23rd Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 10 a.m., and read prayers.
– I desire to ask four questions of the Minister for Civil Aviation. Is the Minister aware that Ansett-A.N.A. has approached Trans-Australia Airlines with a proposal to exchange two of its D.C. 6B’s for two of T.A.A.’s Viscounts? Has he read a published statement by Mr. Warren McDonald, the chairman of the commission controlling T.A.A., that such a step would be retrograde from T.A.A.’s point of view? Has he read Mr. McDonald’s statement that it would cost T.A.A. hundreds of thousands of pounds to revert to pistonengined aircraft when its plans are well advanced for the introduction of jet aircraft, because it would have to invest money in spare parts and retrain pilots, maintenance men and overhaul staff? In view of this, would the Senate be correct in assuming that if such an exchange between Ansett-A.N.A. and T.A.A. took place, it would take place, not by agreement between the two airlines, but as a result of pressure exerted on T.A.A. by the Government?
– I was asked a similar question recently. In reply to this question, I can only repeat largely what I said on that occasion. This proposal was made first in discussions between the two airlines in September of last year. At that time, T.A.A. was disposed to favour the exchange, but Ansett-A.N.A. was not disposed to favour it. I understand that the proposal was revived a little time ago in the course of the discussions which continually take place between the airlines. It is indicative of the changes that take place almost from day to day in the airlines industry that on that occasion the positions were reversed, and T.A.A. was not disposed to entertain the proposal.
I have not seen the statement attributed to Mr. Warren McDonald, the retiring chairman of the Australian National Airlines Commission. As the honorable senator is well aware, Mr. McDonald has a long experience of airline operations, but, as I have mentioned before, one of the charac teristics of this industry is that even among the experts there are vast differences of opinion. If Ansett-A.N.A. and T.A.A. did ultimately decide to effect such an exchange of aircraft, it would not be right, as the honorable senator suggests, to assume that that was necessarily the result of Government pressure on T.A.A. I have not discussed this matter with either airline for many months.
– I should like to ask the Minister for Civil Aviation a supplementary question. He will recall that I asked a question about this matter some weeks ago. Will he make inquiries to see whether negotiations concerning an exchange of aircraft are taking place?
– If, in the course of my discussions with either airline or with both airlines, the matter comes up, I shall certainly be interested to do as the honorable senator suggests, but I can assure him that I do not propose to place myself in the situation where he may subsequently say to me, “ You initiated this discussion “.
– By way of preface to my question to the Minister for the Navy, Sir, I want to say that it would appear from an examination of the Government’s defence policy that the Minister for the Navy is being directed on behalf of the Government to make immediate and intensive investigations into the building and equipping of naval craft - most importantly, of submarines. My question is: Will my friend, the Minister, in pursuance of his fulfilment of such task, make a close personal investigation of the potential in South Australia for carrying out this important defence work? I particularly invite him to inspect that State’s capacity for the building of the larger ships at Whyalla, and the very modern yards at Port Adelaide for the construction of smaller ships and, maybe, submarines, which I understand have never before been built in Australia. While he is in South Australia, I invite his attention to the capacity of the factories at and adjoining the long range-
– Order! The honorable senator is giving information.
– Very well, Mr. President - I think the Minister knows what I mean.
– Yes, Mr. President, I think I have got the general idea.
– This is a Dorothy Dix-er.
– I wish it were. It is quite true, as appears in the defence statement, that I have been authorized to carry out further extensive investigations into the matter of the acquisition of submarines for the Royal Australian Navy. As to whether they or other ships should be built in South Australia, 1 can only say that at the present time it appears to me that the best facilities for building vessels in Australia are the facilities which now exist at the naval dockyard at Williamstown in Victoria and at the Cockatoo Island dockyard in New South Wales, particularly since, if one particular type of submarine were to be chosen, then the firm concerned with the building of the submarine is closely connected with the Cockatoo Island dockyard and it would have that experience to back it. However, I will be extremely happy to look at the extensive engineering improvements which have taken place in South Australia in recent years to see whether it would be possible to assist those engineering industries in any way that the Navy could assist them.
– I wish to ask the Minister for the Navy a supplementary question. I preface it by saying that, according to an a ‘ tide I read in this mornings press concerning the defence report, the Minister for the Navy will be asked to look at the question of the establishment of naval bases in Australia. Will the Minister give attention to the particular need of a naval base in Western Australia?
– I seem to remember this question cropping up before, Mr. President. It is based, as far as I know, on a misconception because I did not read in the paper that I had been authorized to investigate the establishment of new naval bases nor, as far as I know, have I been so authorized.
– My question follows the lines of similar questions that have been directed to the Minister for Civil Aviation, regarding Trans-Australia Airlines. In view of the fact that the recent report and balance sheet of the British Overseas Aircraft Corporation shows a huge loss, which was partly attributable to the costly operation of DC7B aircraft and the tremendous discount at which these piston engine aircraft sell on the world’s markets, will the Minister safeguard T.A.A. from a similar fate, which would inevitably result in the organization incurring a loss in the coming year - a situation that many of T.A.A.’s critics would like to see?
– Yes, I have seen the annual report of the British Overseas Aircraft Corporation and have not failed to notice the unusually large loss that was made. This result was at least partly due to the utilization, as the honorable senator reminds me, of the aircraft which he mentioned and the need to amortize them at a huge discount. I assure the Senate that it is my constant endeavour to see that Trans-Australia Airlines is equipped with those aircraft which will give it the best economic results, and I derive great pleasure from being able to inform the Senate that the equipment most recently acquired is returning to T.A.A. a splendid operating result, despite the fact that the choice of that equipment was bitterly criticized by members of the Opposition.
– I preface a question, which is addressed to the Minister for Health, by reminding him that last year, during the debate on the motion for the adjournment of the Senate, I directed attention to the activities, or the lack of activities, of the Commonwealth National Fitness Council. I pointed out that although the council had not met over a long period of years, an amount was shown in the Estimates for expenditure in respect of a meeting of the council. I wish now to invite the attention of the Minister to the fact that although one more year has gone by and one more report has been tabled -
– Order! The honorable senator should ask his question.
– Is it not a fact that one more report concerning the council has been tabled in the Parliament?
Is it not also a fact that, as in other years, an amount has been shown to cover a meeting of the council which has not been held? Finally, is it correct that Senator Arnold, who is a member of the council, has stated that the council has not met?
– I did not notice a reference to that particular matter in the report when it came before this chamber. I understand from the honorable senator that an amount is shown in the Estimates for the holding of such a meeting, and that a similar amount was shown last year. 1 do not know whether the amount was spent last year because I have not checked that matter, but I suggest that it is not unusual to provide an amount to cover a meeting and, if it is not spent because no meeting has been held, to show the amount again in the following year. However, I shall raise the question again with the Minister for Health, because if the council is not going to meet, surely there is no necessity to provide money for meetings. I think it is time that a meeting was held.
– I ask the Minister for Shipping and Transport whether an approach has been made by the Western Australian Government regarding the standardization of the railway between Kalgoorlie and Perth. I ask this question because I understand that if that line were standardized, rail freights could be reduced considerably. Has the Minister figures that he could give to the Senate relative to the cost per ton per mile of the transportation by rail of bulk ores? I ask that question in view of the fact that there are deposits of iron ore at Koolyanobbing and adjacent areas, and that cheap freight rates would be an advantage in getting the iron ore to a steel plant at the port of Fremantle.
– I am afraid I have nothing at all to add to the answer that I gave to a question couched in somewhat similar terms a few weeks ago. I have had what might be described as informal discussions with the Western Australian Minister for Railways, but nothing of a formal nature. The honorable senator will recall that during the regime of the
Labour Government some sort of shandygaff approach was made, but it was an open secret at that time that there was a wide split in the Labour cabinet on whether Ministers wanted standardization. I repeat that the present Government has not made any formal approach whatever.
I think the honorable senator should be a little careful about assuming that the standardization of the Kalgoorlie-Perth line will be followed by an immediate decrease in freight rates, because a tremendous amount of capital will be required to service that work, and this will have to be recovered. Ability to reduce freights at the same time as the capital cost is being recovered would depend entirely upon the amount of traffic offering and that, at least, is a matter of some speculation.
As to the carriage of bulk ores in cars specially constructed for the purpose, it is a fact that if there is sufficient quantity of bulk ore offering it can be hauled so much cheaper in such cars than in the ordinary rolling stock.
– I direct to the Minister representing the Minister for the Interior a question supplementary to that which I asked on Tuesday last with relation to the supply to drivers of Commonwealth cars at all pools and bus drivers in Canberra of uniforms more suited to the climatic conditions. I now add to the list of car and bus drivers the attendants at Parliament House who, I understand, suffer a similar disability in that they receive a new uniform only once every six years. I ask the Minister whether he will consider the whole question of uniforms supplied by his department?
– I can assure the honorable senator that I shall bring this matter to the notice of the Minister for the Interior and see whether anything can be done about it.
– In view of the fact that the Postmaster-General assured the Senate yesterday that it was impracticable to extend postal concessions on gifts to mission stations and other charitable organizations, can the Minister representing the Postmaster-General tell us the annual amount involved in postage concessions to members of the defence forces stationed in Australia and performing ordinary peacetime duties?
– I am afraid 1 cannot give the honorable senator an answer to that question immediately, but 1 shall submit it to the Postmaster-General and ask that an answer be posted to her.
asked the Minister representing the Postmaster-General, upon notice1 -
Postmaster-General has supplied me with the following information: - 1 and 2. The Australian Broadcasting Commission is aware of the comment of the president of the Australian Association of Advertising Agencies and the General Manager of the Australian Broadcasting Commission issued a press statement on 27th October denying that the commission is favoured in the way suggested by the president. The commission fixes a price level for film programmes beyond which it refuses to go. Consequently, it sometimes happens that programmes which the commission has turned down because of the high price asked, go to the commercial stations. These programmes are not limited to films from American sources but also include material available from the United Kingdom. There is no evidence that the prices paid by the Australian Broadcasting Commission are higher than those paid by the commercial stations for equivalent usage of comparable programmes; in many cases the prices are lower. The Australian Broadcasting Commission is alive to its responsibility as a Commonwealth intrumentality spending public monies and it is not prepared to compete with commercial stations in paying exorbitant prices for film material. The availability of funds in the Australian Broadcasting Commission’s budget must also be taken into consideration in this regard. Concerning the payment of duty and sales tax, the Australian Broadcasting Commission as a non-revenue producing instrumentality of the Commonwealth, is exempt from such payments; however, this is not a relevant factor in negotiations with overseas organizations for film rights in which market values are the determining factor.
asked the Minister representing the Minister for Territories, upon notice -
Minister for Territories has now furnished the following replies: -
– by leave - Reports in this morning’s editions of Sydney newspapers state that I abstained from voting for the second reading of the Matrimonial Causes Bill. That statement appears in the “ Sydney Morning Herald “. The Sydney “ Daily Telegraph “ stated that I had voted against the amendment to refer the bill to a select committee, which was correct. But this newspaper also stated that I had not voted for the second reading of the bill. The position is that I voted in all divisions. I did vote against the amendment providing that the bill be referred to a select committee, but I voted for the second reading of the bill. That course was in accordance with my statement in the second-reading debate that I supported the bill.
– I present the fourth report of the Printing Committee.
Report - by leave - adopted.
Message received from the House of Representatives intimating that it had agreed to a resolution that the operation of Standing Order No. 337 be suspended in relation to evidence taken by, and documents presented to, the Joint Committees on Constitutional Review prior to 26th November, 1959.
Bill returned from the House of Representatives without amendment.
In committee (Consideration resumed from 26th November (vide page 1948)).
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 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.
Upon which Senator Hannan had moved by way of amendment -
Leave out paragraph (1).
– When I spoke in the secondreading debate of this bill I made it fairly clear, within the limited time at my disposal, that I was opposed to this provision. I do not propose to traverse to any extent the arguments I used on that occasion, but I find it very difficult to accept the assumptions that are almost inherent in this paragraph, namely, that mental illness is something which will remain static and that over the period of the next five or six years people who are mentally ill will of necessity remain in the same sad state. I agree with the remarks that were made last night by Senator McManus. I believe that he spoke from his heart and I confess that my own feelings and reactions about this paragraph are the same as his.
I should like the Minister for the Navy (Senator Gorton), who is in charge of the bill, to tell the committee what “ confined “ means. As I understand in modern teaching on mental disorders, particularly from the domicilary aspect, it is a part of modern techniques for people who are mentally ill, and are in a sense confined in mental institutions, to be sent home, at a certain stage of their recovery, for a weekend or so. That enables them to get the benefit of home life, and is an integral part of their treatment. It does seem to me that the word “ confined “ pays no regard to that possibility, and, of course, it makes the position all the more difficult.
I think it was Senator Hannan who said that because of the way that this clause has been drafted only a very few people would be able to obtain a divorce by using the ground provided in paragraph 28 (1). To me, that makes the paragraph all the more undesirable. There is no doubt that it affronts the consciences of many thousands of people, and therefore I submit that there should not be a paragraph in the bill to provide an escape for a person whom I would regard as a rotten reed in the community, a person who will run out on his responsibility after he has made a vow at the altar to take his partner in sickness and in health. I cannot for the life of me see why this paragraph has been included in the bill. There is no similar ground for divorce in New South Wales. History tells us that 25 or 30 years ago a private member, who at the time held what was regarded as a blue ribbon seat for an area on the north coast of the State, introduced into the New South Wales Parliament a private members’ bill to provide that insanity should be an added ground for divorce. What happened? No sooner had the bill been brought in than there was such a public outcry against it that it had to be withdrawn. Almost immediately after that happened there was an election, and the member who had introduced that bill lost his seat. That may or may not have been due to his action in introducing that bill, but the fact remains that he lost his seat.
– That has not been the experience in the other States.
– At the moment I am talking about the position in New South Wales and I have said that insanity is not a ground for divorce in that State. I go further, and say that, to my mind, such a ground is unacceptable to the people of New South Wales. As a senator representing that State, I am therefore of the opinion that this provision should not be included in the bill.
This ground places an immense responsibility on the superintendent of a mental institution. The stage may be reached in respect of a patient under his care when that person has recovered sufficiently to justify the hope that treatment away from the institution will accelerate his return to normality, but the superintendent of the institution, knowing that the background of the patient’s mental illness was some upset between the man and his wife, will be placed in the position of asking himself, “ If I support a request for his release, do I knock the prop from under the case of another party who wants to use his unsettled state of mind as a ground for divorce? “ The fact that there are likely to be so few cases of this kind is, to my mind, a strong reason for the rejection of this paragraph. I make no apology for saying that by providing for those very few cases we are providing a means of escape for a person in the community who has no proper sense of responsibility, or loyalty to his mate in times of sickness or other circumstance. Would any honorable senator provide such a person with an opportunity to run out on his mate in such circumstances? I know he would not. But what are we doing? By including this paragraph the Government is putting into the bill a provision which caters for the rotten reeds in the community.
There is another aspect of this question. It must be obvious that in providing this ground for divorce we are establishing conditions which may contribute to the mental upset of a person already in an institution. Honorable senators should give some thought to that point. Many persons in institutions, particularly women, may be there because of some upset in their domestic life. At some stage of their life it may be that something goes wrong, and they are upset and thrown off balance for the time being. Will it help a person who is battling to recover from a mental illness to know that there is in the matrimonial causes legislation a provision which states that any one who has been confined for five years in a mental institution is liable to be divorced on that ground? I have not forgotten the provision relating to the possibility of recovery, but I say that a provision such as this could contribute to a worsening of the condition of mentally ill persons. I have decided not to vote for this provision. I will not have it on my conscience. Every person is the judge of his own conscience, and I would not cast doubts on the integrity of any one who voted in a different way.
Any one who has read the Stoller report knows of the great progress that has been made during the last decade in the treatment of mental illness. The advent of shock treatment has made many cures possible. Many of us who were in the Services know that some of our mates, who normally would have been mentally deranged for the rest of their lives, have been cured by shock treatment. We know also of what is being done in cases of mental illness by the use of tranquillizing drugs and other drugs. We have heard of what can be achieved by leukotomy operations. In view of the progress that is being made in this field, I do not think that we should say that mental illness should be a ground for a person to be divorced. By agreeing to this provision, we should be saying that mental illness was a dreadful thing. We should be, in effect, holding up our hands in horror at the sight of a mentally ill person and saying: “ Away with you! You are mentally ill “.
We should be treating him as the lepers were treated in the old days. I, for one, will not agree to that, and I shall not vote for this provision.
– The committee has already decided to reject the proposal that recurrent attacks of insanity or epilepsy shall be a ground for voiding a marriage. Therefore, in effect, this matter was thrashed out on the consideration of that proposal.
This provision states that a divorce may be granted to a party to a marriage if the other party is, at the date of the petition, of unsound mind and unlikely to recover. The provision does not state that it must be established that the party will not recover, but only that recovery is unlikely. Who is to be the judge of whether recovery is unlikely? The second part of the provision reads as follows: -
Since the marriage . . . has been confined for a period of . . . not less than five years in an institution where persons may be confined for unsoundness of mind in accordance with law . . .
Are the laws covering this matter in all the States already uniform laws?
I support the remarks that have been made on this subject by Senator McManus and Senator Anderson. We have been trying for many years to have mental illness viewed in perspective. Great improvements have been made in the treatment of mentally ill people, but this is a proposal to perpetuate the stigma which for centuries has been placed upon people who have been called insane, but who now, in accordance with the policy of making things cleaner - to adopt a phrase used by those of my friends who are in favour of this provision - are called mentally ill. That is the right term to use, because such people are mentally ill. Surely illness should not be a ground for divorce. What about paraplegics? What about the hundred-and-one other illnesses that the flesh is heir to? There is no unanimity of opinion amongst doctors that mental illness cannot be cured. Indeed, we see mentally ill people being cured almost every day in Western Australia - a state which has figured so prominently in this debate - by modern methods of treatment. In Western Australia, we now have a day hospital for the treatment of mentally ill people. The patients go to the hospital each morning and return to their homes at night.
– This provision would not apply to them.
– I disagree. I am asking for an interpretation of the position from the Minister. I doubt that he knew that such an institution was in existence. The people who attend this day hospital are patients of the hospital, receiving treatment for an illness - in this case, an illness of the mind. I still have to learn that in any marriage service conducted by a minister of religion, or, for that matter, by a registrar of marriages, a proviso is attached to the promise to love and cherish in sickness and in health - a proviso excluding mental illness.
I think that we should approach this problem as ordinary human beings, realizing that more than mere legal jargon is at stake. We are dealing with something that could affect the health and happiness, not only of the two persons most vitally concerned, but also of members of their families. The-e is a woman who lives not more than 100 yards from my home on whom a provision allowing divorce on the ground of insanity has inflicted the greatest of hardship. She was a very devoted wife and mother, but she became mentally unbalanced at a time of life when that happens to some women, and eventually she was divorced by her husband. Incidentally, she could have divorced him many years before if she had not borne with his frailties, as some people would call them. He had given her grounds for divorce on dozens of occasions. This woman was eventually cured, but when she came out of the institution she found that she was an outcast. I helped her to get a widow’s pension. She is now supporting herself on payments from the Commonwealth. The woman who has taken her place is living in the home of which she was previously the head, and for which she had worked hard for many years - not just from 9 a.m. to 5 p.m., but round the clock. She worked hard to establish a home for her family, but now her family has grown up and has left home. She has been divorced and is living in a room in West Perth. Her place in the home has been taken by somebody else, who did not have to bear the heat and burden of the day during the early years when the home was being established.
– Was she confined in an institution?
– She was confined in an institution, but she has since been cured. I would say that she is as mentally stable as anybody in this chamber at present. I put it to the committee in all sincerity that this provision has in it an element of mental cruelty, and that it could lead to many people becoming permanently mentally ill and mentally unstable.
– May I try to answer a few of the points made by honorable senators while they are still fresh in my mind? Senator Tangney seemed to me to draw a parallel between the subparagraph relating to recurrent attacks of insanity - it has been excluded by the committee - and this provision. No such parallel can be drawn. In the first place, the paragraph that we are now considering does not relate to people who are subject merely to recurrent attacks of insanity. In the second place, the paragraph which was excluded by the committee did not provide only that recurrent attacks of insantiy should be a ground for divorce. It dealt with recurrent attacks of insanity of which, at the time of the marriage, the other partner was not aware. The matter raised by Senator Tangney as to people who were at day hospitals or who were, as in New South Wales, able to go home and come for treatment to a mental hospital and then go home is not relevant because neither of those cases is governed by the requirement that they must be confined. If they go to a day hospital and then go home - if they go to a mental hospital and then return home - they are not confined to a mental hospital.
– Suppose they are confined in a hospital for a few weeks, does that satisfy the ground?
– No, before any action can be brought on this ground they must have been confined - I emphasize that that does not mean able to go out - for five out of the last six years imme diately preceding the bringing in of the act and the court, on the medical evidence placed before it, must be satisfied that they are likely to continue to be confined for the rest of their natural life. The matter was considered by the Morton Commission, and what that commission stated in paragraph 187 at page 58 of its report is what is intended by the clause that is now before us. The commission stated -
Moreover, insanity has no precise definition and is a term used to describe varying degrees of mental disorder ranging from a mild delusional state to the extreme cases of paranoia or schizophrenia. In our view, divorce should be available only to a person whose spouse is suffering from insanity to such an extent that it can be said that the objects of the marriage relationship have been wholly frustrated. It seems to us, therefore, that the adoption of incurability as the sole test would not be satisfactory and that some additional safeguard is required which will serve as a criterion of the severity of the mental disorder.
So, in relation to sub-paragraph (ii) of paragraph (1), incurability is not the sole test; it must be proved that there has been confinement for five of the six years immediately preceding the date of the petition.
I can say little in answer to Senator Anderson’s remarks which, clearly, were a sincere expression of his beliefs in this matter. All I can do is to put before honorable senators, in addition to what I have just said, this observation: If a person has been confined for that length of time - is confined - a court in the light of modern medical evidence could be convinced that the person is incurable. In the light of that evidence a marriage can - by some, at any rate - be said to have ended as far as its purpose is concerned. But do be clear on this point: It does not apply to people who go in and out of mental institutions. Clearly, the ground applies to what the provision says it applies.
– There is little doubt - in my mind, anyhow - that when the history of divorce comes to be written in the British Commonwealth, this bill when it becomes law will be regarded as the Barwick divorce facilitation act. This is not a ground that has been culled from each of the States, from the British law, and possibly from some of the American States’ laws. Here, again, I agree with Senator Anderson. I think this is- a departure from the ordinary practice of regarding mental disease as just a particular field of disease to be treated, as regards research and the other facilities necessary, as being like any other group of diseases. Here we are going to separate the factors; very often mental disease to a degree that is sufficient to justify committal is a result of sustained frustration. Perhaps the other party who is going to benefit under this provision may be the agent responsible for having a spouse committed to an institution.
I noticed that Senator Gorton quoted from the Morton report. It is peculiarly interesting to note that throughout the discussion on this bill in the other House as well as here, portions of the Morton report have been quoted - those which particularly suited the purposes of the bill.
– I did not use my quotation from the Morton report as a justification; I quoted the words of the report in order to define the intention of this bill.
– I am not suggesting that the Minister did, but it has been utilized to serve the purposes of this bill, and those parts of it which did not suit the Attorney-General (Sir Garfield Barwick) and his associates have been carefully deleted and, in some cases, misrepresented.
Here again we have this same indefinite term, “ unlikely to recover “. I do not think that term is even as definite as the term “ hopelessly incurable “. There is ground for some argument here as to what can be regarded as “ unlikely to recover “ at the present time in the light of the advances that have taken place in the field of mental disease. Who are the persons who are unlikely to recover? Certainly the number will increase as the years go by if we continue the callous neglect that is evident in the field of mental disease. Certainly the position has not been improved to any appreciable degree by the Commonwealth and the State Governments in recent years following the Stoller report. Look at the term “ confinement “. In some instances it is necessary in order to conform to State requirements to have people committeed to an institution which has been registered as a mental institution. What is really meant by the term “ confinement “? Does it mean within the boundaries of the area owned by a particular institution? Many of these people are not confined to a ward or a room. They may ramble around the grounds and on most subjects these patients are as sane as any one here. Their spouses visit them regularly.
– You are not suggesting that we ought to be there?
– There may be justification in some instances, judging from the way that some people who have heard me speak have misrepresented me.
– As every one knows, Dr. Dax, who is an eminent authority in the field of mental hygiene has suggested that in very many cases they should not be restricted but should be allowed liberal facilities for getting around the grounds. Yet here we talk in terms of confinement.
As I have said, I realize the loneliness of the spouse left behind in the home. I sometimes think that the Attorney-General should have attended to first things first by bringing in a marriage law setting out, amongst other things, the proper entitlement rights of a wife. It may assist the court if the law provided that a wife should be regarded as having a 50 per cent, right in the property or assets.
What is going to happen - I have mentioned loneliness - to the party outside the mental institution? What happens in the event of a cure and her spouse is released? Released to what? To mental shock? To economic independence? No! If she were lucky she would have been granted a widow’s pension. Enough to provide for age and disabilities? Not necessarily. The bill is giving this ground which may deprive possibly innocent people from receiving basic rates. I would not be prepared to deny the right of divorce to some people, but it is not one of the grounds that 1 believe justifies divorce, and every one knows that I do not believe in divorce. I should be happier about this clause if it were more definite and if a measure of economic protection were provided for the unfortunate person who has been confined to a mental institution. That is why I say that the Attorney-General, knowing the authority vested in the Commonwealth
Parliament, should have taken the fundamental things first. He should have introduced a marriage bill. Then, if he wanted to introduce a divorce bill, he could do so. He could even introduce it jointly with the marriage bill, if he so desired. In the marriage bill, provision could be made to vest certain property rights in both parties to the matrimonial contract, whether marriage be regarded as a secular contract or as a sacrament.
– I have listened with great interest to the discussion of this clause. I think the problem should be regarded from a practical point of view. We must consider the case of the person who has left the home. Sub-paragraph (ii) provides that the other party to the marriage must have been confined in an institution for periods aggregating not less than five years before a petition for divorce may be based on the ground of insanity. Consider the case of a young woman in her early twenties. In the first year of marriage her husband becomes insane and is confined for, say, five years and three months, in a mental institution on the ground that he is incurably insane. Those who oppose this clause are saying to that girl, in effect, “You must stay married to that man for the rest of your life “.
– Suppose he is a paraplegic.
– I am speaking of insanity. I do not agree that a young woman should be placed in that position, and I believe that the intention of the provision is that she should not be so placed. That is why I support it.
– Before I entered the chamber this morning I discussed this aspect of the bill with a person who is very prominent in public life in New South Wales and who has had a great deal of experience in cases of this kind. At the beginning of the conversation I did not know what his views were regarding the provision that we are now discussing. However, he assured me that, in view of the instances that had come to his notice, he felt that the provision was a very good one indeed. I mention this matter because it indicates the view of a person with wide practical ex perience. If 1 were at liberty to divulge his name, I am sure that his opinion would carry a considerable amount of weight with honorable senators.
During the debate, suggestions have frequently been made that the AttorneyGeneral (Sir Garfield Barwick) should have done this or should have done that. We have had the views of Sir Garfield Barwick, and of Mr. Joske, whose brain child the bill was originally, and I understand that Sir Garfield took the opportunity to obtain the opinions of a number of prominent legal men. Therefore, this provision is not something that he has simply nutted out for himself. Instead, it is the product of the experience of men who are well qualified to advise on matters pertaining to divorce.
– The first thing I wish to say is that I believe it is unfortunate that arguments being put forward against this provision are being propounded with a certain amount of emotional intensity, which does not assist in dispensing justice. I greatly regret that the debate cannot be conducted without such an emotional content in it.
– On both sides?
– I am saying that both sides are culpable, but very few honorable senators so far have spoken in favour of the provision. Most speakers have been opposed to it and, I suggest, somewhat violently. Even Senator McManus apologized last night for his attitude to it. We shall not get anywhere in trying to ascertain the merits or demerits of a most difficult aspect of divorce if we allow our emotions to cloud our judgments.
I agree entirely with Senator Anderson, that this clause is not going to apply to very many people. Everybody knows that that is so, but that does not in any “way affect the matter. We are here to try to dispense justice. As I have said in my second-reading speech, justice does not mean justice for only one party to a problem; it must apply to all parties. It is no good coming to this chamber and saying, “ I want Justice “, and in the next breath saying, “ Justice can only be meted out, so far as I am concerned, by considering the rights of one party only”. If we could do that, it would be very easy to dispense justice.
This matter of insanity in relation to divorce has concerned thinking people for many years. If we believe in the importance of divorce and in the necessity for it, however much we may not like it, we must argue this matter without an emotional content in our discussion. Although I do not adduce this as an argument in favour of the clause, it is significant that thinking people in five States of Australia have provided for a similar law and have had it tor some time.
– Why does the honorable senator mention it, if he is not advancing the argument?
– I am advancing it as an argument that might be relevant to this discussion. I merely indicate that there are other people who believe that this is a desirable feature of divorce law. As Senator Scott has stated, unless there is such a provision, a person may be tied for the rest of his or her life to an incurable mental defective.
Senator McManus raised an important aspect of this problem, and Senator Tangney also referred to it. Senator McManus suggested that, in view of the fact that mental disorders can now be cured much more readily than heretofore, a person afflicted with this sad disease should be regarded in a similar light to a person afflicted with tuberculosis or some other physical complaint. On the face of it, that sounds logical, but let us regard the matter from a different point of view. One of the saddest features of mental illness is that the mind ceases to exist. It is perfectly easy to imagine a person permanently afflicted with tuberculosis, cancer or heart trouble, whose mind is still functioning actively and who is able to carry out his functions as a partner in a marriage bond. But whether we like it or not, and however emotional we may become over this matter, we must face the brutal truth that, in the case of men or women who are permanently mentally afflicted and must be put in an institution, the mind is not a part of them at all. To try to compare that person with a person who is quite mentally sound, who is not permanently and physically incapacitated, is not fair. I suggest it introduces into the argument an emotional content which should not be there because there is a very big distinction between the person who has not got a mind and there fore cannot comprehend any aspect of matrimonial association and a person of sound mind. I suggest that is the answer to the case put by Senator McManus.
There is just one other matter I should like to mention. From the way in which some people have criticized this provision, one might come to the conclusion that persons afflicted mentally and committed to institutions covered by the conditions of this provision are automatically divorced. That is a terrible thing to suggest or imply. Whether a person who goes insane is divorced rests entirely, and always will rest entirely, not with this chamber, thank goodness, but with the other party to the marriage contract. It is entirely up to that person to invoke this law, and if he or she does not want to invoke it, nothing on this earth can compel him or her to do so. That element has applied not only to the criticism of this provision, but also to that of other clauses. It is most unfortunate that this should be so because no divorce can ever take place unless the other party desires it. We should never forget that.
Those who are criticizing this provision must realize that if it is not passed they will tie for ever a person of sound mind to a person whose mind cannot comprehend matrimony. This provision makes it perfectly clear that divorce cannot succeed until it can be proved as a medico-legal fact - and the onus of proof is on the petitioner - that the other party is permanently insane to the extent of having to be confined. I think Dr. Dittmer knows perfectly well what that means. It means confinement, under due process of the laws relating to persons of unsound mind.
All cases of mental illness do not come within this provision. It is most difficult to prove legally that a person is going to be permanently incapacitated to the extent of being confined - and this means certified - to a mental institution. I can assure the committee that it is a most difficult onus to discharge. This law has been in existence for years, and I suggest that no one in this Senate can produce reliable evidence of cases in which the party concerned has been cured after a divorce has been granted.
Senator ORMONDE (New South Wales) [11.101. - I should like to ask the Minister one question so that I may be in a position to vote intelligently on this position. What is the law relating to insanity in the States to-day? What conditions are we trying to improve upon?
– I think five out of the six States have provisions similar to this.
– It is the same type of legislation?
– It is very similar.
– New South Wales has not got it.
– What have we in New South Wales?
– I am moved to intervene in the discussion of this provision only by the remarks of Senator Vincent, and I regret that he has left the chamber. I find a distinction between this illness and other illnesses. When a person has become of unsound mind, it does not mean that he is completely abstracted from the rational world i throughout the whole period of confinement; but it does mean that his mind is so seriously deranged that he is unable to control his affairs, or his family, or himself.
Then there is the question of confinement. I should like the Minister to help the committee in this respect. When we examine the actual language of the provision, I doubt whether it is required, under this ground, that the person should be compulsorily confined according to due processes of law. Having regard to the growing percentage of voluntary inmates, I should like clarification, because I believe that the second part of this provision has been carefully phrased to include voluntary inmates. The second part of the provision refers to persons who, since the marriage, and within the period of six years immediately preceding the date of the petition, have been confined for a period of, or for periods aggregating, not less than five years, not in accordance with law, but in an institution where persons may be confined for unsoundness of mind in accordance with the law. I leave it at that because Senator Vincent has asked for the unemotional approach. If that implies lack of appreciation for those features that we have heard from Senator Anderson and Senator McManus in particular, I dissociate myself entirely from any such implication because never have I listened to speeches expressing views opposed to mine with more respect and more appreciation.
It will be noted that clause 40 contains a very good safeguard in connexion with this matter. There are two aspects covered there. Clause 40 provides that the court may refuse the relief of divorce if the petitioner has committed adultery, or if he has been guilty of cruelty to the respondent, or if he has wilfully deserted the respondent, or - and most importantly in relation to this ground of insanity - if the habits of the petitioner have, or the conduct of the petitioner has, conduced or contributed to the existence of the ground relied upon by the petitioner. Notice that in particular in relation to this illness.
Having drawn attention to that, I point out that I search simply for enlightenment, and if, in these matters there is any inconvenience, I shall be quite patient and abstain from further inquiry, but I think we ought to search our minds for the true meaning of this provision. Are there any authorities available to show that courts have expressed the view that, notwithstanding proof that the petitioner against an insane respondent, by his habits or conduct, has contributed to that condition, it is in the public interest that there should be a divorce? That is very relevant to the consideration of the reference to public interest in clause 36.
– I should like to answer two points raised by Senator Wright. He has already answered for me the objection raised by Senator Dittmer in relation to cases where the conduct of a petitioner has contributed to the confinement of a person in an asylum. Senator Wright answered that objection by directing attention to clause 40.
– Which provides that the judge has a discretion to refuse a decree. He is not required to refuse.
– That is so. That is a protection. Senator Wright asked whether there were in existence judgments in which the judge had said, “ In spite of the fact that I am convinced the actions of the petitioner contributed to the confinement of the respondent in a mental institution, I think it is in the public interest to allow a divorce “. All I can tell the honorable senator is that upon inquiry from my legal advisers I find that they do not know of any such cases.
A point was raised in relation to confinement in an asylum when the entry was voluntary. The position is that a patient may enter an asylum with a medical certificate. If he does that, he may not leave the asylum until he obtains a certificate allowing him to leave. In that case of voluntary entry, the patient is regarded as being confined. It is also possible for a patient to enter an asylum voluntarily without a medical certificate, in which event he may leave whenever he wishes. In that case he is not confined.
.- I am rather alarmed at the tenor of the debate. I should like Senator Wright particularly to listen to what I have to say. Various people are associated with the confinement of a person in a mental institution. There are members of the medical profession, the justice of the peace who signs the authority, and the relatives of the person confined. In the case of an action for divorce on the ground of confinement for five years, there is the other party to the marital contract, who is the petitioner, and the judge who considers the case. The marriage guidance council that will be established under the legislation will also be involved. These people would have to be a bunch of fools for any injustice to take place under this provision. That is what is being suggested.
In discussing hypothetical cases, we are only making a mockery of a very serious situation. I should like to remove the emotional content from the debate. An exception can always be found to any rule. There is no shadow of doubt about that. The figures supplied to us show that in 1956 divorces granted on the ground of insanity numbered six in Victoria, nine in Queensland, two in Western Australia, and one in Tasmania. If the process is easy, and if the injustices we are hearing about can take place, why have we not heard of them before? Why do not representatives of those States give examples of such awful things happening? Let us get down to tin tacks and put the discussion on a solid basis, instead of raising figments of the imagination and saying what may possibly happen, so casting a reflection on all those people who are associated with the confinement of people in mental institutions, and particularly, as Senator Vincent said, the other party to the marital contract.
– That is the person of whom you are thinking most.
– I do not see the relevance of that interjection. I am thinking of the entire bill, which is designed to bring a measure of justice to people who take proceedings for divorce. Both sides must be fully considered. This provision will enable the giving of relief to persons who have had the great misfortune to marry others who became insane. Clause 34 provides -
A decree of dissolution of marriage shall not be made upon the grounds specified in paragraph (i) of section twenty-eight. . . .
That is, this paragraph -
It is imputed that the judgment of the judge hearing the case will be so impaired and distorted as to allow him to permit an injustice under this provision. Straw cases, hypothetical cases, are being raised just for the purpose of discussion.
Senator WEDGWOOD (Victoria) [11.22J. - I have been very interested in the cases mentioned. Whilst I agree that this clause could result in cruel consequences to the unfortunate sufferers from mental illness, I do not think that with modern developments in the care and treatment of mental illness we would find many cases where this ground could be used in the future. I reside in an area which has a mental institution that is probably one of the largest in the Commonwealth and I am patroness of its auxiliaries. I am a constant visitor to the hospital and I know that an important part of the treatment of mental illness to-day is to allow patients of these hospitals to make contact with people outside. Opportunities are being provided to many persons who have never been outside a mental hospital to visit people outside. I was with a party which took out some young patients who had never seen the lights of Melbourne. I can tell the committee that it was a most moving experience.
I do not believe that the old conditions of confinement to hospital exist now. In my opinion, no person who had any chance of making a recovery would be confined for five years. An important part of the treatment of persons with a slight, or even a serious, derangement, is to provide opportunities to return home for a day or a weekend. Through the process of trying to reintegrate them with their families and with the community the greatest advances are being made in the treatment of mental illness. I have no fear with regard to this clause.
– I should like to make a brief contribution to the debate. I have listened with great interest and derived some help from the discussion. There are three considerations that do not appear on the surface, although some honorable senators have adverted to them. The conditions are set out in paragraph (1) but clause 34 provides that the court must be satisfied at the time of the commencement of the hearing that these conditions apply and, as Senator Wright and the Minister have said, when dealing with the clause relating to discretionary bars, the court has a right to refuse a divorce on this ground if the petitioner’s conduct has conduced to the insanity. There are safeguards up to that point against the abuse of this particular provision.
There is the third aspect that in the light of modern development and new techniques, particularly of chemo-therapy, that it will be exceedingly difficult for any medical practitioner, except in a case of real physical trauma - destruction of the brain or a portion of it - to certify that a person is unlikely to recover. All these things are safeguards up to a point. However, I am in great difficulty. I have a feeling of sympathy for the person concerned in a case such as that related by Senator Scott - a young person who is left by herself or himself early in married life. You have to search for some kind of principle on which to base your attitude in this matter. I indicate to the committee that this is the first paragraph in this long clause setting out a ground for divorce in no way connected with the misbehaviour of the respondent.
– There is the presumption of death provision.
– We have not come to that yet. I am saying that this is the first ground that does not involve some matrimonial offence on the part of the respondent. I think we all concede that mental illness is no moral fault of the patient but is the patient’s misfortune. What disturbs me is that once we get off a basis of principle in relation to these matters we can do vast injustice. I do not think this matter has to be resolved by taking into consideration the number of people involved. Senator O’Byrne referred to the cases of divorce in recent years which involved this ground of insanity. Figures just released by the Statistician show that in 1953 throughout the whole of Australia there were eighteen cases. In 1954 the number was 21; in 1955, 25; in 1956, 18; in 1957, 15; and in 1958, 17. The numbers are actually decreasing despite the growth in our population. That probably reflects some improvement in the treatment that is being applied to these people.
– And because of the difficulty in securing divorce.
– And because of the difficulty of getting a medical certificate to the effect that a person will not recover. I concede that that is a protection.
While one cannot help but feel sympathy in cases like that quoted by Senator Scott, one also feels enormous sympathy for cases such as that quoted by Senator McManus. It leaves one in a dilemma. When I face up to the matter I realize I must make a choice between being unjust on the one hand or causing unhappiness on the other. With a good deal of reluctance, after considering the matter, I prefer not to be unjust, and accordingly I will support the amendment.
It could be a desperate position. I agree with Senator O’Byrne that this matter ought not to be discussed from the viewpoint of sentimentality. I have listened carefully to the debate and I realize that if there can be one case of the type referred to by Senator McManus that would be grossly unjust and unfair, and rather than be affected by sympathy for the person left alone, who nevertheless has still got his health and strength, 1 am afraid to get off a line which has not some basis of principle. In that approach we are concerned with the unhappy plight of an individual and we are for the first time getting away from the principle of a matrimonial offence.
I may be quite wrong but I think that amongst the public there is a great sense of distaste for divorce upon this ground which has no relation to an offence on the part of the party divorced. I said yesterday when we were discussing another clause that there had been great advances in the treatment of insanity and that we could expect that there will be still further great advances. It is completely clear that in many cases the utterly wild and irrational behaviour of some complete lunatics is due to a chemical deficiency in the brain. By the application of drugs that deficiency can be replaced to an enormous degree. The treatment, as I understand it, is at the point where it leaves the patient emotionally dead. One could not claim complete recovery in a case like that. Although a patient may not be brought right back to normal, I did cite a case yesterday where a patient was brought back to the extent of 85 per cent. I recognize that insanity on the part of a spouse guilty of no matrimonial fault can cause a good deal of unhappiness to the other partner who is left alone. But I am afraid that when you come to resolve the matter for yourself you must decide that it is better when that should happen that injustice should be done. For that reason my mind falls down in favour of the proposed amendment.
– I should like to ask the Minister a question. I wish to leave out all sentimentality and get down to the practical side of things. In the hearing of a case for divorce where the respondent is mentally ill does this bill make any provision for that person to be adequately represented? Senator O’Byrne said that those of us who are opposing the inclusion of this ground have neglected the fact that marriage guidance councils and others are committed to help these patients. Can the Minister assure us that members of marriage guidance councils and others will be available to assist these patients? Could a divorce be put through without the knowledge of the patient? Are her property rights being properly safeguarded? I say “ her “ because in nine cases out of ten the person concerned is a woman. 1 ask the Minister what steps are to be taken to ensure that in every possible way the rights of a respondent are safeguarded in such a case.
– 1 am told that there is no provision in the bill for the representation of a respondent who is confined in an asylum, but that it is intended, as in other cases, to deal with the matter in the rules that will be made under this bill. In all States where this ground for divorce applies that has been the practice. These matters are dealt with in the rules, and they will be so dealt with in the rules to be made under this legislation.
.- I do not wish to add to the Minister’s assurance other than to say that we can be quite confident that no court would grant a decree without giving the opportunity to the respondent to be represented if the court were first informed that he or she was capable of understanding the proceedings. In a case in which the medical advisers advise that the help of the court be provided, the Crown solicitor usually represents the patient. From my experience of such cases I say that he does so with a sense of responsibility. I rose only to add a few words to Senator McKenna’s reasoned contribution. The balance that I find determining my mind in this matter is decided on two points. First, in the scope of justice you have to include the petitioner in cases where he is free from the blame that is involved in clause 40, and where he is mated to a spouse whose rationality has disappeared. That is on the point of justice. The second thing is that where, as a federal parliamentarian giving support to legislation co-ordinating the legislation on a subject upon which all the States have expressed themselves, I find that five State legislatures have had this legislation in force for a considerable period. That is, for me, a determining factor in favour of accepting this proposal as a part of federal law.
– I agree with what Senator Vincent has said about an emotional approach to this question.
– What about Senator Wright’s remarks?
– Senator Wright and I are not ad idem on all parts of this measure.
– That is your fault.
– Senator Wright and I both express independent views when they are called for.
I desire to refer to a point raised by Senator Wood in dealing with the second reading of this bill when he said, in referring specifically to a clause which appears later, that if he could bring justice to one person by supporting the measure he would be prepared to do so. Senator O’Byrne said a few moments ago that all these cases that were being dragged up were hypothetic. That is flatly untrue. As I left this chamber last night I was met by a man whom I have known for many years. He is a most respectable and responsible citizen. He told me of the case of a young married woman, in her early twenties, and with two children. For some unknown reason she became absolutely insane. She was so bad that she had to be protected against herself; she was a person who would batter her head against a wall, and thus she was liable to cause injury to her person. She was, in fact, raving mad. She was divorced on the ground of insanity. The period was four years. Later, she underwent an operation for leukotomy. I think that Senator Dittmer, who is a doctor, will confirm my view that it takes some time to recover from the dreadful assault that leukotomy makes on the brain. She, of course, knew nothing about the divorce or anything else. In less than two years that woman was completely sane. She was able to retake her place in the community and earn her own living. At present she is holding down an important secretarial position in an Australian capital city. But she has been divorced, and she has no recourse. She has lost her home, her husband, and her two children. If we are to talk about an emotional approach - and I had hoped we would not do so - and about helping one single solitary person in Australia under the enabling provisions of this bill, then for goodness sake let us also look at the people who, through no fault of their own, may be victims of it.
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 . . . . 24
Question so resolved in the negative.
Paragraph agreed to.
Paragraph (m) -
.- On 17th November, the Attorney-General. speaking of this paragraph, said -
It is not a matter of making divorce easier or harder. I have not made divorce easier.
Last night, in his splendid address to us, the Minister for the Navy said -
It is not wholly true to say that we have made divorce easier under this bill.
That may be freely but accurately interpreted as a statement that it is partly true that the Government has made divorce easier under the bill. If the two Ministers handling this measure cannot take a uniform view of what this paragraph does, it is not surprising that there is some disagreement in this chamber as to its effect. In my view, it would increase divorce very much. Accordingly, I move -
Leave out the paragraph.
Paragraph (m) is the raison d’etre of the bill. It has compelled the Government to put into the bill many good provisions, lifted from the Morton report. Paragraph (m) introduces a principle which, except for Western Australia, is new to Australian divorce law. It embodies a principle which is new to, and repugnant to, the principles of British justice. 1 am indebted to Senator Wright for his reference to the decision of the High Court in the case of Main and Main. 1 do not wish to traverse the facts of that case at the moment, but, in order to rebut the Attorney-General’s statement, 1 shall refer to what the court said in giving judgment. I remind the committee that this bill means, not what the AttorneyGeneral says it means, but what the High Court will say it means. In giving judgment in the case of Main and Main, the High Court said -
The introduction of this ground of divorce,of course, is a notable extension of the previous law.
In Western Australia, the principle embodied in paragraph (m) has been in operation for about fourteen years, but in that State it is subject to a qualification so farreaching and so important as completely to destroy the Western Australian experience as a source of reliable evidence upon which we could act. I refer, of course, to the fact that under the Western Australian law adultery is an absolute bar. This bill provides only for a discretionary bar which, as I hope to show the committee, is virtually no bar. For many years, the divorce rate in Western Australia has been the highest in this country. The Minister has circulated a graph which shows - it is difficult to read the precise dates on the graph - that from about 1939 to about 1955 the divorce rate in Western Australia was substantially higher than in the other States. We are told by the protagonists of this measure that, because of the introduction of extended grounds for divorce, the divorce rate in Western Australia has fallen. That is nonsense. It will be observed from the graph that the drop in the rate of divorce in Western Australia began shortly after the introduction of the new ground, but not because of it. The fact that divorce reached its peak in 1946 and 1947 is accepted throughout the world as being due to the break-up of families and marriages caused by the war. It is quite obvious that the introduction of this new ground into Western Australia, in its much weaker form, had nothing whatever to do with the fall in the divorce rate there. I direct the attention of the committee to a fact that apparently escaped the notice of members from Western Australia in another place. The divorce rate in Western Australia is still far higher than that in any other State, except New South Wales.
– Why is that?
– Because in New South Wales a divorce can be obtained for failure to comply with an order for restitution of conjugal rights within three weeks.
– That is the point. Adverting to paragraph (m), and freely paraphrasing it, it provides that a decree may be granted where the parties to a marriage have separated and have thereafter lived separately and apart for five years with no likelihood of a resumption of cohabitation. I ask honorable senators to look with meticulous care at what those few simple words would do, if the paragraph were adopted.
Excluding Western Australia, for the first time in this country divorces could be arranged legally - not collusively - by consent of the parties, or - this is an even more heinous crime against justice - against the will of parties who had committed no matrimonial offence. That principle was rejected completely by Lord Morton and the eight other members of the commission who supported him. I have been into the mathematics of the Morton report often enough already, and I will not weary the committee by lining the members up again now, but I point out that Lord Morton and the eight members who supported him certainly constituted the largest cohesive group of members of the commission to issue a unified finding on this matter.
Before I turn to the Morton report, perhaps I could say that it has been alleged that if a divorce were arranged under paragraph (m), provision would have to be made for the wife and for the children. I ignore for the moment the subsequent protective provision, which refers to harsh and oppressive treatment, because I do not wish to anticipate the debate on that provision. I ask honorable senators - particularly those belonging to the Labour Party, who claim at times to represent the working man - to observe that paragraph (m) makes a distinction between the rich and the poor. If a decree is granted, it is quite obvious that the man in most instances, will not be able to support two wives and two families. Certainly no back-bencher could do that! Very soon, under this law, the old wife or the new wife - and possibly both of them - will be cast upon the charity of the State for their support. If we pass this bill, I hope that the Treasurer in framing the estimates for the provision for social services, will make due allowance for assistance to deserted wives for whom the husband is unable financially to make adequate arrangements.
We know that the universal principle of British law involves in divorce jurisdiction the conception of a matrimonial offence. That is, a person must have done something which the State has said it is morally wrong to do or which is unfair to the partner whom one took for life as his or her mate. The gentlemen who composed the Morton commission - eighteen of them and with only one exception, Lord Walker - supported this point of view. The chairman, Lord Morton, was supported in this by three or four particularly strong brains who had considerable experience in social welfare work. I think, Mr. Chairman, with your indulgence, I shall quote extensively from the report. I put it before honorable senators not because I think it is binding upon us that we must do what Lord Morton and his colleagues thought best but because of the intrinsic arguments that were advanced and the magnificent language in which the report is couched. Nine members of the commission got together on this aspect, and it is stated at sub-paragraph (i) of paragraph 69 of the report -
We have rejected the introduction into the law of the principle that a marriage should be ended if it has irretrievably broken down, because, as we show later, in whatever form that principle might be introduced it would entail the recognition of divorce by consent.
And in sub-paragraph (ii), the commission went on to say -
We believe that the consequences of providing the “ easy way out “ afforded by divorce by consent would be disastrous to stability in marriage. The inevitable result would be the granting of divorces in cases where no real necessity for the remedy had arisen. In other words, the divorce rate would be swollen by the failure of marriages which would otherwise have held together with advantage to both parties as well as to children. People would then come to look upon marriage less and less as a life-long union and more and more as one to be ended if things begin to go wrong, and there would be a very real risk that in the end widespread divorce would come to be an accepted feature of our society. As those attitudes spread they would undermine, and ultimately destroy, the concept of life-long marriage.
I interrupt myself in quoting from the report in order to make a comparison with what took place earlier in this century. If we accept the type of legislation that is before us it means that we put a stamp on marriage similar to that which was applied by the Zulus and the Basutos. Early in this century an Englishman married a Zulu or a Basuto girl - I am not sure which. The ceremony was celebrated by the Englishman giving to the parents of the lass a cow - in appreciation of their allowing him to marry her. As a result of devolutions in relation to property, it became necessary for the Privy Council of England to inquire into the validity of the marriage. Having ascertained that it was the intention of the Zulus or the Basutos - signified by their acceptance of the cow - to regard the marriage as a union between one man and one woman for life, to the exclusion of all others, the court found that the ceremony was valid.
– Order! The honorable senator’s time has expired.
– I rise, Mr. Chairman, merely to give the honorable senator an opportunity to continue his speech.
– I am indebted to Senator Wright for his courtesy. If we pass this legislation, I believe that we shall be assessing marriage in the way that it was assessed by the Basutos and the Zulus. I revert now to the report. Lord Morton stated in subparagraph (iii) -
The evils which would result if the community were to come to accept divorce as the obvious way out of all marriage difficulties needs no elaboration, save in one respect - the consequences for children.
There has been a great deal of comment in this chamber to the effect that we must do the best thing for the children. I think we are all united on that point, and I for one shall not cast any aspersion on or imputation against the integrity of any one who takes a view different from mine. In this connexion, the report stated -
We are deeply concerned about the effect on children of the present divorce rate; their suffering would be multiplied if divorce were to become more wide-spread.
I ask honorable senators to get this report later and read this sub-paragraph a dozen times -
The best home foi children is of course a happy home, but in our opinion (and most of out “expert” witnesses confirmed this) children can put up with a good deal of friction between their parents so long as the home remains intact The relations between the parents must usually be very bad indeed before a divorce is in the interests of the children.
In sub-paragraph (iv), the report states -
If the principle that a marriage should be ended if it has irretrievably broken down is followed to its logical conclusion, then it must be accepted that a spouse who had committed no recognized matrimonial offence could be divorced against his will.
I particularly commend this paragraph to Senator Aylett, who has an unquenchable thirst for justice - I regret that he is not now with us1 -
In our opinion; this would be bo plainly unjust as to be in itself conclusive against the introduction of any ground of divorce which had this result
In sub-paragraph (v), the report states -
Nor do we think that the introduction of grounds based on the principle of breakdown of marriage would be appreciably less dangerous if they were hedged about with the’ restrictions and safeguards which have been suggested.
Why did one of the greatest lawyers in the British Commonwealth, and his associates, come to that point of view? The subparagraph continues -
Apart from the fact that it would be difficult to resist the subsequent removal, step by step, of the restrictions and safeguards, these grounds, even in their most restricted form, are all open to the objection that they permit divorce by the consent of husband and wife.
And in sub-paragraph (vii), it is stated -
Apart altogether from this aspect, we believe that it is fundamentally imcompatible with the concept of marriage’ as a union for life for the parties to be free to put an end to it by agreement It seems to us self-evident that a marriage cannot be the concern only of the partners to it. If there are children, their interests must be considered. But whether there are children or not, the state’ must be concerned in the maintenance of a marriage and in. its dissolution, because the state’ has an overriding responsibility to ensure, in the interests of the community, that the institution of marriage is upheld. For marriage is not merely a civil contract between the parties to it It is a status arising out of that contract, and, as a status, it concerns the community as well as the parties.
I interrupt the jurists at this stage, Mr. Chairman, to express my fears in relation to the introduction of the principle itself, which is wholly repugnant to British law. The Attorney-General has said that, at the time of life at which people take divorce proceedings, a year of life is most important. What I fear is that pressure will be brought to bear upon this Government, or on a subsequent government, to reduce the period from five years to three years.
– There might be pressure in the other way, too.
– When that happens, I shall believe it. I shall be interested if honorable senators can produce examples in that respect.
– Can you?
– Yes, and I shall do so shortly. If honorable senators can show me how the divorce law has been substantially improved, except ia the case of the New South Wales restitution of conjugal rights provision, which is certainly a very lonely example, I shall be most interested. The pressures that have given rise to the five-year ground in regard to separation may apply in respect of a shorter term. The view might be, “ Why not give these decent chaps a three-year period? “ Then, it might be asked, “ What is the sense in having a difference between desertion and separation? “ I agree that the legal interpretation can be strict in some instances, and I have no doubt that the lawyers can explain the differences between the two grounds. I do not propose fo discuss that matter very much, except to say that, physically, the difference between separation and desertion is not very great. Let me illustrate what I mean. Suppose that A and B both desert their wives and leave Melbourne, where they live, and go to live in Sydney. After A has been away for two years, Mrs. A sues for a divorce and gets it. Suppose that B also wants a divorce’ and says: “ Why can’t I have a divorce? I have been separated from my wife and have been apart from her. Why have I to wait for five years simply because
I want to sue on the ground of separation? A’s wife was able to get a divorce in two years on the ground of desertion.” Although I think that that argument is not logical and I do not subscribe to it, I feel that pressures will be brought to bear in order to whittle down the protection extended by the five-year period.
Referring to the Morton report again, we find that Lord Morton said that if people had the right to divorce themselves, a change in the attitude to marriage, which would be disastrous for the nation, would take place. I think that some honorable senators may pass over too lightly the simple words of paragraph (m), and may not look at their real significance. When Lord Morton made the statement to which I have just referred, he was not referring to religious institutions, religious scruples or matters of sentiment. He was speaking of the material welfare of the nation. He went on to say -
People would tend to enter marriage more lightly, and with the reservation that, if it were not a success, they could always agree to put an end to it. And when difficulties arose in married life (as happens in most marriages), there would be much less incentive to overcome them. Husband and wife would be tempted to say to each other, “ Let us have a divorce and start again “.
In other words, make the fresh, sound start to which the Minister and the Attorney-General have referred so often. Lord Morton continued -
Thus, divorce would increasingly be sought in circumstances where, if a little effort were made, husband and wife could adjust their differences. Such an attitude would be fatal to stability and security in marriage, which in the end would come to be regarded as a temporary relationship, with divorce as a normal incident of life. For this calamity the State would bear the brunt of the responsibility, . . .
I refer again to what I say will most often happen under this clause. The Government has painted a most harrowing picture of a man, a thoroughly good fellow, to whom no blame attaches at all, being held in perpetual bondage because a vicious, spiteful or unscrupulous wife will not release him so that he might make a fresh and sound start, such as the Government is anxious to make possible by this legislation. I do not know why the AttorneyGeneral has this great predilection for the second choice. The example that is most often used is that of a couple who have been married quite happily for ten or twenty years, when the husband’s attention is caught by a young, attractive woman. From my experience, I should say that four times as many husbands as wives are blameworthy in this connexion. The attention of the husband is attracted by a younger woman who does not bear the scars and the weight of his wife and who, let us concede it, has a rather more attractive external appearance. After all, the wife may not have money to spend on herself. She may have to look after children. By this law, the Government proposes to make it possible for the decent chap to whom I have referred, to run out and leave his wife, and to marry the paramour. The Government has put forward the point of view that, by means of this provision, it is going to reduce the number of illicit unions. I know that it is very difficult to produce statistical or scientific proof of such a contention, but at the moment, it is pure conjecture, pure theory. There is no reason for believing that that will be so.
Reverting again to the report of the Morton commission, I point out that Lord Morton stated -
For this calamity the State would bear the brunt of the responsibility since, in giving its blessing to divorce by consent, it would in effect have encouraged people to abandon their marriages on the flimsiest provocation. Our objection to divorce by consent is so fundamental that it cannot be met by the provision of conditions or safeguards, however stringent these might be.
I am unable to accept the term “ harsh and oppressive “, which is referred to in a clause that we shall deal with later, as affording protection for the innocent party. Lord Morton went on -
Nor can we accept the argument that because the difficulty of getting a divorce leads to perjury ….
I wish to refer to this matter particularly, because my friend, Senator Vincent, in the course of the excellent speech that he made on the second reading, dealt with it. I disagree with him fundamentally on that premise. 1 appreciate the reputation of my learned friend, but if I have to choose between Senator Vincent and Lord Morton, I come down on the side of Lord Morton. The report of the commission continued -
The argument that divorce by consent provides a dignified and honorable means of release is perhaps the most insidious of all.
It is the fifth column, Mr. Chairman, so far as matrimony is concerned -
There could be no subtler temptation to divorce than the belief that there was a wholly blameless way of terminating a marriage.
In our view, it is not the function of the law to provide such a means of release; its proper function is to give relief where a wrong has been done.
– Order! The honorable senator’s time has expired.
– I oppose this provision because it has no relation whatever to a matrimonial offence. It relates to divorce by consent. It may be suggested that only the Christian argument has been advanced here and that the Christian argument has less strength than one which has no Christian content. I do not agree with that.
This proposal was tried in Russia but was abandoned because experience there was that it disturbed family life to such an extent as to become perilous. In Russia, a penalty is now inflicted upon divorcees. They are required to pay heavier taxation. With each successive divorce, the taxation becomes heavier. That, of course, is the result of a State rather than Christian outlook on the problem. The taxation is imposed because, with divorce, it is possible that a heavier financial burden will be imposed upon the State in that the State may be required to maintain the children of the marriage which has been broken.
I submit that if we permit divorce by consent it will be only very rarely indeed that at least one of the parties to the marriage is not guilty of some matrimonial offence. If there are children of the marriage, it is possible that often one of the parties would wish the marriage to continue for the sake of the children. The bill already contains ample provision for obtaining a divorce, and the proposal under discussion now is one which seeks to permit of divorce without any transgression on the part of either party against the sanctity of marriage.
Its introduction in one State was brought about in a manner which was most unusual, to say the least. Further, very early after it became law, it was invoked by those who were responsible for its introduction. It is not the law in any other State. It has not been requested by any other State. It has been opposed by bishops of the Church of England, the Roman Catholic Church, indeed by every Church of the nation. It has also been opposed by almost every section of the community. The only request for divorce by consent has come from individuals. I cannot see the Attorney-General’s reason for introducing this proposal. I cannot follow his argument that it will make for greater morality in the community. On the contrary, I submit that it will tend to lower morality.
The Attorney-General seeks to have us believe that an offending spouse who has had illicit relations with another person, and who is the parent of illegitimate children born of the illicit union, will marry the person with whom the illicit relationship has been conducted if this provision is made law. I venture the opinion that more often than not there will be no marriage between the offending parties. I suggest that it is also fantastic to argue that, having once transgressed, the offending party will not continue to transgress. I submit that this proposal will do nothing to raise the moral structure of the nation, that it will tend to lower it. In my view, the proposal will tend rather to cause damage to the family life of the nation. As I have pointed out already, the bill contains adequate provision for divorce for a matrimonial offence. Full protection is given to both parties to the marriage and to the children. We must give every consideration to the children. After all, we have provided for their maintenance where there is desertion, and in my view separation by consent is desertion. We must protect the children at all costs and in any action for divorce under this clause they should be completely legally represented in the court apart from the representation of the parties to the divorce.
I am strongly opposed to this proposal. I think it will be bad in every way for our national and family life. I see no good reason for including it in our matrimonial causes legislation.
– I think the Parliament has an opportunity here to engage in the solution of a problem that is worthy of the earnest attention ot every man in the chamber. I think this is the basis for acceptance by the Federal Parliament of a proposition that requires complete analysis and examination.
First,it dealswiththe dissolution of marriage. Theproposalis thateitherparty to themarriage can apply for the dissolution -of the -marriage -solely uponthe ground that -
The parties to the marriagehave 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.
Clauses 35 to 40 contain matters relevant to the consideration of that provision. Clause 35 (1.) reads -
For the purposes of paragraph (m) of section twenty-eight of this Act, the parties to a marriage maybetaken to have separatednowithstanding that (the cohabitation was brought to an endby the action or conduct of one only of the parties, whether constituting desertion or not.
So it is made clear by sub-clause (1.) of clause 35that what is in contemplation under the separationground is that the person who has desertedhis spouse cango tothe courtfor divorce as a petitioner. Sub-clause (2.) ofclause 35 goes onto express a more alarming enormity. It provides -
Adecree of dissolution of marriage maybe made uponthegroundspecified in paragraph (m) of section twenty-eight of this Act notwithstanding that there was in existence at any relevant time -
a decree of a court suspending the obligation of the parties to the marriage to cohabit; or
an agreement between thoseparties for separation.
I ask the committee to bear with me and see that the whole of my argument is based four-squarely on the text of the bill.If honorable senators will go back to the definition of “decree”, they will find that it means - . . decree, judgment or order, and includes a decree nisi and an order dismissing a petition .. . . “Order “ includes the order of a magisterial court suspending the obligation to cohabit, which is whatwe call a separation order. It includes also a supreme court order or decree of judicial separation. These orders of magistrates’ courts and decrees of judicial separation bysupreme courts are, according to universal practice, granted only forgross misconduct. Magistrateshave been warned, time and time again, that separation ordersmust not be granted unless the evidencewarrants a judicial order to that effect, whichmeans taking the importantcourse of suspending the obligationsof partiesto marriage.
The most usual ground for an order of that sort would be desertion, cruelty or adultery. Yet it isnow proposed, for the firsttime by any Australian legislature except Western Australia’s, that the defendant husband who, when such an order is made, is always ordered to pay maintenance for his wife and children, be given the right to go to a court, at his own instance, and askfor a dissolution of themarriage that is the foundation of the court’s decree that he shall not live with his wife. She would have been -protected fromhim, in many cases,because of his violence, because of hisvisiting her and inflicting cruelty and harm upon her. She would have sought the interposition of the court for her physical protection. That man is now, onthe basis of this legislation, to be conceded the right togoto the courtof (divorce , and have dissolvedthe marriage that is thefoundation ofhis maintenanceliability towards his wife and other dependants. Safeguards are expressed inclause 36. Ifthe courtis satisfied that, by reason ofhis conduct, or forany other reason, it would, inthe circumstances of thecase - New Zealand judges (have commented upon the importanceof that -be harsh and oppressive to the respondent, or contrary to the public interest, to grant a decree, it shall refuse to make thedecree.
I am consideringthe respondent wife, because it is her protection that needs to beconsidered most in relation to this clause. She has to show that the dissolution of the marriagewould be harsh and oppressive or contrary to the public interest, not for the court to refuse a decree of judicial separation, which refusal would provide an opportunity for her husband to come back repeatedly and visit her with cruelty, but for thecourt of divorceto refuse a dissolution of the marriage which would make him atrespasser over her doorstep having no right to revisit her.
– If there is a judicial separation, does that not protect her?
– Certainlynot.I want ittobe madequite clearthat this is a manwhose conduct in repudiation of the marriage and of proper ‘respect for his wife has been so gross that a court has said, “ I order you to stay away from your wife and home because of your gross conduct - adulterous, cruel or neglectful “. He is the person to whom this provision gives access to the divorce court and, at his instance, dissolution of marriage unless his conduct, whether before or after the five years period, can be shown to the divorce court to be such that the grant of dissolution would be harsh and oppressive - not unjust. The bill teems, in other contexts, with frequent references to the criterion of “ just “. It refers to “ just and proper grounds “, “ just and equitable grounds “ and “ without just cause or excuse “. I shall refer to them all before the committee debate concludes. But that is not the criterion upon which a court of divorce is required to refuse a decree. The individual protection is conceded to the respondent only if she can show that to grant a decree dissolving the marriage would be harsh and oppressive to the respondent. There is no word of reference there to the children, although the other provision that provides that a decree shall not be granted until the court is satisfied as to the arrangements for the welfare of the children is equally applicable to a decree on this ground as to a decree on any other ground.
Then the surprising, inexplicable thing to me is that, in Western Australia, which produced this provision, it was made an absolute bar, disqualifying any petitioner from getting a decree on this ground, if in the five years separation period he had committed adultery or if, at the time of his petition, he was in default with payment of maintenance for his wife or children, under any order in force or any agreement that he had entered into. The mere requirement of prompt payment of maintenance by a man who has been separated for five years is a soothing balm even for those who protest against this provision with the vigour with which I protest, because it certainly ensures that over that five years of separation he has at least paid the money that a court thought sufficient for payment by a man separated from his wife and children.
Honorable senators know how delayed payments, two, three or four months in arrears, are a running sore to a wife. The man who goes off and evades payment is in one category. In another is the man who keeps his wife starved by delayed payments. Western Australia does require that before a petitioner can be successful on ;this ground he shall be up to date with his payments. Secondly, it disqualifies him if he has been guilty of adultery during the five years. Why, when we propose to make this provision applicable to the whole of Australia, do we degrade the disqualification of adultery from an absolute bar as it is in Western Australia, to a discretionary bar? The courts have come to yield to pressures insisting upon divorce to such an extent that it is very easy to persuade them to give a decree notwithstanding the adultery of the petitioner - where this is only a discretionary bar - unless there are aggravated circumstances. It may be that a provision of such a novel character which is available for the benefit of the guilty party should not be passed by the committee unless there are safeguards to provide protection for the innocent spouse. The present bill is weaker than the Western Australian legislation. The Western Australian provision is bad and we should see that we strengthen the safeguards to ensure that a wife, at her own election, can deny a culpable spouse the right to dissolve the marriage. That is her right, and it is contrary to the philosophy with which I approach public affairs, and politics in particular, that the individual personal right - so intimate in these instances - can be overridden simply on the vague phrase that it is in the public interest.
The wife’s right, from my point of view, is paramount in such a personal matter as this. She has committed herself to matrimony which, in all our conceptions of that institution, promises her lifelong protection. That promise is given in the interests of the wife and not less in the interests of the children. This paragraph not only condones the husband in respect of separation for five years, but gives him the right to go to a court and ask for dissolution of the marriage. If this provision is allowed to stand there will be no longer any legal obligation to protect those children and they will be left shelterless in the world.
– I have listened with considerable interest to the various speakers who have dealt with this paragraph. I do not want to question the sincerity of those speakers, but after listening to Senator Wright I say that if emotionalism can win an argument then he has his argument completely won. I have heard before all that he had to say about this villain of a man and the poor little innocent woman, but not expressed with so much emotion as I heard it to-day. The story can be reversed and we can have the villain of a woman and the innocent man.
– There are instances of that!
– I am glad the honorable senator acknowledges that. Nobody would know better than the honorable senator of such instances. Where is the poor little innocent woman who would want to live continuously with such a villain of a man as was described by Senator Wright?
– It is amazing the men with whom some women do live.
– It may be that because of her beliefs she prefers to suffer - as I said in my second-reading speech - a living hell on earth. Then there are those who, not holding such deep beliefs, would like to escape from such a hell on earth. This paragraph would give them the right to escape from such a life. I am sure that Senator Wright could recite many stories dealing with cases of this nature.
We have to look at this matter from the point of view of justice more than from the emotional point of view, and the conscience of each individual should direct him. I am not going to be directed by the head or the few heads of a Church. Some honorable senators have referred to this Church and that Church on frequent occasions - they have included my own Church - but I am not going to allow my bishops to do my thinking for me on a national basis.
– Who does your thinking for you?
– After listening to you I would not have you as my adviser. I would want to get my advice on a higher plane. I have no intention of letting bishops form my opinion on a matter of this nature.
– They can help you to form an opinion.
– I have no doubt that that is so. I respect the speeches that have been made and the points that have been put by the various speakers. I do not object to honorable senators putting the point of view of their Church or speaking of their directions from their Church, but I object to them saying I have directions from my Church.
– What do you mean by “ direction “?
– I will withdraw the word “ direction “ if it will make anybody happy. It is said that the Churches have formulated a policy. Did they call a conference of their members to discuss this matter, or was the conference attended by only three or four members who held a particular belief and who interpreted this provision in a certain way? If these people have the right to interpret this paragraph in their own way, I claim that we have the same right to interpret it in our own way and to see that justice is done.
I wish to deal with the opposite case to that about which Senator Wright spoke. Let us consider the adventurous woman. I heard of a woman who had never been out with a man in her life until she met a Yankee doctor. She married him and went on her honeymoon. The next thing was that when he came home on leave she refused to meet him and refused to have anything more to do with him.
– How long ago was this?
– Never mind how long ago it was. I can support anything I have to say when I am quoting a particular case. She refused to have anything more to do with him. She got all she could out of him and then deserted him. He went back to America and divorced her.
– You said she went on her honeymoon.
– The next thing you said was that he came back on leave.
– Yes. She was looking for the next one then. She was the adventurous type who makes it a hell on earth for a man who is compelled to live in the same house with her. These are the poor innocent women that Senator Wright has described to us from whom the villain of a man walks out! According to Senator Wright and others, that man should be compelled to go out and commit another offence, or try to induce the woman to do so. Otherwise he has to live alone or be tied to her for life. That is a true picture from which honorable senators cannot get away. Would there not be some measure of justice done in releasing a man in such unfortunate circumstances? You can put the case the other way round and say that a woman, in such unfortunate circumstances, should be released if she so desires. Would we not be causing an injustice by affording no relief to a person just because the spouse adopts the selfish attitude, through spite, adventure or any other reasons?
Sitting suspended from 12.46 to 2.15 p.m.
– Before the sitting was suspended, I was referring to some remarks made by Senator Wright. I agree that in most of his speech he made statements of fact, but he raised one point on which I cannot agree with him. I may have misunderstood him, but I believe he said that a man could return to his home, be cruel to his wife and get away with it.
– No. I did not make that statement.
– Then I will not pursue that argument. I am glad that the honorable senator did not say that He emphasized that in a divorce under paragraph (m) the wife and the children will be well protected. The matter will be entirely in the hands of the judge hearing the case. I believe that this form of protection will avoid white papers being stained with the blood of sorrowing mothers or being wet with the tears of children. If a wife and children involved in such a case were in distress through poverty, then the judge concerned would not have discharged his responsibility as we would expect him to do.
Let us go a little further. I shall leave out of consideration cases in which either the husband or the wife is the villain ot the piece. Let us consider the case of a husband and wife who just cannot get along together and whose only hope of happiness lies in a separation. Let us assume that the religious belief or the faith of one of them is such that consent to a divorce is out of the question. If they are to find any happiness in this life, one of them must leave the home, because the position there is intolerable. Why should the spouse who does not hold a belief opposed to divorce be barred from finding happiness in the company of another member of the opposite sex? Why should a husband be barred from that because of the Christian belief - I will not say religious belief - of his wife?
I claim that paragraph (m) is a far better provision to incorporate in divorce legislation than the provision to which we agreed just now by a substantial majority. 1 cannot see any reason why it should1 not remain in this bill. I think it would improve the present position. Whether it would give rise to more divorces is another question, but we should be concerned with justice. If the operation of this paragraph gives rise to a few more divorces, that would not be an argument against if,1 so long as justice was being done. It could be that the people who sought divorce under this provision had been unable to get justice before. We should open the door to give justice to the people.
I believe that the arguments that have been advanced against paragraph (m) have no real foundation. Why should we have forced upon us the recommendation in respect of this matter made by a royal commission sitting in another country, especially when the members of that commission were almost equally divided on the matter? Some of the honorable senators who have opposed paragraph (m) are doing their best to force upon us the view - not the majority view by any means - of a royal commission appointed in another country. My contention is that any honorable senator who is not capable of analysing this bill and reaching his own conclusions on it has not the capacity that the electors thought he had when they voted for him. It is very handy to have authorities to which to refer, but, having referred to them, it should be the responsibility of a member of Parliament to form his own views on the subject under consideration and to express those views to the Parliament. He should do that, rather than continually quote from reports made by bodies overseas - probably just for the purpose of talking and talking. I have heard one honorable senator, Sir, repeat himself over and over again in reading from reports. Perhaps he thought we were deaf, and did not hear him the first time. Whatever support he may have at present, it will gradually dwindle as the day progresses if he continues in that strain.
– I should like to comment on some of the remarks that have been made by Senator Hannan and Senator Wright in relation to this paragraph. It seemed to me that Senator Hannan’s speech was directed almost entirely to the question whether there should be introduced into our divorce laws the concept that, in seeking a divorce, a person need not rely upon the commission of a matrimonial offence. He has expressed his conviction that no such concept should be introduced, and he has moved that the paragraph be deleted. The question whether this concept should be introduced into our divorce laws was fully debated during the second-reading debate, and I do not think that I can add anything to what I said then. Whether the concept of divorce without the commission of a matrimonial offence should be accepted or rejected-, is a matter for the consciences of individuals. Speaking for myself, I believe that this ground for divorce should be allowed, subject to the financial and other safeguards for which the bill! provides.
Senator Wright spoke to the amendment proposing the deletion of this paragraph, but then moved away from it and dealt with the clauses that will bear upon the operation of the paragraph, should it remain in the bin. He put before us the suggestion that it was wrong that there should be any chance of people who were living apart under a judicial separation order using the fact of that separation to sue for a divorce.
– That is what I understood the honorable senator to say. In order to drive his point home, he gave the example of a judicial separation order having been made as the result of a wife being in physical fear of her husband, having been hurt by him.
– My protest was-
– The honorable senator’s protest was that, the separation order having been made, after a lapse of five years the husband or the wife could seek to turn that order for separation into a divorce. In regard to that, I would say two things: The first is that: there is very little difference indeed between a decree of judicial separation and a decree of divorce. As. I am informed, a decree of judicial separation suspends the obligations on either party to contribute to all marital obligations
– Other than the husband’s obligations.
– Yes, other than the husband’s obligation to support his wife financially. Should that situation be turned into a situation of divorce, the marital obligations having been suspended are not affected. Indeed, I would say that under this bill the obligation of the husband to support the wife could more easily be enforced by the wife because, should a decree be granted by a judge, he will make an order as to the amount to be given for maintenance, and there is provision for it to be collected at the source by garnishee.
– Only in the case of wages.
– There are property settlements in it, too, and there are processes of court - not cases, of non-wages - whereby that can be achieved. Apart from the alteration in status, the person concerned is no worse off. But if you take the very worst case, where somebody behaves in a way as I suggested last night - perhaps brings some other woman into the home and flaunts their association in front of his wife and makes life intolerable - and that sort of thing leads to a judicial separation, then I would say that the provision for a judge to see that a decree was not granted against the public interest and was not harsh and oppressive, would weigh on his mind when considering these matters.
There is an obverse side to this medal that we have not touched on. Having looked at that case, let us look at some of the many other cases that can arise. I have before me now a letter relating to a husband who - both he and his wife working - came home one night and found, quite properly, that his wife had become pregnant to him. His wife said, “ I propose to get rid of this child “. Her husband said, “ You must not, and if you do I will leave you “. She did, and he left her.
In circumstances such as that, the only way that that man, years afterwards, wishing to start a new life, could get a divorce would be for the wife he left to sue him for divorce.
– No, he could get a decree for restitution of conjugal rights.
– That would be a wonderful solution to this problem, would it not?
– Yes it would; and she refusing to bring that petition, he being the guilty party - he leaving as a result - all these circumstances can prevent him from re-marrying.
– Would not that amount to constructive desertion?
– No, this is an actual case. I do not think that we should argue these cases - nor am I doing so on only one case - one way or the other. I am bringing it up as an instance of the sort of thing that can happen under the present law - not the bill. There is a suggestion that others could cause far more injustice than the sort of thing that Senator Wright brought up as being an instance of what might happen should this bill become law. I do not think, Sir, as I have said, that on the general principle on this matter there is very much more that I can say. The arguments that have been presented to us on the two issues have been, in the main, cleared. It is now a matter of personal decision whether the principle is agreed to or not. Later, the question that Senator Wright raised of what could happen under other clauses may, or may not be a matter of more intense debate, depending on whether or not this provision is included.
– During the course of my speech on the motion for the second reading of the bill, I indicated that I would announce my attitude to this provision in committee. I express my indebtedness to Senator Wright for having put in “ Hansard “ the exact terms of the relevant provisions. I need now only paraphrase them.
As I see this provision, it is a very good example of what happens when one gets away from a principle - the principle of divorce being based upon a matrimonial offence. I invite the committee to look at the tortuous process we are engaged upon. First of all, the provision we are considering provides that the parties who live separate and apart for not less than five years - there is another condition - and if there is no reasonable likelihood of cohabitation, may be divorced. In order to buttress that, it has to be said that either of the parties, in effect - guilty or not - may petition for a divorce and may obtain a dissolution. To clear the way further, we have to authorize the tearing up of a prior court order and suspend the obligation in relation to cohabitation. Senator Wright has said all that it is necessary to say on that aspect of the matter.
The sponsor of this provision is then forced to take another step - to tear up an agreement made between the parties. That is authorized under clause 35. Having, done those two improper things - wreaked that injustice - the architect of this idea has to set about finding all kinds of clauses to break down the injustices he has done. With great ingenuity and high endeavour, he has gone a long way along the road with whatever obscurities may exist in relation to the way they are phrased. Let me recite them. Having posed the ground of divorce, having provided for a party, guilty or not .guilty of a matrimonial offence, having set aside prior court orders and having torn up agreements, we proceed to protect that position generally by saying a court has not to grant the petition if it were harsh and oppressive, if it were against the public interest, unless proper maintenance were provided. There is a discretion in the court in relation to the issue of adultery, whether committed before or after the separation took place.
And finally, there is the protective clause - one must concede it is a measure of protection - that df there is any other ground upon which the court may -grant a dissolution, it shall not use this ground. In that way., the draftsman of this particular provision is showing his own degree of shame at its existence. He puts that provision right .at the bottom of the list. That is how I see it in broad aspect
I agree with the Minister that we cannot draw conclusions from an individual case but we can, from an individual case - particularly when it is one of which we have knowledge - illustrate the principle for which we are contending. I have personal knowledge of the case I pose. A man, without reason, leaves his wife, cohabits for decades with another woman, and as he is approaching his end makes known the fact - and admits - that it was his fault in the first instance. Having occasion, on his intestacy, to seek out - a long way off - the real wife, I expected to see what I had been told I would see, a virago, a relentless vicious woman. What was my experience? I found a delightful old lady, as gentle a woman as could be found on earth. She listened quietly to all I had to tell her about her late husband’s declining days. She heard me through on what I had to say about the way she would benefit from the intestacy. She did not ask one question on all that. In fact, she had only one question to put to me, and that was, “ Was there any message for me? “ I realized with a dreadful shock that here, in this old lady in her seventies, was the fresh love that she had always had for her husband. It had never died. The thing she wanted to know, even up to the last minute, was whether he remembered her. She would have taken him back at any stage of the 30 years. There is no question about that.
I put that as an actual case in my own experience. There is no more dreadful insult to a decent woman than to leave her for some other woman. Pursuant to this clause, we are saying, in relation to that injustice, “ Well, that is unjust, but we will enable you to be divorced in the interests of your husband, to enable him to regularize his illicit union “. Realizing that that is an injustice to her, we try to buttress the position with all these precautions. In short, we are trying to cure one injustice with another. That is exactly the position as I see it. For that reason, my attitude to this clause is that I shall oppose it. As proposals are made to amend the clause, insofar as they further qualify it, I shall support each of them, if necessary, in turn, and in the end I shall vote against the clause.
– I wish to comment on Senator McKenna’s statement regarding clause 36(4.). That clause provides that where petitions by both parties to a marriage for the dissolution of the marriage are before a court, the court shall not, upon either of the petitions, make a decree on the ground of separation, which is referred to in clause 28, if it is able properly to make a decree upon the other petition on any other grounds. Senator McKenna stated that it was evidence of a sense of shame, in either the architect or the draftsman of this bill, that the provision had been stated in that way. It is nothing of the sort. It is merely a provision to ensure that a man who deserts his wife and seeks to bring a petition against her on the ground set out in clause 28 (m), of five years’ separation, cannot divorce her on that ground if she can bring a petition against him showing that he has committed a matrimonial offence. Her petition as to his offence must be regarded by the court as taking priority over his petition on the ground of desertion.
– Once again I rise, as I did a couple of nights ago, to express my strong disapproval of this clause as it stands. I do so, Sir, not in any attempt to delay the committee in a frivolous manner. I speak from years of experience of the working of a similar provision in my own State. I have seen the injustice it has perpetrated in many cases against the women of Western Australia. After I had spoken in this chamber earlier in the week, I was told that I had been trying to bring my own religious views to bear on the matter. My religious views have nothing to do with my attitude to this bill. From the point of view of the ordinary member of the community, with a slight idea of common law, I should say that this provision represents an absolute violation of ordinary law in that it provides, in effect, for the making of a unilateral contract. We are told that marriage is a contract, either religious or civil, between two persons. A contract can only be broken by mutual consent. If one party to a contract breaks the agreement, there should be some redress available to the other party.
So far as I can understand the position, not being a lawyer, we propose by this bill to enact a law whereby the defaulting party will be given the benefit, instead of it being given to the party who has been wronged. I was amazed when Senator Gorton said just now that under this clause the woman will be no worse off, except on the question of status. This country is represented on international councils which are concerned with the status of women. The women of most of the nations of the world have made it their goal to ensure that the status of women is respected throughout the world. Yet, here we have the Minister saying that the only thing that a woman may lose, through this very temporary matrimonial bill, is her status! The highest status to which a woman may attain is perhaps that of wife, and of the mother of a family. Apparently, the Government regards that fact as of no importance. I cannot fully express my regret and disgust that a Minister, in this day and age, should have so little regard for the status of a wife and mother as to make such a statement.
If, as some people say, marriage is only a civil contract, why do not they seek to include in this bill the safeguards that apply to civil contracts? Marriage to them is no longer something that is holy and sacred, the most intimate contract that can exist between two persons. Instead, it becomes, to adopt parliamentary language, a committee of two, with power to add to its number by the creation of associate members. It is suggested that of this committee of two, one member might be the chairman and the other the speaker; that the chairman or the temporary chairman may withdraw at any time and, after a lapse of five years, without the necessity for any excuse or notice to the other member of the committee, undertake duties on some other committee, with the same powers. If that is how the Government approaches marriage, I say that its attitude is absolutely ridiculous.
I have heard speaker after speaker say that we have not brought forward specific cases and placed them before honorable senators. Only this morning, Mr. Chairman, a letter was delivered to me in the Parliament. It had been sent by airmail, express delivery, by one of the people suffering at present under this provision which, unhappily, comes from Western Australia. The writer of the letter informs me that she had been married for 27 years when, in 1951, her husband walked out and left her with three young children; that she took him back three times, but that he finally deserted her in 1952. In February, 1956, in the
Married Women’s Protection Court, she obtained a legal separation on the grounds of desertion and received maintenance of £8 a week. Later, on appeal, that amount was increased to £9 12s. 6d. a week. Apparently, the husband was fairly well off. In April last year he obtained a divorce from her on the ground of five years’ separation, although she did not want to be divorced. Nevertheless, he divorced her on the five-year plan. He then married his girl friend - it is a wonder he remained faithful to her for so long - in July, 1958. As a general rule, I do not doubt people’s word. I have not a suspicious mind, but, Mr. Chairman, you cannot tell me that, in the intervening years between 1951 and 1958, those two people did not meet and get a little bit friendly! This man’s present wife is now expecting a child and he applies immediately to the court, not for a reduction in the amount he is compelled to pay to his first wife for the maintenance of herself and the children of the first marriage, but for the complete cancellation of that maintenance because he cannot afford to keep two wives and two families.
That brings me to the point made by Senator Hannan that this law discriminates against the poor in favour of the wealthy. No man on the basic wage can afford to keep two families and two wives. The standard of living of all must be worsened, and the odds are ten to one on that if there is anything favorable to be gained from living under those conditions, it will be enjoyed by the wife with whom he is at present living.
Only this morning I had another case brought under my notice. It relates to a family in which there are three young children, one a baby only ten days’ old. The husband deserted the wife while she was still in the maternity hospital. He has not even paid for her confinement! Eventually, under this provision relating to separation for five years, he will get a divorce. Up to now, he has paid nothing towards the upkeep of his wife and family. He could never be found when he was wanted.
– He is a remarkable man.
– Of course he is a remarkable man, but he should not be able to avoid his responsibilities If the honorable senator cares to accompany me back to
Western. Australia, I can show him, near the aerodrome at Perth, the house in which that man’s second wife is now living It was erected originally for the eldest son of his first marriage.
– Cheer up!
– You cannot cheer up in matters like this. You are talking about it from the lawyer’s viewpoint. I am looking at it from the other point of view. You are on the receiving end; I am talking for the people who get nothing.
There are one or two other things about this bill which annoy me greatly. Nowhere in this Matrimonial Causes Bill, or whatever it purports to be, do I find any attempt to make a uniform law for Australia to deal with bigamy. I have had a terrible job chasing up bigamists on behalf of their legal wives. People do not realize What work comes to us female members Of this Parliament. A woman who is in matrimonial difficulty will not go to the men to discuss her problems; she will come to Senator Robertson, or to me and, over a cup of tea, she will let us have the full story of what has happened. Since I have become a member of this Parliament, I have been appalled to learn what is going on in the matrimonial world. Why, the Minister admitted to me last night that even when it comes to serving papers, the first thing is to catch the chap. He admitted that, like Mrs. Beeton, you have first to catch your hare. You have to catch the husband first, and he is very mobile. He can simply put on his hat, board a plane and be at the other end of Australia by next morning.
– There are 10,000 of them on the run in Australia at the moment.
– According to the figures supplied to me by the Minister, there are 13,367 of them. I suggest to him that he ask the Commonwealth Scientific and Industrial Research Organization to endeavour to develop something like myxomatosis to help catch them because they are very slippery customers. No matter how humorous this question might seem to be, we must not forget that the crux of this whole problem is something very human. During the five years of separation, a man may pay - and very reluctantly - what the court decides he shall pay by way of. maintenance, but what is going to happen after he has his freedom? Are we to bait the hook after we catch the fish, after he has obtained his decree and got married again?
I am amazed that so many of the Ministers and others who have spoken seem to think that the celibate life is something sinful, something to be ashamed of, something absolutely unbearable. I can assure the Senate, from my own experience - and I am sure there are other honorable senators in a similar position - that there is a good deal to be said for it. Indeed, the more I hear about matrimony in this chamber, the more I am beginning to believe I am fairly lucky!
We are told that one reason why we must come to the aid of the erring husband is the terrible tragedy of requiring him to remain tied to the woman whom he once swore to cherish, love and so on, till death or the five-year provision did them part. That is his own business. If he likes to take that line of conduct after he has made those promises, that is his business. You cannot make people moral by legislation.
Senator Vincent said last night that this was a nice, clean way of getting divorce. It it so nice and clean that you clean by sweeping the dirt under the carpet! And the first person who comes in trips over it and all the dirt comes flying out again! To my way of thinking, it is a most hypocritical attitude to take towards this matter to argue that a divorce may not be obtained under this provision if there are no other grounds for divorce. We know from our experience in Western Australia that one-quarter of the divorces in that State are obtained under a provision similar to this. I know from my experience of dealing with many of the people concerned in those divorces that a provision similar to this has been looked upon as just a nice, clean way pf tidying up things, of avoiding washing dirty linen in public, of avoiding letting the people down the street know very much about it.
Once upon a time, we had in the west a newspaper which used to publish all the sordid details of divorces. When the go?vernment there introduced a law - I am pleased to see a similar provision in this bill-prohibiting the publication of evidence given in divorce cases, that newspaper went out of business; it could not exist because it did– not have, the dirt, on which, to feed. Honorable senators, opposite says this is. a clean, way. of dealing with dirt There is. no clean way of dealing with dirt!/
I’ am sorry for the many people who have been placed in this situation. I am not unmindful’ of the great tragedy visited upon families by these matrimonial disagreements.
T,he CHAIRMAN.- Order! The honorable senator’s time has. expired.
.- Whatever may be, the ultimate result of- this debate, I shall have gained something from it. I- shall have learned the difference between logic and emotionalism. As that difference- has been- explained to the Senate by several senators, notably Senator Vincent and Senator Aylett, logic is used when one puts one’s own case, whereas, emotionalism is used when the other chap puts his case. This provision has a most remarkable origin. Members of this Parliament who come from Western Australia will, if asked, tell in great detail how a prominent figure in that State boasts that he organized the passage of such a provision as this through the legislature of that State to suit his own case, to get rid pf- a wife whom he no. longerwanted.
Senator- Paltridge. - Oh, no!
– I refer the Minister to Western Australian members of this Parliament. That statement has been made in the Senate and in another place.
– That does not make it true.
– It is as true as, indeed truer than, many other things that have been said here. The provision may be judged on its merits. Is it not strange that, if it was so good and had been proved in Western Australia to be so meritorious, it never occurred to the legislatures of Queensland, South Australia, Tasmania, and the other States, that it was a good thing? Its merits could not have shone very brightly. The Morton royal commission trenchantly condemned this principle. I am informed that in the earlier bill prepared by Mr. Joske, which has been referred to with so many congratulations, this principle was not embodied. Mr. Joske is an eminent legal figure. I would suggest’ that- in the realm, of divorce, he would not yield-, even to Sir Garfield Barwick. If the merits, of: this proposal are so. great, why did they escape, die scrutiny of Mr. Joske?
– Did not Mr. Joske vote freely for it in another place?
– Mr. Joske’s vote in another place is a matter for him to explain. I- am simply referring to the fact that he, having weighed the merits of the. various grounds for, divorce, arrived at a certain form of bill. He apparently could see no. merit in this, very principle. We are told that Western Australia is right and that- all the other States, Great Britain, and- Mr. Joske are wrong.
– The people who. say that would, not agree that Western Australia Was. right in. regard to. the provision relating to, failure to comply, with an order- for restitution of conjugal, rights.
– I agree. The gentlemen Who are so sure in this connexion that five States are wrong and Western Australia is right, argued eloquently only a. few, minutes ago in relation to another provision that if five States favored it, it must be good, and that the principle for which only one State stood must be bad.
Every one admits that this principle is a new one. Those who propose it suggest that they have hedged it round with safeguards. That is what is always done in establishing a new principle. Realizing that it will be a shock to people, one hedges it round, for a start, with safeguards. One sugars the pill. Then, haying established the principle, the initial step becomes the jumping off place for expansion. This principle appears to have very little to recommend it. It comes from one place, and one place only, which was able to dig. up the nugget that escaped the view of the miners of Australia and Great Britain. While I have every admiration for the pioneers of Western Australia, I find it difficult to follow, them, in pioneering divorce legislation.
I shall conclude my remarks by reading some apposite comments forwarded to me by a member of the legal profession who is of some eminence and who has carefully examined the bill. He wrote -
It is completely undemocratic and against all justice that legislation should even consider intruding on the privacy of husband and wife and their tight to live in their own way, except where offence enters into it, and that offence must bc such that it can be established by fact provable before a court, lt is highly dangerous when law attempts to dictate to conscience and attribute motives and ideas. Sir Garfield spoke of spite. Could he not have spoken of love, where perhaps an innocent wife would not divorce her husband and enable him to marry a de facto wife because his real wife is truly in love with him and knows that it would be for the destruction of his true happiness? 1 shall be voting against this provision.
– I hope I do not weary the Senate in answering points as they arise, but it seems to me that this procedure results in tidying up the debate, perhaps, a little. 1 can with great conviction contradict what Senator McManus said in one respect at least. I have consulted with Mr. Joske, and I have his personal assurance that he is thoroughly in favour of this provision, and that the reason why he did not include it in his own bill was that he was introducing a private member’s measure without having made available to him - as happens, of course - the time that is available when the Government introduces a bill. He sought the passage of his bill with as little opposition as possible. He knew that Parliament had an opportunity to improve it and he hoped that it would do so. I merely answer with fact the inference that was drawn, perhaps quite reasonably, by Senator McManus.
This matter has been discussed as if Western Australia were the only State in which a ground of this kind existed. It is true that it is the only State in which the ground exists with this precision. But we should not forget that in South Australia there is a provision for divorce after five years in cases where the parties are separated as a result of a judicial decree or a judicial order. It does not extend, as this provision does, to mere separation. It does cover exactly cases of judicial separation or separation by order, and provision is made for maintenance in the same manner as it is made in this bill. So, it is not quite accurate to talk as if only one State had adopted such a provision.
Last night and this morning we were told that this was a bad clause because it reproduces a provision in the Western Australian law that had been introduced, it was alleged, by an individual for his own personal profit. That, of course, if true, would not necessarily make it a bad clause though it might well indicate that it was. But, in this case, I point out to the Senate that it was introduced in Western Australia in 1945. It was then taken by the Western Australian Government into its bill and passed in 1945. After three years’ experience, when the Western Australian Government worked on the statutes again, in 1948, it was still included. There has been fourteen years* experience of it since then.
I think too much can be made of the allegation that this is bad because one individual somehow forced it through - whether that be true or not, I do not know.
– I will not detain the committee very long because most of the grounds in this bill, both for and against divorce, have been covered. Senator Gorton just now mentioned that this ground of relief was not available in Western Australia only but also in South Australia. As far as 1 can understand the Attorney-General’s explanation the provision for divorce after five years’ separation obtains only in Western Australia. The relief in South Australia - if we may use that term - is a judicial separation or relief from cohabitation.
– A divorce can be obtained after five years.
– That is- not included in the explanation. I regard this as the most iniquitous of the provisions in this bill, for two reasons. One is that it is regarded as traditional, I understand, that a criminal cannot benefit from his crime. At least we can draw the analogy here that a person who has been guilty of a legal irregularity - to put it nicely - which can be punishable in court, can escape suffering as a result of that irregularity. The protection of children and so on has been mentioned. Senator Wedgwood pointed out that there are 13,000 wives and their children to whom this provision would afford relief, but the husbands are on the run. Consequently, those 13,000 wives and whatever the number of children involved may be can be afforded no relief until they can catch the runners.
Although I am a comparatively new member of this chamber, having only just recently taken my seat, I understood that this was to be a non-party measure and that each Senator would be entitled to cast his vote according to his judgment and his conscience. I was a member of the Queensland State House for a number of years but neither there, nor in my brief period here, have I seen a greater example of pressure being exercised than has been exercised over recent weeks in this instance. First of all, there was the intimidatory approach of the Prime Minister (Mr. Menzies) when there appeared to be some doubt whether this provision would be retained or deleted. Not only did he announce in the press what he was going to do, but he said also that all the Cabinet were supporting the bill. We know what effect a statement like that could have on members of Parliament, particularly those who fancy themselves as potential cabineteers. This is the place where party members have to be in line or get out and stop out. Examples of that have been reported through the years. But that was not the only pressure exercised. The Attorney-General (Sir Garfield Barwick) has been haunting the borders of this chamber for the last couple of days. That is his right, and I am not quarrelling about it. I can appreciate his desire to have the bill carried in its entirety. I know that he is a political neophyte, but there should be at least a measure of political decency associated with a non-party bill.
I feel that many have been pressurized because of their sense of loyalty to the Government and because this bill has come to be regarded as a Government measure. I take strong exception to these tactics in an endeavour to get this bill through. I consider that it is politically wrong and, I would say, judicially criminal, for the Government to exert pressure on its supporters after we were led to believe that all honorable senators would be free to vote in accordance with their personal judgment and conscience in relation to this particularly important social, or anti-social, piece of legislation, depending on one’s point of view.
– To the best of my knowledge thi; provision has been debated on the basis that it requires no matrimonial offence but only a period of five years’ separation before the parties can seek a divorce. Senator Gorton has referred to the practice in both South Australia and Western Australia in order to vindicate this provision. In South Australia, parties wishing to get a divorce may apply for a judicial separation or relief from cohabitation; but before a divorce can be granted, they have to live separately for five years and show that there is no reasonable likelihood of cohabitation being resumed. But in order to obtain that order in the first place, there has to be a matrimonial offence such as adultery, cruelty, failure to maintain or some other breach. Then there has to be a period of five years during which the parties live under the surveillance of that court order, before they can seek a divorce.
– Under this bill there has to be a matrimonial offence before either party can secure a judicial separation. That is analagous with the South Australian practice.
– No provision is made here for a preliminary judicial separation. This bill has 101 donors. It is like the house of Baldpate; it has doors and keys all over it.
I wish to make a request of the Minister. I know that the Senate agrees that there shall be a uniform divorce law throughout the Commonwealth based on a uniform code of matrimonial offences. But there is strong exception not only in the minds of those who have been dragooned by the Government but also among those who, in conscience, oppose this clause, to a divorce being granted without a matrimonial offence but by mutual agreement or even at the desire of one party - mainly the offending party. They feel that it is wrong that a law-breaker - a criminal - should be able to pursue the advantage of his own crime. My request is that the Minister should ask the Government to delete from this bill this contentious provision and allow Parliament to pass a measure embodying a uniform code of matrimonial offences. That is the sort of matrimonial law found in other countries. Then, if the Government wishes, let it introduce an amending bill to provide that a marriage can be broken by consent, without a matrimonial offence, and thus let that proposition be considered separately on its merits. From the time the AttorneyGeneral introduced this measure in another place and during all the discussion that has followed in both Houses, I have seen this measure as a piece of legislation being foisted on the Australian public justified only by the argument that we want a uniform code of divorce law. I repeat that a proposal to dissolve marriage without a matrimonial offence should be the subject of a separate piece of legislation. If the Government thinks that this is a meritorious and defensible measure, it should not include this provision in it. The public are entitled to a uniform divorce law in accordance with their accepted code of justice, but no measure should allow a person to gain advantage from his offence. Let us separate this clause from the rest of the bill. I request the Minister to introduce separate legislation dealing with this matter alone. It would be a bill dealing with the dissolution of marriage without any matrimonial offence, the dissolution of marriage by agreement or the dissolution of marriage on the application of one of the parties. A bill of that nature could stand on its own merits and could be dealt with on a non-party basis. We would then have a bill which the Senate could examine to determine if divorce without matrimonial offence is in accordance with the principles of British justice - something that could stand on its own merits. I do not like the attitude that has been adopted that if honorable senators do not like this clause they cannot have the bill.
My experience of the Western Australian provision leads me to believe that whatever safeguards you put in a bill of this kind will be of no avail. I know of a poor, unfortunate woman who was deserted without cause and left with a family to support. I asked her whether it was financial assistance she needed in order to seek protection under the law, but she said that it was not finance that she wanted. She told me that she could not stand the mental and physical torture of going into the court rand giving damaging evidence against the father of her children. She did not want to take advantage of the magnanimous financial protection that was offered by the law. She wanted the right, as a married woman, to be able to rear her family without the slur of being known as a divorcee and to hold her head high in the absence of the man who had pledged to support her.
I repeat that the Government should let this clause stand on its own merits and keep it quite independent of this measure.
– Are you proposing that this clause should be introduced as a bill?
– I am not proposing anything, but if honorable senators think that a clause such as this has the endorsement of the Australian Parliament, that is the course that I would suggest. There is no hurry about this matter. The clause should be taken out of this bill and if necessary embodied in separate legislation. That legislation would deal with matrimonial causes where no offence was involved and one party to the marriage could elect to petition for a dissolution of the marriage. In that way we would deal with the real merits of the clause. The attitude that has been adopted is that this is only a small provision, which in fact nobody likes, and that in order to include it in the bill strong safeguards have to be provided to protect the innocent party. It is suggested thatfor the sake of uniformity the bill should be accepted in toto, that this clause be accepted along with the rest of the bill.
I believe that until this matter was discussed even the Attorney-General, with all his great wisdom, did not realize the full effect of this clause, and I suggest that it would be better to remove it from this bill and consider it separately. If that were done I would be prepared to vote for the bill because although I may not believe in divorce, I admit that there must be some legislation for those who do. If the clause were made the subject of special legislation of the type I have suggested, and the Commonwealth Parliament were to carry it, then we would have to submit to the democratic decision.
I consider that the clause at presentis bad and unjust no matter what protective safeguards are applied to it to bolster up its weaknesses. Anything that is done for the injured woman or man who is prepared to stand up to his marriage contract will not in any way lessen the horribleness of the situation. There have been cases in Western Australia where women particularly have wanted to preserve their homes and their family life. If you offer them all the finance in the world it would not make any difference to them because they wish to keep their children and their status and have no intention of seeking relief from something that this clause refers to as harsh and oppressive. I again make a sincere request to the Minister to consult with the Attorney-General with a view to removing this clause from the bill and considering it in some future legislation that it might be thought desirable to bring down.
– I have listened to this debate for a considerable time. I have been goaded, prodded and at last flattered, particularly by Senator Tangney, into taking some part in it. I will pass over many of the things that have been said, including the suggestion that you should not speak on this matter unless you have some knowledge about it. I was chided about that by Senator Wright.
– I never chided any one nor did I suggest you should not speak even with or without knowledge.
– This, to me, is a very simple question and I will consider it from a personal point of view. I will use myself as an illustration. Suppose I deserted my wife for five years. She to every one’s knowledge, and to my knowledge, has been an extremely good wife. Strange as it may seem she has lived with me for 36 years. I desert her. The first thing the court says to me is that it will strip me of my wealth and make me provide for my wife. It strips me of my wealth with the result that I am not nearly as attractive to the other woman - my paramour - as I would be if I had that little bit of wealth. That to me, is the crux of the whole situation. The important thing is that a man is only attractive to the paramour type because he has a bit of wealth. Honorable senators laugh, but I am telling them the blunt facts as I know them.
First of all, my wife must be provided for. Much has been said about our judicial system, and I believe it to be the finest to be found in any country. I believe that the judges who will deal with these matters will have understanding hearts and a wealth of wisdom. When I apply for a divorce after deserting my wife for five years, what will be the judge’s reply? I anticipate that his reply would be, “ No “. I do not think any one will suggest that that is a wrong assumption even though my wife does not come into the court. In a case like that the process of the law protects her.
– Why could you not get your divorce?
– The law would protect her. I suggest that no judge would give me the divorce that I desired. That, to me, is the answer to the whole question. A judge would not give me a divorce against an innocent party.
– That is not so.
– That is the whole crux of the provision.
– I thank Senator Wright. However, I still say that the innocent party cannot have the award given against her. The guilty party cannot get a divorce.
– I shall quote the provision to the contrary.
– No, it comes back to my original proposition - that it depends upon the judge. I have full confidence in the British system of law. I heard Senator Wright say with pride how great are our law courts, and I agree with him. Nevertheless, I know perfectly well that, in the circumstances I have described, no divorce would be granted to me as the guilty party.
– I have been listening to this debate for quite a while, and the only thing I can say in favour of this clause is that it will at least do away with collusion - with attempts to frame divorce cases. I believe that this bill is an insidious undermining of the family life of Australia. I have said that before. I believe that that will be the outcome of the bill. In the 58 years in which this Commonwealth has existed only one State has decided to include in its divorce law the provision contained in clause 28 (m). For 58 years the other States have operated their divorce laws without this provision. I cannot see why we now have to rush this provision through in the dying hours of the session.
– We are not rushing it through. You cannot say that. Be fair. We have been on the bill for three days, and I have just about had it.
– Putting the bill through in three days is putting it through in a rush, when you compare that period with the 58 years in which the divorce courts of five of the States have functioned without this provision.
All the Churches in Australia have spoken against clause 28 (m). Heed should be paid to the voice of the Churches when we are dealing with legislation that will have such a great bearing on the lives of the people. Now I want to make what I consider to be a very sound suggestion to the Minister, in order to discover, without equivocation, the public attitude to this contentious provision, 28 (m). Yesterday, we received a report of the Constitution Review Committee which will lead, I believe, to the holding of a referendum in the not far distant future. Why not omit clause 28 (m) from the bill now, and when the referendum is being taken on the matter dealt with in the report of the Constitution Review Committee, ask the people what they think of that clause? That could be done. But what the Government is doing now is to foist on more than five-sixths of the people of Australia something that they do not want.
– How do you know they do not want it?
– Because five out of the six States do not have this provision in their divorce laws.
– Well, you can test my claim by having a referendum on the proposal. One point about the bill that is concerning me in particular is the psychological effect that clause 28 (m) will have on the younger generation in this country when they are considering marriage. If, as a result of this bill, you undermine the institution of marriage, you will do a great disservice to this country. If the measure becomes law with clause 28 (m) still a part of it, the younger generation in Australia will not have the respect for marriage as an institution that they would otherwise have, for the simple reason that they will begin to get the same kind of idea about marriage as many people in America have. With clause 28 (m) in operation they will be able to say, “ All right, we are getting married, but if we are not satisfied after a couple of years we will just separate and wait till we can get a divorce “. They will make no proper effort to make the marriage endure, or perhaps to try to make even a slightly unsatisfactory marriage work. In some cases - perhaps a great number of cases - after a couple of years they will say, “ Finish! We are not satisfied with one another.” They will be young enough to wait for the necessary five years under clause 28 (m).
– The average young person would not know that this provision existed.
– They will.
– They will not.
– Well, it has not existed before in Commonwealth law, and very few people knew it existed in Western Australian law, but now everybody in Australia will know of its existence. As a result of clause 28 (m) the younger generation in Australia will get the wrong outlook on marriage. In addition, I think that some future Parliament will reduce the qualifying period under clause 28 (m), which is at present five years. This will be the result of the Government’s present action in sacrificing the institution of marriage through this bill. The qualifying period could come down to three years as a result of the action of some future Parliament, or to two years.
As I have said before in this chamber, there has been a great deal of talk in the Senate about tourism. Well, I think you will get your tourists in a few years’ time as a result of this bill. They will be able to go to another State, have a holiday, and then get a divorce. No doubt, the qualifying period under clause 28 (m) will in time be cut down to about six weeks. That will be the final outcome. Tourists will be able to enjoy a holiday in a State other than that in which they live, and get a divorce of the sort that is granted in other parts of the world where the sanctity of the institution of marriage has been upset.
– lt is not this sort of thing that undermines marriage. It is the public house and beer that are undermining the home life of this country.
– Then most of the people in Australia must have had their homes undermined. Now I should like to ask the Minister: If clause 28 (m) becomes law will a qualifying period of five years’ separation start not earlier than the date of promulgation of the bill? I think that is a very important question.
– No. Any period preceding the enactment of the measure is applicable.
– Any period?
– Yes, so long as it is a period of live years.
– Well, people say that there will not be any increase in divorce as a result of this provision. If the provision becomes law it will be interesting to see graphs of the increases in divorce in each of the various States next year. I conclude, Mr. Chairman, by repeating that clause 28 (m) is an iniquitous provision. I believe it should be wiped out of the bill if we wish to safeguard the institution of marriage in this country, and also for the sake of this nation’s future welfare.
– I had not intended to rise at this stage, but I do so because the debate has got so far off the beam with some of the remarks of Senator Mattner and Senator Gorton that I think I should merely state the facts as I see them. I was one of those who voted for the appointment of a select committee. I did so because, as I said in my second-reading speech, I approach this divorce legislation with all humility. This is the first time we have ever had to deal with a divorce bill. We are dealing with a phase of the life of the community which very few of us have ever had. to investigate. Therefore I was perfectly willing to listen to any evidence that could be put before a select committee. I am quite willing to admit that with regard to some of the clauses of this bill that I voted against I could have been persuaded to change my mind. As I have said, I am inexperienced in this field and would have welcomed the assistance of a select committee, or even the solid foundation of a party behind me, because whatever may be said of party politics there is no doubt that the party can assist a person with knowledge and advice, and the party’s roots go right back to the people of Australia. But this is one clause of the bill of which I have had some experience, simply because I am a Western Australian.
As far as I know - and I hope some lawyer will interject and inform me if I am wrong - this is the only section of law which allows a guilty partner to obtain relief. Here is where I make my first stand. The principle behind every other section of divorce law, as I know it, is that the guilty person cannot sue. When one spouse commits an offence against the other, the right of seeking to end the marriage rests with the offended person. This is the only provision that I know of in any divorce law that provides protection for a guilty person.
We have heard a good deal about safeguards. Senator Tangney pointed out to-day how safeguards that appear very effective when being considered in this Parliament are often not nearly so effective in actual practice. The same or even stronger safeguards have been tried in the Western Australian law. But, Mr. Chairman, they just do not work. What are these safeguards? They are, first, financial arrangement. Consider the position of a judge who has just granted relief to a man who has deserted his wife and three or four children. The judge has to make a satisfactory arrangement for the support of the wife and children. At the same time, being a man of commonsense, he realizes that the person who has obtained the divorce has to live and may have to support a new wife and offspring. The total amount of money available to provide for all this may be only £16 or £18 a week. Inevitably some one must go short. The question I would like the Minister to answer is this: Who is to go short? Is there to be an instruction to judges to come down on the side of the original wife who was deserted, or on the side of the legal wife?
Then we should consider the question of adultery. Even in this connexion the Western Australian safeguard is stronger, because the provision there is mandatory. The judge must refuse a divorce if fee petitioner has committed adultery. Sir Garfield Barwick has provided a discretionary power for the judge to grant a divorce even if adultery on the part of the petitioner has been proved. Here again I ask another question, Mr. Chairman, and I notice that the honorable member for Lang (Mr. Stewart) asked this question in another place. How does the judge know that the petitioner has committed adultery? Sir Garfield Barwick said that he can ask the petitioner. But if ever there was a field of jurisdiction in which perjury is committed more often than in any other, it is surely the jurisdiction of divorce. Who is going to prove the adultery?
Let us take the. example of a man who has deserted his wife and children, and who then goes to the court seeking a divorce. Let us suppose, that he makes the necessary financial arrangements. Senator Mattner, to whom I was not going to reply because he was so far off the course that he was not even in the event, said that the man is to be stripped of his wealth. The only person who will be stripped of his wealth is the working man. The man who is well able to make the financial arrangements will not be stripped of his wealth. He merely has to make provision for a deserted wife and children. When he comes to court and the question of adultery is brought, up, who is going to prove that he has committed adultery? Sir Garfield Barwick says that it can easily be established if the judge asks the question. But the petitioner may say he has not committed adultery, and who is to prove that he has perjured himself? One of the most difficult offences to prove is adultery. In this country the proof is usually established by means of a person who has come to be known by the American appellation of “ private eye “. The only person who has a vested interest in proving the adultery is the deserted wife. Where is she going to get the money to finance investigations over a period of five years?
Even if she does so, what finally happens when she is sued for divorce on the ground of five years’ separation? Any sane lawyer -and I am perfectly willing to admit that there are some sane lawyers, despite the experience of this week in this place - would say to her, “ What is the good of your going to court and saying, ‘ I love this man, I want him back, I do not want to be divorced ‘? The practical situation is that you will not get him back. You have put on all the available pressure for five years. You have asked him to come back. Your children have been to him and put on emotional pressure, and he still resists all these blandishments, so you will not get him back. Be sensible, and let me, as your counsel, negotiate. We will withdraw the objection if the maintenance can be increased.” This is why, if you look through the Western Australian law lists, you will find that so many of these cases have been undefended. They are unde-fended not because of collusion, or because one party is glad to be rid of the other, but because the cold realities of the law and of economics dictate that the sane course is to protect that section of the family for which the woman is still able to care, namely, the children.
I have not heard mentioned - and I think it is of paramount importance - the question of the status of a person who has been divorced. I believe that over the years one of the things that have kept people out of the divorce courts is the fact that there is a certain stigma attachable to a person who has been divorced. This is illustrated by the attitude of the Church of England and of the Royal Court to divorcees. A stigma is attached to a person who has been divorced by his or her spouse, because the divorced; person is considered to. be the guilty party. If the husband is the guilty party and the wife obtains a divorce, undoubtedly a certain stigma is attachable to him. Now, for the first time, it is proposed to transfer the stigma to the innocent party. In the divorce registries of this country you may find, for instance, a mention of “ Miss A, divorcee “. She may have been divorced as a guilty party a dozen times. Beside that entry in the same register you will have “ Miss. B, divorcee “. Miss B Plight have been the most devoted mother and wife in the whole of the community. You will lump together, from the point of view of status, the worst and the best types pf women, and who is. to tell which is which?
Sir Garfield Barwick summed up the whole of his attitude when he said that if there is to be a choice between the person hanging on to a marriage merely because of sentiment and the person who wants to desert, then he would come down on the side of the person who wants to desert. His actual words were, “ I come down in this bill on the side of the community “. After all, as I said the other night, why, if not for sentimental reasons, do people, ever get married? In other words, Sir Garfield Barwick says, “If you want to maintain your marriage for the reasons for which you got married, then I am not with you “.
When I started to examine this bill I was immediately against this clause, because I have had fourteen years of experience of a similar provision. I was involved with it in the early stages of its operation, and I have had a good deal of experience since. I pause at this point to correct the Minister. T do not know whether he meant to do so, but he gave a false impression. I take cognizance of the interjections of -Senator Paltridge addressed to Senator McManus but I will give the history of the bill. It is enshrined in “Hansard” of the Western Australian Parliament. The original legislation in Western Australia was not introduced by the Western Australian Government.
– I said, “ passed “; I did not say, “ introduced “.
– I know that, and I will come to it in due course. But I wish you had made the position a little more clear when you spoke. The original legislation was not passed by the Western Australian Government.
– Governments do not pass bills.
– Governments introduce bills, as the Government has introduced and insisted upon this one.
– You said, “ passed “.
– I will be corrected; it may make the record a little clearer. The Western Australian Government did not introduce the original bill. It was introduced into the upper House, which has a restricted franchise.
– It was part of the Parliament.
– That is so, but it was introduced by an Opposition member, and there was very little debate on it. When it was introduced, it specified a period of ten years. The argument then was on the lines of the argument we have heard here: If people have been parted for ten long, weary years, why should any politician make them stay together? The bill went to the lower House in Western Australia, where not one member of the Cabinet spoke on. it. It was amended in almost the last phase of the debate, and the period was reduced to five years. Later, that provision was taken out of the Supreme Court Act and placed in separate legislation. The go-! vernment at that time was not the government that was in power when the Opposition introduced the legislation originally. However, the government of the day then allowed the five years, to remain in the legislation of Western Australia.
– In 1945, did the Government have a majority in the lowerHouse?
– The Government had a majority in the lower House, but not in the upper House. That is why the bill was introduced in the upper House. The Government could have defeated it, but the vote was allowed to proceed on non-party lines - and “ non-party “ there was interpreted much more widely than the “ nonparty “ debate allowed here on this bill.
Before I examined the bill closely, I had not intended to vote against the second reading of it, or against some of the clauses. But, after a thorough examination of the bill, I was forced to take the steps that I have. I hope that I am sadly mistaken in reaching the conclusion that I have reached. If ever I was wrong in an approach, I hope I am wrong in this approach. But I think it is wrong to move away from the principle that divorce should be based on some marital offence, and to adopt the so-called break-down of marriage principle. This is a misnomer; the marriage has not broken down. I know of instances where a wife has been deserted and did not have any idea that her husband intended to leave until she found the room empty after he had gone. That sounds far-fetched, but I give my word that I have been associated with at least one case where that has happened. Sir Garfield Barwick has been led into error in believing that desertion takes place only after the marriage has already broken down. At that point, it may not have broken down.
We say now that a person who does not want to live with his partner may obtain relief after a separation of five years, but in the future others may say that one year or two years should be the period. In logic, I could not argue with them. In all conscience, I must admit that if ever I came to the day when I decided to leave my home, the big step that I would have to take would be to walk away from it. Once I had left my home and had been absent for a period, I would have lost the affection of my wife and children and my heart would have hardened to them so much that it would be an end to my marriage. It would not matter then whether the period was one year, five years or ten years; my attitude would remain the same. Why do we not give relief on this ground to the person who has committed adultery and has said, “ I do not want to cohabit with my wife any more; I am much happier down the street “? If we approve of this ground for divorce, we inevitably reach the point where we say that, if one person does not want to live with the other, there is no reason why he should. That view may be admirable, but the people who hold it do not express it in this chamber.
– Order! The honorable senator’s time has expired.
– I want to clear up some remarks that have been made on this measure before we go any further. Senator Cole was under the impression that five-sixths of the people of Australia were against this divorce bill.
– More than five-sixths. Western Australia has only a small population.
– That may be so. On many occasions, gallup polls held throughout Australia have surveyed public opinion on various subjects, including elections. To my knowledge, the results they have predicted have always been within 1 per cent, or 2 per cent, of the actual result. A gallup poll was taken on this divorce measure.
– On the divorce bill?
– Yes, on the divorce bill.
– That is right. I spoke about clause 28 (m) of the bill.
– Clause 28 (m) is the separation clause.
– You are going to bring out figures on the bill as a whole.
– You do not know what I am going to do.
– Yes, I do, because I know the gallup poll figures that you have mentioned.
– What else would you like? Would you like clause 28 (m), too?
– No, I would-
– There are a lot of interruptions, but I want to make it quite clear to. Senator Cole that I have information which, I am sure, will please him. I quote from an article headed, “ Public Would Like One Divorce Law “. It reads -
Three out of four Australians think it is right to have divorce laws and there is an overwhelming majority to have federal divorce laws for all of Australia, a Gallup Poll in June shows.
Public opinion approves all the grounds for divorce proposed in the bill outlined to Federal Parliament in May.
Gallup Poll interviewers first asked people whether they were for or against having divorce laws. They answered -
In the four major denominational groups, majorities for having divorce laws are - Methodist, 88 per cent.; Presbyterian, 87 per cent.; Anglicans, 86 per cent.; Roman Catholics, 51 per cent.
The same 1,800 people were asked if they favoured one federal divorce law for all of Australia, or a separate law in each State.
Comparison with a similar Gallup Poll 18 months ago shows how opposition to a federal divorce law has almost disappeared: -
Interviewers handed each person a card listing eleven of the grounds for divorce in the Federal Bill.
– There are fourteen grounds in this bill; they must have missed out a few.
– Yes, there are fourteen grounds in this bill. The article continues -
Here are the percentages who approve each ground.
For every ground, the “ approve “ vote from Protestants exceeded the above percentages.
People who said they were Roman Catholics gave “ approve “ vote of 55 p.c. or more for the first, second, third and sixth grounds in the list. They were about 50-50 on most of the other grounds except the last, of which they disapproved.
We are trying, as a Parliament, to make divorce laws for the people of Australia. As I have shown, 70 per cent, of the people want five years’ separation as a ground for divorce. Paragraph (m) provides - 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;
They must have lived separately for a continuous period of not less than five years before they can petition the court for divorce on this ground. I ask the committee to take cognizance of the fact that in 99 per cent, of cases in which a married couple have lived apart for five years, there is no likelihood of their coming together again. There must be a reason for a married couple deciding to live apart for a period of five years. We say that if they do live apart for five years they are entitled to a divorce.
– The judge will say that.
– Yes. If the judge decides to grant a divorce, he will lay down the conditions that shall apply. He will decide what payments shall be made and what other conditions shall be observed. On the other hand, he may not grant a divorce. Earlier this afternoon, a case in point was mentioned. A woman’s husband had left her for five years, and he wanted her to petition for divorce, but she said, “ No, I do not want to appear in court “. A judge, before granting a decree in such a case under this provision, would have to be satisfied of the conditions applying to the woman.
I do not want to delay the proceedings of the committee. This has been a most interesting debate, ranging over two and a half days. We are now tired and are getting fidgetty, so let us finish it.
.- I should not have intervened in the debate on this paragraph, but for the fact that a previous speaker stated that this is the only law under which relief could be given to a guilty person. Having seen the impact made by that statement, I think we should consider what relief would be given to a guilty person. Clause 28 begins by stating -
Subject to this Division, a petition under this Act by a party to a marriage for a decree ot dissolution of the marriage may be based on one or more of the following grounds: -
The words used are “ may be “, not “ shall be “ or “ will be “. There are then listed a number of grounds. Paragraph (m) of the clause states -
That the parties to the marriage have separated . . .
It has been said that this paragraph makes provision for people who have not committed a matrimonial offence. I point out that, to some degree, the fact of separating is a matrimonial offence. A matrimonial offence is capable of a very delicate definition. The remainder of the paragraph states - and thereafter have lived separately and apart for a continuous period of not less than five years immediately preceding the date of the petition,
That, also, in terms of a delicate interpretation, is a matrimonial offence. It could be a very minor one, or a very grave one. The paragraph goes on - and there is no reasonable likelihood of cohabitation being resumed.
A protection against a guilty person being given relief is contained in clause 36 (1.), which states -
Where, on the hearing of a petition for a decree of dissolution of marriage on the ground .specified in paragraph (m) of section twenty-eight of this Act . .. . the court is satisfied that, by reason of the conduct of the petitioner, whether before or after the separation commenced, or for any other reason, it would, in the particular circumstances of the case, -be harsh and oppressive to the respondent, or contrary to the public interest, to grant a decree on that ground on the petition of the petitioner, the court .shall refuse to make the decree sought.
Note the word “ shall “. That clause states that, in certain circumstances, the court shall refuse to make the decree sought. Therefore, I believe that a guilty person will get no relief from the court. Furthermore, before the case comes before the court, an election can be made for the judge to act as a conciliator. In that event, he will examine closely every detail that is placed before him. I say that every safeguard is provided ;in this measure.
Senator Wright has foreshadowed an amendment to paragraph (m). He hopes that a proviso will be added, in these words -
Provided that if upon the hearing of a petition on this ground the respondent opposes the making of a decree and it is proved to the satisfaction of the Court that the separation was due to the wrongful act or conduct ,of the petitioner .the Court shall dismiss the petition.
In my opinion, that would, if adopted, afford complete protection against relief being given to any guilty person. I oppose the proposal to delete paragraph (m), because I believe that every possible safeguard has been provided in this measure.
– I call Senator O’Byrne’s attention to clause 68. He was quite right in saying that clause 28 .states that a petition for a decree of dissolution of marriage may be based on one or more of the grounds there specified, but clause 68 is imperative. It provides -
Except as provided by this Act, the court, upon being satisfied of the existence of any ground in respect of which relief is sought, shall make the appropriate decree.
When a provision analogous to clause 28 (m), providing for divorce on the separation ground, was inserted in the New Zealand law in 1921, the legislature there went out of its way to say that :the court, in its discretion, could grant or refuse a decree on that ground. Furthermore, when Western Australia introduced this ground, the act stated that the widest discretion would reside in the court. Referring specifically to this ground, it was provided that the court, in its discretion, could grant or refuse a petition. Clause 68 of this measure is in marked contra-distinction to both of those provisions. Once separation for five years has been proved, then, unless the case comes within clause 36 - to which Senator O’Byrne referred - clause 68 will require the court to grant a decree.
There is only one other thing that I wish to mention. Reference has been made to the South Australian legislation. It is true that in the South Australian legislation there is a provision whereby a party may petition for divorce if that party can show that during five years preceding the commencement of the action the husband and wife have lived apart under a decree or order granting judicial separation or relief from cohabitation. The act provides that the court may .refuse relief until the husband has made such provision for the maintenance .of his wife and any children of the marriage as the court thinks fit. Records will show that this section is rarely availed of in South Australia. I suggest that is so because of the very firm implementation in South Australian courts of section 12 of the act, under which the court may refuse to make an order if the petitioner has been guilty of adultery, cruelty, or, in this case in particular, habits or conduct indecent or contributing to the existence of the ground relied on. Though it is only a discretionary bar there, one only has to have a remote knowledge of the South Australian courts to know that a discretionary bar there is a greater safeguard probably than in some of the other States - at any rate up until a few years ago. I feel that some explanation of that kind may be of interest to the committee.
.- I propose to say only a few words at this late stage. I feel I would be lacking in my duty if I did not re-direct the committee’s attention to the substantial differences between the law in Western Australia and the provision that we are now dis cussing. The Western Australian ground is an absolute bar and in this instance it is a. discretionary bar. During the week-end, like Senator Scott, I conducted a little gallup poll of my own among Melbourne barristers. The consensus of opinion was that a discretionary bar, at all events in Victoria, is not worth the paper on which it is written. Where adultery is conceded or admitted in the affidavit, not one of the men to whom I spoke could recall a case in which a decree was refused on that ground. The judges took one of two views - either there have been extenuating circumstances and the petitioner should have his decree or, alternatively, the petitioner has been guilty of gross adultery and the respondent is better off without him or her.
In regard to that matter I am greatly fortified by Mr. P. Joske, the learned author of “ Marriage and Divorce in Australia “, which is a classic in the legal profession. At page 303 of the third edition, Mr. Joske says -
A discretionary bar has been given by Matrimonial Causes Statute to the court which is not bound to pronounce a decree in the cases specified. The exercise of the discretion is unfettered but at the same time is not a matter of mere caprice. It is a judicial discretion exercisable not arbitrarily but for substantial reasons.
At page 304, he says -
There is nothing in the Matrimonial Causes Statute to indicate that the general rule is that the discretion of the court should be exercised against a petitioner who himself has been guilty of matrimonial misconduct or that it should only be exercised in his favour in exceptional circumstances.
The discretion of the court on the wording of the statute is quite open. If anything the words would appear to indicate that ordinarily the decree will be pronounced notwithstanding the petitioner’s misconduct but that in such a case the court is not bound to pronounce it.
At page 307, he says -
It is not correct to say that a position must be established which is special and carries on its face some palliation.
He refers to the case of McEachern v. McEachern, reported in 1941 State Reports (Queensland) at page 103. Mr. Joske continues much along the lines of the alternatives I put to the committee a few moments ago. He says -
A decree may be granted to a petitioner who has been guilty of flagrant adultery.
He refers to the case of Henderson v. Henderson, reported in 76 Commonwealth
Law Reports at page 529. I trust that: the committee will realize, before casting its vote in respect of a ground in which the adultery is a discretionary bar, that the discretion will be exercised in the way Mr. Joske has pointed out in his book and that virtually it is no bar at all in the case we are discussing.
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 . . 14
Question so resolved in the negative.
– I move -
At end of the pragraph, add “provided that if upon the hearing of a petition on this ground the respondent opposes the making of a decree and it is proved to the satisfaction of the Court that the separation was due to the wrongful act or conduct of the petitioner the Court shall dismiss the petition”.
I shall not detain the committee unduly long. It will be understood that the words of my amendment are taken precisely from those in the New Zealand statute. On a previous occasion I referred to the fact that this ground of separation was introduced into New Zealand in 1921 in terms which are not distinguishable from those contained in the present bill. There was great discussion in the courts as to whether wrongful conduct on the part of the petitioner was a disabling factor, and whether it should induce the court to refuse a decree. In 1921, the New Zealand Court of Appeal held that wrongful conduct on the part of a petitioner, as the act was then framed, did not disentitle a petitioner to a decree. That ground was amended by the New Zealand legislature within twelve months of the court so deciding by the introduction of the amendment which I have copied and used in the proposal which I now submit to the committee.
Since that time, the New Zealand courts have been precluded from granting the petitioner a decree if the respondent has opposed the petition and if it has been proved to the satisfaction of the court that the separation was due to the wrongful act or conduct of the petitioner. In the interpretation of the term, “ wrongful act or conduct “, the New Zealand courts have adopted the words of Mr. Justice Fair, as reported in 54 New Zealand Law Reports, at page 421, which are -
What amounts to wrongful conduct is well established in law. It is conduct which the moral standard of the community regards as blameworthy as between husband and wife or such as no selfrespecting woman could reasonably be expected to continue to suffer.
I am asking this legislature to accept only what the New Zealand Parliament felt it was proper to accept, after the matter had been specifically decided by the New Zealand court, namely that a petitioner who has been guilty of misconduct or wrongful conduct should be disentitled to a decree.
In support of my submission 1 urge that without this amendment there is a great danger of gross injustice being done. It is true that clause 36 provides a safeguard. If the court ‘feels that, by reason of the petitioner’s conduct, or any other reason, it would, in the particular circumstances of the case, be harsh and oppressive to the respondent to grant the decree, the court is required to refuse the decree. But my proposition is that many respondents, although blameworthy in a gross degree for conduct which has caused the separation, nevertheless may easily escape the terms “ harsh and oppressive “ and obtain a decree. There is the loophole through which the wrong-doing respondent may evade the provision.
I direct the attention of the committee to the fact that this amendment not only is contained in the New Zealand legislation but also that the New Zealand statute specifically goes out of its way to say that the court has an absolute discretion in the matter of granting or refusing a decree. In Western Australia, where you have not the safeguard that my amendment purposes to put into this bill, there is a similar absolute discretion. The statute states thai even though the offence has been proved, the court has an absolute discretion either to refuse or to grant the decree.
During the course of my speech on Wednesday night last I referred to the first High Court case on the Western Australian provision, and I pointed to the case of the husband who had been invalided by heart disease for five years, had been placed in a home and so had lived apart from his wife. Mr. Justice Wolff, the court of first instance, in the exercise of that absolute discretion, felt himself free in law to refuse the decree. The case went to the High Court as a matter of judicial argument and the court said that, in the terms of the statute, unless something had been proved positively in the particular circumstances to entitle the court to exercise adversely its discretion against the petitioner, the court was bound to grant the decree notwithstanding that wide discretion. Clause 68 of the bill makes a completely different approach from that made in New Zealand or in Western Australia. The clause states -
Except as provided by this Act, the court, upon being satisfied of the existence of any ground in respect of which relief is sought, shall make the appropriate decree.
The court would not be performing its statutory duty unless it obeyed that provision. If our purpose is to prevent the blameworthy respondent to a judicial separation agreement from profiting from this legislation, and so obtaining a divorce decree adverse to an insane spouse, that makes it the more imperative that we have the safeguard of my amendment.
If the committee will bear with me, I propose to mention three other facts to show some circumstances of separation to which this provision applies. I refer to a decision of Mr. Justice Wolff, of Western Australia, in 1949. In the case to which I refer, the husband and wife had three children, and there was a maintenance order as between the parties. The husband was an ex-member of the police force. He approached his wife and she agreed to make available to him, under the terms of an agreement in writing, a room on the back verandah of the house as a sleeping apartment, and the use of a garage, kitchen and conveniences, together with the right of access to the premises. The agreement was made terminable on seven days’ notice, and he was to pay 5s. a week. The agreement was not observed to the letter, because as soon as it was made, the wife informed the petitioner that he could have his old room in the house and that she would be prepared to cook his meals and do his washing. For this service, he agreed to pay her 30s. a week, which was later increased to £2 a week. The amount was in dispute, but that does not matter. For some twelve months prior to the petitioner ceasing to occupy the room, when the separation order was made in 1943, there had been no marital intercourse and relations had been considerably strained. To all intents and purposes, when the petitioner returned to the house in 1947 he did so on the same basis as that which existed just prior to his ceasing to occupy the room. Here again, there were some different assertions. The petitioner had it that he was practically regarded as a stranger, while the respondent said that relations were pretty friendly. In 1948, relations grew bitter, and when the litigation started, the wife insisted on adhering to the agreement, in that she no longer cooked the petitioner’s meals or did his washing. That was held to be a case of separation within the statute.
If it is stated that there are no innocent victims of this provision, I refer honorable senators again to the circumstances in the case of Main v. Main, in which the husband was invalided into a hospital, where he stayed for five years. After I had directed the attention of the Minister for the Navy (Senator Gorton) to the facts of this case last night, he referred in his reply to a judgment that was undoubtedly written by Sir George Rich, showing that you have to consider the condition of the wife who is left. Certainly, that is so. The only other thing I want to say on this ground is that in Western Australia it is an absolute bar to relief if there is adultery on the part of the petitioner within the five years’ separation. That matrimonial offence may be taken into consideration under the terms of this bill, but it does not prevent the court from granting the relief. In order to show the attitude of the courts to that discretionary bar, I wish to refer to circumstances stated in an exposition of the House of Lords, which indicates the way in which it treated the matter in 1943.
The case concerned two people of humble means. The court felt it proper to say, as to the husband, that his conduct to his wife was certainly proved to have been very bad. He compelled her to consort with drunken stable boys and affronted her by his, and their coarsenesses and indecencies. There were incidents about money, including his refusal to pay a surgeon and nurses attendant on his infant son, which, it was said, were shocking. In short, it was said, he had behaved as a cad. It is necessary to add that the Lord Justice’s conclusion as to the moral character of the wife was even more condemnatory.
In that case of a husband’s petition the court exercised its discretion in favour of the husband. In reviewing the principles that guided it, the court said -
There are four points to be considered: The position and interest of any children of the marriage; secondly, the interest of the party with whom the petitioner has been guilty of misconduct, with special regard to the prospect of their future marriage; thirdly, the question whether, if the marriage is not dissolved, there is a prospect of reconciliation between husband and wife; and fourthly, the interest of the petitioner arid, in particular, the interest that the petitioner should be able to remarry and live respectably.
It will be seen from a review of those circumstances that the courts have shown an increasing disposition to exercise a discretion favorable to a petitioner, even though guilty of adultery. A bar which is only discretionary on the basis of adultery, as is the position in this bill by virtue of clause 36 (3.), is of little value as a protection for an innocent petitioner. I therefore plead for the acceptance of the amendment in her interests.
– Order! The honorable senator’s time has expired.
.- I should like Senator Wright to clarify his amendment. I do not profess to be versed in legal matters. As honorable senators are aware, the amendment states -
Provided that if upon the hearing of a petition on this ground the respondent opposes the making of a decree and it is proved to the satisfaction of the court that the separation was due to the wrongful act or conduct of the petitioner the court shall dismiss the. petition.
It appears to me that if the amendment were adopted the judge would not have any discretionary power at all, because the amendment provides that he “ shall “ dismiss the petition. In certain circumstances, which may be perhaps rather remote, the petitioner may have committed a matrimonial offence and be responsible for the separation. There may be mitigating circumstances.
I think that the amendment has a lot of merit, because it will at least give some protection to an innocent party who raises objection to the granting of a divorce. But I should like some clarification on what Senator Wright intends.
– Mr. Chairman, the court will have to judge whether or not the separation was due to the wrongful act or conduct of the petitioner. It must conclude that the separation was due to the wrongful act or conduct of the petitioner before the petition can be dismissed under this proposed provision. In making its judgment on that matter, the court will take into account all the circumstances on the one side and on the other - mitigating circumstances and others - and will make a final determination as to whether the separation was due to the petitioner’s wrongful act or conduct. I have simply followed the New Zealand statute, which requires the court to dismiss the petition if the verdict on this point goes against the petitioner.
Without such a statutory direction, the courts may take the view that Parliament intended relief to be available to a petitioner although his conduct had been the cause of the separation. When the Parliament speaks in this way, there is a clear direction that a petitioner whose conduct has caused the separation shall not be entitled to rely on the ground in paragraph (m). If there were some fault or matrimonial offence on the part of his wife, he could avail ‘himself of another ground. The amendment will deny to him only this ground which is based upon the fact of separation for five years.
;- Mr. Chairman, I think that I should explain to the committee very briefly the reasons why I should not like it to accept this amendment. First, I think that the amendment would militate against the whole purpose of paragraph (m), and would lead to considerable confusion and a great deal of litigation and difficulty. Here, we are considering a wrongful act which is not necessarily a matrimonial offence, but which may be merely something which, according to the ordinary standards of the community, would be regarded as blameworthy. A husband or a wife may commit a wrongful act and the other party to the marriage may not like it, may not stand for it, and may walk out. In such circumstances, the first party could not sue on the ground of desertion, because the deserting party could plead just cause and excuse. Even after the passage of five years, the first party could not take action to make his legal status equivalent to his actual status - that of an unmarried person.
I think that the case of a series of wrongful actions leading to the breaking up of a marriage is provided for in the judge’s discretionary power to refuse a divorce if he is satisfied that the granting of a decree would be contrary to the public interest or harsh and oppressive to .the respondent.
Senator Wright raised another point concerning the difference between paragraph (m) and a provision in the Western Australian law, with particular reference to adultery within the five-year period. I think that this, again, is purely a matter of individual opinion. To me, it seems unreasonable that a person, whether husband or wife, who has left the other party to the marriage and who, after four or four and one-half years, commits some act of adultery which is found out, is automatically and irrevocably prevented from obtaining a divorce. Therefore, I think it is much better and much fairer to leave the matter to the judge, who must consider all the statements put before him by a petitioner as to adultery before or after separation. He must judge the circumstances in which such acts take place and decide what, in his opinion, is just in those circumstances.
– Mr. Chairman, I support the amendment. I do so particularly for a reason which the Minister advanced in opposition to it. If it is correct, as he suggested, that this amendment militates against the whole purpose of paragraph (m), I am completely in favour of the proposed provision. I thought that argument was the best argument that the Minister could have used had he been supporting the amendment. One of my main reasons for lending support to the amendment is that I believe it goes a very long way towards nullifying paragraph (m) and that it does, in fact, get us back to the principle of the matrimonial offence.
The Minister criticized the words “ wrongful act or conduct of the petitioner “ in the amendment as applied to a cause of separation, and claimed that they did not necessarily refer toa matrimonial offence. I can say only that that is the form in which the matter is before me. I should prefer to see it expressed a little more precisely, but I put the argument that, in the context in which this phrase appears, the events to which it relates will unquestionably be regarded as wrongful conduct of the petitioner in relation to the marriage, and not as mere wrongful conduct at large. I have indicated that I should prefer more precision in the matter, but, nevertheless, I am quite prepared to support the amendment.
Question put -
That the words proposed to be added (Senator Wright’s amendment) be added.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 15
Question so resolved in the negative.
– I am still asking the committee’s opinion on paragraph (m). I wish to move amendment No. 6 on the list I circulated, but I have altered it slightly by including the words, “ arising out of the conduct “. I move -
After “have”, first occurring, insert, “without just cause or excuse arising outof the conduct of the petitioner”.
The purpose of the amendment is to make it clear that the just cause or excuse invoked by the respondentshould emanate from the petitioner’s conduct.
Under the paragraph as printed, the ground of divorce is -
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;
There is no likelihood of reconciliation. That means simply the neutral condition of separation. That is the novelty of this paragraph. For many years in most States, there has been a ground of divorce based on the desertion of the respondent. The committee will find that matter provided for in paragraph (b) of clause 28. It states that a petition may be based on the ground - that, sincethe 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.
It has always been a requirement of the respondent’s offence of wilful desertion that it should have been without just cause or excuse. If the petitioner gave the respondent just cause or excuse for deserting him or her, then a divorce was not obtainable on the ground of desertion.
Desertion is not a neutral situation. Desertion isan active state of blameworthy attitude. You not only separate yourself from your spouse if you desert her, but you intend indefinitely to forsake her and cease to render to her that protection and provision which are the normal opportunities for the husband. But even in that case, if the desertion were accompanied by circumstances which the court considered were just cause and excuse arising out of the wife’s conduct, she could not get a divorce.
The committee has agreed to accept the neutral condition of separation. It may be by agreement between the spouses. What I am asking the committee to accept is that that neutral condition of separation should be a basis of divorce only if the separation has commenced without just cause or excuse arising out of the conduct of the petitioner.
I do not wish to say any more. I have tried to draw an analogy to illustrate that the argument is a hundred times in my favour in applying this condition to the neutral situation of separation. I submit that it is proper still to require that desertion should not entitle one to divorce unless that desertion is accompanied by just cause or excuse. I ask the committee to accept this proposal to improve the legislation, not inconsistently with the previous votes, but in accordance with them and indeed in improving on them.
– I ask the committee not to accept the proposed amendment, which is substantially the same as the proposal we have just rejected. The alteration of the original wording of the amendment certainly makes the suggestion better than it was because it was rather difficult to understand before.
It is still, I think, a matter which would lead to great argument in interpretation. It is still a matter of somebody deciding what constitutes just cause or excuse; it is still a matter of some one deciding who, in a marriage which has been breaking up for a number of years before actual separation took place, gave the just cause or excuse, and where the guilt really lies. Because this proposal is substantially the same as the one we have just rejected, and because any misconduct of a kind which would lead usually to a break-up of marriage is covered by clause 36, I ask the committee not to accept the amendment.
.- I protest against slummicky thinking of that kind that is going on record as being unquestioned by a Senate committee. I think it does no credit to the Senate. If it is proper to delete “ just cause and excuse “ from the separation ground, let us hear what the justification is for including it in the desertion ground, especially as clause 29 now makes conduct which enforces the departure of a spouse, though unintentionally, the equivalent of desertion. I shall have something to say about that specifically, directly. It needs a lot of discussion.
Here we are passing legislation which includes desertion as a ground of divorce, an essential condition being that the desertion shall be without just cause or excuse. Yet, we are asked to accept separation merely by agreement as a ground of divorce without any accompaniment of just cause or excuse. The mere fact that this amendment has some element of similarity to the last, which has been rejected, does not provide any reason whatever for waving it aside in this way. If we are to make a statute, let us be rational about it. What is the reason that requires just cause or excuse in the case of desertion and rejects it in the case of separation?
– I must support Senator Wright in that argument and in his objection to the reply by the Minister for the Navy (Senator Gorton). As the honorable senator spoke, my recollection was that in other acts I have seen dealing with this subject, whether in summary jurisdiction or in Supreme Court jurisdiction, these words are the most common that occur in relation to matrimonial conduct. It amazes me to hear the Minister suggest, at this late stage of the law relating to matrimonial offences, that those words lack definition or clarity. Just as I was worried about a few words in the earlier proposal, I am, on the other hand, completely confident of the precision and the accuracy of this one and, for the reason that I gave some time ago, I support the amendment.
– The information that I have is from the Attorney-General (Sir
Garfield Barwick) who has examined these proposals. The reason I said that the amendments were analagous is that the earlier one principally placed the onus on the respondent to prove the petitioner had acted wrongly. That is to say that he had given just cause and excuse for separation. This one places the onus on the petitioner to show that he has not acted wrongly and that he is blameless. This, I may say, is the explanation of a man who generally thinks carefully and clearly. I say that the proposals are very similar and I therefore ask the Senate to reject the second one, as it rejected the first one.
Question put -
That the words proposed to be inserted (Senator Wright’s amendment) be inserted.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 19
Question so resolved in the negative.
– I move -
At end of the paragraph, add “ 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.”.
Having failed to insert words by the two amendments previously proposed, I now ask the Senate to insert other words. It should be observed at once that the only difference in this amendment is the use of the words “ unreasonable conduct “ instead of the words “ just cause or excuse “ and “ wrongful act or conduct “ used in the two previous amendments. I persevere with this amendment despite the majority of votes against the previous amendments, out of my respect for what I believe to be the unanimous report of the Morton royal commission. I believe I am right in recollecting that all the members of the commission were in favour of the view that if a petition on the ground of separation were objected to, the applicant must first satisfy the court that the separation was in part due to unreasonable conduct of the other spouse. I say that without complete certainty, because it will be remembered that nine members completely rejected the idea of separation. The other nine members accepted the ground of separation. Five of those nine members adopted that ground as a valid ground, provided the other spouse did not object. As to the other four, the report states -
Four of us consider it would be desirable to extend the proposal … to allow a marriage to be dissolved notwithstanding the objection of one of the spouses, thus going further in providing a way out from marriages which have completely failed in their purpose. Our proposal
That is, the proposal of four of the nine is that the separation ground should apply after a seven years’ period -
It will be remembered that when this matter was debated in another place the learned Attorney-General asked, “ What is unreasonable conduct? “ Quoting from memory, I think he then went on to say, “ My wife might come home an hour latefrom tennis and I might think it is very unreasonable to have to wait for an hour until the chop is cooked “. That is the sort of advocacy that merely needs repetition to provide its own answer. It is shallow and vacuous.
Reasonable conduct in relation to these matters is well in line with formulated concepts in the law, not different in reality from the concept of just cause or excuse, which is repeated in this bill, not once but several times. I refer to clauses 28 (b), 29, 36 (2.) and 85 (1.) as instances that I collected at random the other day. I contest the idea that there is any breeding ground for indefiniteness of interpretation in the phrase “ unreasonable conduct “. I suggest that it is well in line with wellsettled concepts of the law as to what is reasonable in relation to matrimonial conduct. It may well be that the Morton royal commission should be brushed aside and its recommendation not adopted here. If that is the committee’s decision I defer to it, with disappointment.
– I ask the Senate not to accept the amendment. It varies from the recommendation of the Morton royal commission, as cited by Senator Wright, in this important respect. The recommendation of the commission required a petitioner bringing an action for divorce to prove that the separation which took place was in part due to the unreasonable conduct of the respondent. In other words, according to four members of the commission, if a petitioner sought a divorce, and’ the respondent objected, the petitioner had to prove that the separation came about partly as a result of the unreasonable conduct of the respondent. The amendment proposed is rather the converse. It requires proof that the separation was in part due to unreasonable conduct of the petitioner. Actually, it is the complete converse of the recommendation contained in the Morton report. Reasonable or unreasonable conduct in the legal sense may, of course, be defined. I do not know whether it is. I suggest it would be improper to provide a bar to any relief, when a petitioner has done some unreasonable acts, while ignoring the fact that the respondent who objects may have- done many more unreasonable acts.
Question put -
That the words proposed to be added (Senator Wright’s amendment) be added.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 19
Question so resolved in the negative.
.-I move -
At end of the paragraph add “provided that if the respondent shall object to a decree on this ground the Court shall dismiss the petition.”.
This amendment is again an adoption of the Morton report. In this instance, the nine members of the Morton committee accepted, as a basis of divorce, this separation ground and said that the court shall pronounce a decree dissolving the: marriage where the ground is established, provided that either spouse does not object.
I simply want it. to. go on record that the Senate Committee has given judgment on the Morton views. It would be more irrational than I would expect to find any proceeding within the Parliament for thecommittee to reverse a vote deliberately taken so recently as this afternoon or last night; and I accept, the previous decision by triecommittee as one of a deliberate kind. If the committee will not disentitle a petitioner if there is an objection on the part of the respondent although it is shown that the separation was, in part, due to unreasonable conduct on the part of the petitioner, I do not expect that the committee will accept this proposal entitling the respondent to defeat the petition simply by objection. I merely submit it, therefore, with that brief statement. .
– I support the amendment proposed by Senator Wright, because I feel that this is the crux of the matter. It gives a petitioner the right to object to having her status completely removed and also gives her the right to protest against being divorced. This is a very important matter and should not be lightly brushed aside. It gives the respondent at least some right in the matter.
I feel that what has been happening in Western Australia far too often has been that the respondent has not been able to protest against the grounds of divorce. Perhaps she has not been able to have legal assistance. As happens in many cases she may have moved away from former surroundings so that she might look after her children in another environment. In some cases she may not have known that the action was being brought. I should like to see this position really clarified by the Minister.
– I think that when an amendment is moved the mover is entitled to receive an answer. My first reply to Senator Wright and Senator Tangney is that this amendment is not acceptable. It would destroy a very great deal, if not all, of the meaning of the clause. All that need happen to prevent an action from being taken is for the respondent, man or woman, to object to a divorce being granted. In an action for divorce it would preclude the court from considering the merits of the case and deciding the issue on those merits.
– On this ground?
– On objection.
– On this ground only; you referred to the merits of the case.
– A divorce could not be granted on this ground if an objection were raised. So that if an action were brought on this ground all that any one would have to do would be to object and the action would fail. The court could not consider the merits of the case. It could not ascertain who led to the break-up or whether there was an innocent party. This amendment would make it mandatory that if one respondent objected, however bad he or she might be, that would be sufficient to stop the granting of a divorce on the ground of five years’ separation. It would destroy the whole object of the clause.
.- We do not want to become too emphatic even as we rise to the crescendo of the triumph. The Morton committee included at least two members of the highest judicial tribunal in the British Commonwealth and one very notable Lord Chief Justice of Appeal as well as other great figures in English life. One of the committee’s preoccupations was with this ground, the merits of which disappear if this amendment is carried. The merits disappeared long before this amendment was proposed.
It is a recognition that no court is concerned with merits on this mutual ground of a separation which may be compulsory by a decree of a court or consensual as between the parties. The Morton committee addressed itself to the obviously overwhelming objection that this ground could be used to undermine the whole system of divorce where, by agreement of the parties on the condition that they live separate and apart - in that committee’s view for seven years, and in the view of this bill for five years - a divorce could be procured. The Morton commission was not so inane as to say that the merits of this ground would disappear if it were provided that objection by the respondent would be a conclusive answer to the petition. That would remove the use of this ground for obtaining divorce by consent. Making that clear, I see that there would be some degree of rationality on the part of those who think that a petition based upon proof that the separation was accompanied by unreasonable conduct on the part of the petitioner should not be a defence. I see some rational reason in anticipating that those who take that view will also view its validity in the case where there is a simple objection and where the ipse dixit of the respondent would determine the matter without leaving any discretion to the court.
The important thing is that the objection of the respondent would negative agreement and consent and therefore prevent what Lord Morton anticipated would be a prostitution of the judicial process of obtaining dissolution of marriage by consent of the parties, subject to the one condition only that they have lived separately. As I pointed out in referring to a Western Australian case, one party may be in the fowl house and the other still in the cottage, but so long as there was a physical separation, that would satisfy the court and would not preclude a divorce in the conception of Lord Morton’s commission. I think I have said enough for the purpose of this committee.
Paragraph agreed to.
.- I wish to indicate to the Minister that I do not intend to proceed with the amendment which is listed in my name.
Paragraph agreed to.
Clause agreed to.
Clause 29 (Constructive desertion).
.- 1 think that this is a most unfortunate clause. The elements of desertion have already been stated. There must be separation without the consent of the other spouse and with the intent to forsake the other spouse. The actual intention to forsake might be the purpose why the spouse leaves. Then the courts built up the doctrine that if a husband’s conduct were so intolerable that the only reasonable inference to be drawn from it was that he intended the ordinary consequences that would follow his act - that is to say, no self-respecting woman would stay to endure that conduct - that intent was imputed to him.
There have been cases in Australia recently where neurasthenic spouses have been rather trying to their opposite numbers. They have given evidence of conduct that was inconvenient and difficult, the product of a disturbed nervous system and incongruous personalities. Their conduct, perhaps, was more than difficult and came into the category of the cantankerous. But those things come within the borders of the condition “ for better or for worse “. They are not regarded by the courts as that degree of intolerable conduct that gives rise to an imputation of an intention to drive away the other spouse.
In this vigorous pursuit of facilitation of divorce, no matter what the grounds, clause 29 now provides -
A married person whose conduct constitutes just cause or excuse for the other party to the marriage to live separately or apart, and occasions that other party to live separately or apart, shall be deemed to have wilfully deserted that other party without just cause or excuse, notwithstanding that that person may not in fact have intended the conduct to occasion that other party to live separately or apart.
I ask the committee to note the word “ occasions “. Those who seek precision in the expression of statutes so as to eliminate the possibility of litigation over contentious phrases should certainly note it.
We must remember that we are dealing with a ground which, as the result of a previous decision of the committee, is based on a two-year period of desertion. This clause seeks to make it a completely constructive situation, an objective situation. I do not know whether the draftsman intended to use the words “ to cause the other party to live separately and apart “ although in the clause he has said “ to occasion “ the separation. If the conduct, viewed objectively, is such that the court would say that it provides just cause or excuse to occasion the physical separation then the parties are deemed to have separated.
Well, Mr. Chairman, I protest, even if I protest alone, at this aggravated development of the idea of desertion. It is material only because of the difference between three years and five years in the case of desertion and separation. It is material only in that respect, but it shows how conceptions of the grounds of divorce are going down, and I think it is particularly unfortunate. I propose to vote against the clause.
– I do not think we can pass this important clause without due consideration of the observations that have been made by Senator Wright. It is true that this matter of constructive desertion - the elements that are required in proof of it - will always be a difficult problem for the courts. This clause now seeks to take away the intent of the party provoking the actual desertion. Let me give an illustration of what I mean, because one could argue legal propositions indefinitely without conveying any clear meaning to many people. Let us take the not uncommon example of a woman whose husband arrives home every Saturday night very drunk. Perhaps he knocks his wife about, neglects her, gambles, keeps her on the bread line, and so on. There are such men in this country. We have heard a lot about them in the last few days. The husband may actually be very fond of his wife. He may not intend to provoke her into leaving the matrimonial home. He may be quite bona fide in that respect. However, after some time, as frequently happens, the wife may finally make up her mind that she can take his treatment no longer. The situation has become intolerable to her, so she leaves. At law, under the principle of constructive desertion, a court may find that she was not the deserting party, but that because the husband’s treatment of her had forced her to leave he had, in effect, deserted her.
Now, the husband may not have intended to force her into a position where she would have to leave him. Most gamblers and drunkards, and the kind of people who come home and abuse their wives or are cruel to them, would have no intention of thereby forcing their wives to leave them, because their wives are the only people who will look after them in their particular circumstances. So I believe that the clause intends to give, and will give, great relief in such circumstances, because it will be no longer necessary to prove that, for instance, an habitual drunkard or a man who is habitually cruel to his wife, did not intend his conduct to cause his wife to leave him. So I think there is a great deal of merit in this provision.
The clause will give great relief to women, because women are usually the sufferers from drunkenness and cruelty in the home. They are the basic elements in the circumstances leading to what we call “ constructive desertion “. There may be arguments against the clause. Senator Wright has given us one. However, I think that on balance it is a very desirable provision in these times.
– I think that with this amendment we would be setting foot into a new realm of divorce, and goodness knows where we would finish up. It means, inevitably, under the proposition which has been argued, but not admitted, in the Senate over the last two days, that if one of the parties does not want to leave the home but the other does, the law of the land will allow them to part. If any one believes that that is desirable he may do so, but certainly nobody has been honest enough to admit it. Senator Vincent cited cases that seemed to him to be extraordinary. I do not say that they are extreme cases, but they arc cases where, in his opinion, the sympathy would be with the wife who had been forced to leave her home by the actions of her husband. These are what are known as constructive desertion cases. I remember reading a few years ago newspaper reports of cases in which American courts granted divorces on the ground of mental cruelty. I do not suppose that there is anything much worse than people having to suffer mental cruelty in the home. I thought that the mental cruelty in those cases, which were reported in the newspapers under great headlines because they concerned famous people, was mental cruelty as I understand mental cruelty, until I discovered as time went on that the same people were getting two, three, four, five or six successive divorces on the same mental cruelty ground, and I realize that the mental cruelty for which people obtain divorces in certain States in America is not mental cruelty as we understand it, but is merely the flimsiest excuse to end a marriage. So we come back to the proposition of the person who does not want to live with somebody else, and therefore the courts of the land grant that person relief. I only wish to say that this is underlining and, I am afraid, confirming my view that this is the opening for that very easy ground for divorce which the Government is denying all through this debate that it is.
Clause agreed to.
Clause 30 (Refusal to resume cohabitation).
– I want the committee to consider this clause, remembering that it is a novel clause. It provides as follows: -
Where husband and wife are parties to an agreement for separation, whether oral, in writing or constituted by conduct, the refusal by one of them, without reasonable justification, to comply with the other’s bona fide request to resume cohabitation constitues, as from the date of the refusal, wilful desertion without just cause or excuse on the part of the party so refusing.
I am apprehensive of the injustice that may occur in a situation where the parties have done the thing which seems to them to be decent in accordance with their individual outlook. Let us say that incompatibility has been evidenced in the home. The husband and wife say, “ Let us agree to separate “. There has been a faithful performance of the marriage agreement, say, for twenty years, but the circumstances have entirely changed. It may be that the wife has taken all the responsibility of the children during that time, and accustomed herself to an entirely revised mode of life. To expect her to resume cohabitation with a man for whom her affection has died perhaps twenty years before, or at least many years before, is like mating her with a corpse. Let us face the situation. What humanity is there in that? It is true that a bona fide request entitles the husband to resumption only if she cannot show reasonable justification.
– Would not the very important key to the problem lie in the words, “ bona fide request “?
– No, the key to this problem is not in the words, “ bona fide request “. I am concerned with the recipient of the request. Unless she can show reasonable justification she is bound to submit to a man who in twenty years has become a stranger to her, or else, allowing the next two years to pass, be sued on the ground that she is in desertion. I submit that this is a statutory enabling act to enable a party to an agreement to repudiate it, and is loaded possibly with injustice of a personal kind, the acceptance of which is completely invidious to me as an act of law.
I have not had time to give full consideration to the provision, I freely confess. I do not recall hearing or reading any discussion of it in this Parliament. There was a provision of a similar nature in Mr. Joske’s bill which, by reason of the course that bill took I had no occasion fully to examine. That bill did not reach this place. I ask the Senate to pose these circumstances. I submit that if the clause is to remain the committee owes it to itself to devise more adequate and proper safeguards that will ensure that there is reasonable justification if the refusal can be defined. Then there is not only the need for definition of it. This provision enables the wife to be visited with legal requests, followed by divorce proceedings, when it was one of the very purposes of the original separation to save her from such involvement. I think that the clause is ill-advised, and I want to register my protest against its application, which quite obviously in some instances, could be a discreditable injustice.
Clause agreed to.
Clause 31 (Desertion continuing after insanity).
.- I would like the Minister to clarify this clause, which reads -
Where a party to a marriage has been wilfully deserted by the other party, the desertion shall not be deemed to have been terminated by reason only that the deserting party has become incapable of forming or having an intention to continue the desertion, if it appears to the court that the desertion would probably have continued if the deserting party had not become so incapable.
I believe that there could be some danger in the interpretation of this clause, because, as was stated earlier, a person may become mentally sick but not insane. There are periods in people’s lives, particularly in women’s lives, when they become mentally sick but are not by any means of unsound mind or insane. Under mental stress and on the spur of the moment they may desert, although in normal conditions nothing would be further from their thoughts. If such a person deserted in those circumstances, and then met with an accident, say, which aggravated his condition, so that he might then be considered insane, what would be the position? When would the desertion be deemed to have commenced, and would it be continuing? I ask the Minister to clarify this, because it could possibly be interpreted in different ways. Senator Wright has tried many times in this debate to obtain clarification of various points, and I believe it is necessary to do so in order that those administering the law later will know the intention of the legislation.
.- The object of the clause is to deal with a case in which a man deserts a woman, or vice versa, and, say, a year after desertion becomes insane. Under the present law, because he is insane he is considered incapable of forming the intention to desert, and the desertion is regarded as having come to an end after one year, and the wife has no remedy. The honorable senator mentioned the case of a person not insane but mentally sick. It would be for the court to decide whether that person was incapable of forming or having the intention to continue the desertion. That, I suppose, is a matter on which the court would take medical opinion. I think that is all I can say on it.
– Did I understand the Minister to say that under the present law if the person becomes insane the desertion is considered as having come to an end?
– The desertion is suspended during a period of insanity.
– In other words, that time would not be counted?
– When the person became capable of forming an intention again, the desertion would recommence.
– I ask one short question. Does this clause require the court to guess at what a madman would have done had he remained sane?
– No, I do not think - subject to instruction - that that interpretation can with justice, be placed upon it. As I understand the position at present, the court decides that a person who becomes mad cannot form an intention to do anything. Therefore, he cannot have an intention to desert, and cannot be visited with the penalties of desertion during his period of insanity. I do not quite see the point of the honorable senator’s question about the court being required to guess what a man would have done.
– I ask the question only because the clause contains the words, “ If it appears to the court that the desertion would probably have continued if the desert- , ing party had not become so incapable”. Does that not suggest that the court must’ make up its mind whether the person concerned would have continued his animus of desertion or not?
– I think it requires the court to decide whether a person, had he remained sane, would have continued to follow the course of desertion on which he had embarked.
Clause agreed to.
Sitting suspended from 5.52 to 8 p.m.
Clause 32 agreed to.
Proposed new clause 32a.
– I move -
After clause 32, insert the following new clause: - “32a. Where-
a person has been sentenced to imprisonment in respect of each of two or more crimes that, in the opinion of the court hearing the petition, arose substantially out of the same acts or omissions; and
the sentences were ordered to be served, in whole or in part, concurrently, then, in reckoning for the purposes of paragraph (g) of section twenty-eight of this Act the period for which that person has been sentenced in the aggregate, any period during which two or more of those sentences were to be served concurrently shall be taken into account once only.”.
The purpose of the proposed new clause is to remove any doubt as to whether concurrent sentences can be added together in computing the period of imprisonment mentioned in paragraph (g) of clause 28, which relates to frequent convictions for crime in respect of which a person has been sentenced in the aggregate to imprisonment for not less than three years. The honorable member for Mackellar (Mr. Wentworth) drew attention to the matter during the debate on this clause in another place, and the Attorney-General (Sir Garfield Barwick) undertook to examine it and, if he thought it desirable, to have an appropriate amendment moved whilst the bill was before the Senate. He is satisfied that the amendment is desirable because, under similar State grounds, concurrent sentences are usually aggregated for this purpose.
The proposed new clause makes it clear that where a person has been sentenced to imprisonment in respect of more than one crime arising out of the same incident - for example, crimes of breaking, entering and stealing and of malicious damage to property arising out of the one burglary, for which a person is given concurrent sentences - the period during which these sentences are served concurrently can be taken into account once only.
Proposed new clause agreed to.
Clauses 33 to 35 agreed to.
Clause 36 - (1.) Where, on the hearing of a petition for a decree of dissolution of marriage on the ground specified in paragraph (m) of section twenty-eight of this Act (in this section referred to as “ the ground of separation “), the court is satisfied that, by reason of the conduct of the petitioner, whether before or after the separation commenced, or for any other reason, it would, in the particular circumstances of the case, be harsh and oppressive to the respondent, or contrary to the public interest, to grant a decree on that ground on the petition of the petitioner, the court shall refuse to make the decree sought.
– I move -
In sub-clause (1.), leave out “ harsh and oppressive to the respondent “, insert “ unjust to the respondent or to any child of the marriage “.
In its context, clause 36 is attached to the extraordinarily anomalous paragraph to which the committee agreed before the suspension of the sitting. It has come to be known as clause 28 (m) and deals with separation. In military language, we used to have a name for (m). Clause 36 (1.) provides -
Where, on the hearing of a petition . . . on the ground specified in paragraph (m) the court is satisfied that, by reason of the conduct of the petitioner, whether before or after the separation commenced, or for any other reason, it would, in the particular circumstances of the case, be harsh and oppressive to the respondent . . . the court shall refuse to make the decree sought.
I seek to substitute for the expression “ harsh and oppressive to the respondent “ the expression “ unjust to the respondent or to any child of the marriage “. I hope that the committee will give this proposal mature consideration, because I really believe that much of the apprehended injustice from clause 28 (m) could be cured if the committee were to adopt this amendment.
Credit should be given to those who have sponsored the bill for foreseeing the degree to which danger could accrue from granting a divorce solely upon the fact that spouses had been separated for five years. This is divorce at the instance of either party, whether guilty in a lesser degree or in a gross degree, or at the instance of an innocent party. Those who sponsored the bill thought that some safeguard was necessary. The New Zealand provision would disentitle a petitioner from a decree if it were proved that the petitioner had, by his wrongful act or conduct, caused the separation - a disentitling circumstance expressed in the clause as - conduct of the petitioner, whether before or after the separation commenced, or for any other reason-
That is, a reason other than the conduct of the petitioner - it would, in the particular circumstances of the case, be harsh and oppressive to the respondent. . . .
I have pleaded for the cause of justice, expressed in no more complex terms throughout this debate than that I apprehend that the ground of separation may be the agency whereby an innocent individual may be the victim of injustice. I am not satisfied that the safeguard is sufficiently strong, because a decree may be awarded against an innocent wife unless the court is satisfied that, in the particular circumstances of the case, to grant the decree of dissolution is harsh and oppressive to the wife. Never let it be forgotten that what the clause has in contemplation is that the grant of the decree is harsh and oppressive. I pointed out this afternoon that if you are dealing with the original inception of the separation, then to fail to grant a decree for judicial separation may be harsh and oppressive to the wife because the husband may come back and belt her next week unless the court judicially restrains him from going back. But here, what is in contemplation is a decree nisi for the dissolution of marriage.
It is difficult for me to conceive that the term “ harsh and oppressive “ in relation to a decree dissolving marriage will embrace all the cases of injustice. “ Harsh and oppressive “ is an expression that requires a high degree of injustice - gross injustice, if you like. That seems to me not to reach the level of the conception of the expression “ harsh and oppressive “. I believe that the term “ harsh and oppressive “ in relation to physical relations conjures up something of the idea of the caveman. I want to get to the situation where the innocent wife will be protected from a compulsory decree of dissolution of marriage at the instance of a husband who has been the defendant to a separation order and who has been ordered by a court to pay her maintenance. I want to get to the situation where, one court having determined five years previously that the wife was entitled, for just cause, to receive maintenance from her husband, the court is now prevented from granting not only a dissolution decree which is harsh and oppressive but any decree which is unjust to the respondent wife. It may be that in some instances the husband would be the respondent. 1 also want to see the protection envisaged by this provision applied in cases in which the granting of a decree for the dissolution of the marriage would mean injustice to children of the marriage.
I shall not detain the committee for long. I am indebted to honorable senators for the patience with which they have listened to me on other occasions. I submit that this amendment is purposeful and vital, and that, if accepted, it will go a long way towards curing the defects which I see in the bill, lt is a truism that the granting of a divorce brings about the situation that a person who is bound to pay maintenance is then entitled to share his earnings with another and subsequent family. We should ensure, before a decree for dissolution is made, that there is an absolute guarantee, not only that the respondent would not be the victim of harshness and aggressiveness if the decree were granted, but also that it would not be unjust to her or to any of her children to grant the decree. The bill teems with expressions such as “ unjust “, “ just and equitable “ and “ just and proper “. Therefore, this amendment would not give rise to any difficulties flowing from a difficulty of interpreting the word “ unjust “.
.- Mr. Chairman, I want to make a few remarks on the amendment proposed by Senator Wright. I think that it has a great deal of merit, lt proposes that the words “ harsh and oppressive to the respondent “ be replaced by the words “ unjust to the respondent or to any child of the marriage “. The interpretation of “ harsh and oppressive to the respondent “ would be vastly different from the interpretation of “ unjust to the respondent or to any child of the marriage “. 1 think I am correct in saying that clause 36, in its present form, makes no reference to children. I urge the committee to accept the amendment. 1 support it principally because I think that any person who had to make a decision in a case of the type we have in mind, involving not only something that had been done but also something that might occur, would find it much easier to decide whether the granting of a decree would be unjust to the respondent than to decide whether it would bs harsh and oppressive. I should like to say also that I support any proposal designed to achieve uniformity in the laws of this country, but that, of course, is beside the point.
I think that the amendment that has been proposed by Senator Wright has very great merit, and 1 commend it to the committee. I put it to the supporters of the Government that they can lose nothing by accepting the amendment. 1 appeal to them to accept the amendment because, as I have said, it would be far easier for an adjudicator to decide whether injustice would be done to the respondent or to any child of the marriage if a decree were granted than to determine whether the granting of the decree sought would be harsh and oppressive to the respondent. I appeal to the Minister to adopt a commonsense approach to this matter, and I emphasize that the Government would lose nothing by accepting the amendment. On the contrary, by exercising common sense in these matters the Minister would gain in public esteem.
I think it must be agreed that it is much more difficult to determine whether a thing is harsh and oppressive than to determine whether it is unjust. I understand that there is to be a free vote on this measure. If that is still so - it may be that some honorable senators on the other side have been wheeled into order during the last day or two - I urge acceptance of the amendment, which I believe to be distinctly advantageous to this legislation.
– I would like to say, Sir, that to me there seems to be a considerable difference between the interpretation that would be given to the terms “ just “ and “ unjust “ and the term “ harsh and oppressive “. Senator Wright and I, and other honorable senators, have been arguing for some time as to what is just and what is not just. I dare say that we could go on arguing and not get much closer in our personal interpretation of justice. But 1 think that I and other members of this chamber would be much closer together on our interpretation of what was harsh and oppressive than we would be on our interpretation of the rather wider terms “ just “ and “unjust”.
The major point, I think, is this: As Senator Wright has said, he wants a wite -who has obtained a judicial separation from her husband - because of the fault of her husband - to be able to suspend all her marital obligations - they are suspended by a judicial separation order - and at the same time to be able forever to prevent her putaway husband from marrying again, because a lot of people would think it unjust if he were allowed to remarry. Some people might well consider it unjust for a wife to be prevented from doing that. 1 myself do not think it would be. I think that if a man or a woman committed an offence, it should be open to the other spouse to divorce that man or woman, and to get what financial benefits he or she could from the divorce, but not to have the right to say “ I have put you away, and you can never marry again”. That could happen under this bill, but only if the circumstances leading to the putting away of that wife or husband were harsh and oppressive circumstances, not just circumstances which could be generically considered as unjust.
As far as the care of the children is concerned, I point out that provision is made for their care in any divorce or separation proceedings. Children whose parents have been separated for five years and who are likely to remain separated will not be greatly affected one way or the other if there is a divorce or a continuing judicial separation. To give the court discretion to say whether the circumstances of the case would make it harsh and oppressive to allow a wife to put her husband away by judicial separation I think meets closely the position I would like to see brought about by the bill, and for that reason I regretfully must ask the Senate not to accept the amendment.
Senator McKENNA (Tasmania - Leader of the Opposition) [8.211. - We have extricated ourselves from the controversial clause 28 - almost. We are dealing now not with the fundamental grounds of divorce, but with one of the incidents of the ground in clause 28 (m). Senator Wright suggests in his amendment that this is the first prop that the Government has erected in clause 36 against what is provided in clause 28 (m), namely that a judge may refuse a decree under clause 28 (m) if it would in the particular circumstances of the case be harsh and oppressive to the respondent to grant it. He accepts that clause. This is not a matter of principle as are the grounds and the varying grounds where we differed so strongly. This is a matter of the mechanics of perfecting the first of the bars or ameliorations against clause 28 (m) that the bill proposes.
Senator Gorton says that it would be just as difficult to interpret what is just as to interpret what is harsh and oppressive. I disagree with him very strongly about that. It is left to the court to determine these matters. There is no word with which courts are more familiar than the word “ justice “. It is the whole purpose of their existence to dispense justice, and even those who grace the bench are referred to as “ Mr. Justice “, and very properly so. I remind the Minister that courts without any prescription by any statute at all administer natural justice in more than one field. It is a term that the courts are accustomed to handling every day. The great fear of those who opposed clause 28 (m), and on which they based their objections, is that it was capable of working injustice. They are the very words that I used myself, and that was one of my reasons for objecting to the clause. The Minister obviously recognizes that, because the bill provides that if it should operate harshly and oppressively the court may proceed under it. I think all objections would be met if we did not use the words “ harsh and oppressive “, but came back to a concept with which the courts are so familiar in every field of their activity. I think it is an advantage to include at this point the protection of the child against injustice, because matters of various kinds may arise in a matrimonial dispute affecting a child’s future. Such matters may include questions of custody and maintenance with which, as the Minister says, the latter portion of the bill does deal.
I shall be very disappointed if the Minister is not prepared to accept an amendment of this character. It adds to the bill. It improves the bill. The clause we are dealing with purports to provide a barrier against the harsh operation of clause 28 (m). Senator Wright asks merely that that barrier be erected in the form of a prohibition of injustice, and he brings under that cloak not only the respondent, but also the child. The amendment has every virtue and, if 1 may say so, having regard to the way Senator Wright has laboured hard and long, he deserves to take an amendment. That thought on a machinery provision might well commend itself to many senators.
– I want to comment very briefly on the speech of the Leader of the Opposition (Senator McKenna), because this is far more than a machinery amendment. It goes to the very heart of clause 28 (m). The question could be put this way: Is it just for a wife to put away her husband for one offence and deny him any right to marry again? Is it right for her to put him away as a result of judicial separation and deny him any right to marry again? Many people may say that it is, and some people would say that it is unjust to prevent a wife from suspending her marital obligations, putting her husband away for one offence and preventing him from having any chance of marrying again. But it is not the intention of the bill to accept that it would necessarily be unjust to do so. It is the intention of the bill not to allow a wife to do this to her husband for one offence unless it was harsh and oppressive to prevent her from doing so. The circumstances surrounding the case would decide whether it was harsh and oppressive to prevent her from doing so. So this is more than a machinery amendment.
– I rise merely to point out to the committee that it is important that we should regard clause 36 as entirely complementary to clause 28 (m). Any alteration to clause 36 can have quite different consequences to the effect of clause 28 (m) and that which the Senate has already agreed should be the effect of that clause. Let me put this to the Senate. Senator Wright has suggested that we substitute the word “ unjust “ for the expression “ harsh and oppressive “. I am trying to put myself in the position of a judge, because a judge has to interpret our meaning. 1 submit with great respect that the word “ unjust “ in the context in which it is intended to be used by Senator Wright here has in fact a quite abstract meaning which a judge would have the utmost difficulty in interpreting. I can quite imagine a judge asking counsel who is arguing a case what is meant in this context by “ unjust “, and the only answer counsel could give is that “ unjust “ is the opposite of “ just “. You are still no nearer to what is meant by “ unjust “ because in this context it is entirely abstract,
I do not know who told me this, and I may be wrong, but 1 have some impression that one of the original drafts of this bill included the word “ unjust “ and for the reasons I have mentioned it was deleted. Perhaps I am thinking of Mr. Joske’s bill, but that is not important. What is important is that the expression “ harsh and oppressive “ is, in the context of this clause, a very easy expression for a judge to interpret.
– That could not be too wide, could it? ,
– It is a fairly wide expression. It depends whether His Honour has had a good lunch. It certainly does have some meaning in the context of this clause and having regard to the obvious meaning of clause 28 (m). The word “ unjust “ could mean anything. Whilst I appreciate that Senator Wright desires to narrow the intention of the clause considerably by using that word, I suggest that its use could quite easily have the opposite effect. I can well imagine a judge saying, “ I do not know what is meant by the expression ‘ unjust ‘ in this clause, and therefore I cannot grant relief in the circumstances”. That happens, as Senator Wright knows. Therefore, there is a great danger in using a rather vague and abstract expression for which a more precise expression could be substituted. When we get down to the real purpose and intent of the clause, I do not thing there can be any doubt that a precise definition, such as “ harsh and oppressive “, is much more desirable than a rather vague one, such as “ unjust “.
Senator TANGNEY (Western Australia) lawyers, I feel a little diffident about entering a disputation on the connotation of terms. 1 think that the term “ harsh and oppressive “ is a much more relative term than is “ injustice “. After all, every one knows exactly where injustice lies. The fact is that there are certain obligations on the parties to a marriage contract which is being dissolved, and a just course has to be pursued in relation to the innocent parties, the children, in a marriage that is breaking up.
To get away from all these philosophical and judicial exhortations, I shall adopt a commonsense approach and look at the matter from the point of view of the mother and the children who may be involved in a disturbed marriage. I have seen the Western Australian act in operation, and I have seen the children of the first marriage being very much disadvantaged and treated most unjustly because of the second family obligations which the man has assumed at a time when he has not really been in a position to assume them. If we buy a motor car or a refrigerator on time payment, use it for a certain period and dispose of, it before we have finished paying for it. there is a law under which we may be dealt with. Surely, a wife and children are of much more consequence than are household goods of any kind.
I have known of cases in which the son of the first marriage has been considerably disadvantaged in comparison with the stepson of a second union that has been contracted. T have seen a lad having to leave school at fourteen years of age, a brilliant boy who perhaps could have gone on to a professional career, but who has had to work at a very humble job, because his father has not lived up to his contractual obligations. On the other hand, the stepson has been able to continue to attend a secondary school and even to go on to the university, on the step-father’s means which should really have gone to the son of the first marriage, his own. flesh and blood. These things are happening. As I said earlier to-day, we know that a man on the basic wage, or perhaps a little more, with a wife and children by a marriage which is dissolved by this cash and carry method of divorce, may immediately assume other obligations. The total amount that is then available for the upkeep of two wives and two families remains constant, though the husband doss not. The result is that the amount available to the wife and children of the first marriage is considerably reduced.
I read to the committee this afternoon a letter 1 received by to-day’s post on this very matter, sent to me by a person so placed. The woman concerned had three children at the time her husband deserted her. After some years, a divorce was granted under a provision such as the one we. are discussing, and the husband married the person who was really - no matter how clean we try to make divorce, we cannot avoid this fact - the original cause of the separation. He is now going to have a new family. What will be the immediate reaction of such a person on remarrying? I suggest that it will be to apply to the court to have the amount of maintenance reduced because he cannot afford to pay the amount that the court considered the minimum necessary for the upkeep of his child. It is not only a question of our giving justice to the wife ‘and the children. The husband himself should think of that. He should not assume second obligations if he cannot meet his first obligations. It is a matter of first things first.
In my opinion, Senator Wright’s amendment is equitable and just. I do not care what legal terms are used; we have to use our common sense in this matter. Speaking for the thousands of wives who could be affected by this clause, I say that the members of the Government should try to put themselves in the place of those who are suffering at the present time because a similar provision to that which we are asked to approve is in operation elsewhere. After all, the acceptance of Senator Wright’s amendment is not going to cost the Government, or anybody else, a penny. The only person who will have to pay will be the guilty party - perhaps a defaulting husband. Whether the termed used is “ injustice “, “ harsh and oppressive “, or some other term, is not as important as ensuring that the children are not deprived of their heritage through no fault of their own, and through no fault of their mother. The wa of life to which they are entitled should be safeguarded before their father is free to go away and perhaps do just the same thing over again to the next family that he may happen to acquire.
.- Would the Minister forget for a moment that he is arguing this matter with lawyers? Will he forget that this is a lawyer’s bill, as I think it is, and give us a simple layman’s explanation of why the clause is not stated as Senator Wright has said it should be stated?
– I shall try again, but I thought 1 had given a layman’s explanation of why the words “ harsh and oppressive “ were better than the word “unjust’’. I say again that if a husband commits a matrimonial offence - or if a wife does so. but let us take the husband for purposes of illustration - it is open to his wife to apply, on the ground of that matrimonial offence, for either a divorce or a decree of judicial separation. If she chooses to apply for judicial separation, the husband has to maintain her, of course, but other than that, all marital obligations are suspended. The only difference between that decree and a decree of divorce is that if she chooses to apply for a decree of judicial separation instead of a decree of divorce she can prevent her husband from ever marrying again while she lives. Some people would think that that was just.
– Does the Minister think it is?
– No, 1 do not. Some people would think it unjust to prevent her from putting aside her husband, as far as any reality of marriage is concerned, and preventing him from ever again marrying because he had committed one offence. I do not think so, and it is not the intention of this bill that that should happen. The intention of the bill is that if that case which I have put forward should happen, then, at the end of five years, the husband should be able to obtain a decree of divorce, enabling him to start another life, unless the circumstances surrounding the parties were such that it would be harsh and oppressive and contrary to the public interest to grant a decree of that kind. The amendment suggests that it is unjust to prevent a wife from putting aside her husband and condemning him to celibacy forever because of one offence, unless there were other surrounding circumstances which would make it harsh and oppressive to prevent her. 1 am a layman, and that is the best layman’s language that I can use in relation to the matter.
.- I support Senator Wright’s amendment. I think that in this, as in so many other instances, Senator Wright has sniffed out what appears to be uncertain and indefinite in a clause. During the last day or two, 1 have had an opportunity to see whether there is any judicial interpretation of the words “ harsh and oppressive “. I have been through “Stroud’s Judicial Dictionary “, which I have here, and I have been through the other three judicial dictionaries in the Parliamentary Library. I have been wholly unable to find any interpretation of the meaning of the words “ harsh and oppressive “, and, with the greatest respect, Mr. Chairman, I desire to remind the committee that until the judges have had their say, nobody - not even the Attorney-General (Sir Garfield Barwick) or the Minister for the Navy (Senator Gorton), who has charge of the bill in this chamber - can tell us with certitude exactly what these words mean. On the other hand, there is a multitude of judicial interpretations of the words “ just “ and “ unjust “ which would enable us to make sure that the word “ unjust “, as it is used in the amendment, is capable of precise and accurate interpretation.
I appeal to the Minister to accept the amendment. It is not proposed in any frivolous or irritating spirit. This important clause has - I can hardly describe it as such a retrospective effect - such a modifying effect on the contentious provision in clause 28 (m). I feel sure that all honorable senators present in the committee will agree with me that it is desirable, to the extent that we can control our mother tongue - the English language - that we should make the clause certain if we can, because, as Craies’ work, “A Treatise of Statute Law “, which is commonly known as “Craies’ Statute Law”, tells us, where the text is explicit, the text is conclusive. I feel that, if we are able to use here words which have a definite judicial meaning which has been interpreted, we should be foolish if we chose quite deliberately words which have not been judicially interpreted. I leave that thought with the committee.
.- Mr. Chairman, the first thing that I want to say at this stage is that I hope the criterion that is indicated by the term “ unjust “ is a criterion which nobody questions. Surely no honorable senator will reject it on its merits. The term “ just “ is one which non.lawyers sigh for.
The next thing that I want to say is that just “ is a term which the draftsman of the bill has used, not in one context, but in many. That is a direct refutation of the thoughtful argument put by my colleague, Senator Vincent, when he said that the term “ unjust “ in this context would create difficulty. I asked him to read sub-clause (2.), which states -
Where, in proceedings for a decree of dissolution of marriage on the ground of separation-
That is the ground in question here - the court is of opinion that it is just and proper in the circumstances of the case that the petitioner should make provision for . . . maintenance the court shall not make a decree . . . until the petitioner has made arrangements to the satisfaction of the court . . .
The criterion there is what the court considers is just and proper in the circumstances. Sir Garfield Barwick would know, from his experience in the case of “ Needer v. Ellis “, which was before the Privy Council in another context - that of testator’s family maintenance - that both the terms “ just “ and “ proper “ have been well interpreted in similar contexts. But I need not diverge into that matter. That was a case where the lady down the street was allowed, on the advocacy of the Attorney-General, to take the whole estate in preference to the widow. That is the sort of thing that I am trying to curtail as much as possible here. But I need not refer only to that most regrettable decision. As I have indicated, in sub-clause (2.) one finds a context in which the draftsman, with all his skill, has thought it appropriate to use the word “ just “. In clause 86(1.)(1), he has provided that the court, in exercising its powers with respect to maintenance, custody and settlements of property, may make any order “ which it thinks it is necessary to make to do justice “. In clause 85 (1.), we find these terms -
The court may, in proceedings under this Act, by order require the parties … to make, for the benefit of all or any of the parties . . such a settlement of property to which the parties are . . . entitled … as the court considers just and equitable in the circumstances of the case.
The word “ just “ is used in clause 29 in the phrase “ without just cause or excuse “, in relation to constructive desertion, and the same phrase is used in clause 28 (b).
– Obviously, they have just made a mistake in this one.
– No. They have made a deliberate departure so as to narrow the ground. Those people who are within the scope and area of the term “ just “ but who cannot bring themselves into the scope and area of the more narrow and barbarous conception of the phrase “ harsh and oppressive “ will have a decree of dissolution of marriage inflicted on them in circumstances which are unjust but which are not harsh and oppressive.
So, Mr. Chairman, as a parliamentarian, not yet desperate, but facing these repeated frustrations with some degree of fortitude, I say that I am exasperated by the effort to understand why a draftsman is determined to deny a decree only where the granting of a decree to a petitioner would be harsh and oppressive to the respondent, and I am at a loss to understand how it is that legislation in this country can provide for a decree in circumstances which are unjust, because, as I have proved in the context of this measure, the term “ unjust “ is capable of clear interpretation. If it were not, the draftsman would not have been so unskilful as to employ the word “ just “ in the clauses to which I have referred. Not only is the term “ just “ a perfectly recognizable one but, like Senator Hannan, I issued a challenge during my second-reading speech on Tuesday night to the draftsman to produce any context in divorce law where the term “ harsh and oppressive “ had been used, and so indicate an aid to interpretation; and no such context has been quoted.
That means that we start off in a new province of interpretation, a new excursion into exposition for which people have got to pay in costs of litigation and varying decisions before one can ultimately - with leave - get a decision of the High Court. To emphasize that, I point out that, although the first English divorce act was passed in 1857, it was not until 1943 that the exposition of undiscretionary bars in that act came before the House of Lords for final interpretation. I ask honorable senators to think of the multitude of cases and the variety of individuals who had justice dispensed to them with varying interpretations over the 83 or 84 years, all for the want of the parliament’s having the perseverance and determination to clarify in express terms its true purpose. I hope that not one Minister, nor one supporter of these proposals, will reject the idea that justice, in this context, is the acceptable criterion by which we should say that a court should or should not grant this decree.
.- I want to add to the remarks I made in connexion with this proposal submitted by Senator Wright. I am not at all satisfied with the Minister’s reply, and I think he was supported by Senator Vincent. He said that a case of injustice was hard to define. That being so, I submit it must be more difficult to define what would be harsh and oppressive! As Senator Wright said, this chamber is supposed to be a House of review. I cannot understand why the Minister cannot accept the word “ unjust “ as applying to a respondent or the children. I cannot understand why he insists on retaining the words “ harsh and oppressive “. His attitude leads me to believe that, as he said last night, he is working under a brief which, apparently contains irrevocable instructions.
If this chamber is to fulfil the purpose for which it was instituted, and which it is still supposed to fulfil, then I suggest we should approach these matters from the common sense point of view. If an honorable senator puts forward something which will not alter the basic principles of proposed legislation but which, on the contrary, would simplify the position and give some justice to injured parties in divorce proceedings, I suggest we should consider it calmly and impartially. I suggest to the Minister that he should appreciate that the insertion of the words preposed by Senator Wright will not in any way affect the basic principles of this legislation, that at least it will give more protection and more consideration to those who may suffer an injustice resulting from court proceedings. I ask him also to tell us whether he is acting under irre vocable instructions or whether he has been allowed any elasticity of approach to these matters.
– Very briefly I inform Senator Sandford that the words are in this clause in the way in which they appear because the bill is designed to prevent, as far as possible, a court from holding that it is necessarily unjust to prevent a woman from punishing her erring husband - for one matrimonial offence - not only by putting him away from her and out of her life but by inflicting the second punishment of preventing him, when putting him away from her, from starting a new life with any one else. Whether one agrees with that is a matter for his individual decision.
It. might well be also that these words were introduced to prevent a once wronged woman from doing this to her husband. 1 do not think it is unjust. The bill is designed to indicate that it is not unjust; the bill is designed to prevent a woman from doing that unless there are harsh and oppressive circumstances.
– The Minister is getting me more and more confused. I thought that the purpose of this clause was not to stop a wife from putting away her erring husband or a husband who wants a separation but to give the husband the right, even though he was the erring spouse, to put away his wife, irrespective of whether she wishes him to do so. I thought that the bill was designed to enable her to be divorced against her will when her husband had walked out on her for reasons to which she may not have contributed. I have heard it suggested here that some women, merely out of spite, are opposed to granting their husbands a divorce.
– All day I have been receiving letters and telegrams from people who will be affected by this clause. Just before dinner this evening, I received this letter -
I have listened with interest, as an “innocent party” to your discussion on the uniform divorce bill, mainly the five years’ separation clause, and I wish to congratulate and thank you.
I have been married for 32 years and could find myself affected by this clause, and only this one, through no fault of my own.
She goes on to tell me what the husband does and how she has helped in no small measure to bring him success. The letter goes on to say -
I still love him devotedly and would not like him hurt.
One thing that has been overlooked, except by Senator McKenna, in the whole of our discussion of this bill is the fact that many women have always given devoted service to their husbands no matter how far those husbands have strayed and no matter what they have done to hurt their wives. The wives cannot extinguish that love in their hearts, and, no matter what laws are brought in, or what we do to try to “ soften “, or “ tone down “, or “ make divorce clean “ the stigma and hurt remain with these women. Despite all the hurt, despite all the ill treatment they receive, these women retain in the depths of their hearts the same strong love they have always had for the person who so ill-treats them. Such women and their children deserve the highest consideration that this Parliament can give them.
– I am inclined to agree with Senator Wright on this matter; in fact, I thinkwe are indebted to him for bringing it forward. To my way of thinking, it is quite refreshing to find an English sentence occasionally amongst the jargon the draftsman puts in a bill and which the average person has great difficulty in reading and understanding. To my way of thinking, the words “unjust to the respondent or to any child of the marriage “ could be understood by any schoolboy or schoolgirl, and how there could be any judge in the country who could not understand exactly what they meant is completely beyond me.
.- I have been very impressed by the arguments adduced by Senator Wright and others supporting the proposed amendment. I feel that the Minister is afraid to accept the amendment, although I am sure that if we all were to express ourselves independently, most of us would agree that it is a good amendment. Although the Minister feels that the amendment will not be acceptable to the architect of the bill, I remind him that even if we agree to it at this stage, the AttorneyGeneral will be given an opportunity to examine it when the bill goes back to another place. Then, if it is not wanted, it can be removed. Many amendments have been circulated by the Attorney-General since this bill was first introduced in another place. Even to-night, the Minister for the Navy has moved an amendment which was promised in another place as a result of the discussions there. The point we are now discussing may have escaped notice in the House of Representatives because of the lack of opportunity for debating the matter in that chamber in the manner in which it has been debated in the Senate. Our Standing Orders are different to those of the House of Representatives. We have an opportunity to go into these matters in a more thorough manner. I consider that the Minister should accept this amendment and enable those in another place to examine it.
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 . . . . 9
Question so resolved in the negative.
– The committee will notice that there are only two grounds on which the Parliament instructs the court to refuse a decree. One is the ground that the decree is harsh or oppressive and the other is that it is contrary to the public interest. This clause has been glorified by Western Australian paternity. But it has not brought with it one of the essential features of the Western Australian section. In the Western Australian act it is specifically provided, in section 26, that the court shall not make an order for dissolution of marriage on this separation ground unless the court is satisfied that the petitioner is not in default when the action is commenced in respect of maintenance payments under any antecedent court order or any agreement for the payment of maintenance for the wife or the child. Having regard to the fact that the ground of divorce is separation for a period of five years immediately before the decree, the fact that the Western Australian statute requires compliance with that condition is a great aid to the proper maintenance of wives and children whilst the husband is waiting and yearning to get a decree for dissolution on the ground of separation. One of the balancing features of the Western Australian statute is that the wife will be assured that while the husband is qualifying himself for the decree he expects from the court, he will put himself in compliance with the condition, by keeping up to date his maintenance payments under an agreement or order. I ask the not merely rhetorical question: Why has that safeguard, that somewhat soothing safeguard, one of the small contributions to the comfort of the disappointed but innocent respondent, Been deliberately dropped from the draft of this bill? The conception that we should require of men punctual and proper payment of maintenance for their wives and children is a very elemental idea, one that is in the forefront of this difficult conception of justice - after the committee’s last decision, it is not being disrespectful to the vote to say, this rejected conception of justice. I plead with the Minister to give us an undertaking that before this bill goes back to another place he will give consideration to the introduction of an amendment to provide for this safeguard, which is in the Western Australian statute, being incorporated in the federal bill.
– I should like to ask the Minister a question that is apropos of this matter.
Are he and his colleagues aware that this year a special effort is being made overseas to help children as part of the activities of the International Refugee Year, and under the aegis of the Save the Children Fund? There is a vital need here in this community also to act to the best of our ability in the legislation that we pass here to save the children of broken marriages. All that is asked by Senator Wright and those others of us who are very actively concerned in this matter is that at least some safeguards be placed in this legislation, as are placed in the Western Australian legislation, to see that justice is assured.
Once again I ask the Minister whether a wife and family are not of more value than goods and chattels. If you are buying a refrigerator on terms, you cannot trade in the old model on the new unless you have paid for the old. In the matter of wives, apparently this principle does not matter. That ordinary law of the world of commerce just does not apply. In the field of matrimony, apparently one can get rid of the old model and anything that is connected thereto, taking on the new one without having any financial obligation for the old. I say that that is very wrong, and I do hope that the Minister will see incorporated in this bill the very element of British justice that we apply to our household chattels, but not to the real heart of our home, the mothers and the children.
– I think that in the next session of this Parliament some amending legislation is likely, to be brought forward in relation to matrimonial causes, when the Marriage Bill is introduced. I shall make known Senator Wright’s suggestion to Sir Garfield Barwick for consideration at that time.
– I am most obliged to the Minister for his assurance. It is characteristic of the whole of his approach to our representations throughout this debate. I must say that I have a continuing appreciation of the fact that the Minister has shown consideration for every argument submitted. May I just obtrude upon the consideration of the committee one other aspect of this clause before it is put to the vote for confirmation. We have been told that when a delinquent husband petitions for separation, the wife who has proof of a matrimonial offence by him may counter his petition on the ground of separation by claiming relief, in a cross petition at her own instance, for a proved matrimonial offence. Sub-clause (4.) of clause 36 provides -
Where petitions by both parties to a marriage for the dissolution of the marriage are before a court, the court shall not, upon either of the petitions, make a decree on the ground of separation if it is able properly to make a decree upon the other petition on any other ground.
Just let us pose the instance of a husband who has been judicially separated on the ground of cruelty, who has maintained the separation of five years, and who then petitions the court for a decree against his wife. Sub-clause (1.) of clause 36 provides that the court will, if it is harsh and oppressive to the respondent or contrary to the public interest to grant a decree on that ground on the petition of the petitioner, refuse to make the decree sought. But if the wife is able to prove the matrimonial offence of cruelty, adultery or desertion against the husband, she may cross petition. In that event, if she proves her case, the court is bound under sub-clause (4.) of clause 36 to grant relief, not upon the delinquent husband’s petition on the ground of separation but on her cross petition on the ground of a matrimonial offence. I ask the Minister whether, if she succeeds on that cross petition on the ground of a proved matrimonial offence, she disentitles herself to the property protection that is written into sub-clause (2.) of clause 36. The sub-clause is couched in these terms -
Where, in proceedings for a decree of dissolution of marriage on the ground of separation, the court is of opinion that it is just and proper in the circumstances of the case that the petitioner should make provision for the maintenance of the respondent or should make any other provision for the benefit of the respondent, whether by way of settlement of property or otherwise, the court shall not make a decree on that ground in favour of the petitioner until the petitioner has made arrangements to the satisfaction of the court to provide the maintenance or other benefits upon the decree becoming absolute.
If the clause remains in that form, it seems to me that she will be in danger, by virtue of the very act of succeeding on her cross petition, of disentitling herself to the property protection which is the purpose of that sub-clause.
– I think the honorable senator will see that in the circumstances posed the result would be that the husband would be divorced by his wife on the ground of adultery, and immediately Part VIII. of the act would apply, making it necessary for the judge to be sure that proper settlements were made for the wife.
– She would be protected.
– Yes, she would be protected.
– Clause 36 provides, very adequately, I think, for the maintenance of the respondent. There is another part of the bill relating to the maintenance of children. Under this clause the court may refuse to make an order until adequate provision is made. I am not canvassing that aspect of it. But where is the provision under which the petitioner has the right to apply to the court for a variation of the maintenance order? It is very desirable that justice might be done to the unfortunate man also under this clause.
My experience, so far as husbands are concerned, is that although they are very properly obliged to pay maintenance, sometimes their circumstances alter. I have seen some very distressing cases where the circumstances of the husband have altered and he has been unable, for a variety of reasons, to get quick access to a judge for the purpose of varying a maintenance order against him. Meanwhile, his wife, who may be vindictive, exercises her vindictiveness and puis the unfortunate man in gaol because he has no means of making payment. I should like an assurance from the Minister that the husbands - for whom I am speaking on this occasion - may be able to have quick access to a judge in order to obtain a variation of the maintenance order.
– I am informed that the relevant provision covering this matter is clause 86 (1.) (1), which empowers a judge to make any order which he thinks is necessary in order to do justice. I should imagine that the speed with which an application to vary an order could be dealt with would depend on the availability of a judge and solicitors and the various court arrangements which have to be made. I am told that this is the provision which would enable a maintenance order to be altered.
– I am aware of the provision of clause 86 (1.) and that the petitioner has the right to apply for a variation of a maintenance order. What I am concerned about is the celerity with which the court will make a variation. I say again that my experience of the present methods in Western Australia under which a husband has the right to apply for a variation are slow and cumbersome. This not only involves the availability of judges, but also the present procedure. I will not go into details of it, but I want to place on record the fact that in Western Australia the procedure is slow and cumbersome and sometimes a grave injustice can be done to men who become unemployed. The husband applies for a variation of the maintenance order but it may not be heard for some considerable time. During that period the unfortunate man falls further behind in his maintenance payments and before he knows where he is the vindictive wife puts him aside because his maintenance is in arrear. He is then further precluded from having access to a judge. The present court process is long and complicated. I have had the unfortunate experience of seeing these things happen and I am bringing this matter to the notice of the Minister.
– I thank the honorable senator for bringing this matter to the notice of the committee. It is rather difficult to legislate for celerity in matters of this kind apart from procedure; but it is the intention of the department, in drawing up the rules of court, to endeavour to streamline procedure as much as possible.
– I am really touched by the sympathy which Senator Vincent and others have expressed for defaulting husbands. There are now 13,000 of them, so they are not just a small minority. In this respect I should like to put a suggestion to the
Minister. We know that no good purpose is served by sending these chaps to gaol. In fact, many of them express the opinion that they would sooner go to gaol than pay their wives a penny; and we know that that is true. I suggest that where a husband has defaulted in his payments he should be allowed to continue his work during the week but should be put in gaol during the week-ends to work out his sentence. In that way we would kill two birds with the one stone; the defaulting husband would keep up his maintenance and also pay the penalty for his default.
Husbands do not go before the court for a variation of a maintenance order if their conditions improve. For example, if a husband gets a better job or wins a lottery, we never hear of him going before a court to vary the order to increase his payments to his wife. On the other hand, if some misfortune overtakes him the first thing he does is to cut out his wife’s allowance. In any case he pays it grudgingly.
Clause agreed to.
Clauses 37 to 39 - by leave - taken together, and agreed to.
Clause 40 -
The court may, in its discretion, refuse to make a decree of dissolution of marriage upon a ground specified in any of paragraphs (a) to(1), inclusive, of section twenty-eight of this Act, if, since the marriage -
– I move -
Leave out “(1) “, insert “ (m) “.
I regret that I have not had the opportunity to circulate this amendment for the information of honorable senators, but it is very simple and I will explain its purpose. The clause at present says that it is applicable only to the grounds of divorce stated in paragraphs (a) to(1), inclusive, of clause 28. This stops short at the last ground of divorce. It includes adultery, cruelty, desertion, repeated convictions, restitution of conjugal rights, noncompliance with a decree, and paragraph (1) is insanity. But the clause stops short of the ground of separation.
The clause to which we are addressing ourselves provides that the court may, in its discretion, refuse to make a decree if there has been adultery on the part of the petitioner, or cruelty or wilful desertion, or if the habits of the petitioner or the conduct of the petitioner have or has conduced or contributed to the existence of the ground relied upon by the petitioner.
In that context, if we include in this clause not only the grounds (a) to (1) but also (m), then, if the petitioner’s habits or conduct have or has conduced or contributed to the separation upon which he relies, the court has discretion to deny the decree based upon the separation. I know it will be said that if the conduct of the petitioner, having been taken into consideration under clause 36 (1.), induces the court to the conclusion that it is harsh and oppressive to grant a decree, the court is required to refuse a decree. I am concerned with the case where the habits or conduct of the petitioner have contributed to, or conduced to the separation which is the basis of the petition. It seems to me that it cannot be denied within reason that that is a most proper incident to which to apply this discretionary bar. The draftsman of the bill has thought fit to apply it in the case where the petitioner has to prove against the respondent adultery, cruelty, repeated convictions or insanity. I ask the committee particularly to note “ insanity “. I referred to it in the debate this morning, and Senator McKenna made a thoughtful speech this morning indicating his view that insanity or mental illness was the same unfortunate and non-culpable ground of divorce as you get in separation here.
If the petitioner’s habits or conduct have conduced or contributed to any of these grounds, including insanity, the judge can take the fact into consideration, and if in his discretion he thinks it is proper to refuse the decree he can do so. Why is it not proper that the judge should have a look at, and take into consideration, the petitioner’s habits and conduct, and consider whether they have conduced to, or contributed to the separation which is the basis of the divorce sought under paragraph (m)? If, in his discretion, it is proper to refuse the decree in the cases set out, why should he be prevented from using that discretion to refuse a decree where separation is involved?
– I hope that the committee is not going to fall for this one. On five consecutive occasions Senator Wright has endea voured to cut right across the principles that are the driving force, or the principal elements, in clause 28 (m). This is another attempt. On the previous occasions the committee has demonstrated quite clearly that it does not want the ideas of Senator Wright to be inserted in this clause. The committee has made it quite clear that it wants the clause as it now stands and without any restrictions. This would be a dangerous restriction. It would have the effect of cutting right across the purpose of the present clause.
– What is the purpose?
– We have been going into that during the last three days.
– Just briefly remind me.
– The honorable senator said when he commenced his second-reading speech that he believed in justice, but if the way he is going on is an indication I think he believes in justice only for one side.
– Which side is that?
– The “ Wright “ side. If clause 28 (m) is interfered with it will deny justice to both parties of a broken marriage. Ample safeguards are already given in clause 36 to cater for the wishes and feelings of any injured party, or for that matter, any guilty party. In fact, in respect of both parties, clause 36 presents a fair, reasonable and just attitude regarding the principles of this bill. I am very strongly against any curtailment of the present clause.
– I understand that Senator Wright’s suggestion is that a judge should have the right to debar a divorce in his discretion if the conduct of the petitioner has conduced or contributed to the existence of the ground relied upon by the petitioner, for example the ground of separation. It might well be that the conduct of a petitioner has contributed to a separation in a very minor way. It is not desired to give the judge the discretion to refuse a divorce when conduct of a minor nature has contributed to the separation. Indeed, it is suggested that it might even be held that a separation by agreement, as a result of the conduct of one or the other of the parties, could be the subject of a discretionary bar. It is desired to give the judge a discretion when the conduct of the petitioner has so greatly contributed to the separation that it behoves him not to grant the divorce.
– I intervene very briefly to express my surprise at Senator Vincent’s contribution, because if he will refer to page 10 of the explanatory memorandum circulated by the AttorneyGeneral (Sir Garfield Barwick) in relation to clause 28 (m), he will find, not discretionary bars, but absolute bars on a number of counts imposed in relation to the five-year period. Senator Vincent is now objecting to discretionary bars. It is clear that there were absolute bars for serious offences like adultery, yet adultery is the only serious offence that has been included as a discretionary bar in this clause. If during the five-year period of separation contemplated by clause 28 (m), and preceding the application for divorce under that head the petitioner had been guiltyof bestiality or had been convicted of attemptins to murder the defendant or assault the defendant with intent to inflict grievous bodily harm or had been imprisoned, there would have been an absolute bar. The delightful clause picked up by the Government here has regard to adultery only. In other words, all those very grave offences I have mentioned are not picked up from the Western Australian statute.
It is very interesting to hear the solicitude of Senator Vincent for the petitioner who may have clone all those things. He is to be free to do them in the five-year period under the clause that has been approved by this committee. That does not redound to the credit of this chamber, nor does it redound to the credit of the draftsmanship or the conception of the Government regarding this new head of grounds. There is an absolute bar during the five-year period in Western Australia, the source from which this clause is taken. That is discarded in this bill; and not only that but all discretionary bars are gone, too, with the exception of adultery. That is the only one that is retained. The man might be guilty of bestiality throughout the fiveyear period, but under this clause he can still get his divorce.
– What about sub-clause (1.) of clause 36?
– Incidentally, the offence does not necessarily have to be in relation to the respondent; the particular offence is at large. I had proposed just to listen to-night to the discussion, andI would have done so but for the intervention of Senator Vincent in this matter.
– I would not enter the debate now except that 1 want to pose a question to the committee. If the court is enjoined to take into consideration the principles enunciated in clause 40, will it have a discretion to grant the divorce?
– The provision in clause 40 gives discretion to refuse to grant a divorce, and if the provision in clause 28 (m) is included among the grounds under clause 40, no divorce may be granted under the ground in clause 28 (m).
– I cannot see why paragraph (m) has been excluded from the paragraphs of clause 28 specified in clause 40, because available Western Australian statistics show that more than one-quarter of the total divorces in that State are granted under the five-year separation ground which is provided for in clause 28 (m). Even though, as sensible people, we all realize that that ground may be used only to make the divorce clean, I say that the fact that about a quarter of the petitions for divorce in Western Australia are on that ground of five years’ separation could be indicative that a similar proportion will operate throughout Australia when this uniform law applies. Therefore, we are going to deprive a quarter of the respondents to divorce petitions throughout Australia of the benefit of clause 40. I think that ought to be considered very carefully.
Clause agreed to.
Clauses 41 to 45 - by leave - taken together.
.- Clause 44 (2.) reads-
Where, in a petition for a decree of dissolution of marriage or in an answer to such a petition, a party to the marriage is alleged to have committed rape or sodomy on or with a specified person, whether or not a decree of dissolution of marriage is sought on the ground of the rape or sodomy, that person shall, except as provided by the rules, be served with notice that the allegation has been made and is thereupon entitled to intervene in the proceedings.
I should like some direction from the Minister in regard to this sub-clause, because in respect of criminal proceedings against a person for the crime of rape, for instance, the name of the victim of the crime is not disclosed on the court process. I notice here that in the case of a petition for dissolution on the ground of rape the victim of the offence has to be served with notice. That, of course, does not necessarily entail the name of that party apearing on the court registers or the court processes, which are common property. I think I read somewhere, although I have forgotten where, that the Minister intended in those circumstances that the name of the person concerned should not appear on the process. If I am wrong in my understanding that that is the case, I ask the Minister to give consideration to it. Sometimes, of course, in cases in which very young girls are involved, it is undesirable that the names of the innocent party be associated with the divorce proceedings.
– This will be a matter which will be dealt with by rules.
– I am not suggesting any amendment.
– I know. I would suggest that any legal man in this Senate who has an interest in this matter will be able, while the rules are still being drafted, to approach the Attorney-General direct, or the Attorney-General through me, and make his opinion and wishes known.
– I should like to make a brief reference to clause 45. The committee will remember that when I led the second-reading debate for the Opposition, I made a suggestion to the Government that it consider including a provision whereby thoroughly unworthy spouses who were divorced would be prevented from running free to corrupt in fresh marriages people who would not know their true quality. I asked the Minister to indicate the Government’s view on that. I think he did not reply to my suggestion in the course of the second-reading debate. It could be, of course, that consideration has not yet been given by the Government to the suggestion. However, I should like to know from the Minister whether he would be so good as to answer this question: Has any consideration been given to the suggestion? If so, with what result?
I remind the Minister that I put my suggestion this way: The penalty of a decree absolute divorcing a person may in many cases be adequate punishment; but there are two other types of cases where that would not be so. Where the offending spouse has deliberately pursued a course of conduct to force the partner into petitioning for divorce, the grant of a decree absolute is a real profit and a desideratum for the offender, and no punishment at all. Then there is the type of person who is divorced on account of the most awful conduct - drunkenness, cruelty, crime, bestiality, or something of that nature. If a person is divorced on one of those very grave grounds he is immediately free, under this clause, to re-marry. A matrimonial offence - one might say, a physical offence - of an extremely grave character has caused the partner to petition for a divorce. The clause we are considering applies when the divorce decree has become absolute. The party to that dissolved marriage may marry again as if the marriage had been dissolved on his petition. For convenience I am referring to the guilty party as a male. I know of cases where judges have deplored the fact that they could not prevent an individual from running loose in the community. It is easy enough for a man to change his name, change his place of habitation, and conceal his vices until he involves some other innocent partner. I suggest that the procedure adopted might be something like this: That the court itself could, in specified circumstances, call upon a respondent to show cause why there should not be some suspension of the right to re-marry.
– An absolute bar on re-marriage by an order of the court?
– I have not said that.
– I am trying to get at what is in your mind.
– What I said I had in mind is that the court might be authorized to call upon a respondent guilty of some atrocious conduct to show cause why the right to re-marry should not be suspended. That is what I said. However, I am more concerned to ensure that a person of that character be required to notify any prospective new spouse of his prior matrimonial history. Otherwise we, as a Parliament, are prepared to allow a person found guilty of really bestial conduct to run completely free, under no obligation to disclose his prior matrimonial history and the nature of it. Surely we have some obligation, not merely to the adulterer, for whom the Parliament has been at such great pains to ensure a new and fresh and beautiful union, but also to protect innocent persons in society upon whom relative beasts may be let loose. If some procedure for showing cause were evolved there would be an appeal, even under this act, to a full court, and in an appropriate case, with leave, to the High Court. It would not be a matter of arbitrary decision; there would be ample notice.
I merely present the thought and suggest that it is time it was considered as an element in the divorce situation. I point out that it is not new. I had occasion a few minutes ago to refer to what happens in Western Australia. There, in accordance with the counterpart of clause 28 (m) of this measure, there is a complete bar, in effect, to permission to remarry, in that after five years separation a divorce will not be granted if, during the five-year period, certain matrimonial offences, or even .certain conduct not connected with matrimonial offences, have been committed. We have a precedent in Australia, because in Western Australia the bar is an absolute bar.
My main concern is not to punish a man further, but to guard other people in society against a repetition of his conduct. I do not want to develop the theme any further, and I merely ask whether the Government has given the matter any consideration, and, if it has not, whether it will do so.
– I do not think there is really an absolute bar in Western Australia, as claimed by Senator McKenna, preventing a man from remarrying once he has been freed from his former marriage.
– I did not say that.
– I thought you said there was an absolute bar to his remarriage.
– There is an absolute bar to his opportunity to remarry.
– Quite, and that is the point I was going to make. The absolute bar is a bar to his obtaining a divorce. Since he is not divorced he cannot remarry. The only bar to his remarriage is the fact that he is married already. So this is not a principle that is enshrined. In saying that, I am not brushing the suggestion aside in any way. I do .think there would be extreme difficulties connected with an attempt to incorporate something of this kind. While the suspension of a man’s right to marry might well seem just to Senator McKenna, and to me and to a court of judges, it might not seem just to a woman. Women are funny people, and a woman might fall in love with such a man and want to marry him.
– Look at some of the funny men they marry!
– When I say funny, I mean that I think they are funny in that they are more inclined to make allowances for men than men are inclined to make allowances for women.
– I think the Minister means that they are more unpredictable.
– Yes. The point is that women can fall in love with men, no matter how bad they are, and they may feel that it is unjust that they are not allowed to marry because of a court order.
There would also be the difficulty of trying to define in some way just what conduct, and what degree of conduct, made a man unfit to remarry. If the suggestion is that he must disclose to the woman he proposes to marry any former convictions he may have had for matrimonial offences or unpleasant behaviour of certain kinds, I am not sure what sanction you would impose on him if he did not do so. If after his remarriage it is found that he failed to tell his new wife of previous convictions, would you put him in gaol?
– The sanction would be that the marriage would be voidable at the instance of the offended party.
– As in the case ot epilepsy. 1 make these points simply to show that while it is a principle which appeals at first glance, I believe it would cause immense difficulty in putting it into practical effect. 1 think all I can say to the honorable senator is that perhaps he and I and the Attorney-General should talk about the matter at some later stage.
– Could the difficulty be met in the same way as is done with driving offences, when a driver’s licence is taken from him so that he cannot repeat his offence? Could you not withdraw his licence to marry, for a period?
– Is the honorable senator suggesting that his marriage licence should be endorsed?
– For a period.
– The committee apparently did not understand the answer 1 gave to the Minister when he asked what sanctions would be imposed on a person who did not fulfil a requirement to disclose his prior history. Quite obviously, the only sanction that could be imposed is the very type of sanction that is found in this bill. In other words, a failure to disclose would entitle the other party, on finding out about his failure, to treat the marriage as voidable.
Clauses agreed to.
– It may suit the convenience of the committee to consider the remainder of the bill by groups of clauses, either by divisions or parts. With the consent of the committee, this course will be followed.
Division 2, clauses 46 to 50, taken as a whole, and agreed to.
Division 3, clauses 51 to 58, taken as a whole, and agreed to.
Division 4, clauses 59 to 63, taken as a whole, and agreed to.
Division 5, clauses 64 and 65, taken as a whole, and agreed to.
Division 6, clauses 66 to 74, taken as a whole.
.- I refer to clause 70. I believe that if many honorable senators who have spoken in this debate had read clause 70 we would not have had so many tears to dry up from the good carpets around this chamber. Clause 70 gives a judge power to make a divorce absolute. Before a divorce can be made absolute there is an obligation on the judge to provide for maintenance for the petitioner and the children. As I read the clause, it is the judge’s right and duty to see that adequate provisions are made for the children and for the spouse.
Many honorable senators during this debate have deplored the fact that there was no requirement that adequate provisions should be made for dependants, and the dripping of the b!oo;’ from the hearts, and the tears from the eyes, of honorable senators on to the papers before them was quite a pathetic sight. At the time 1 referred to clause 70, but of course I was jumping my hurdles prematurely, and I was not given time to connect my remarks up with clause 14. I had to wait until we came to a consideration of clause 70. I have not the legal mind to enable me to get round these corners in the way that judges and lawyers like Senator Wright, who is interjecting, do at times.
Clause 70 imposes on a judge the duty to make proper arrangements for dependants. It has been said that a judge might make only temporary arrangements, and that the spouse and children might later be left, as some honorable senators pictured them, in desperate circumstances. If a judge made arrangements which turned out to be only temporary, I would say that he was not carrying out his duties in the way required of him by this clause. I would not say that it would be a slur on the judge; but if a judge were to adopt the method suggested by one honorable senator, he would be letting down the children and not acting in accordance with this clause or as the Parliament would expect him to act. If my interpretation of clause 70 is not correct, I ask the Minister to state the correct position so that no one will be in any doubt as to the meaning of the clause or the power of a judge to protect innocent parties, as so many honorable senators have claimed that the bill does.
– I am glad to see clause 70 in the bill. However, I ask the Minister to say what assurance we have that, after the decree has been granted, these safeguards will still be enforced until the children of the first marriage reach the age of 16 years. People usually are willing to comply with conditions imposed upon them by a court, but has any legal process to be complied with after a decree has been granted, and perhaps a second marriage contracted, to ensure the maintenance of the children of the first marriage? Can any action be taken against a man who defaults in payment ot an order for maintenance of his children, after the decree has been made absolute?
– I am informed that, when a court has determined what should be made available to the children, or to the wife or husband as the case may be. irrespective of the decree having been made absolute, it is open to the person in whose favour the order has been made to use the ordinary processes of the court, should the order not be complied with, to recover money that has not been paid, with the additional help that a wife will not have to obtain an order to recover payment in arrears, obtain the money, and then get another order if payments again fall into arrears. She will be able to apply for a garnishee order.
– What the Minister has said is all right where wages or salaries can be garnisheed. But if a man is self-employed, in a profession, a pastoralist or engaged in some activity where no wages are involved, what action can be taken? If it is necessary to have recourse to legal action to impose the will of the court upon the defaulting man, are the costs of the action to be borne by the wife or will some authority pay them?
, - The costs are to be borne by the defaulting husband.
– If you can find him.
– Yes, if you can find him. I think Senator Tangney pointed that out before. If the man is selfemployed or not in receipt of regular income which can be attached, there are other legal processes by which the payment of the court order can be enforced. I point out to Senator Tangney that this clause makes provision for a property settlement to be negotiated by the court in its discretion before a divorce is granted.
– Does the bill specify a standard of maintenance, or anything like that? Is the Minister in a position to give me some idea of the amount of maintenance that would be ordered?
– As set out in the bill, the amount depends entirely upon the judge’s assessment of the circumstances of people engaged in the divorce proceedings.
Clauses agreed to.
Part VII., clauses 75 to 81 taken as a whole, and agreed to.
Part VIII., clauses 82 to 88, taken as a whole.
– Mr. Chairman, we took three and a half days to reach clause 40, but in the last 20 minutes we have gone from clause 40 to clause 82. I think you should give us some opportunity to look at some ot the clauses.
.- Part VIII deals with maintenance, custody and settlements. Clause 83 provides that the court may order such payments for the maintenance of the parties as it thinks proper, having regard to the means - which includes not merely income but capacity to make income - earning capacity and conduct of the parties, and all other relevant circumstances. Clause 84 deals with powers to make orders for custody, guardianship, welfare, advancement or education of children, and clause 85 provides for the settlement of property. Clause 86, I wish to mention with great appreciation, is a clause that has been adopted, with improvements, from the Joske bill. It gives almost every foreseeable type of jurisdiction to the court to make the most adequate orders for the maintenance of dependants who should be provided for in a case of dissolution. That brings us to part IX.
Clauses agreed to.
Part IX., clauses 89 to 92, taken as a whole.
.- I want to make only one comment on this part, because it introduces new law. Under the present Judiciary Act, there is an appeal from any State Supreme Court judge as of right to the High Court of Australia. There was a proposal by the Government some three or four years ago to abrogate that appeal as of right. At the same time, the Government reviewed the limit of the value of the civil right that entitled the litigant to appeal in civil cases and raised it from £300 to £1,500. Time was taken to consider the proposal to abrogate the right of appeal in divorce. The High Court should not be encumbered with an excessive number of appeals because its time, as the Attorney-General (Sir Garfield Barwick) said in his second-reading speech, is devoted chiefly to the exposition of the Constitution and to dealing with important questions of law, rather than to taking three or four days at a time to investigate in detail the domestic facts of a dissolution situation. So, the effect of this part is to make all appeals from a trial judge go to three judges of the State Supreme Court and, having obtained a decision from the three Supreme Court judges, to allow an appeal in divorce matters to the High Court only by leave of the High Court.
I hope that I will not be considered impertinent in stating those preliminary matters, but I know that there are members of the committee interested in them. I state them only for the purpose of adding the next proposition. Whilst one is completely in agreement with the purpose of relieving the High Court of embarrassment caused by a multitude of divorce appeals on fact, yet it needs to be remembered that the disadvantage of being divorced carries a more important civil right. Take the case of a wife who has a divorce suit determined adversely to her. This may involve property rights sometimes exceeding, not £500, but £15,000. It should not be thought that no one in this chamber has given earnest consideration to the proposal that, in future, parties to divorce proceedings may appeal to the High Court only by leave. I, for one, have given it anxious consideration. I am not opposing the proposal after that consideration, but I say that there must be a greater reconciliation of the idea that if I sue somebody, alleging that, because of injuries I have received in a collision between motor cars, I should have damages of £4,000, and if the verdict passes for the defendant, I can appeal automatically on the facts of the case to the High Court, and the idea that if I am the wife of a grazier worth £100,000 a year, my share of his income, as mere pocket money, being £500 a year, and my expectation of life being twenty years, I cannot appeal automatically to the High Court on the facts if a divorce decree is granted against me. It stands to reason that the civil right of which I am deprived in the divorce court is infinitely more valuable than the right to claim £4,000 for injuries in a collision.
– That is putting it at the lowest level.
– Yes. I am speaking only of the pecuniary aspects of the wife’s right. There is also the injury to the soul, if you feel that you have been the victim of an adverse verdict.
– There is no mention of spiritual considerations in this bill.
– I am not entitled to refer to spiritual considerations. At present, I make no protest against the abridgement of the right of appeal to the High Court.
– I should like to make several remarks to the committee concerning appeals. I should like particularly to refer to clause 90, on the question of stating the facts in the form of a special case for the information of the High Court. We now have before this Parliament a bill for uniform divorce laws. I believe that in the first year or so of the working of the legislation there will be some very important appeals, and that cases will be stated to the High Court for the opinion of that court under clause 90. Under clause 91, appeals may be made from the decisions of single judges of State supreme courts to the State full courts, and then, of course, there will be appeals from those State full courts to the High Court of Australia. I envisage that, on those appeals, some very important principles of law will be laid down for the first time.
I should like the Minister to inform me whether he has considered the suggestion T made during the second-reading debate concerning the desirability of there being laid before Parliament every year a summary of the appeals made under the provisions of clauses 90, 91 and 92. I am conscious of the fact that a former Chief Judge of the Arbitration Court - I refer to one of great renown, the late Sir Raymond Kelly - presented to this Parliament every year a statement, which was tabled, setting out the appeals that had been made in connexion with arbitration matters, and also giving particulars of some of the principal cases that had been dealt with by the Arbitration Court. He also furnished particulars of pending cases. I mention that only by way of illustration. I regarded those statements, showing how that jurisdiction was working out, as of great value to the Parliament.
I should like the Minister to consider the desirability of supplying to the Parliament each year a list of the appeals made in the divorce jurisdiction so that we will be able to see how the courts are interpreting this legislation. I know that it would be possible for us to get the information by perusing the Commonwealth Law Reports and the law reports of each State, going through many hundreds of pages of reports, but that would involve many hours, possibly days, of research. This legislation will be of tremendous importance to the people of Australia. I think it would be right, proper and - if I may put it this way - economical to provide that each year there shall be laid on the table in both chambers of this Parliament a statement of the principal cases that have been heard and the appeals that have been made from decisions in accordance with the clauses I have mentioned.
– I think it is proper that the Parliament, having passed a bill of this kind, and being about to pass a marriage bill, should have before it some information showing the results of the working of the legislation. I believe that the AttorneyGeneral has that in mind, and that it is likely that he will arrange for the furnishing of information along the lines that Senator Laught has suggested, and which will meet his wishes.
Clauses agreed to.
Part X., clauses 93 and 94, taken as a whole, and agreed to.
Part XI., clauses 95 to 100, taken as a whole, and agreed to.
Part XII., clauses 101 to 108, taken as a whole.
– I refer to clause 102 (1.), which provides -
A decree made under this Act by a court having jurisdiction under this Act may, in accordance with the rules, be registered in another court having jurisdiction under this Act.
A case tried in a State court may be only partly concluded when this legislation comes into force. Will those cases be, so to speak, taken over? If a decree nisi had been issued in a State court, before this legislation came into effect, could the parties concerned, after the legislation became operative, apply for the decree to be made absolute?
– The honorable senator has referred to transitional proceedings. Clause 102 does not deal with them. Clause 102 has been included in the measure to ensure that an order made by a supreme court in one State can be enforced by a supreme court in another State. We will come to the matter which Senator Aylett has in mind at a later stage.
– I want to refer first to clause 104. This is the clause in the part dealing with the enforcement of decrees. It will be seen that clause 103 provides for enforcement of decrees for payment of moneys as if they were judgment debts. That means that you can have the ordinary process of execution to enforce a payment so that the sheriff is well able to deal with Senator Tangney’s grazier. But clause 104 is of much greater interest to the ordinary working woman. She finds it very expensive to go to a supreme court every two or three months to enforce payment of arrears of maintenance. The summary jurisdiction of petty sessions is much cheaper. This clause is a most provident one. It enables a decree of a supreme court to be registered in the court of summary jurisdiction where, just by a letter to the collector, who acts as a registrar, you can ask him to enforce the decree. He issues a process with the minimum of expense to the party concerned. I welcome this insertion because of the inexpensive method of enforcement that it provides.
– Will that apply throughout the Commonwealth?
– Yes. We have had this facility in Tasmania for several years and 1 am pleased to see that it is being dispensed on a federal basis.
I now refer to clause 105. That clause says that an order made for maintenance may be enforced in accordance with the third schedule. In the third schedule you have this very convenient process of an order for attachment of earnings. There are a few things that I want to mention with regard to this provision. The first is its complexity. This is one of my chief fears with regard to federal penmanship. You have 40 closely printed provisions there to provide what is provided for in section 64a of the Tasmanian Maintenance Act in about one-twentieth of the verbiage. I note that my leader nods approval as he sees appreciation rendered unto Tasmanian ideas. Having said that and having brought the draftsman’s attention to section 64a of the Tasmanian Maintenance Act, which is now 35 years old, I point out to the Senate that under that act, without repetition of process, once an order is in arrears you can go to a justice of the peace, who often is clerk of the court, and say that so and so is being employed by so and so. An order is then made by the justice that the employer, unless he can show cause to the contrary, shall pay such proportion of the wages into court out of wages then due and out of wages that thereafter become due. In about ten short sub-sections the whole purpose is achieved.
May I now direct attention to the schedules and the definitions contained therein. Earnings are defined and an exclusion is made of pensions payable to the dependant in respect of injury, disablement and disability. I know what this aims at - workers’ compensation payments - but I believe that vis-a-vis a maintenance order workers’ compensation payments should not be excluded, because to-day the general principle in regard to workers’ compensation is that you are not compensating a person for pain, suffering or loss of capacity; you are paying him compensation of about two-thirds of his wages. The common structure of workers’ compensation payments in the States is not merely an individual payment to the wage-earner, but specific provision for his wife and children. I should ask that those principles apply to orders for attachment of earnings so that the dependent wife and children may be safeguarded.
– Does that apply in every State?
– I would think so. I do not pretend to know all States accurately, but I have a general idea that this applies in all States. I think the structure of workers’ compensation applies in all States.
– That is very important, is it not?
– Yes. The immunity that workers’ compensation acts give to workers’ compensation payments in the case of a creditor in the State jurisdiction should not apply with respect to payments required to be made under this bill by a worker who becomes injured.
– Order! May I suggest that Senator Wright leave the discussion of the Third Schedule until later?
– Very well.
– Dealing with clause 107, how will maintenance orders at present in existence be affected by the passage of this bill? Will the Commonwealth enforce them under this legislation?
– I am informed that they will be enforceable under this legislation.
Clauses agreed to.
Parts XIII., clauses 109 to 116, taken as a whole.
– I refer to clause 112, which reads in part - (2.) Subject to section one hundred and fourteen of this Act, the provisions of sections sixty-nine to seventy-three (inclusive) of this Act apply to and in relation to pending proceedings, being proceedings for a decree of dissolution of marriage or nullity of a voidable marriage, other than proceedings in which a decree nisi has been pronounced before the commencement of this Act, as if those pending proceedings had been instituted under this Act and any decree made in the proceedings had been made in proceedings so instituted. and move -
Leave out “ seventy-three”,insert “ seventyfour “.
The amendment is a necessary one, consequent on the renumbering of clauses. Clause 112, as part of the transitional provisions, applies certain sections and parts of the act to pending proceedings. The amendment will apply the provisions of the newly inserted clause 74, dealing with rescission of decrees nisi on the ground of miscarriage of justice, to pending proceedings. Senator Wright asked about the position regarding marriages in Western Australia. I understand that in Western Australia there are now certain grounds for dissolution which, when this bill becomes law, will be grounds for nullity. It is therefore necessary to insert this clause in the bill.
.- I am under no misunderstanding as to what the transitional provisions in Part XIII. mean, because I have read every clause in that part, but I wish to ask the Minister whether the Third Schedule, referred to in clause 105, applies to the whole of the transitional provisions. Will cases that are part heard be taken over from the States? Will the transitional provisions in Part XIII. apply to orders regarding maintenance, and so on, referred to in the Third Schedule?
– I am informed that the answer is, “ Yes “.
Amendment agreed to.
Clauses 109 to 111 agreed to.
Clause 112, as amended, agreed to.
Clauses 113 to 116 agreed to.
Part XIV., clauses 117 to 126, taken as a whole.
– I refer to clause 118, which reads -
Proceedings under this Act constituting a matrimonial cause shall be heard and determined by the court sitting without a jury.
I move -
Leave out “ without a jury “, insert - “ with a jury -
on trial of issues of adultery if any party so requests; and
on trial of any other issues if, on the application of any party, the judge in his discretion so decides, but otherwise without a jury.”.
The amendment means that, in issues to determine whether or not adultery has taken place, any party to the proceedings is entitled to have the matter determined by a jury. I believe that there are State jurisdictions in the Commonwealth where, as a matter of practice, the judges reject the idea that they should try issues of adultery without a jury. I cannot speak authoritatively, but I believe that that is the position in Queensland. The position in Tasmania - always a good guide to look to and to follow - is that parties to issues of adultery are entitled, as of right, to a jury. To appreciate the good sense of the Tasmanian position, one needs only to state that the abstract nature of judicial life is not the best environment to absorb the experience that leads to the correct inference as to whether adultery has or has not in fact taken place.
As to other issues, it is obvious that in some cases there may be as many as twenty issues of cruelty. It would create great complexity and prolong trials if parties had the right to have those issues tried by a jury; but if an application is made to a judge and he in his discretion thinks that it would be better to have a trial by jury, such as in the case of allegations of vicious assault, a jury is the most appropriate tribunal to determine such a matter.
With regard to this statutory jurisdiction, we do not inherit any real right to a jury, but having regard to the value of juries in the determination of facts for other jurisdictions, I ask the committee to accept the amendment I have moved. If it is accepted, any party may, on request, have issues of adultery determined by a jury. The judge, on the application of the parties, may direct the trial of other issues by a jury, if he thinks fit.
– I oppose emphatically the suggestion made by Senator Wright to introduce trial by jury in any matters under this bill. I think that the Government has acted in the right and proper way in wording clause 118 in the way in which it is worded. The clause reads -
Proceedings under this Act constituting a matrimonial cause shall be heard and determined by the court sitting without a jury.
For many years, the divorce courts of South Australia have tried issues without juries. I have practised as a lawyer for 32 years, and on no occasion have I ever heard it suggested that matrimonial causes should be tried by juries. Usually, the main question in matrimonial causes is adultery. As I see it, that question, and the question of cruelty, are quite capable of determination by an experienced supreme court judge. I do not know how many jurymen my friend Senator Wright has in mind.
– A civil jury in Tasmania numbers seven.
– To take the Tasmanian practice as an example, the introduction of such a system would mean that there would be seven more people sitting on one side of the bench, as it were, to go into questions of adultery and cruelty. From my experience in South Australia, I think that that would be completely unnecessary. Trials by a judge and jury usually take considerably longer than trials by a judge sitting alone. The use of juries would involve additional expense. Because I think that juries are not warranted, I oppose the amendment.
– I am equally surprised that Senator Laught should oppose the amendment. He ought to realize that, as drafted, the amendment represents an almost complete prohibition. It is only on one issue, that of adultery, that a party may invoke a jury.
– As of right.
– Yes, as of right. In respect of any other issue, the matter is in the control of the judge. The amendment will require that, on the issue of adultery, the judge, on the application of a party, must consent to the appointment of a jury.
All that is involved is a proposal to confer the right of trial by jury, as of right, only on an issue involving adultery. Cruelty and other matters such as I think Senator Laught referred to, which go beyond adultery, will not be competent to be tried by jury under this proposal, except with the concurrence of a judge. Adultery is a very serious issue, but experience which I have had in the matter predisposes me to trust a jury. Juries are discarded only in particular cases. They are preserved for the trial of every crime before the criminal courts.
– And the trial of some of these issues may lead to a determination as to whether or not a crime has been committed.
– Crimes are very often involved. In many cases, the two issues are similar. Adultery is the one issue which it is proposed compulsorily to try by jury. So we are debating what is practically a complete prohibition, except in respect of adultery. In relation to other issues, the matter is in the control of the court. I think adultery is an issue that can well be tried by jury.
I am very much surprised to hear Senator Laught’s views. Apparently, he relies upon his experience in a jurisdiction where juries have never been employed in the trial of matters such as these, and, evidently, that predisposes him to .dispense with juries. But we all like the devil we know rather than the one we do not know. It seems to me to be a normal principle to import a jury and to submit to trial by one’s fellows where one can. I submit to the committee that the amendment ought to be supported.
– Mr. Chairman, I approach this subject with some trepidation, but I am encouraged to take up the discussion on this amendment by the two opinions, with which, happily, I agree, which have been given by Senator Wright and Senator McKenna with the authority of their legal experience. It always seems to me to be a shame that one should have to seek to prove a thing so serious as is adultery in courts of lower standing than those which try criminal charges. I think that the least we can ask, as members of a House responsible for laws which the Australian people should admire and accept, is that a request for the trial by jury of a charge so serious and so damaging as is the charge of adultery should be acceded to. It is quite obvious that a charge such as this, though not quite on the same plane as a criminal charge, has to be much more fully substantiated than has some other matrimonial offence. The value that we attach to life is indicated by the fact tha we require a charge of having taken life to be tried by jury. There are many other things of value in the community in respect of which it is essential that charges be tried by jury. As clause 118 stands, issues in respect of something of great value and importance as it concerns a person’s position in the community may be proven by a procedure of lower standing, and without recourse to a principle of law which we, as British people, say is fundamental - the right to trial by jury if the case is serious enough.
I think that Senator Wright and Senator McKenna, as legal representatives in this chamber, have made a case which the committee must accept. The amendment will permit trial by jury, but only a person who was sure of his innocence would ask for that form of trial.
.- Mr. Chairman,I wish to take only a minute or two to reply to the arguments that have been put in opposition to the amendment. I was surprised at the spirit in which my colleague, Senator Laught, intervened.
– Did the honorable senator expect another spirit?
– No. I was surprised at the direction in which the honorable senator’s argument went. However, that is explained when one refers to Joske’s work, “ The Laws of Marriage and Divorce in Australia and New Zealand “, in which the law on this matter is stated as follows: -
Save in New South Wales, South Australia and Western Australia, where damages are claimed in a petition for judicial separation or dissolution of marriage they must in all cases be ascertained by a jury . . .
In any defended suit for dissolution of marriage charging adultery any party may, save in South Australia and Western Australia, insist as a matter of right (a) on having the contested facts in relation to such charge tried by a jury .. . .
That is in line with the general trend of what I have tried to propound throughout the debate on this bill - that, where you are moulding a Federal law on subjects upon which the States have legislated, it would be a good beginning to adopt that which is acceptable to the greatest number. I suggest that, when the position in all the States other than South Australia and Western Australia is that the parties are entitled, as of right, to have an issue of adultery determined by a jury, the committee should not regard the matter as being trivial and allow that right to be removed without consideration.
I invite the Minister to speak to this amendment. If, on further consideration, he wishes to adopt the position that exists in all the States other than South Australia and Western Australia, he can bring that matter up later for specific debate.
– I think that I should reply to Senator Wright’s request, Sir. I have had some knowledge of what has been in Senator Wright’s mind in relation to trial by jury, and, therefore, I have discussed the matter with the AttorneyGeneral. He has not felt able to embody in the bill the propositions set forth by Senator Wright. I do not think that I can say anything more than that I have discussed this matter with the AttorneyGeneral, who feels that the bill would be better if provision for trial by jury were not included in it.
– Better for whom?
– I think the Minister feels that the bill would be more workable.
– Does he consider that it would make justice easy and cheap?
– I think that it would make justice cheaper. I think the AttorneyGeneral, also, feels that justice would be cheaper as the bill is drafted. A number of reasons influenced his mind in relation to this clause.
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 . . . . 16
Question so resolved in the negative.
Clauses agreed to.
The Schedules - by leave - taken together.
First and Second Schedules agreed to.
Senator GORTON (Victoria - Minister for the Navy [10.55]. - I move -
After paragraph 40, add the following paragraph: - “41. This Schedule has effect in relation to a defendant notwithstanding any law that would otherwise prevent the attachment of his earnings or limit the amount capable of being attached.”.
During the debate in the lower House, the honorable member for Fremantle (Mr. Beazley) drew attention to the fact that section 90 (1.) of the Navigation Act expressly provides that wages due or accruing to a seaman are not subject to attachment or arrestment by any court. The AttorneyGeneral (Sir Garfield Barwick) said in reply that he was satisfied that some provisions ought to be included to make the bill paramount over not only the Navigation Act in respect of seamen but also any other legislation of a like kind. The object of this amendment is to achieve that purpose.
Amendment agreed to.
Third Schedule, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
– I move -
That the bill be recommitted for the purpose of reconsidering clauses 21, 32a, 112 and the Third Schedule.
The main purpose of the recommittal is to give honorable senators the opportunity to reconsider clause 21. If I may refresh their memories, I point out that the committee carried an amendment which deleted clause 21 (1.) (b) (iii). That paragraph states that a marriage is voidable where, at the time of the marriage, either party to the marriage is subject to recurrent attacks of insanity or epilepsy.
I have no intention of canvassing the merits of the arguments relating to the deletion. Indeed, the Standing Orders prevent me from doing so.
– This is almost unprecedented.
– I want to give the reason for it. The reason is that there have been persistent statements that the amendment was carried by the committee in circumstances in which there was some confusion on the part of honorable senators about the method of recording their votes.
The PRESIDENT (Senator the Hon. Sir
Alister McMullin). - Order! In conformity with sessional order relating to the adjournment of the Senate, I formally put the question -
That the Senate do now adjourn.
Question resolved in the negative.
– I was making the point that the reason for asking the Senate to recommit the bill is that there have been persistent reports-
– Let those who wish to stultify themselves in that way stand up and speak for themselves. Who is going to take this sitting down?
– It will be possible for other honorable senators to express their views. During the course of the day Senator Wright has expressed many views which were repugnant to me. I do not recollect that on one occasion I interjected. I gave him credit for the sincerity of his views as I would ask him to give me credit on this occasion. Let me quote, for instance, the statement of the Australian Broadcasting Commission’s reporter.
– I rise to order. I ask whether it is in accordance with the Standing Orders-
– Under what standing order are you taking the point of order?
– My catechism is incapable of answering that. I am addressing myself to the profundity of your knowledge of the Standing Orders and inviting you simply to rule whether or not reference to this, a public communication medium of the nature of a newspaper, is proper in debate in this chamber.
– So far no mention has been made of a newspaper. I remind honorable senators that speeches on recommittal must be confined to reasons for recommittal. I have yet to hear what Senator Spooner proposes to advance.
– I give you my assurance that I do not propose to argue anything other than the reasons for the recommittal of the bill. The principal reason that I advance is that it is commonly reported that a decision was made by the committee of the Senate in error, and as a result of confusion on the part of honorable senators. The decision was a most important one, and I have no desire, as a member of this Senate, to have posterity say that an important decision was made in a state of confusion and that it did not truly represent the will of honorable senators at the time at which it was made. That seems to me to be a very valid ground indeed for the Senate to recommit the bill and vote again upon the clause in question.
– That is an astounding statement to make.
– It is not an astounding statement. I challenge Senator Sandford to say that it is not commonly said in the lobbies of the Parliament that the vote did not correctly record the view of the committee of the Senate.
– I wish to raise a point of order.
– The honorable senator would help me considerably if he would tell me the standing order under which he takes his point of order.
– I am asking for your direction. Is it not a fact that no member of the Senate may criticize a vote of the Senate?
– I think you will find that, up to date, there has been no criticism of a vote of the Senate.
– The Leader of the Senate has said that a vote was taken in confusion, that it was not a proper record of the opinion of the Senate, and that this had been reported to him by the Austraiian Broadcasting Commission.
– The point of order is not upheld.
– I would like to correct Senator Cooke. 1 did not state that anything had been reported to me by the Australian Broadcasting Commission. I think it is common knowledge to senators that the Australian Broadcasting Commission’s programmes during the day have been commenting upon this very matter. I think that the Senate owes it to its own dignity, prestige and standing, to put this matter beyond doubt. Having explained the reason for requesting the Senate to recommit the bill in order to reconsider clause 21, I go on to explain the reason for the proposal to deal also with two other clauses and the third schedule. In each of those there is a Government amendment. The Government proceeded with its amendments even though we thought that we would ask the Senate to consider clause 21, because we are now in this position: It will be necessary to re-assemble the House of Representatives if this bill is amended by the Senate. There are now four amendments to the bill, three of which are Government amendments. The other one is not a Government amendment, and there is good ground for believing that it does not represent the true view of the Senate. So I am asking the Senate to reconsider the three clauses and the third schedule.
If the Senate re-affirms its views about clause 21 and does not depart from its previous decision, then the bill will have four amendments to go to the House of Repre.senatives, which will justify asking the House of Representatives to come back next week. If, on the other hand, the Senate reverses its decision on clause 21, then the Minister for the Navy (Senator
Gorton) who is in charge of the bill will ask the Senate to delete the amendments that were made by the Government, thus finishing the proceedings with the bill. The Minister will give an assurance that when the Parliament meets in February the bill, which will then be an act, will be amended by the re-insertion of the Government’s amendments. I ask honorable senators to reflect upon the position. Let us assume that the amendment that was made to clause 21 does not, in truth, reflect the real view of the Senate. In those circumstances it would, I suggest, be a big responsibility for us to take to bring back the House of Representatives to deal with the three Government amendments, when these Government amendments can be made a few months hence when the Parliament again assembles. It would be not only an inconvenience to members of the other House. It would also - I am sure honorable senators will agree with me - involve a very substantial expense indeed in assembling the House of Representatives to deal with amendments that can be so easily made a couple of months later.
– Is it not sufficiently important?
– It is of great importance, because we want the legislation to become effective as soon as possible. So far as we are concerned, and so far as the Minister is concerned, we shall abide by the decision of the Senate, but whatever the decision may be, we want it to be certain so that the legislation can become operative as promptly as is practicable.
I do not think I can add to what I have already said. It seems to me to be a reasonable request to make to the Senate. I think it would be a bad thing indeed for the Senate to make an important amendment to a bill in circumstances in which there is public comment - and it is correct to say that there has been public comment - to the effect that there was confusion at the time of voting. I say no more than that. Let every honorable senator search his own mind as to whether he has not heard during the day comments from his colleagues in the Senate upon that vote. I express my own personal view that it would be a bad thing indeed for the Senate not to recommit this clause so that the decision of the Senate may be certain.
– I oppose the motion for recommittal. This matter must be looked at against a background of the fact that we have been dealing with a bill sponsored by the Government but, having regard to the great issues it raised, affecting the morality of this country, members of all parties were free to vote as their consciences and as their feelings dictated. Accordingly, in those circumstances, the divisions have taken place on a basis of Government and Opposition senators sitting shoulder to shoulder on both sides of the chamber, which showed that there was a true conception, so far as could be ascertained, of the non-party approach to this bill.
If the Government is in difficulty over the fact that the House of Representatives rose at 4 p.m. to-day, with some thirteen bills at least to be considered by the Senate, and this major measure already amended, it is the fault of the Government for letting the House of Representatives go. Responsibility for that lies entirely upon the Government and the Government is putting a completely wrong plea to us in this chamber in asking us to consider the desirability of bringing the House of Representatives back, the cost and the rest. What utterly irresponsible action on the part of any government to have a mass of measures in this chamber, on many of which notice of amendment is available, and to which objections were taken and amendments were moved in the other place! They are controversial measures. What contempt of this chamber to say to the House of Representatives, “You go home. It does not matter what the Senate does “! That was obviously the attitude of the Government. I would say that if the Senate takes this treatment it is not worth preserving as part of a national parliament. It is a complete appendage of another place. And that this attitude should develop on, above all things on earth, a non-party measure!
The Minister asks us to recommit clause 21, which relates to the grounds upon which a marriage is voidable. There was a remarkable change in the voting on that particular issue. It was easily the most deliberate vote we have had. The suggestion that honorable senators did not know what they were doing is like a lot of other suggestions that run through the corridors that are sometimes made for a purpose. We have been using our own independent judgment in relation to this bill. There was no party discipline on the side of members of the Opposition. I can say before everybody that I have not influenced one mind or one vote at any stage of the consideration of this bill. It was declared to be a matter for a free vote. I have not said one word to influence an act or a vote from the beginning to the end of the debate. There has been no party discipline. There have been no whips operating on our side. As the major issues in this debate, the great grounds of divorce, went by, quite a number of honorable senators, exhausted by effort and long sittings, left the precincts and they cannot be here for the vote on this motion. If there is any honour in this place, the honorable senators who took part in the vote which the Government now seeks to rescind, but who are now missing will be effectively paired in their absence. As it was a vote affecting conscience, a free vote, I say it would be contemptible and dishonorable to do otherwise, and I mean both words. If honorable senators who voted with a free conscience-
– Is that not for them to decide?
– I think that is an obvious fact.
– Is that not for them to decide?
– Honorable senators voted as they wished. Now, at this late hour, with all the main issues over, it would be a most disgraceful exhibition of lack of principle if there were not enough honour in this place to ensure that those who produced that result, but who are not here now to speak on this important matter and record their vote, were appropriately paired. If that is not done, those responsible will be guilty of trickery of the worst kind. I announce now that if there is any honorable senator missing from the side that was opposed to me, I shall pair with him. I offer myself as Number 1 pair, and I feel in duty bound to do that and so honour a vote that has been recorded but which the Government now seeks to throw aside. The Leader of the Government seeks to recommit three clauses for reconsideration. Only two or three minutes before he spoke, his colleague put those clauses in the bill. Now, in order to build an argument for this Senate the Leader of the Government asks us to take them out again. I am surprised at such effrontery. I do the Leader of the Government the credit of saying that I do not believe that he has had before his mind all the considerations that I have put. I think if he had, he would never have presented this proposal to the chamber.
Mr. President, this matter being a nonparty matter, I speak only for myself, but I speak as a senator greatly concerned with the dignity of this chamber. I have done my best to uphold its prestige and I say to all of my friends here that if in these circumstances, the Senate agrees to recommit the bill for the purpose of enabling the Government to rescind the one fully declared free vote that I have encountered here in fifteen years, after a debate without one element of whipping and with party discipline completely abandoned, I shall be amazed and surprised.
What is the haste? The country has waited only 58 years for this bill. This is the first divorce measure. The country is not yearning and waiting for it. Nothing hangs on it; nothing whatever. A government which, in these circumstances would recall the House of Representatives, deserves to be thrown out of office. As 1 understand it, parliamentarians will be invited back here some time in January for a function. I cannot assert that with certainty, but if the Government is going to expend money to bring members back for a social function, could they not attend to a little business then? I put it that the arguments addressed to us to-night by the Minister are most specious. I am exceedingly sorry that this situation has arisen at this stage. I hope that the Senate - and I am talking in a non-party way on this matter because we have been addressing ourselves to a vitally important bill without party considerations or party prestige being involved in any way - will have regard to its own dignity and its sense of duty to its colleagues who are not here now.
.- The allegation has been bandied around this chamber that government supporters have been whipped into supporting this proposal for recommital. As a government supporter who last night voted for the deletion of this sub-clause, I think that, in all fairness, I should say just this: Not one Minister, or one government supporter or any other member of this chamber has made any approach whatsoever to me to reverse the vote I cast last night. The annals of the Senate will prove, when this vote is taken, that what I say is correct.
.- I rise to express my very great regret that a procedure of this sort is submitted to the House. I think that it is in accordance with the spirit of the Standing Orders, if not the letter of them, that the rescission of any vote should be proposed to the House only after notice. I know that opinions are entertained to the contrary, but Standing Order No. 134 provides -
An Order, Resolution, or other Vote of the Senate, may be rescinded; but no such Order, Resolution, or other Vote may be rescinded during the same Session, unless seven days’ notice be given and at least one-half of the whole number of Senators vote in favour of its rescission. Provided that, to correct irregularities or mistakes, one day’s notice only shall be sufficient.
The reference there to irregularities or mistakes is not penned in a responsible Parliament to intend mistaken judgment nor mistakes as to which side a member may sit in a division - an elementary position which any senator is expected, in whatever dullness of intellect he may come in, not having heard the debate, to understand. If the Standing Order is not of its own force applicable to the situation, it does give an indication of what is thought to be the proper requirements of fairness in that seven days’ notice should be given, because once a senator achieves a vote he may absent himself in expectation that the question is concluded for the purpose of the particular sitting unless notice of intention to rescind has been given. Whatever may be the merits of that situation, having regard to the prestige of the Senate it is, I submit, a matter of most intense regret that those who lead for the prestige of the Senate should think it becomes our stature in the public estimate as one House of the Parliament - and that, a House of review - to undertake the reconsideration of a vote on division deliberately recorded.
Senator Wade has taken the responsibility on himself of stating certain matters, for himself. There are other aspects that we have all observed but I, for myself, have heard nothing of the Australian Broadcasting Commission broadcast; I have heard nothing in the corridors from any one engaged in the division, who voted on the same side as I did, nor, for that matter on the opposite side, that would suggest he was in a state of confusion when he voted. What the expression, “ a state of confusion “ means, I do not know. Unless it is further explained I would understand it to mean that senators who voted misunderstood the actual intendment of the division. That division was taken on notice of my amendment, a copy of which was circulated to every member in the chamber some hours before the vote was taken. I am open to correction, but it was the day before yesterday or yesterday that it was circulated. But there was ample time for any senator to understand that simple amendment.
I do not regard it as a most important amendment; I am surprised that the Leader of the Government does. By comparison with other amendments, I regard it as quite trivial in importance. It is capable of being understood, I should think, by even the most confused of us. But for it to be seriously proposed as a matter proper for recommittal seems to me to detract from the prestige of this chamber to a degree which is most disappointing. I would hope that this purpose would be abandoned. I suppose it is useless to appeal to those high purposes but, for myself, I think it is a degradation of the chamber which will be very much regretted, particularly at this juncture of the chamber’s experience.
– I think I should state my ideas to the Senate on this matter. First of all, I feel certain that there is good reason to believe that on the particular vote in question a number of honorable senators cast their votes without fully realizing the intent of the particular division.
– How do you know?
– I do not propose to name them, but 1 have good reason to believe that that is so. It is quite true that Senator Wright did circulate notice of Lis amendment a long time before the division was taken. But a number of divisions took place on questions put in various forms - “ That the words proposed to be omitted be omitted “, “ That the clause stand as printed “, “ That the words proposed to be inserted be so inserted “ - and on this occasion some of the senators coming in to vote misunderstood the intention of the question before the Chair.
The vote was taken by honorable senators as individuals. On this particular bill they voted according to their conscience, and as no whip was applied on the other side of the chamber so no whip was applied on this. Indeed, as Senator McKenna pointed out, on both sides members of both ordinary parties sat side by side in division. But votes were cast by some individual senators who, I think, misunderstood the intent of the question. If they did, then it is not, I think, wrong that they should be given another chance to vote on this matter again entirely as individuals. On this question of recommittal no whip has been applied or will be applied so I do not see why it should be regarded as any great denigration of the Senate, or any great affront to the dignity of the Senate for the individuals comprising it to vote a second time on a question if there is good reason to believe that some honorable senators voted by mistake previously.
If it should turn out - as it might for all I know - that once more as individuals honorable senators reaffirm what they affirmed before, then the matter will be put entirely beyond doubt. If it should turn out that as individuals some honorable senators reverse what they did before, having a better understanding of the actual matter, then surely that would be a better expression of the will of the Senate than to let the matter stand as it does at the moment. A vote of individuals can determine the matter, and I do not think that it would hurt the Senate to have such a vote.
– If a similar incident to this occurred in any other parliament in Australia it would be regarded as the greatest piece of political humbug and Machiavellian chicanery that had ever been seen, I suppose it would be difficult for any honorable senator here to recall a similar incident taking place at the end of a session when a large number of honorable senators have left. It will be interesting to see just how many will vote if the clause is recommitted. Speaking from memory, I think 52 voted on this amendment to clause 21 when it was before the chamber. Many of those have left this evening because of commitments for the week-end, never anticipating an action of this kind by the Government.
It is quite evident that this measure was a Government measure and that it was conveyed to the Labour Party that it was a non-party measure. I have not heard the corridors ringing with sounds suggesting that the vote was taken in an atmosphere of confusion, but I have heard to-day - and Senator Wade must be one of the rare exceptions - that pressure has been put upon virtually every Government senator to fall into line. I have got that from members on the Government side-
– That is not true.
– Are you saying that I am a liar?
– Order! I ask honorable senators to allow Senator Dittmer to be heard in silence.
– I want to assure honorable senators that what I am saying is the truth. I repeat that I heard from individual senators that they had been approached. It has been quite evident, and I mentioned the matter earlier to-day, that pressure has been brought to bear on them. That was not my sole piece of evidence, but those were the direct words conveyed to me personally.
The point is that this is a great reflection on this chamber. After long discussion, a vote was taken on the amendment. It is now said that we adults were so confused that we could not vote as we wished on a simple measure. Is there any reason why the people of Australia should tolerate such unutterable stupidity on the part of 60 adults, ten of whom come from each State? The Government is making this place a laughing stock in the eyes of Australia. I know now why people are in favour of the abolition of the Senate. But for what might be the insular approach of some of the less populous States, this Senate could not possibly survive. This action is another nail in the coffin of the Senate, and it is a pretty big nail, too! 1 ask the Government, in all sincerity, to seriously consider the proposal to recommit this bill. I ask it to do so in the interests of the dignity of this chamber. Surely 52 people, as was the case, after considerable debate on a comparatively simple clause in a bill which contains 116 clauses, and which had been before the House of Representatives for five months, could cast their votes without any confusion. An Australian Broadcasting Commission reporter is alleged to have said that there was a measure of confusion when the vote was taken on the amendment.
– He may have been confused.
– I am not going to reflect on him, because I do not know. He is entitled to make a statement, but it seems a peculiarly weak reason to give to the Senate for the recommittal of this bill near the end of the session.
If it was known before tea-time that Government amendments would be withdrawn and held over, why could not this matter have been held over until we reassemble? Is it so important? Is it possible that some one’s dignity has been hurt by the acceptance of the amendment? Might that some one be the Prime Minister? Might it be the Attorney-General? Might it be that the whole Cabinet cannot bear the defeat when it realizes that it led others up the garden path, knowing what its own attitude was from the inception of the measure? lt shows that if there is any lack of responsibility, it is to be found in the Cabinet in suggesting that the bill be recommitted to enable us to reconsider a comparatively minor item near the end of the session. Is this a vital measure? The Government does not hesitate to spend large sums of money, yet it speaks in terms of the need to save the expense of summoning the Parliament to re-assemble to carry out what was the express wish of the committee of this Senate.
The Government has a colossal hide to suggest that this action be taken when many honorable senators are away. I am certain that the Government feels confident that it will carry this vote because it has, no doubt, counted heads, and it has an assurance from those honorable senators who have been contacted during the day. The clause is to be recommitted because the Government is now sure that it has the numbers.
Senator MATTNER (South Australia) [11.371. - Speaking to this motion to recommit the clause and on the vote that was taken on the amendment last night, I want to assure the Senate that I have not been approached by any one. I have listened carefully to the debate. I come from a rural area. I am not going to say what I first intended to say, but I am going to say that if we vote again we will be in effect condemning those members of the committee who voted last night. Those who voted last night should accept the consequences of that vote. Who am I to say that they did not vote according to their consciences? I oppose this motion for recommittal.
. This is the most astounding proposal thai I have ever heard in my experience in this Senate. It is perfectly obvious, Mr. President, that the Government has counted heads and I suggest has wheeled its members into line. Having counted heads it has decided to recommit this clause. If the Government is sincere it should also recommit a number of other clauses that came before the committee. Why pick out the only clause on which the Government was defeated? The Leader of the Government (Senator Spooner) had the temerity to say that the vote was taken in confusion, and for his authority he gives some vague information that is alleged to have come from an Australian Broadcasting Commission reporter. I thought he might have said that Somerville Smith told him. It would have been just as authentic as if it had come from Somerville Smith. I say to honorable senators to-night that if we are to maintain the dignity of this place, and maintain this place as a House of review, then we must vote against this motion for the recommittal of the bill. After all, as 1 have said before, this place is supposed to be a House of review. This defeated clause was discussed at great length and in great detail. There was quite a lot of argument on both sides in regard to it. How insincere it is of the Government now to re-introduce the only provision on which it has suffered defeat. It is recommitting the provision when quite a number of members of this House are absent. Those honorable senators are absent from the chamber because they fully believed that that particular matter had been finished with. Now, in their absence, we have the Government seeking an order for recommittal of the provision. It is perfectly obvious, therefore, that instead of this House acting as a House of review, it is acting under instructions from Sir Garfish Barwick.
– Of course it is! You cannot deny it. Sir Garfield Barwick is the author of the bill. Incidentally, it was only a slip of the tongue when I said Sir “ Garfish “ Barwick. In any case, I appeal to members of the Senate to realize that we have a responsibility to the Australian people. Are we discharging that responsibility if we countenance the recommittal, just because the vote went against the Government, of one provision among dozens? The Government has obviously counted heads and said to itself, “There are a few senators missing; we will re-commit the provision “. How can the Government claim in honesty that recommittal of the provision, when a number of the senators are absent, will produce, if the result of the re-committal is a reversal of the previous vote, a true reflection of the Senate’s opinion?
I appeal to every member of this chamber to realize our responsibilities and our obligations to the people of Australia. We have made a decision in regard to this provision, and I think we would be creating a very dangerous precedent if we acquiesced in its recommittal.
– T rise to intervene in the debate for the first time since the bill has been before the Senate. I find myself in strange company, almost agreeing with Senator Sandford. This bill has been hammered out on the anvil of public discussion, and now we are being asked by the Leader of the Government in the Senate (Senator Spooner) to recommit a sub-paragraph to which the committee of the Senate objected. The bill, in toto, has been before the public of Australia since’ April or May of this year. Its counterpart, the bill introduced by Mr. Joske - a cousin or relative of the bill we have before us - was before the Australian public some months before that.
The committee of the Senate debated the disputed sub-paragraph, and I would feel ashamed if I thought that any honorable senator, undisciplined by party, voted against his wishes on it. ‘ If we are to place ourselves in the situation that, a vote having, been taken and lost by one side or the other, the losers recommit the provision concerned and take another vote on it, then we are going to bring the Senate .into great disrepute. I will not support the recommittal of the sub-paragraph that we voted against.
The bells ring to summon honorable senators to the chamber, where they have an opportunity to listen, to the debate and be fully informed of what is at issue. If some honorable senators made a mistake in voting as they did, let those who espouse their cause be upstanding in the next Parliament and bring in a bill to amend the legislation.
I have come into the debate to inform the Senate that I will not support, and I hope that very few senators will support, the motion for recommittal. I have had many representations made to me by publicspirited people and various religious organizations and denominations. I have weighed them all in my mind, and I have studied the bill. I have supported the bill in every vote that has been taken in this chamber. I believe the bill is a step forward in social legislation in Australia, and we should all be grateful, as Australian citizens, to Mr. Joske in the first place, and Sir Garfield Barwick in the second place. However, I want it recorded in “ Hansard “ that, although I support the bill in its entirety, I do not believe it is right in any sense of the word to recommit a provision that the committee of the Senate opposed and defeated. So I shall be voting against the recommittal.
.- 1 desire to express my full support of the protest that a number of honorable senators have made against the procedure that is now proposed. I have been one of those who felt all along that the way in which we were called upon to deal with this bill was most unfair. The bill was produced to us in the last week of the session. It had been freely canvassed that the Par.’.I would rise yesterday or to-day. Many of us expressed the view that it was mpossible to deal with a bill of the mag.nitude and importance of this bill in such i short period. However, other people md other views. We were told that we had had the bill for months, and that we were well qualified to deal with it. When the “ Canberra Times “ suggested that we were not qualified to deal with it in such a short period, in such circumstances of haste, the “ Canberra Times “ was roundly rebuked in this chamber, and was informed that everything was to be done as it should be done. Now what do we find? Those who rebuked the “ Canberra Times “ tor suggesting that we were not qualified to deal with this bill in the way it should be dealt with are telling us to-night that when honorable senators voted on the subparagraph that it is desired to re-commit they were in a state of confusion and did not know what they were doing. So I think that the first procedure, before we vote on the motion for the re-committal, should be an apology to the “ Canberra Times “.
If some honorable senators voted upon some provisions in confusion, it is possible that others voted on other provisions in confusion. But are we to pick out one provision and say that honorable senators did not know what they were doing when they voted against it? There are many honorable senators here who have found what has happened in the last three or four days most exhausting. Despite everything that has been said in denial, it has been a case of legislation by exhaustion.
– You are spoiling your case.
– It is legislation by exhaustion on a bill of such importance, which deserves to be dealt with in a proper way. We were told two years ago that the programme would provide for a legislative session early in the year, for measures such as this, and the Budget session later. Now the position has changed, and this bill is presented to us, and we are told that it has to be dealt with in three or four days. I have remained in this chamber, just as tired as other honorable senators, because I have felt that it was necessary to do so. Now what do we find? Having dealt with the bill, we are asked to recommit some of the clauses, while there are other measures still waiting to be dealt with, one of them being the Superannuation Bill, on which I have received representations from a number of people, representations which I cannot deal with adequately in such circumstances as these.
This kind of procedure opens the door to all kinds of grave fears. Suppose a measure is before the Senate and members vote on it, and then, in the belief that there is nothing of importance left to be dealt with they leave the precincts of the chamber. There is then an opportunity for a count of heads, and for matters to be recommitted and decisions made contrary to the majority view.
I regret the whole procedure. I think it is unwise, undignified and uncalled for. If we are going to do things properly, let us meet next week. I am sincere in making that suggestion. Let us meet next week, and if it is felt that honorable senators have voted while in a state of confusion, let us recommit the whole bill and go through it all.
– Not on your life!
– The honorable senator says, “ Not on your life “, but is it not better to follow that procedure than to have the bill passed and a statement made that senators did not know what they were doing when they voted? When you have the numbers it is always possible to achieve a certain result, but there are occasions when you achieve more by not using the numbers. Firmness is laudable, but as I said earlier this week, firmness should not be mistaken for arrogance.
– 1 have not taken part in the debate on this bill, and, indeed, I would not have risen to speak now except that I feel compelled to say something about this motion for recommittal. Before I can do that, however, I want to refer to certain statements that have been made during the debate, to the effect that certain pressures have been brought to bear on senators on the Government side, to induce them to vote in a certain way. Senator Dittmer has twice referred to the presence on this side of the chamber of the Attorney-General, Sir Garfield Barwick, and has drawn from this the quite mischievous inference that the honorable gentleman has been using his influence to induce people to vote in a certain way. If one looks at the history of this bill, any one with a fair mind at all would have to acknowledge the fact that from the time the contents of the bill were made public the Attorney-General has expressed his willingness on all occasions to meet and speak to any one who wanted to see him. He has done so. He has not waited for people to come to him, but has gone from one end of Australia to the other, in order to meet people who wanted to make representations to him.
Is there anything sinister in the fact that a Minister who is responsible for a bill that is being considered in this chamber should come frequently to this side of the Senate, if for no other reason than to confer with the Minister who is handling the measure for him in the Senate, or, for that matter, to speak to my leader, or to me, if he wishes to do so? Is there any reason why that should not be done? The first thing t want to do is to give the lie direct to the statement made twice by Senator Dittmer that Sir Garfield Barwick has used any pressure at all on any senator in this chamber.
– I rise on a point of order, Mr. President. If the Minister is referring to my speech on this matter, I did not say-
– There is no point of order involved. If the honorable senator wishes to make a personal explanation later he may do so.
– The second matter to which I wish to refer is the charge made by Senator McManus that this has been a process of legislation by exhaustion, and that he has not found time to study this measure. If he has not found time to do so, I submit, with great respect to Senator McManus, whom I admire, that on this occasion he has not used his time well. This has been a matter of public interest for months. Even I, who have not said one word during this debate, have used the months since May to speak to people who might be interested, including judges of the various courts, marriage guidance counsellors and people who have been affected by divorce. I have tried to find out in this way what stand I should take. If it is suggested that because we sit tonight until 12 o’clock, and we sat last night until one o’clock, and on two previous occasions until midnight, we have followed a process of legislation by exhaustion, then 1 submit that the standard of attendance to be followed in this Senate is not one thai is followed in any other legislative chamber in the Commonwealth. To suggest thai sitting til! 12 o’clock imposes a strain is nothing more than an acknowledgment on the part of the person making the suggestion that he lacks the necessary stamina.
I wish now to speak to the motion for recommittal.
– I thought you might start on that finally.
– Well, the honorable senator would not deny me the opportunity of refuting the other suggestions that have been made. To get back to the motion for recommittal, let me say that, whether we like it or not, public statements are going to be made, and have already been made, that the clause in question was passed by the Senate last night by accident, because certain honorable senators were in some confusion and did not know the motion before the chamber. But let that ride for a moment. My concern in supporting this motion is that no criticism of this Senate shall be made in respect of this bill, arising out of a charge - erroneous, if you like - that honorable senators did not know what they were doing. The Senate is the master of its business. The Leader of the Senate has given the Senate the opportunity to say whether it wants the bill recommitted, and it is for the Senate to decide; To avoid any subsequent criticism of the Senate, I support the motion so that this matter can be put beyond any shadow of doubt.
Saturday, 28 November 1959
– For the same reason as the Minister for Shipping and Transport (Senator Paltridge) desires the Senate to prove that it knew what it was doing, I oppose the motion. I speak on this motion because only one or two senators have been in this chamber longer than I have. If the records are searched, no instance will be found of anything of a comparable nature to this proposal. This is not the first time during my term as a senator that I have heard the suggestion that votes were cast by mistake. Even when the majority has been such that there has been no doubt of the intention of the Senate, it has still been suggested that some votes were given by mistake. What is the issue that confronts us to-night? Is the fate of a government at stake? Has some great national problem arisen or is some catastrophe likely to occur in the very near future unless the Senate is given the opportunity to change its mind? If we had no other opportunity to discuss this matter, then I would say that it was of great importance that the Senate should indulge in this procedure.
One of the leading Sydney newspapers, the “ Sydney Morning Herald “, in a small paragraph drew attention to the fact that during the course of the discussion, a very minor amendment was made to the bill and that the Attorney-General (Sir Garfield Barwick) was most likely to accept the amendment. Are we to deprive the Attorney-General of the opportunity to decide whether he will accept this amendment? This measure must be returned to another place, and honorable members of that House have the right to decide whether the amendment is of such minor importance that it can be accepted. It is their prerogative, if they refuse to accept the amendment, to return the bill to the Senate, and we then will have an opportunity to deal with it. That, Mr. President, is the procedure that has been followed in this chamber in the years that I have been a senator. The Minister for Repatriation (Senator Sir Walter Cooper) is, I think, the only senator now in the chamber who has been here longer than I have, and I am sure that he would agree with what I have just said. We have a bicameral system in this Parliament, but what are we doing? What is this proposition that has been put forward by some Ministers, who feel that the Senate has suffered some indignity or who allege that we do not know what motion we are voting on?
Is it not right and just that, if that is to be the test, we should test it on equal grounds and give an opportunity to all honorable senators who were present here last night, no matter on which side they voted, to express their views? Are we to infer that possibly the honorable senators who are absent to-night because they had other engagements necessitating their presence over the week-end, are the honorable senators who were so confused that they did not know what they were voting on? Surely they are to be given the opportunity to prove whether they understood what they were voting on. If the test is whether we were doing the right thing, then all honorable senators should have the opportunity to vote on it.
I do not suggest that any one has brought pressure to bear on any senator here tonight. 1 heard it said in the chamber that the bill might be recommitted, and that has been spoken about throughout the day. We cannot help it if, because of the chatter, it is felt that pressure has been brought to bear. But I want to put this: Have honorable senators any reason to believe that the Minister in charge of the bill or honorable members in another place are not prepared to accept the amendment? This is a deplorable thing; this action has destroyed the whole concept of the way in which this measure was placed before the nation. We were told that this was to be a non-party bill, that we were all to have an opportunity to express our views and to vote accordingly. What has the Leader of the Senate (Senator Spooner) said to us to-night? The amendments that have been moved with the consent of the Government will be introduced some time next year when we assemble again. Yet this is said to be a non-party measure! The Government gives an assurance, but the decision of a responsible chamber is not to be accepted, and we are to take a vote in these adverse circumstances: Is it any wonder, Mr. President, that the Constitutional Review Committee has suggested that alterations should be made to this place? Is it any wonder that there is a growing feeling that this place has outlived its usefulness? I have been a very keen admirer of this chamber and I have felt that it has a part to play in the government of the country. A democratic chamber such as this, elected on a franchise such as that on which we are elected, has an important part to play. But, if this move is persisted in, it will be the most tragic thing ever to happen to the Senate. I make this appeal: No matter what our feelings may be in regard to this matter, if we want to change the decision that we have made, let us do it in a proper manner. Let this bill be returned to the House of Representatives next week. The members of the House of Representatives left here to-day knowing that they could be called together next week by telegram or by letter, and they were told by the Leader of the House to expect to be called back next Thursday. Let us return this measure to the House of Representatives as it stands. If that House does not want to accept the amendment, let it send the measure back to us, so that we can debate the matter when all senators are in attendance.
Some of us have not been here very long, and some, possibly, have not yet realized the part that this institution can play. I ask that we defeat this motion. Let the matter be dealt with through the channels that have been used over the years. Let us return the bill to the House of Representatives with amendments, and give that House an opportunity to accept or to reject our amendments. Do not, by agreeing to this motion, deprive the other House of this Parliament of the opportunity to say whether it accepts an amendment which has been made in this chamber. If we agree to the motion, we shall be depriving the popularly elected House, at it is termed, of its right, under the Constitution, to say whether or not it accepts an amendment made in this chamber. I ask honorable senators not to do something in a fit of pique that, later on, they will be sorry for. That is the appeal that I make to-night.
– Mr. President, I would like to say a few words before the question is put. I am not concerned about the Senate bringing the House of Representatives back next week or some time after that, if this motion is carried. I believe that in the vote that was taken last night, some of the votes cast were not in accordance with the consciences of the people who cast them.
– How do you know that?
– I saw what happened when the people concerned came into the chamber. Let us look at the record of what has happened in this Parliament since I came here in 1949. This is the first occasion for many years on which free, nonparty votes have been taken. Honorable senators, before casting their votes, had to make up their own minds on how they were going to vote. The first opportunity that was given to them to vote on this bill in committee was the division, fairly early in the evening, preceding the division we are discussing now. We went into committee at 9.3 p.m. last night.
– Mr. President, I wish to take a point of order, and I apologize to the honorable senator who is on his feet. I rely on Standing Order No. 415. I submit that the honorable senator is precluded from reflecting upon a vote of the Senate except for the purpose of moving that such vote be rescinded.
I have already submitted to you, Sir, that under Standing Order No. 134 a vote can be rescinded only on seven days’ notice. If you rule that the motion before us is not a motion for the rescission of a vote, I submit that the honorable senator is out of order in reflecting upon a vote of the Senate. There can be no greater reflection upon a vote of the Senate than to suggest that individual senators who participated in a division did not vote according to their consciences or did not vote according to an intelligent direction from their minds, which were subject to confusion.
As other honorable senators have said, such submissions are calculated to bring the chamber into great disrepute. They constitute a most serious reflection upon a vote of the Senate - as grave a reflection as if it were suggested that some senators participated through fraud, personal pecuniary interest or other vitiating circumstances of that sort. I ask the Chair to rule either that the motion before us is a motion for the rescission of a vote - in which case it will be taken into consideration after seven days’ notice - or that Standing Order No. 415 - which refers to a reflection upon a vote of the Senate - applies, and that consequently Senator Scott is out of order.
– Senator Wright, in your remarks concerning the requirement of seven days notice for consideration of a motion to rescind a vote, you relied on Standing Order No. 134. That Standing Order, of course, applies to the business of the Senate as a whole, and does not have any bearing on the work of the committee. Standing Order No. 415 states -
No Senator shall reflect upon any Vote of the Senate, except for the purpose of moving that such Vote be rescinded.
I rule that Senator Scott is in order.
The only other observation that I want to make is that the debate on this motion has ranged over the whole subject-matter of the bill. At times, I have found it very difficult indeed to decide whether what was being said was relevant to the matter being discussed. I have found it difficult to decide what was in order and what was not in order. It is for that reason that the debate has ranged fairly wide. You may proceed, Senator Scott.
– I thank you for your ruling, Mr. President. When Senator Wright raised the point of order, I was explaining that the vote in question was the second vote that was taken in committee. The first was taken at about 9.15 p.m. As you know, we have had a pretty heavy week considering this bill. When the division bells were rung on the relevant occasion, many honorable senators were having a cup of tea in the refreshment rooms. When they came into the chamber, they looked around in a quite confused manner. I was sitting here watching them. They were not certain as to the side of the chamber on which they should sit for the purposes of the division. The vote was a very close one.
– They did the same as they did in the other divisions.
– I do not think so. If you look at the records of the other divisions, you will see that there was quite a good majority in each case. On this occasion, one or two votes made all the difference. I do not think there was much confusion after that.
I rose to make it quite plain that on this occasion - the first occasion for ten years on which a non-party vote had been taken - there was room for quite a lot of confusion. Let us see whether we were confused or not. Only a vote will show the true position. I am not interested one way or the other, but I do believe that under the circumstances that exist with regard to this matter we should have a vote in order to find out where we stand. Then the matter will be decided once and for all.
Motion (by Senator Brown) agreed to -
That the question be now put
Question put -
That the bill be recommitted for the purpose of reconsidering clauses 21, 32a, 112 and the Third Schedule.
The Senate divided. (The President - Senator the Hon. Sir Alister McMullin.)
Majority . . . . 10
Question so resolved in the negative.
Motion (by Senator Gorton) agreed to -
That the report from the committee be adopted.
Motion (by Senator Gorton) proposed - That the bill be now read a third time.
– I do not know whether I will meet with the approval of the Senate, but I should like to pay a tribute to my colleague, Senator Gorton, for the way in which he has handled this legislation. The bill is what we might call very much a lawyer’s bill, and Senator Gorton is not a lawyer. He has had the task of being committed to argument with what in my humble opinion are some very able minds in this Senate. For a layman to come in and do the task as he has done it is something in which we can take a little bit of satisfaction.
. -I most heartily concur in what the Leader of the Government (Senator Spooner) has said. I join very heartily in saying to Senator Gorton, who has conducted his first major bill in this place, that he was an excellent example of patience, restraint and clarity. I thought he did exceedingly well and, speaking, if I may, in this non-party debate as Leader of the Opposition, I fear for the future. I join very cordially with the Leader of the Government in conveying felicitations and congratulations to the Minister.
– I should like to endorse the remarks of the former speakers with regard to the manner in which Senator Gorton handled this legislation. I am very sorry that he was so able, because I and my colleague are bitterly opposed to the bill. While congratulating Senator Gorton I would also like to congratulate Senator Hannan, Senator Wright and Senator Tangney.
– I should like to join in the congratulations that have been extended to Senator Gorton on his handling of this bill. I know that he feels much more at home in the Navy portfolio than he does in piloting divorce legislation through this Senate against the opposition of men like Senator Wright, Senator McKenna and other legal minds. For me the dominant factor in this debate was Senator Gorton’s courtesy. Several times I had occasion to seek information from him and his courtesy was unfailing. He was extremely patient and it was a pleasure to ask him a question. This is the first speech on the motion for the third reading of a bill that I have made in the three years 1 have been here. If I am permitted, Mr. President, I should like to pay a tribute to the legal acumen, the unquenchable thirst for justice and the iron constitution of Senator Wright. In the language of this bill, he has been a most effective de facto leader of the opposition.
I am sorry, after that, to have to say that I hope and pray that this bill will not do the damage which I believe it will do. In case I did not make my position clear during the earlier parts of the debate, I repeat that I am inflexibly opposed to the measure.
– I only wish to say that I have already acknowledged the great contribution to the bill of Sir Garfield Barwick and Senator Gorton. I trust that their great efforts are not misguided and that my opposition to them, purposeful and still pursuing, is mistaken. We have engaged in a contest, in a spirit that has not been destroyed by the contest’s decision.
– in reply - I wish to thank very much indeed those who have spoken, and to say that I shall be even happier to respond, in the appropriate way and in the appropriate place, after the bill has been read a third time.
Question resolved in the affirmative.
Bill read a third time.
Sitting suspended from 12.33 a.m. to 1.10 a.m. (Saturday).
– I move -
That the bill be now read a second time.
This bill concerns liability in respect of road accidents involving Commonwealth motor vehicles, whether being driven with or without authority. Its object is to accept on behalf of the Commonwealth the same liability for personal injuries caused by people who from time to time drive Commonwealth motor vehicles without proper authority as the Commonwealth has accepted since 1903 under Part IX. of the Judiciary Act in respect of injuries caused by the negligence of drivers properly authorized and driving in the course of their duty.
Under the common law, the Crown was not liable in law for damage caused by the negligence of its employees, negligence being a tort and the maxim being that the Crown could do no wrong. In 1903, the Commonwealth made itself liable to suit in contract or in tort by section 56 of the J Judiciary Act and section 64 of the act provided that the right of the parties in such a suit should be as nearly as possible the same as in a suit between subject and . subject. The Judiciary Act, therefore, made the Commonwealth liable for damage caused by the negligence of its drivers committed in the course of their employment. However, where injury was caused by the driver of a Commonwealth vehicle who was not authorized by the Commonwealth to drive the vehicle at the time the accident occurred - either because he was a Commonwealth driver using the vehicle for his own purposes, or because he was a person who had stolen the vehicle or was unlawfully using it - neither the common law nor the Judiciary Act made the Commonwealth liable in respect of the injury. The purpose of this bill is thus, in the words of the Prime Minister (Mr. Menzies), “ to make the Commonwealth liable to be ‘ sued for damages for death or injury caused to any person by a Commonwealth vehicle by whomsoever driven and whether with or without the authority of the Commonwealth “.
In the community generally the liability for personal injury caused by the negligent use of privately owned vehicles is provided for nowadays in all States by compulsory third-party insurance under individual State laws. The task which this bill accomplishes is to adjust that system of liability, on an Australia-wide basis, to the position of the Commonwealth as the owner of motor vehicles which for good and sufficient reasons are not brought under an insurance system.
Like the third-party insurance provisions in the States, the bill will not alter the common law position in respect of claims for damage to property, but will cover liability in respect of death or personal injury. As honorable senators are aware, a policy of third-party insurance is taken out by the owner of a motor vehicle so that, in the event of some other person being injured or killed through the negligent use. of that vehicle, money will be available under the policy to meet any judgment for damages that may be awarded in favour of the person injured or the representatives of the person killed. The primary purpose of making third-party insurance compulsory, of course, was to ensure that the lack of means of the owner would not defeat the legal claim of the injured party.
There was, however, also a secondary purpose in the State legislation, namely, to give an effective remedy where the injury was caused by the negligence of an unauthorized driver - by a thief or by a servant of the owner who was not using the vehicle in the course of his employment. To do this, it was necessary to ensure either that the unauthorized driver should be deemed to be the authorized agent of the owner, thus rendering the owner and his insurer answerable, or that the liability of the unauthorized driver himself, in an action against him for damages, would be met by third party insurance. The legislation of some States adopts both these courses. That of other States merely requires the policy of third-party insurance issued in respect of a motor vehicle to cover the liability of unauthorized drivers, in addition to thai of the owner or his agent.
For constitutional reasons, the States cannot impose their legislation on the Commonwealth, and in fact the Government of the Commonwealth is not legally obliged to insure its vehicles against third-party risks, nor does it, as a matter of policy, do so. It simply acts as its own insurer, and meets judgments for damages in respect of its vehicles out of general revenue.
In the Australian Capital Territory and the Northern Territory, legislation similar to that of the States has been introduced, under which the Government must either insure its vehicles or accept the obligations of an authorized insurer in respect of them. Elsewhere, the. Commonwealth is under no legal obligation to meet claims for injury caused by its vehicles when driven without authority.
The number of cases of injury caused by unauthorized drivers of Commonwealth vehicles is small, of course, compared with the number of cases arising from the use of vehicles driven in the ordinary course of employment, but the Commonwealth takes the view that a person injured by a Commonwealth vehicle, whether its use was authorized or not, should not be in a worse position than a person injured by a privately-owned vehicle. This bill is designed, therefore, to give a person injured by a Commonwealth vehicle being driven without authority the same right of action against the Commonwealth as he would have had if the vehicle had been driven by an agent of the Commonwealth acting within the scope of his authority. To this end, clause 5 of the bill provides, in effect, that in any proceedings against the Commonwealth for damages in respect of death or personal injury caused by a Commonwealth vehicle, the driver of the vehicle, whatever the circumstances under which he comes to be driving it, is conclusively presumed to be driving as the authorized agent of the Commonwealth. The Commonwealth will thus be liable to meet the damages awarded in any case of death or injury caused by its vehicle, by whomsoever driven, and a gap in the law relating to compensation for road injury will be closed. Clause 5 of the bill is designed to apply in respect of deaths and injuries caused by occurrences that took place after 8th September, 1958. It follows that the clause will apply to proceedings in respect of occurrences that took place on or after 9th September, 1958, the date of the statement by the Prime Minister from which I quoted earlier.
The bill makes various quite important incidental provisions. It will be seen that paragraph (b) of sub-clause (1.) of clause 5 speaks of a claim “ made by or against the Commonwealth or a Commonwealth authority for contribution …” The inclusion of this paragraph has two important consequences. In the first place, if a Commonwealth vehicle driven by an unauthorized driver comes, for example, into collision with another vehicle and a third party is injured partly as a result of the negligence of the unauthorized driver of the Commonwealth vehicle and partly as a result of the negligence of the other driver, the paragraph makes clear that the ordinary State laws relating to contribution between “ tortfeasors “ will apply. This will means that the Commonwealth will be able to claim contribution from the other negligent party, and on the other hand it will equally mean that that party, if he is the one sued, may claim contribution from the Commonwealth in respect of the negligent use of the Commonwealth vehicle.
In the second place, although the Commonwealth will be accepting the liability to pay damages to a person injured by the negligent use of a Commonwealth vehicle by an unauthorized driver, the paragraph makes clear that the Commonwealth will have the right to recover from the unauthorized driver the damages paid by it. In other words, the bill will give the injured person a ready meansof redress against the Commonwealth but the Commonwealth in its turn will have the right to try to recover from the driver who was driving without authority what it has paid to the injured party.
In submitting itself to the same liability with regard to injury caused by negligent driving of one of its vehicles as that to which other owners of motor vehicles are subjected, the Commonwealth will, under the bill, have the liability, whether for authorized or unauthorized use, assessed by a court in the same manner as the liability of any other litigant in a motor accident case would be assessed - that is to say, with or without a jury, depending on the requirements of the law of the particular State in which the liability arises. This is in accordance with the policy of the Commonwealth, embodied in the Judiciary Act since 1903, that in regard to its liability to be sued in contract or in tort the Commonwealth is to be as nearly as possible in the same position, before the court, as the litigant would be in a suit between subject and subject.
The provisions of the bill apply to Commonwealth authorities and their vehicles in the same way that they apply to the Commonwealth and its vehicles. In a case in which a Commonwealth authority is not covered by the State compulsory third party insurance system, it will be covered by this bill. The act will apply throughout “the
Commonwealth and the Territories of the Commonwealth.
I commend the bill to honorable senators.
Debate (on motion by Senator McKenna) 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.
As was explained in the recent Budget speech, the Government is budgeting this financial year for an overall cash deficiency of £61,000,000. That is to say, total receipts of the Commonwealth from revenue, public borrowings and other usual sources are expected to fall short of total expenditure commitments by £61,000,000. The intention is to finance this deficit by borrowing from the central bank. In this bill the authority of Parliament is sought to make the borrowing of £61,000,000 required to meet the estimated deficit, and to expend the proceeds of the borrowing.
The manner in which the proceeds of the borrowing will be applied was explained in the Budget speech and in statements 2 and 4 attached to the speech. They will be used to finance expenditure on defence services to the extent of £37,000,000 and to finance redemption of maturing securities to the extent of £24,000,000. The maturing securities, redemptions of which are to be financed from the proceeds of the borrowing, are Commonwealth securities that were issued for war purposes. The borrowing, therefore, is to be wholly for defence purposes of the Commonwealth.
Total expenditure on defence services in 1959-60 is estimated at £192,800,000. Details of this estimated expenditure are set out in Part 1 of the second schedule to the Appropriation Bill 1959. Of the total estimated expenditure of £192,800,000, an amount estimated at £37,000,000 is to be charged to Loan Fund where it will be financed from the funds raised under the authority of this bill. A similar procedure of charging part of defence expenditure to Loan Fund was followed last year and in some of the war and early post-war years, when total estimated receipts were inadequate to meet total estimated expenditure.
It is estimated that, in addition to utilizing the current receipts of the National Debt Sinking Fund, it will be necessary to call on the balances in that fund and in the Loan Consolidation and Investment Reserve to the extent of £24,000,000 to finance redemptions of Commonwealth securities issued for war purposes. As these balances are invested, it will be necessary to realize some of the investments of these funds. The borrowing of £24,000,000 for redemptions would provide cash to enable this realization of investments to be made.
I commend the bill to honorable senators.
Debate (on motion by Senator McKenna) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Spooner) read a first time.
– I move -
That the bill be now read a second time.
This bill proposes that two amendments be made to the act under which the Export Payments Insurance Corporation was set up in 1957. The corporation was established to provide Australian exporters with a means for insurance against various risks of loss not insurable through commercial insurance organizations. This has given Australian exporters the same sort of facility which is available to exporters in many other countries. The corporation is charged to operate on a “ non-profit, non-loss “ basis.
The bill proposes, first, that the Export Payments Insurance Corporation be authorized to provide, in certain circumstances, a higher percentage cover than the existing maximum of 85 per cent, and secondly, that the corporation be permitted access to the recently established short-term money market to enable it to make maximum use of its investible funds.
Its operations to date have fully justified its establishment. Policies to a value of over £40,000,000 have been issued and as at 30th June, 1959, the total value of the policies current was in excess of £21,000,000. This is clear evidence of the important role it has assumed in relation to the expansion of Australian exports.
At the present time the corporation is authorized under section 16 of the act to grant cover up to 85 per cent, of a loss. This maximum applies regardless of the nature of the cause of the loss. It is proposed that, for the so-called “ commercial “ risks of insolvency and the failure of a solvent buyer to pay through protracted default, the maximum cover which the corporation is authorized to grant should remain at 85 per cent. In this respect the Government is following established overseas practice, which is based on the view that to insure an exporter above this limit against these types of risks could result in his being less than prudent in transactions involving risks of this type.
However, for all other risks insured by the corporation - and these can be broadly termed “ political “ risks - it is clear that the Australian exporter can do little to minimize or avert losses which result from such causes. Examples of “ political “ risks are exchange transfer blockages, the imposition of new or varied import restrictions, wars and revolutions. For these types of risks the Government is proposing that the maximum permissible cover be increased to 90 per cent, in the preshipment period and 95 per cent, in the postshipment period, in the case of contracts relating to the sale and export of goods.
The reason for these two different percentages is that in the pre-shipment period the exporter is in a position to ensure that shipment takes place and all conditions are complied with by the importer.
By bearing a minimum of 10 per cent, of any possible loss himself, the exporter has the necessary inducement to conduct his transactions on sound business lines. Moreover, in the event of the frustration of the contract before shipment of the goods, as a result of the occurrence of one of the causes of loss covered, he still has possession of the goods and is in a better position to minimize the loss likely to be sustained. These conditions naturally have less relevance after the goods have been shipped and the exporter has lost physical, and perhaps also legal, control over the goods.
The proposal that the corporation should be able to offer higher cover, up to the limits I have mentioned, in the case of “ political “ risks is in accord with the recommendation of the consultative council of the Export Payments Insurance Corporation. That body, consisting of eight prominent business people and two senior government officials, was set up to advise the Government on all aspects of the operation of the corporation. The Export Development Council, which was created to advise the Government on matters relating to exports, and other industry organizations, also recommended that the existing maximum percentage cover be increased.
The bill recognizes that the concept of “ commercial “ risks is inappropriate where the buyer is a governmental one, or where a buyer is backed by a government guarantee. In such cases it would be impracticable for the corporation to determine in any particular case whether the failure or refusal of the Government buyer to pay was due to bad faith or whether it was really due to some Government action, or decision, or influence, which might not be made apparent. Accordingly, it is proposed to treat all risks associated with this type of buyer as “ political “ risks. In this we would be following the same practice as the United Kingdom Export Credits Guarantee Department.
The bill also provides that where the corporation’s policies do not relate to the sale and export of goods the maximum cover shall be 85 per cent, in the case of “ commercial “ risks and 95 per cent, in the case of other, that is, “ political “ risks.
These maxima will apply where the corporation issues stockholding, processing and servicing guarantees. In the first two of these types of guarantees, the corporation does not assume liability until after the goods are landed in the overseas country where the goods are to be processed or held in stock. Under its “ services “ guarantees the corporation insures Australian firms in respect of payments due under such arrangements as royalty, copyright and patent agreements, and also payments due in respect of technical services or for the construction of projects overseas. I emphasize that all of the percentages of cover which I have mentioned are maximum permissible limits. The corporation will continue to decide on the merits of each proposal submitted to it what percentage cover it should grant, within the maximum limits stipulated.
The second amendment proposes that the corporation be given greater investment flexibility by enabling it to invest temporarily surplus funds on the short-term market. Under the act as it stands, the corporation already has certain powers for the investment of such moneys, but they are limited to investments in the securities of the Commonwealth or else on fixed deposit with the Commonwealth Bank or with any other bank approved by the Treasurer. However, because of the nature of its business, the corporation will on occasions have funds on hand, whether from the proceeds of maturing securities, from recoveries or otherwise, which will not be required immediately for the settlement of claims but which will be required in a relatively short period of time.
As the minimum period for fixed deposits with a bank is three months, and as it may not be possible to satisfactorily invest in Commonwealth securities for extremely short periods, the corporation could be in the position where it could have investible funds lying idle. To overcome this difficulty it is proposed to give the corporation the right of access to the recently established short-term money market.
The bill empowers the Treasurer to determine both the persons to whom the corporation may lend and also the conditions under which such loans may be made, provided always that the loans are made upon the security of securities of the Commonwealth. The Treasurer proposes, upon the passage of this bill, to give approval for the Export Payments Insurance Corpora: tion to lend to dealers on the short-term money market approved by the Commonwealth Bank, such loans to be against Commonwealth securities with not more than three years to maturity.
I commend the bill to the Senate, and in doing so, I emphasize again the important role of the corporation in providing Australian exporters with facilities that materially assist them in the highly competitive field of international trade.
Debate (on motion by Senator McKenna) adjourned.
Motion (by Senator Spooner) agreed to - -
That the Senate, at its rising, adjourn till this day at 9.30 a.m.
Motion (by Senator Spooner) proposed -
That the Senate do now adjourn.
– I regret that at this late hour I have to raise a matter of urgency in the Senate. I had delivered to me this afternoon an urgent telegram from the annual conference of the Amalgamated Postal Workers Union which represents many thousands of workers in Australia. The union is now holding its annual conference in Sydney and it has asked me to raise in the Senate the matter of the attitude of the Public Service Board to some members of this organization. The union informs me that the board, in a letter dated 26th November, has stated that it proposes to reduce the commencing rates for Mail Officers, Postal Officers, Postal Assistants (Mail) and Assistant Storemen by £24 per annum in Western Australia and South Australia as from 1st July, 1960. The union points out to me that this action of the Public Service Board is undoubtedly an attempt to anticipate the decision of the Commonwealth Industrial Commissioners in the metal trades margins case. The organization states, further, that this is an indication of the Government’s attitude towards a deteriorating economic situation in that it is taking advantage of a downward trend so far as the employment position is concerned. I am asked to raise this matter in the Senate, and to ask the Minister for Repatriation (Senator Sir Walter Cooper), who represents the Postmaster-General (Mr. Davidson) in this chamber, to give close attention to the matter with a view to correcting the position.
We have learnt to-day of the upward trend of wages as the result of the decision on margins in the metal trades case. The increase of the margin has been declared at 35s. a week. We know, and the Minister knows, that the recruitment of young men to fill the positions I have mentioned at a margin of £24 above the minimum grade that is applicable, was undertaken by the Public Service Board because it was unable to recruit labour at the lower rate. It satisfied the union, after some discussion, for a time that the board should recruit these young men at a rate of £24 above the minimum rate, but the recruitment position in Western Australia and South Australia is easy and the board has reduced the rates in respect of the recruitment of this type of worker in those two States. The economic condition in the other States was so good that the board could not recruit staff at this wage, and the rates have remained the same in those States.
I respectfully ask the Minister representing the Postmaster-General, and the Government, to give reasonable consideration to the submissions of the union that in view of the upward trend of wages as declared by an industrial tribunal, of 35s. a week in the margins in the metal trades they should not make it possible or permissible for the Public Service Board, which has been recruiting labour at the advanced rate on the minimum, to take advantage of the position, in States in which the employment position has become easier, to reduce the margins in those States whilst the higher rates are paid in the other four States.
[1.38 a.m.]. - I will see that the honorable senator’s representations are placed before the Postmaster-General (Mr. Davidson) as early as possible.
– I wish to rectify an error that has occurred in “ Hansard “ at page 1918 in the record of a division. The name of Senator McKellar was omitted from the “Ayes” although he was in fact voting in the division. The voting was not close and the omission of his name made no difference whatsoever to the result. I formally ask that the Journals of the Senate for yesterday be amended and that the weekly number or bound volume of “ Hansard “ record the name of Senator McKellar as having voted in the division. I have already mentioned the matter to “ Hansard “ and I seek the approval of Mr. President for the adoption of this course.
The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid). - Approval is given.
Question resolved in the affirmative.
Senate adjourned at 1.40 a.m. (Saturday).
Cite as: Australia, Senate, Debates, 27 November 1959, viewed 22 October 2017, <http://historichansard.net/senate/1959/19591127_senate_23_s16/>.