. He alleges that there is a high degree of collusion in these matters, but he thinks that the figure of 90 per cent, is exaggerated. He points very plainly to the fact that a high degree of perjury is associated with every one of the cases, when he stresses that each applicant for an order for restitution must swear that he genuinely desires the return of the absent spouse.
– He would get an awful shock, in some instances, if she returned.
– It would be an enormous shock if the absent spouse complied. It has been argued that the one-year period will expand with the taking of proceedings. There will be two lots of proceedings, those for restitution of conjugal rights, followed by proceedings for divorce. It is said that it is possible that it would take just as long as the two-year period prescribed as a ground for desertion, and that accordingly this provision would in effect be a dead letter. In addition, it would be very costly. The AttorneyGeneral has said that because of this and because the period will extend to the period required to provide a ground for action for desertion, this provision will be used very little.
I will not be a party to erecting a system that is, on the say-so of those who know, riddled with collusion, accompanied by perjury of a high degree. I will not sanctify it by increasing the period allowed for compliance with the order from 21 days to 365 days. I cannot find any justification in principle for that. On the argument that nobody will use the provision, I submit that we are infinitely better off without it, and having accepted two years as the period providing a ground for action for desertion, it seems incumbent on the Senate to accept that period in regard to this provision. I strongly support the amendment.
– Senator McKenna said that 90 per cent, of the cases that came before the New South Wales court on this ground were the subject of collusion. The real purpose of the law is good, in that it may result in absent spouses returning home. I suppose that most laws relating to divorce are abused. I remind the committee that, despite the passage that Senator McKenna read, Senator Anderson said that 40 per cent, of the people who had been ordered in New South Wales to restore conjugal rights had returned home. That indicates very clearly that the lecturer’s statement is not based on very sound grounds.
– It was not that 40 per cent, had returned home, but that 40 per cent, had not proceeded with a divorce action.
– We are asked to decide that two years should be the period after which failure to comply with an order for restitution of conjugal rights would be a ground for divorce. As I understood the arugment in favour of having two years, if 1 did understand it, it is that two years is the period prescribed in relation to desertion. A person who is deserted may bring an action at the end of two full years and therefore if one is unable to get restitution of conjugal rights, he should also be able to bring an action only at the end of two full years. Senator Wright spoke to the proposal. I was not clear as to why he wanted this close relationship between two years on one side and two years on the other side.
– Only for uniformity.
– Senator Wright’s own two amendments proposed that the period prescribed in relation to desertion should be three years and in relation to the restoration of conjugal rights two years, which would leave the provisions proportionately in the same relation. It is felt that the provision is unlikely to provide the opportunity for collusive divorce that the three weeks period, we are told, provided in the past. The reason is that if two people wanted to break up their marriage, one could leave home and at the end of two years the other could bring an action on the ground of desertion. He or she would have to wait only two years and would need to bring only one action. If, however, the parties decided to make use of the restitution of conjugal rights provision instead of the desertion provision one party would have to leave home for perhaps a long or a short period. The other party would then bring an action for restitution of conjugal rights. Some months would elapse before that action reached the court. An order would then be made for the restitution of conjugal rights and another year would pass. The other party would not come back. Another application to the courts would then have to be made for a divorce on the grounds that the restitution order had not been complied with. That application would have to wait its turn before getting to the court. All that procedure would take about the same time as a straight-out application for divorce on the ground of desertion but would be far more expensive. By using the other means a divorce could have been obtained far easier.
– And it would stop collusion.
– I think it would. This ground involving the restitution of conjugal rights is put forward by the Attorney-General in the hope of bringing about a reconciliation. A wife in a fit of temper may run out of the house and decide to stay away. She may not want to be divorced and when an order for the restitution of conjugal rights is made against her that may be the means of bringing her back to the marital household. I do not think that there is any danger in this of collusion as has been pointed out. If a person against whom an order for restitution of conjugal rights has been made is not going to return to the marital household within a year, he or she is not going to return at the end of two years.
.- The committee is obliged to the Minister for his contribution. I wish to say emphatically that I consider the proposed provision an improvement on the New South Wales provision.
Sitting suspended from 11.45 to 12.15 a.m. (Friday).
Friday, 27 November 1959
– Before the suspension of the sitting I was referring to the statements by the Attorney-General and the Minister in charge of the bill here to the effect that, by extending the period relating to the non-compliance ground from 21 days to one year, the bill makes a direct contribution to the safeguarding of marriage. That is the contention, and it is conceded by me. However, the Minister claims also that this alteration of the period will allow the order for restitution of conjugal rights again to play its original role of restoring and safeguarding marriages. I suggest that that purpose will be only half served unless the period of time relating to the noncompliance ground is made exactly the same as that relating to the desertion ground.
I thought there was in the Minister’s last speech to this committee a faint suggestion that delay in the law courts provided an excuse for not extending the time still further, but I do not think that he would put forward such an argument seriously. We heard this matter discussed when Mr. Joske’s bill was before another place. I believe that that argument should not be used now, because, if there is any delay in cases coming to trial before the courts, that is an undesirable state of affairs which the Government doubtless will rectify. Therefore, any delays that may occur now should not be taken into account in considering this provision.
The Minister did not dispute Senator McKenna’s contention that the noncompliance ground has given rise to wholesale collusion. I think he will acknowledge that once you establish a ground for divorce that is a fertile field for collusion, you introduce into the system of divorce something that is a very powerful corrupting agency. By going the full distance and providing for a two-year period in relation to noncompliance with an order for restitution of conjugal rights, by removing the distinction between a person who fails to comply with a restitution order and a deserter, we should rid the divorce system of a load of collusion. Having regard to Senator McKenna’s statement, we should not ignore the fact that there is collusion in non-compliance cases. If we do disregard that fact, we shall do great discredit to ourselves. I appeal to the Minister to give effect to the argument that this ground gives rise to collusion by extending the period in the way that I have suggested.
– The Minister said that one of the reasons for fixing twelve months as the period in this instance was that delay in the law courts increased the time that a petitioner had to wait for a decree. Can the Minister tell the committee whether any arrangements have been made to assist the States by the appointment of additional judges, so that the greater number of petitions and the additional amount of work that the judges will have to do will be disposed of reasonably quickly? If it is the Government’s intention to make additional judges available for the States, would not that affect his argument that a period of twelve months is long enough because there are delays in the hearing of cases? There would be no delays then.
There is another point that I want to raise. Were any discussions held with the Premier or the Attorney-General of Western Australia in relation to a reduction of the period specified in the Western Australian legislation from three years to one year? Can the Minister give the committee any information as to the views of the Western Australian law authorities on that?
– I take this opportunity to submit that the committee should not be considering this clause at all now. I direct attention to what I said at the beginning of my speech in the second-reading debate in relation to the whole of the bill. I said -
Let me say that, although I shall not be a party to any time-wasting debate, I shall resist, with all the resources that I can summon, any curtailment of debate on this measure.
Senator Spooner then interjected and said ;
There will be no curtailment on the Government side.
I continued -
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, ft would be a process of legislation by exhaustion. However, I have no reason to expect that that will happen.
Senator Spooner interjected to say that that was not in contemplation either, and I said -
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.
The Minister may say that when he said that that was not in contemplation, he was speaking at that point of time, but the impression on my mind and, I venture to say, on the mind of anybody who heard that exchange, was that we were not going to sit into the small hours of the morning. We are in them now. My understanding of that exchange of remarks between myself and Senator Spooner was that we had an assurance from the Government that we should not sit after midnight without agreement. On this bill, I am free to speak for myself alone. Let me explain my personal position. I have responsibilities in my official capacity as the Leader of the Opposition. I inform the committee that on five of the last six days, being concerned with my official duties, I have not gone to bed before 4 a.m. It was 4 o’clock when I went to bed this morning. How hard I work, and how I work is my concern, but I merely indicate that that is my personal position.
Speaking still on a personal basis, I say that what is happening now is a very poor return for the co-operation which, as the Leader of the Opposition, I extended to the Government last evening, when, at ten minutes before midnight, I agreed that we should hurry eight bills through the Senate, to some of which there were formal amendments. We sat for half ‘an hour after midnight. I suggest that, in effect, there has been a repudiation of what I understood lo be an arrangement, and I protest against that on my own account. I hope that the Minister will take notice of what I have said and discontinue this discussion now. I certainly cannot give the attention of which I am normally capable to the consideration of these important matters at this hour. I think it grossly unfair to me - since I can only speak for myself - that I should be asked to address myself to this vastly important issue at this hour. I content myself, Mr. Chairman, with saying that I am disappointed and I am grossly inconvenienced. I hope that there are others in the chamber who will advert to what I have said and support my remarks.
– I ask that we be given an indication that the debate will not extend into the small hours of the morning. Everybody recognizes that Senator McKenna has not over-stated the extent to which he devotes himself to the performance of his duties. Some of us have been constantly engaged on official duties since nine o’clock yesterday morning - and that is a full day! I shall not take any more time discussing this matter. I heard statements by the Leader of the Government in this chamber (Senator Spooner) which were warmly welcomed. They amounted to an assurance. I do trust that this debate, which I believe has proceeded without incident up to now, will not continue until a very early hour when tempers may become frayed.
– Perhaps I might, with the consent of honorable senators, say something on this matter, lt is fair to acknowledge the co-operation that we have received from the Leader of the Opposition (Senator (McKenna) and the Opposition parties. It is fair, also, to recall that a very big slice was taken out of to-day by our discussion of a motion for the disallowance of the Australian Broadcasting Commission (Staff) Regulations. I think that we are bound to give some consideration to the situation that we have already made an amendment to this bill, so that if the law is to become effective the House of Representatives has to wait until we have finished the measure, receive it from us, and consider our amendment. Therefore, there are some 120 members of the House of Representatives who are unable to say whether they are to sit on to-night or whether they are to sit tomorrow, and if they are to sit to-morrow, at what time. In that situation, they cannot plan their affairs with certainty. It does seem to me that we cannot reasonably brush that to one side.
We have made very good progress with the consideration of this bill. We are now discussing the most contentious clause and, by and large, the number of honorable senators who are speaking in committee is not great. I would be content if we could say with some degree of certainty that this bill would go to the other place at some reasonable time in the morning. I remind honorable senators that we are all practising members of this chamber, and that when we meet in the morning we will be on the air. We all know that business is dealt with perhaps a greater degree of celerity when our proceedings are off the air than when they are on the air. So I say to honorable senators: Let us persevere for a while. Let us see what progress we make and see whether we can settle our views on clause 28. My impression is that when clause 28 has been disposed of, the remainder of the bill is not so contentious and may not take so long to discuss. If we get to that stage, when we meet at 10 o’clock in the morning we may be able to feel a degree of certainty as to when we can send the bill on to the other place. So I should like us, for at least an hour or so, to have a look at clause 28, see what progress we can make, and then review the situation.
– I should like to say–
– Oh, no!
– If an honorable senator cannot express himself in this chamber, things have got to a pretty bad stage! I say to the Leader of the Government that I think we should apply ourselves to this very important matter with our minds as clear as possible. I think it is wrong to suggest that we will get clarity of thought in the early hours of the morning. Whether or not our proceedings will be on the air does not affect the present discussion. I think, in view of the great public interest in this measure that our debates on it should have been broadcast, but that is by the way. I regard this measure as the most important piece of legislation concerning the welfare of the people that has been dealt with in this Parliament since I have been here. I am one of those who think that we should not continue our consideration of it until the early hours of the morning when every one is dead-beat. We have to come back to-morrow, and if we do not finish our consideration of the bill then, we can sit the next day or next week. In the long run, I think, we will get better legislation in that way.
– I think that the Leader of the Government (Senator Spooner) gave the very best reason possible as to why we should not proceed when he said that we had now reached the most contentious clause of the bill. I thought that that was the best argument for adjourning at this point. Senator Spooner said that the House of Representatives will have to await our conclusion. The Government knew - or it should have known - that it had an amendment to introduce. The Government knew that when it gave the undertaking I have mentioned. It knew that perfectly well!
I now make this suggestion for the consideration of honorable senators: I understand that we all have to return here to farewell the Governor-General some time late in January. This bill has not to take effect immediately. Why cannot the House of Representatives deal with the matter then? Where is the practical difficulty in relation to that?
I have expressed my mind firmly on this matter and I am going to adhere to the stand that I have taken. I want the Government to hold to what I interpret as an undertaking; I think it should be held. The Minister asked us in the vaguest terms to go on - how did he put it - for a while; then he varied it to an hour or so. I am not prepared to accept either of those positions. I do not want to delay the committee, Mr. Chairman, and I therefore move -
That the Chairman do report progress and ask leave to sit again.
Question put. The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 1
Question so resolved in the negative.
.- I think I should try to reply to points raised by Senator Hannan and Senator McKenna. I want to make it clear that when I was speaking of the time that would necessarily elapse between the date on which a person left home and the date on which a divorce was granted under the restitution of conjugal rights provisions,I was attempting to show why this ground is not likely to be used collusively for obtaining a divorce. But if we put that on one side and assume that the courts will function with reasonable speed, at least eighteen months will elapse before a year of separation has passed and two actions have been taken. In those circumstances, anybody who used this ground collusively would be paying for two legal actions for the sake of saving a couple of months. Therefore, the ground is not likely to be used for collusive purposes.
– Then why not cut it out?
– Because, in the case of a spouse who has been left and does not want a divorce, it provides an opportunity to try to get the other party back, which was the purpose of this provision when it was introduced in the ecclesiastical law.
– But the court has discretion as to the period that it orders now.
– In this case, there is a year’s delay. I am answering Senator Tangney’s interjection that the provision should be cut out. It should be included because it does provide the chance for some one, having left but not wanting to be divorced, to be asked to come back. That person may come back rather than be divorced. For that reason, I think the provision has some value.
Question put -
That the words proposed to be left out (Senator Hannan’s amendment) be left out.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 20
Question so resolved in the negative.
Question put -
That paragraph (k) stand as printed.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 20
Question so resolved in the affirmative.
– I move -
Leave out the paragraph.
I put it to the committee that this ground of insanity is not one which will be found in a large number of petitions. Speaking from memory, I think the number of petitions founded on this ground in thewhole of Australia last year was seventeen or eighteen. I am subject to correction on that. But my point is that if injustice is worth fighting, it should be well and truly fought. It is almost impossible to remedy the harm that can be suffered by a respondent who is temporarily committed to an institution even for the long periods which have been included in paragraph (1) as a safeguard. This paragraph goes a good way towards meeting the hardship that would ensue from a less carefully drafted piece of legislation, but I remind the committee again of the great advances made in mental hygiene and the care of people who are mentally ill. They are no longer to be segregated from the community. I have been informed by the Victorian mental hygiene authority that, on the average, 50 per cent, of the patients admitted to receiving homes and mental institutions are ultimately discharged as completely cured. That is a very big percentage compared with the 10 or 15 per cent, of mental patients who, 30 years ago, I understand, were all that were capable of being cured. I have mentioned here the dreadful case of the New Zealand woman who was divorced while she was insane. After having been insane for nine years, she made a complete recovery early in this decade, and when she was discharged from the mental asylum she found that she had no husband, no home, no money, and absolutely no resources at all. Members of the committee should, therefore, think carefully before allowing this clause to become part of the legislation.
– At this very early hour of the morning, when few of us are qualified to debate properly so important a bill, I should like the committee to have regard to the status that is given to insanity in this clause. I come from a State to which a very great tribute was paid yesterday. It was said that Victoria probably led Australia in the care of the mentally ill. In that State we have been trying, with success, to remove the stigma that some people have, for many years, tried to attach to mental illness. We have adopted the attitude that insanity is just as much an illness as any other illness, and we have tried to ensure that no stigma attaches to it or ought to attach to it. But what do we find in this clause? Mental illness is put in the same category as adultery, desertion, rape, sodomy, bestiality, habitual drunkenness, frequent conviction for crime, attempted murder, and unlawful killing.
– That is not so.
– That is the case. By including it with those other grounds a stigma is placed upon the mentally ill. They are made to appear to be in the same category as people who commit those crimes or misdemeanours.
– You put them there.
– I notice that the Minister shakes his head and Senator Courtice also makes a denial, but it is a fact. A list of grounds is given for dissolution of marriage, and in every case except one, it might be said that the respondent would be blameworthy to some extent, but in the case of mental illness the person afflicted is usually completely innocent. What shall we say to people who have been working so successfully to remove the stigma from mental illness? If we pass this provision, the Federal Parliament will rivet that stigma upon mental illness. It is all very well for the Minister to say, “ Oh “. That is what is being done. If he thinks that mental illness is not in the same category as rape and all those other things, why is it put in the same clause alongside them? I think the provision is iniquitous. I shall continue to protest against any suggestion in any parliament with which I happen to be associated that a stigma attaches to mental illness.
– So will everybody else.
– If that is the case, the provision should be removed from the bill. In Victoria we have endeavoured with great success to make progress, and in some ways to pioneer, in the treatment of mental illness. Victorian governments have done a great deal in applying new methods from abroad in the treatment of mental illness. The result has been that the number of recoveries has increased. What are we doing here? We are nailing our colours to the mast, saying that mental illness will be used against the unfortunate person who, without any fault of his or her own, happens to be afflicted with it.
I have heard it said that there is often a very narrow line between genius and mental illness. I shall not name some of the places where I have sometimes thought I heard that statement proved to bc true. Mental illness is an illness in the same way as cancer and tuberculosis are illnesses. When we do not say that a person may be divorced for contracting cancer, tuberculosis or any other illness, why do we say he should be divorced for contracting mental illness? If this principle is right, why do we not legislate to allow a person to be divorced upon being afflicted with any incurable disease? What is the difference? I say this clause is mediaeval in character. It is not in accordance with modern principles of dealing with mental trouble. I should hate to see the Federal Parliament adopt this attitude.
– You would not like to see a fellow murder his wife because he was insane.
– We hear of cases that we are told are human cases, but we do not hear about the human cases on the other side. I know of one. A brilliant woman became mentally ill. While she was mentally ill, her husband divorced her. Eighteen months later she made a complete recovery. She is now engaged in a business activity wherein she is showing great brilliance and business acumen, but she has lost her husband and her children because of the operation of such a clause as this. Does any one think that this is a decent provision to have in any legislation?
– Your example is wrong, because the period is five years.
– Some tears have been shed here to-day and yesterday. Some cases have been discussed. I have heard pleaded the cause of the deserter and the adulterer. Let us hear some one plead the case of the innocent victim of divorce. What about somebody making a stand for the innocent victims, the men and women who stick to their marriage vows! We do not hear very much about them. I shall tell of the case of a friend of mine, whose wife became mentally ill at that time of life when many women are subject to mental illnesses. There were children and it was very difficult for him, while she was in the institution, to keep the home going. However, he did not divorce her. He had sufficient love and affection for his family to work during the day time, to keep his home going and to look after his children at night. He visited his wife and, thank God, she made a complete recovery and to-day they have a happy home. That is the kind of human story that I like to hear, not the story of anxiety that the deserter and the adulterer might be condemned to celibacy. People here to-night and on other nights have said that they want to prevent the adulterer from being condemned to celibacy!
I apologise to the committee for the intensity of feeling that I have displayed, but I do feel strongly about this matter. I have seen cases of this sort and I regret that in any civilized country a person who becomes the victim of illness should be placed in the same category as the criminal, the adulterer, the deserter, the rapist and the murderer. They are all listed in the same clause. Those who are supporting this paragraph cannot deny that that is so, although they do not like to think that it is the case. I appreciate that it is a shock to some honorable senators to know that this kind of thing has been done. It has been done, and you have to stand up to it.
– This provision applies in five of the States.
– There are also instances where one State has a particular ground for divorce and the other five do not. You do not talk about the five other States then, you talk about the one. You do it when it suits you and you do not do it when it does not suit you. In the same way you talk about the sorrow of the adulterer and the deserter and ignore the sorrow of the deserted wife and the wife who has lost her husband.
– That is untrue and unfair.
– The honorable senator says that that is unfair. If some people here to-night were to vote on the principles of the bill and not on the people whom they think are advocating the principles, we might have a bit of fairness. I say that, and honorable senators know what I mean.
I conclude by saying that this is a provision that is mediaeval in its cruelty. It is an insult to the mentally ill and I shall protest against this kind of thing on every occasion it comes before the Parliament.
– I shall answer the points made by the last speaker. First I take the proposition he put forward that because this ground for divorce is included we are placing a person in this unfortunate position on the same level as an adulterer, a rapist or somebody who has committed a criminal offence. It is no more right to say that because this is sought to be a ground for divorce therefore we are placing these people in the category I have just mentioned than it is right to say that because, in the case of jury service, bankrupts, convicted thieves, priests, clergymen, barristers and solicitors are exempted, they are all on the same level. The two sets of circumstances are precisely the same.
All I have to say, in addition, is that this clause must be read in conjunction with clause 34. Somebody must be insane and must have been insane for five out of the last six years immediately preceding the petition. In addition, the court must be satisfied that the person is unlikely to recover. If advances are made in medical science I think it will be more and more difficult for a court to be satisfied on the matter. If the court has to be satisfied by medical evidence called by whoever wishes to produce it, it is unlikely that the person concerned will recover. With all the safeguards that are to be provided I come down on the side of the person who is no longer married to a rational being, and in doing that I do not think I cast any stigma on that unfortunate man or woman.
Senate adjourned at 1.12 a.m. (Friday).
Cite as: Australia, Senate, Debates, 26 November 1959, viewed 22 October 2017, <http://historichansard.net/senate/1959/19591126_senate_23_s16/>.