Senate
29 October 1974

29th Parliament · 1st Session

  1. Senate
  2. 29th Parliament
  3. 1974

The PRESIDENT (Senator the Hon. Justin O’Byrne) took the chair at 11 a.m., and read prayers.

page 2017

PETITIONS

Family Law Bill: Divorce

Senator MURPHY:
Attorney-General · NEW SOUTH WALES · ALP

– I present the following petition from 40 citizens of the Commonwealth:

To the Honourable the President and members of the Senate in Parliament assembled. We the undersigned citizens of the Commonwealth, by this our humble petition respectfully showeth:

That the existing matrimonial laws in Australia are archaic, unrealistic, and cruel and so completely at variance with modern thought as to require their immediate repeal.

That there is such urgent need for reform that there must be no delay in presenting the Family Law Bill 1974 to Parliament for debate.

That the ground of irretrievable breakdown of Marriage be the sole ground for divorce with proof of this determined by a maximum of twelve months separation.

That dissolution of marriage must come out of the legal system with people resolving their family matters between themselves according to guidelines and with assistance of a mediator. Family Courts only to be used for enforcement as a last resort.

And your petitioners as in duty bound will ever pray.

Petition received and read.

Family Law Bill: Divorce

Senator CARRICK:
NEW SOUTH WALES

– I present a petition from 40 citizens of the Commonwealth:

To the Honourable the President and members of the Senate in Parliament assembled. We the undersigned citizens of the Commonwealth, by this our humble petition respectfully showeth:

That the existing matrimonial laws in Australia are archaic, unrealistic, and cruel and so completely at variance with modern thought as to require their immediate repeal.

That there is such urgent need for reform that there must be no delay in presenting the Family Law Bill 1974 to Parliament for debate.

That the ground of irretrievable breakdown of Marriage be the sole ground for divorce with proof of this determined by a maximum of twelve months separation.

That dissolution of marriage must come out of the legal system with people resolving their family matters between themselves according to guidelines and with assistance of a mediator. Family Courts only to be used for enforcement as a last resort.

And your petitioners as in duty bound will ever pray.

Petition received.

Family Law Bill: Divorce

Senator GREENWOOD:
VICTORIA

– I present the following petition from 169 citizens of the Commonwealth:

To the Honourable the President and members of the Senate in Parliament assembled. The humble petition of the undersigned citizens of the Commonwealth respectfully showeth:

Irretrievable breakdown of marriage as the sole ground for divorce, as set down in the Family Law Bill 1974 based on one years separation.

Maintenance to be based on the needs of all the parties in a failed marriage. Effective automatic permanent entitlement to an ex-wife to be abolished.

Emphasis to be placed on rehabilitation and retraining of estranged wives to enable them to be independent.

Custody to be awarded in disputed cases on the basis of a qualified panel recommendation and to only take into account the material, moral and psychological well being of children involved, not the possessive demands of their parents.

Matrimonial property to be divided equally, taking into account initial contributions.

Costs of matrimonial proceedings to be divided equally.

And your petitioners as in duty bound will ever pray.

Petition received.

Family Law Bill: Divorce

Senator MELZER:
VICTORIA

– I present the following petition from 1 5 citizens of the Commonwealth:

To the Honourable the President and members of the Senate in Parliament assembled. The humble petition of the undersigned citizens of the Commonwealth respectfully showeth:

We support the introduction of Family Courts and the single non-fault ground for divorce based on 12 months separation.

We also support the change in maintenance provisions to end the subsidy for life system and to base maintenance on the real needs of all parties involved. Your Petitioners most humbly pray that the Senate, in Parliament assembled, should not delay the Family Law Bill.

And your petitioners as in duty bound will ever pray.

Petition received and read.

Family Law Bill

Senator GREENWOOD:

– I present the following petition from 17 citizens of the Commonwealth:

To the honourable the President and Members of the Senate of Australia in Parliament assembled. The humble petition of the undersigned citizens of the Commonwealth respectfully showeth:

. That we have examined the Family Law Bill and substantially support the provisions therein.

That the Family Law Bill takes into account the changing roles of women in modern society.

That the amendment to the bill recommended by the Constitutional and Legal Affairs Committee will ensure that the rights of women who play the traditional role in society will be protected, as will the interests of the children.

Your petitioners therefore humbly pray that the Family Law Bill be debated and passed as soon as possible.

And your petitioners as in duty bound will ever pray.

Petition received.

Family Law Bill

Senator GREENWOOD:

– I present the following petition from 153 citizens of the Commonwealth:

To the honourable the President and members of the Senate in Parliament assembled. The humble petition of the undersigned citizens of the Commonwealth respectfully showeth:

We deplore the tactics of the opponents of the Family Law Bill in seeking further delays for its implementation. The Community has had more than adequate opportunity to examine its contents and implications.

And your petitioners as in duty bound will ever pray.

Petition received and read.

Family Law Bill

To the honourable the President and members of the Senate of Australia in Parliament assembled: The humble petition of the undersigned citizens of Australia respectfully showeth:

That, in modern society which accepts divorce, the law of divorce should be fair to both parties. However, we are very concerned about proposals to alter the law in the Family Law Bill 1974.

The Family Law Bill 1974 would fundamentally change the institution of marriage itself; that is all existing and future marriages.

The said Bill does not protect the legal and social rights of women and children in the family.

The said Bill does not provide for either the training of suitable counsellors who can assist in conciliation procedures or for suitable initiatives to be taken prior to the breakdown of marriage.

Your petitioners therefore humbly pray that this Bill be tabled for six months and that all sections of the community be consulted on marriage, the family and the long term effects of such a Bill upon our Australian society.

And your petitioners as in duty bound will ever pray.

Petition received and read.

page 2018

QUESTION

QUESTIONS WITHOUT NOTICE

page 2018

QUESTION

GOVERNMENT RELATIONS WITH TRADE UNIONS

Senator WITHERS:
WESTERN AUSTRALIA

-My question is directed to the Leader of the Government in the Senate. It is prompted by statements of disenchantment with the Labor Government which were made by union leaders at the weekend, specifically by the Federal Secretary of the Waterside Workers Federation of Australia, Mr Fitzgibbon, who said that industrial relations in Australia were in a mess, and by the National Secretary of the Clothing and Allied Trades Union of Australia, Mr Peterson, who urged the Government to get off its backside and do something to alleviate the hardship that its policies are causing Australian workers.

Senator Mulvihill:

– That is not a very nice expression.

Senator WITHERS:

-Those are Mr Peterson’s remarks. When will this Government which promised the Australian people industrial stability and good government-union relations, act to stop this polarisation of government and the Australian worker? When will it announce what action is to be taken to alleviate both unemployment and raging inflation?

Senator MURPHY:
ALP

-A great deal is being done by the Government and announcements are being made from time to time of the measures which the Government is taking to deal with unemployment. The Leader of the Opposition speaks of industrial instability and unemployment. He well knows that Australia has a high degree of employment. Judged by international standards there is very little unemployment in Australia. The Government stands for full employment and is taking every measure it can to cope with the problems which are being created in Australia mostly as part of the world wide phenomenon of inflation. I think the Government will be successful in containing unemployment and in reducing it. All we ask for is some co-operation from those opposite. If they want peace in industry and good industrial relations, one of the things that the Leader of the Opposition in the Senate ought to do is endeavour to persuade his colleagues not to frustrate legislation

Senator Withers:

– What legislation?

Senator MURPHY:

-Legislation such as the Government’s legislation to reduce the number of trade unions in order to avoid demarcation disputes and unnecessary industrial disputation. If the Leader of the Opposition in the Senate and his colleagues played a more constructive role in this Parliament this would serve as an example to industry and the community to assist the Government in carrying us through a period which is difficult world wide. In view of the way in which Australia is being governed and the prosperity in Australia judged by world standards, most people in the world would agree that Australia is doing very well indeed.

page 2018

QUESTION

DUTY FREE IMPORTS

Senator POYSER:
VICTORIA

– My question is directed to the Minister for Customs and Excise. In view of the fact that Australian manufacturers now appear to be in a better position to meet Australian requirements for many commodities, can the Minister advise whether this has had any material effect on the policy of by-law entry of goods which is administered by the Department of Customs and Excise.

Senator MURPHY:
ALP

– In replying to previous questions I mentioned that many commodities were in short supply in Australia and that duty free admission was being granted through the by-law system to a large range of imported goods to meet demand that could not be satisfied from Australian production. This is a correct use of the by-law system in that it allows industry to import essential goods whilst at the same time providing an opportunity for manufacturers and importers to keep down costs and prices. Nevertheless, I stress that the by-law system should not be applied so as to deprive local industry of the tariff protection that has been given to it or of the opportunity to compete for business.

The Government recognises that changing economic conditions have created an irregular impact on certain sectors of industry. Whereas many materials had been approved for by-law admission on a shortfall basis, local producers are now, in the main, capable of meeting normal Australian demand and most of these by-laws have been terminated or are being phased out. Similarly, the Department of Customs and Excise will now look carefully at the need for concessional admission of goods of a nonessential nature. Where alternatives are available this will be taken into consideration in determining applications and the need to retain many existing by-law references for un-essential goods. This could be particularly evident in the area of importation of complete consumer goods and production in sensitive employment areas. This change of direction will not apply to the by-law admission of raw materials, components and capital equipment. The current by-law treatment will continue and these goods will continue to be duty free provided this does not result in detriment to other Australian industries. This concession should materially assist manufacturing industry.

Senator Sir Magnus Cormack:

– I rise to order. Question time is a time for honourable senators to ask Ministers questions and obtain information relating to them. The notice paper provides that each day at a certain period subsequent to question time Ministers may make statements by leave of the Senate. I suggest that this is an occasion when a question was asked which was manifestly not without notice and the matter should have been dealt with by ministerial statement.

The PRESIDENT:

– It has been a long standing practice in this Senate for honourable senators to ask questions of Ministers and for Ministers to use discretion in their replies. I intend to continue to follow that precedent.

Senator Sir Magnus Cormack:

– May I further address myself to the point of order? In the future will you discharge from the notice paper, Business of the Senate, item 6- Ministerial Statement by leave?

The PRESIDENT:

– I shall give consideration to that at some later date.

page 2019

QUESTION

TAXATION OF GIFTS TO SCHOOL BUILDING FUNDS

Senator GUILFOYLE:
VICTORIA

– I direct a question to the Minister representing the Minister for Education. I refer to a report in the ‘Australian’ of 25 October which suggests that the removal of taxation concessions for gifts to independent school building funds is under consideration. Is the Minister able to offer an assurance that there is no foundation for the report? Does the Government understand the very damaging effect on the building programs of the non-government schools which would result from such a proposal?

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

– I have not seen the report but I will take up the matter with my colleague the Minister for Education and obtain a reply for the honourable senator.

page 2019

QUESTION

MULTI-NATIONAL CORPORATIONS

Senator MCAULIFFE:
QUEENSLAND

– Does the AttorneyGeneral appreciate that governments can gain considerable control over multi-national corporations simply by legislating on the duties and responsibilities of company directors? Does he envisage future legislation which would define the duties and responsibilities of directors and thus give more Australian influence on the behaviour of multi-national corporations?

Senator MURPHY:
ALP

-In reply to the first part of the question, yes, I am aware of it. As to the second part of the question regarding whether such legislation is envisaged, I have no doubt that such legislation will emerge all over the world. Experts in the field of multi-national corporations are coming around to the viewpoint that it is possible, desirable and indeed necessary that governments have more say in the operations of the multi-nationals and that the only effective way for this to be done is by dealing with the duties of directors. Indeed it has been suggested that the only effective way is to provide that governments have directors on the boards of those multi-national corporations. I think that certainly legislation around the world -and no doubt in Australia also- will move in that direction.

page 2020

QUESTION

WAGE RESTRAINT

Senator GREENWOOD:

-My question is directed to the Leader of the Government in the Senate representing the Prime Minister. Did not the Prime Minister while overseas recently state that he was able to get through Cabinet or Caucus anything he set his heart on? Is it not a fact that the Prime Minister expressed a desire to seek wage restraint by opposing the current Public Service application for an approximate 30 per cent wage increase? If so, has the Prime Minister failed to achieve what he set his heart on or is it a fact that he did not really set his heart on wage restraint? When may the Australian people expect from their Prime Minister performance in accordance with his commitment?

Senator MURPHY:
ALP

-This is a welcome change. I am used to the Deputy Leader of the Opposition accusing the Prime Minister of having no heart at all. At least he recognises that the Prime Minister has a heart. Really the question of what wages ought to be paid is one for the arbitral tribunals and it falls within the ministerial responsibility of the Minister for Labor and Immigration. The Deputy Leader of the Opposition would know that if any proposition were to be put it would come from the responsible Minister. I think the matter ought to be left to the arbitral tribunals in the sense that this chamber ought not to be discussing what those tribunals do. I well remember that when the Deputy Leader of the Opposition was in government his colleagues took the view that it was not right for this Parliament to discuss the merits of wage claims which were to come before arbitral tribunals. We have set up a system of arbitration and, largely, that has been allowed to act independently- and properly so. I know that only a few months ago the Opposition took action which showed its contempt for arbitration in that when an arbitrator determined salaries for statutory officers and members of Parliament the Opposition moved to overturn that arbitration as one of its many-sided attacks upon the arbitration system. The Deputy Leader of the Opposition would be well advised to leave the matters of wage claims and whether governments intervene in them to those who are responsible for such matters.

page 2020

QUESTION

BROADCASTS FOR ABORIGINES

Senator McLAREN:
SOUTH AUSTRALIA

– I direct my question to the Minister for the Media. Did the Minister, on a recent visit to the Northern Territory, say that he would like to see a program broadcast by the Australian Broadcasting Commission to cater for the needs of the Australian Aborigines in the Northern Territory? Has the Minister discussed this matter with his colleague the Minister for Aboriginal Affairs and with the Australian Broadcasting Commission? If so, will the Minister say what progress has been made to date in the provision of a program of this nature?

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

– It is true that recently, on a visit to the Northern Territory, I was asked what sort of programming I would like to see, if it were at all possible, for the Aboriginal section of the Australian community in the Northern Territory. I mentioned that I was having discussions with the Australian Broadcasting Commission on my visit there, as a result of representations which had been made to me by my colleague the Minister for Aboriginal Affairs and his Department, towards obtaining some program outlet for Aboriginal people on the Australian Broadcasting Commission. I discussed the matter with regional officers of the ABC in the Northern Territory and, subsequently, with the then Acting General Manager of the Commission, Dr Semmler, and, since his return to Australia, with the General Manager of the ABC, Mr Duckmanton. I am now given to understand that the Australian Broadcasting Commission is proposing to arrange for some sort of a program on radio in the Northern Territory for the Aboriginal community. There is a problem of quite some magnitude because I am given to understand that there are about 138 different Aboriginal dialects throughout the Northern Territory. But, in short, the ABC is holding discussions with the Department of Aboriginal Affairs on the matter. I understand that a suitable arrangement is likely to be made in the near future.

page 2020

QUESTION

SUPERPHOSPHATE BOUNTY

Senator YOUNG:
SOUTH AUSTRALIA

– Is the Minister for Agriculture aware that since he last answered me on the matter of superphosphate bounty, chemical workers in the industry have received a 20 per cent wage increase, the metal trades unions have applied for a 10 per cent wage increase, the price of rock phosphate has further increased by 32 per cent to 35 per cent, there has been the effect of the 12 per cent devaluation and the price of sulphur is expected to increase early in 1975? Is the Minister also aware that these increased costs will raise the price of superphosphate by at least $8-odd per tonne to a maximum of $40-odd per tonne? I am talking of the 1975 anticipated costs. In the light of these factors, will the Minister give consideration to introducing some form of bounty for superphosphate to assist and encourage increased production in the rural industry? Will he make an early statement on the matter to clarify the situation? If not, how does the Government align itself with its present policy of support for the Food and Agriculture Organisation in order to increase food production and to help feed the starving millions in the world today?

Senator WRIEDT:
Minister for Agriculture · TASMANIA · ALP

– Last week Senator Young asked me a question along lines which sought the Government’s agreement to extending the payment of the superphosphate bounty to 30 June next year. He suggested not that we increase the actual amount of money being paid but that the amount remaining to be paid be extended over those additional months. I indicated to him last week that despite the fact that the initial proposition did appear to have merit, on investigation through my department and the Bureau of Agricultural Economics, we found that the benefits which would flow from such a proposition would be minimal and, spread over the totality of the Austraiian farming community, would average approximately 3 tonnes for the remaining part of the year. For that reason and in view of the very great administrative work that would be involved such action did not appear to be warranted. It is true that the price of phosphate will increase. The wage claims to which the honourable senator has referred are not in my sphere of responsibility. No doubt those matters were settled under the proper arbitration procedures. He asked me how the Government justifies its position at the forthcoming world food conference without supporting the price of phosphate.

Senator Young:

– I said a support system.

Senator WRIEDT:

– A support system to subsidise it, in effect. I have stated on many occasions that the real incentive to the farmer is the price that he will get finally. When we are talking about the world food conference we are talking about wheat particularly and the great responsibility on this country to maximise its wheat crop, especially next year when the real pinch almost certainly will come. The greatest incentives to the farmer to maximise that production are, as I am sure Senator Young will agree, the level of the first advance and the removal of restrictions on his plantings early next year. I believe these are much more effective ways of getting maximum production.

Senator Durack:

– Without super?

Senator WRIEDT:

-Without super; that is right.

Senator Withers:

– They can use mulch.

Senator WRIEDT:

-If Senator Withers is such an authority in this area perhaps he would like to write a paper and countermand the fairly competent economists available to the Government who can disprove what he has just said and endorse what I have just said. It is true that next year especially there will be an increase in the price of phosphate occasioned by the world demand for it, in exactly the same way as there will be increasing prices for wheat occasioned by the world demand for that commodity. If we operate in a free market society we must take the bad with the good. Our greatest safeguard for the future of phosphate and the protection of our agricultural production is through the development of our own phosphate deposits. That is where the answer lies, not in the payment of a bounty. This Government, in conjunction with Broken Hill South Ltd in Queensland, is taking every step it can to accelerate the production of that phosphate. The first of it will be available next year. If we put our efforts to maximising that production to protect the Australian farmer from the world price for phosphate rock we will be doing more to increase his efficiency and protect him from the world market than we will by paying phosphate bounties now.

page 2021

QUESTION

CONSTITUTION CONVENTION

Senator MILLINER:
QUEENSLAND

– I direct a question to the Leader of the Government in the Senate in his capacity as Attorney-General. Has the Minister’s attention been drawn to reported remarks of the Deputy Leader of the Opposition in the Senate that the Prime Minister, in a fit of arrogant pique, had decided to boycott the Constitution Convention and that the Government’s insistence that Senator Hall should be represented at the Convention was totally unreasonable? Is it a fact that when the Constitution Convention was held in 1973 there were 8 Government representatives and 8 representatives agreed to between Opposition parties? Was there included in the 8 Opposition representatives representation’ from the Australian Democratic Labor Party? Are we to assume from this arrangement that Senator Greenwood was prepared to accept a representative of the DLP as being entitled to be in attendance at the Constitutional Convention but is not prepared to give like representation to Senator Hall, who is a selfprofessed Liberal?

Senator MURPHY:
ALP

– The fair assumption which I am asked to make- and no doubt the whole of the country would make it- is that in some way his Liberal colleague is anathema to Senator Greenwood. But regardless of the petty attitude of the Opposition in this chamber, which is prepared to wreck the Constitutional Convention rather than have Senator Hall attend in the place of the former Australian Democratic Labor Party representatives who mercifully are no longer represented here, it appears that the Convention could not be held in any event. I am informed that the South Australian AttorneyGeneral, who was to preside over at least the executive session, announced last night not only that he was aware of what was happening in the Australian Parliament and of the breakdown because of the Opposition’s attitude here, but also that he had been informed by the Premier of Queensland that there could be no delegation from Queensland due to the dissolution of the Queensland Parliament preparatory to the State election to be held there in December. So it appears that between them the Liberal and Country Parties have succeeded in wrecking the Constitutional Convention.

page 2022

QUESTION

TRADES HALL BUILDING IN HOBART

Senator MARRIOTT:
TASMANIA

– Will the Minister representing the Minister for Services and Property ask his colleague to provide the Senate, as soon as possible, with information as to the price paid by the Australian Government for the Trades Hall building in Hobart; the name of the agent or persons who made the contract on behalf of the Government; whose valuation, if any, was accepted by the Government; the use to which the building or the land is to be put; and when occupancy will be commenced?

Senator WILLESEE:
Minister for Foreign Affairs · WESTERN AUSTRALIA · ALP

-Yes, I will ask my colleague.

page 2022

QUESTION

MINISTER FOR AGRICULTURE

Senator WALSH:
WESTERN AUSTRALIA

-Has the Minister for Agriculture seen a report of an assertion in the House of Representatives by the Deputy Leader of the Australian Country Party that Senator Wriedt should be replaced as Minister for Agriculture because of his alleged lack of sympathy and understanding of agricultural problems? Has he also seen a statement by Mr Sinclair that during the election campaign an agricultural chemical company was asked to contribute funds to the Australian Labor Party’s campaign, with the implication that if a donation was not forthcoming then, to quote Mr Sinclair, some ill might befall that company’s continued participation in the agricultural community’? Are these statements true, and have any farmer leaders supported Mr Sinclair in his call for replacement of the present Minister for Agriculture?

Senator WRIEDT:
ALP

-Not that I know of as yet. I did see Mr Sinclair’s statement which, I think, was made last week. I suppose it is the type of statement made by people who have not the backbone to say it publicly but say it inside the Parliament. This matter was raised by Mr Sinclair during the campaign. Certain allegations were made which I answered publicly in full and I think to the satisfaction of anybody who had any interest in this matter. But he now extends it under parliamentary privilege and talks about pressure or coercion or something of that nature, almost implying that a threat had been used against the company concerned. That is a lie. I have taken the trouble to check with the company. It has no desire to have its name mentioned publicly and I understand that, although it was stated publicly at the time as anybody can check back to discover. The company has indicated to me that there is no truth whatever in the allegation and that if Mr Sinclair would care to contact the company concerned- he knows which company it is-he would be given a fitting reply by that company to the assertion he has made.

page 2022

QUESTION

NEW EDUCATIONAL RADIO STATIONS

Senator DAVIDSON:
SOUTH AUSTRALIA

– In directing my question to the Minister for the Media I seek information relating to his statement earlier this year that, if I remember correctly, many more amplitude modulation channels are available in Australia. If this is so, has any consideration been given to providing more AM channels for teaching purposes? Could this arrangement apply to the ‘School of the Air’ in Australia which at present shares a single channel with the Royal Flying Doctor Service to which, of course, it must give precedence? Will the Minister look at the situation in isolated areas with a view to setting up low powered AM stations for educational purposes? If this is feasible will he take the matter up with his colleague the Minister for Education and the necessary State authorities?

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

-The whole question of the future use of radio for educational purposes is being looked at by the Government. The last conference that took place on this subject between the Postmaster-General in the previous government and the State Ministers for Education was as long ago as 1966. My colleague Mr Beazley, the Minister for Education, and I have been holding discussions on this matter. It was intended earlier this year to hold a conference between Mr Beazley, myself and the State Ministers for Education during last May but that proposal had to be cancelled because of the double dissolution. Since that time we have attempted to find a mutually convenient date to reconvene such a conference between Mr Beazley, myself and State Ministers for Education in order to discuss the matter generally.

A conference has been convened for Friday 29 November at which I expect the overall subject to be discussed generally. At that conference I will have as advisers officers of my own Department, the Australian Broadcasting Commissionas the honourable senator knows the ABC is already engaged to a very large extent in educational broadcasts- the Australian Broadcasting Control Board and the Australian Post Office. Mr Beazley will have with him officers from his Department as well as, I understand, representatives of the universities generally to advise us on the role we would adopt in our conference with the States.

page 2023

QUESTION

NOTICE TO VICTORIAN ABORIGINES

Senator BROWN:
VICTORIA · ALP

-Is the Minister for Aboriginal Affairs aware that the Victorian Director of Aboriginal Affairs has adopted an unusual method of reminding the Department’s debtors that their accounts are overdue? The reminder is in the form of a pencil drawing of a woman with a matted mass of hair and the caption ‘We hate to get in your hair but this account is overdue ‘. As the Aboriginal people who occasionally receive this form of notification are obviously offended by it, will the Minister take steps to remove this misplaced humour when the correspondence concerned may threaten the Aboriginal people with eviction from their homes?

Senator CAVANAGH:
Minister for Aboriginal Affairs · SOUTH AUSTRALIA · ALP

– I received a letter of protest from the Aboriginal Legal Service in Victoria accompanied by a sticker showing a pencil drawing of a girl with a mass of hair and the caption ‘We hate to get in your hair but this account is overdue’. At first I could not believe that it came from a government department. I rang Mr Worthy of the Victorian Department of Aboriginal Affairs. He acknowledged that he is die author of the form of notification and assures me that it is not unusual in Victoria. This is a usual method of sending out reminder notices in relation to accounts in Victoria, and he thought that the Government should adopt this method. He expressed the opinion that Aboriginals, as human beings, should have their attention drawn in some humorous way to the fact that an account is overdue. When I notified him that I could not believe that this type of reminder notice came from a Government Department and that protests had been received about it, he took the attitude that he was prepared to withdraw that type of reminder notice and send out a threatening bureaucratic letter telling people to pay up or else. This is an unfortunate attitude to be taken by the Victorian Department. I can assure the honourable senator that this practice will be discontinued when the Australian Government takes over the administration of Aboriginal affairs in Victoria.

page 2023

QUESTION

MULTI-NATIONAL CORPORATIONS

Senator RAE:
TASMANIA

– My question, which is addressed to the Leader of the Government in the Senate, follows a question asked earlier and the answer given by the Minister relating to multi-national corporations. Is the Minister aware that the extent of the crashes resulting from the Government’s economic policies has so far been substantially reduced by the propping up which a certain significant number of Australian finance, development and other companies have received from multi-national financial institutions arranging funds from overseas so that the Australian companies can avoid the results of the excesses of the credit squeeze in Australia? Have these multi-nationals saved not only the companies but also, so far, the Government? Does the proposed visit overseas of Dr Cairns mean that the Government now acknowledges that multi-national finance can serve a useful purpose for Australia?

Senator MURPHY:
ALP

– The multi-national corporations are ah extremely important feature of the economic life of the world. Question time is hardly the occasion on which to discuss their role, the benefits that flow from their operations, and the difficulties that arise when they are straddling national borders. Multi-nationals are a fact of economic life, and to take some attitude of just being opposed to them or ignoring the role they play would be foolish. The honourable senator asks about the collapse of companies inside Australia. It is quite obvious that some of these companies conducted their financial operations quite recklessly, and this has been stated. I think the Chairman of the Stock Exchange said that there ought not to be any sympathy for some of them. Some of them have invested long-term and borrowed short in order to do it. Some of them helped in creating tremendous speculation in property, and they suffered when their speculation did not work out properly.

Many of these things have been exposed by the Senate Select Committee on Securities and Exchange. The honourable senator ought to be well aware of the recklessness of some of the operations which were conducted. It is true that support came from various sources to prop up companies which otherwise may have failed. In some cases this support no doubt is to the benefit of those companies as well as to the multinationals concerned, and it may be to the benefit of Australia. I do not know the circumstances of the situation. But it is rather wrong of the honourable senator to speak as though the Government were responsible and ought to be charged with the blame for failure where there has been recklessness and imprudence on the part of some of the financial corporations.

page 2024

QUESTION

KANGAROOS

Senator MULVIHILL:

-I ask the Minister for Customs and Excise: When all the States, including New South Wales, share in the $9m Australian Government grant for the acquisition of extra wild life reserves, will such land enable the increased kangaroo population to be absorbed and thereby completely demolish the alarmist outburst of Sir Charles Cutler of New South Wales?

Senator MURPHY:
ALP

– It may well prove to be helpful in enabling the kangaroos to exist peacefully. The statements made by Sir Charles Cutler about poisoning great numbers of kangaroos reminds me of the statement made, I think a year ago, in Western Australia that that would be done. It was not done. I do not think that Sir Charles Cutler, by his comments, is adding anything useful to the consideration of this problem. Extreme statements such as those made by Sir Charles Cutler do not go unnoticed in the rest of the world. Perhaps I should tell honourable senators that when I was in the Hague the Australian Ambassador told me that there had been demonstrations at the Embassy against what the Australians were doing in regard to the kangaroo. Petitions had been signed by school children all around the world. I think it was in Switzerland that hundreds of thousands of children protested about the kangaroos. May I say that in the light of actions taken by the Australian Government some of those fears of people around the world are unfounded? It certainly does not assist Australia if persons such as Sir Charles Cutler make these extreme statements about poisoning kangaroos and those statements are immediately spread around the world to the detriment of Australia’s world standing in conservation.

page 2024

QUESTION

WHEAT

Senator LAUCKE:
SOUTH AUSTRALIA

-I ask the Minister for Agriculture what are the most recent estimates for the wheat crop? To what extent has the incidence of red rust affected crop prospects throughout Australia?

Senator WRIEDT:
ALP

-The.last forecast given to me was around 400 million bushels. That was based on a fairly conservative estimate in Western Australia. I understand that we could get another 20 million or 30 million bushels out of the crop so we would be looking at a total figure betwen 420 million and 430 million bushels. My understanding is that as yet there is no rust problem. I think it is a little early yet. Honourable senators may recall that last year the rust struck fairly late in the season. I think we just have to hope that the rust does not attack again. As far as I know, at this stage no rust problem has been reported.

page 2024

QUESTION

POSTAGE RATES

Senator DONALD CAMERON:
Minister for Labour and Immigration · SOUTH AUSTRALIA · ALP

– I ask the Postmaster-General: Is it a fact, as reported in an Adelaide newspaper article, that increased postal rates have caused a fall in the number of Christmas letters and parcels sent overseas this year from Adelaide?

Senator BISHOP:
Postmaster-General · SOUTH AUSTRALIA · ALP

– I saw the article in the Press about the mail. The facts are, as honourable senators will recall, that the increased tariffs for overseas mail did not apply until 3 October. The time for the closing of overseas surface mail was 24 October. Most of the mail had been received before the tariffs applied. In recent years increased tariffs have not affected general overseas mail.

page 2024

QUESTION

AUSTRALIAN ECONOMY

Senator CARRICK:

– My question which is directed to the Leader of the Government in the Senate refers to the statement last night by the Prime Minister, Mr Whitlam, that the currently rising unemployment rate and record level of inflation will not be relieved until at least the end of the second quarter of 1975. Since the Prime Minister, by his statement, has condemned an average of at least 200,000 Australians to continuous unemployment for at least 8 months and all people on fixed incomes, particularly pensioners, to a grave decline in their living standards, I ask: Will the Government give urgent attention to an immediate and substantial increase both in pensions and unemployment benefits, with at least quarterly adjustments for inflation throughout the next year? If quarterly adjustments and indexation are government policy for wage earners will the Government act now to remove its double standards which create great hardship to people in receipt of social services?

Senator MURPHY:
ALP

-The honourable senator must be forgetting what has happened. When the Labor Government came into power it immediately set about improving social services. Pensions have been increased from, I think, about 19 per cent of the average weekly wage to 22 per cent of that wage.

Senator Wriedt:

– It is 24Vi per cent.

Senator MURPHY:

-I am informed by Senator Wriedt that he thinks the pension rate now represents a little over 24 per cent of the average weekly wage, In any event, the Government has been increasing the real value of social services, including pensions and the unemployment benefit.

Senator Bishop:

– And repatriation benefits.

Senator MURPHY:

– And repatriation benefits. The Minister who was in charge of repatriation has told the Senate again and again what we have been doing. Senator Carrick puts himself on the side of indexation. He thinks that there should be quarterly adjustments of the pensions and the unemployment benefit. Do I understand him to be advocating that this principle should be extended throughout the community; that there should be quarterly indexation of wages to deal with the world-wide inflation? The honourable senator speaks as if inflation were a national phenonemon restricted to Australia. Even the Sunday newspapers are starting to educate the public to the fact that there is world-wide inflation, with world-wide causes, and that it is producing its effects in Australia. The Australian Government has seen to it that Australians are suffering far less than the people in other countries. I think that the people of Australia ought to be thankful that they have a compassionate Government which will look after those on social services and those in receipt of unemployment benefit, instead of the Government they had previously which repeatedly displayed its hard-heartedness to those in receipt of social services and those suffering the difficulties of unemployment. Whatever economic difficulties Australia has to go through because of the world-wide events, there is no doubt whatever that the Australian people will be better off under a Labor Government than they would be under the conservatives who care nothing for the ordinary people of Australia.

page 2025

QUESTION

AUSTRALIAN BROADCASTING COMMISSION PROGRAMS AND REGIONAL NEWS SERVICES

Senator KEEFFE:
QUEENSLAND

-Did the Minister for the Media report earlier this year that the Government, in making additional funds available to the Australian Broadcasting Commission, not only would be concentrating on the provision of more Australian content in radio and television programs of the Australian Broadcasting Commission but also would be taking steps to extend and expand the regional news service of the Commission? Did the Minister indicate at that time that it was contemplated that a regional news service would be extended to Mackay? Can he say what steps, if any, have been taken by the Australian Broadcasting Commission to provide a regional news service to Mackay, such as is enjoyed by the people of Maryborough, Rockhampton, Townsville and Cairns?

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

– It is a fact that this Government, by making available, speaking from recollection, an additional $10m to the Australian Broadcasting Commission last financial year and an additional $16m over and above that sum this financial year for operational expenditure, set out to bring about an increased Australian content in the Commission’s radio and television programming and also to extend its regional news services throughout Australia. I think that last year additional regional services were provided to Maryborough, Rockhampton and Cairns. Of course, the service was provided to Townsville previously. Speaking from recollection, the regional news services were provided also to Alice Springs and to the northwestern portion of Tasmania. My colleague, Dr Patterson, the honourable member for Dawson in another place and Minister for Northern Development, made representations to me last year for this same service to be provided to Mackay. Provision was made in the Estimates this financial year for a regional service to be provided to Mackay. As a result of my raising the matter with the Australian Broadcasting Commission, I was able to advise Dr Patterson recently that the service would be commencing in Mackay as from, I think, 24 November this year.

page 2025

QUESTION

REDUCED POSTAGE ON CHRISTMAS MAIL

Senator DURACK:

– My question is directed to the Postmaster-General and I refer to the proposal for a special rate for internal Christmas mail which is apparently being proposed by the Special Minister of State, Mr Lionel Bowen. I ask the Postmaster-General: Has there been any costing of the likely amount of revenue that would be forgone if such a proposal were implemented and has the Government made any decision in regard to it?

Senator BISHOP:
ALP

– About a week ago Senator Devitt asked me a related question. He asked me whether the Government would consider a proposal to reduce the tariff to 5c. I promised to have the matter investigated. I have spoken to Mr Lionel Bowen about the matter but I am not aware of any promotion of this issue by him. It is actually a matter for me and the Government to determine. I am making sure that the estimates of costs offered by the Post Office are accurate and I am not in a position yet to indicate what sort of losses, if any, would occur. As soon as I have any information I shall give it to the honourable senator.

page 2026

QUESTION

HOLIDAY TRAVEL FOR PUBLIC SERVANTS IN NORTHERN TERRITORY

Senator GRIMES:
NEW SOUTH WALES

-I ask the Minister representing the Minister for the Northern Territory: Is he aware that one of the conditions of employment of public servants in the Northern Territory who are recruited from the rest of the continent is that they shall be entitled every 2 years to the return air fare to any capital city in Australia except Hobart? Will the Minister make inquiries into the reason for this discrimination against Tasmanians with the hope of having such discrimination removed?

Senator WRIEDT:
ALP

– I am not aware that such a situation exists. I must say that I am astonished to learn that that privilege is not extended to include Hobart. I shall refer the matter to the Minister for the Northern Territory and request him to give it his immediate attention.

page 2026

QUESTION

INVENTION PATENTS

Senator JESSOP:
SOUTH AUSTRALIA

– My question is directed to the Attorney-General and I refer to the recent announcement by the Minister for Manufacturing Industry that the Government has decided to encourage inventors in Australia by providing grants. Is it a fact that 40 per cent of patents taken out this year would in all probability be invalid? As the Government decision that I referred to will undoubtedly result in more patents being taken out, can the AttorneyGeneral say whether the present search system employed by patent attorneys is effective in affording protection to aspiring inventors? If this 40 per cent invalidity is correct, and as the application for a patent involves the applicant in considerable expense in patent attorney fees, will the Attorney-General examine the methods now employed in this area so that an inventor issued with a patent can be assured that he is afforded complete protection against the intrusion of similar devices from overseas and within Australia?

Senator MURPHY:
ALP

-I shall refer the matter to the Minister for Science. This area used to be under the Attorney-General’s Department but some 1 8 months ago it was transferred to the Department of Science. This is perhaps more sensible than having it under the Attorney-General’s Department although patent attorneys are involved. The problem that the honourable senator has referred to is a very difficult one. It is a most complicated area all over the world and not even the wit of Albert Einstein, who was once employed in a patents office, was able to resolve the kind of difficulty to which the honourable senator refers. If there can be some improvement in dealing with this matter so as to make it easier for inventors, I am sure that the Minister for Science will endeavour to achieve it.

page 2026

QUESTION

NATIONAL RURAL ADVISORY COUNCIL

Senator PRIMMER:
VICTORIA

-Has the Minister for Agriculture heard complaints that the National Rural Advisory Council is not truly representative of farmers? Can he tell the Senate what is the composition of the Council, its role and what emerged from its first full meeting?

Senator WRIEDT:
ALP

-The Council was formed at my instigation so that I would have a body of farmers representative of all sections of agriculture in Australia and it is so representative. I think its members are all practising farmers. I do not know how many of them, or if any of them, vote Labor.

Senator Webster:

– Now now.

Senator WRIEDT:

-Their advice is something which I value. The meetings are always held in the frankest possible atmosphere. It is quite likely that, as time goes by, with their advice and with the actions of the Government in the sorts of matters with which we have to deal, they will eventually become good supporters of the Government, contrary to the wishes of Senator Webster.

page 2026

QUESTION

ROYAL COMMISSIONS INTO HUMAN RELATIONSHIPS

Senator BAUME:
NEW SOUTH WALES

– My question which is addressed to the Minister representing the Special Minister of State relates to the terms of reference of the Royal Commission into Human Relationships. I ask: Did the motion passed in another place on 13 September 1973 call for a royal commission to include in its terms of reference that the commissioners should have regard to the United Nations declaration on the rights of the child and the sanctity and preservation of human life? Why do the terms of reference, published on 21 August 1974 by the Special Miniser of State, confine themselves to matters of sexual practice, abortion and so on and why specifically do they not include the concern for the rights of children and for human life set out in the resolution of the Parliament?

Senator WILLESEE:
ALP

-I will refer the question to the Special Minister of State and obtain a reply for the honourable senator.

page 2027

QUESTION

DERBY AIRPORT

Senator McINTOSH:
WESTERN AUSTRALIA

-Has the attention of the Minister representing the Minister for Defence been drawn to an article in a Western Australian newspaper which stated that Derby airport will be upgraded to allow full operational use by the Royal Australian Air Force? If this is a fact, will he inform the Senate what steps have been taken to date?

Senator BISHOP:
ALP

– There has been some speculation in the Western Australian Press about what might happen if the Minister for Defence, Mr Barnard, decides to seek a location in the Yampi Peninsula for holding joint training exercises. The Minister has inspected the area. I had the pleasure of going with him when I was Minister assisting the Minister for Defence. He is on record as saying that the area seems to be a suitable one for such exercises. As a result of that, a joint defence services working group has been set up to examine the position. That group will be visiting the area early in November. An examination has been made of the Derby airport and also of the airport at Broome. Those inspections and examinations have caused a good deal of speculation about what sort of operational requirements and what sort of upgrading will be necessary. Until the report of that working group is given to the Minister I do not think I can add anything fresh to what I have said already. However, I will ask the Minister for Defence whether he has any information additional to that which I have now supplied to the Senate.

page 2027

QUESTION

AUSTRALIAN MAKINE ENGINE INDUSTRY

Senator BESSELL:
TASMANIA

– My question is directed to the Minister for Customs and Excise. It relates to the Australian marine engine industry. I ask: Will the Government consider taking any steps possible to assist this industry to remain viable by using the locally made products instead of the fully imported units which are now entering this country free of tariff, not only as this exacerbates the employment situation but also because, should any international situation arise when such imports would be not longer available, the necessary expertise also would not be available? As many Federal and State government bodies have a need for marine engines the use of locally made units would greatly assist the industry to remain in a viable situation.

Senator MURPHY:
ALP

-I would like to give the honourable senator a full reply to this question. I notice that one of the documents which I have to table today deals with diesel engines. I do not know whether that enters upon the subject which he raised. But certainly the other aspects he has mentioned deserve a full reply. Embodied in the question were some matters which I would not fully accept. Because I do not want to give a partial answer- I prefer to answer the question fully- I ask the honourable senator to put the question on the notice paper.

page 2027

QUESTION

MEAT

Senator MAUNSELL:
QUEENSLAND

– Will the Minister for Agriculture inform the Senate of the recommendations of the meeting held in Washington aimed at establishing a world body in an attempt to stabilise the marketing of meat? Does the Minister agree that something has to be done in the near future if a serious economic crisis in the industry is to be avoided?

Senator WRIEDT:
ALP

– Yes, I agree. I think everybody agrees. I have answered questions on this very point over the last two or three weeks. I cannot add to anything I have said previously. As I have said previously, talks will continue at official level and liaison will be maintained between the countries concerned. I am not aware of any further information. If there is further information, I shall obtain it from the Minister for Overseas Trade under whose auspices the meetings were held.

page 2027

QUESTION

WHEAT

Senator SCOTT:
NEW SOUTH WALES

– I ask my question of the Minister for Agriculture. In view of the present buoyancy of the wheat market and reports that Australia is to support the establishment of an international system of grain reserves, I ask the Minister whether there are any indications, now that wheat quotas have been abandoned, of a major swing to wheat production with a corresponding decline in the output of other traditional products such as meat and wool. Does the Minister encourage such a swing? In view of the Minister’s reply to Senator Young earlier today, will Australian production of phosphate rock significantly lower the price of superphosphate to the Australian farmer? Is the Minister implying, as I hope he is, that a much needed substantial increase in the level of the first advance payment is this Government’s policy?

Senator WRIEDT:
ALP

-I shall be making a statement in two or three days time in relation to the last matter raised. In answer to the earlier part of the question, I point out that it is not the Government ‘s role to determine what farmers do with their property. The farmer has to make his own judgment as to whether in the next year or two he will invest in wool, meat or grains. It is quite obvious that at the present time the world market for wheat is at a record level. The price is about SA4.20 a bushel. Consistent with the matters which were raised earlier about the World Food Conference, we are out to maximise the crop by encouraging wheat growers to produce as much as they possibly can. As to specific measures which the Government is taking, they will be the subject of a statement to be made shortly.

page 2028

QUESTION

PROPOSED EXPULSION OF SOUTH AFRICA FROM THE UNITED NATIONS

Senator WEBSTER:

– I ask the Minister for Foreign Affairs: Is it a fact that a draft resolution has been presented to the United Nations which seeks the expulsion of South Africa from that body? Has the Australian Government decided to direct its United Nations representative to support such a motion? What are the reasons for such action?

Senator WILLESEE:
ALP

-An African draft resolution calling for the expulsion of South Africa from the United Nations has been lodged with the United Nations Secretariat in New York for consideration by the Security Council. The Australian Government has instructed its delegation to the United Nations to vote in the Security Council in favour of this step. In making this decision the Government has taken into consideration the fact that South Africa has, for 25 years, by its policy of apartheid, persistently violated the principles of the Charter of the United Nations and of the Universal Declaration of Human Rights. Its has refused to comply with United Nations resolutions, including those relating to Namibia, and has openly assisted the rebel Smith regime in Southern Rhodesia in violation of the pertinent resolutions of the Security Council. In these circumstances the Government decided that, notwithstanding the seriousness of this step and the understandable reservations which it feels about endorsing it, on balance the Australian delegation should support this move because of the moral considerations involved, as we perceive them. The decision by the Government to support a resolution calling for the expulsion of South Africa from the United Nations was taken in the context of the Security Council consideration of the question.

page 2028

QUESTION

ANTI-APARTHEID DEMONSTRATION

Senator GREENWOOD:

-Is the AttorneyGeneral aware of the demonstrations and intimidation to which the South African golfer, Gary Player, was subjected during a golf tournament in Sydney last Saturday and Sunday? Is it proper that the rights of a defenceless visitor to this country or the rights of the many people who want to watch the spectacle should be denied by the licence of a few persons? Is not conduct of this character to be condemned and discouraged? Will the Attorney-General make such condemnation?

Senator MURPHY:
ALP

– I have seen a report in the newspapers about this matter. To be frank, I have not followed it very closely, but I understand that there were some demonstrations when the South African golfer was playing. It is, of course, regrettable if any person is subjected to any kind of harassment. One can understand the motives of those who are objecting to the carrying on of sporting activities by South Africans. South Africa has been condemned by resolutions of the United Nations. We have referred previously to the resolutions in the General Assembly and the Security Council, I think, which said that all sporting and cultural activities ought to be cut off with any country which was practising apartheid. The United Nations was very firm about this and, I understand, repeated it. It is understandable that people around the world would wish to manifest their disapproval in accordance with the United Nations resolutions. It is regrettable if this means in practice that individuals will be subjected to any kind of harassment. The real answer to this matter is for South Africa to cease to practise policies which have been condemned by the whole world as a violation of human rights and a degradation of the human race. One should compare this regrettable practice of harassment with what is being done in South Africa where there is an appalling violation of human rights. I would like the Deputy Leader of the Opposition to join me in condemning what has been occuring in South Africa for many years and what is still occuring.

page 2029

DIESEL ENGINES: REPORT OF INDUSTRIES ASSISTANCE COMMISSION

Senator MURPHY:
New South WalesAttorneyGeneral and Minister for Customs and Excise · ALP

– For the information of honourable senators, I present the report on diesel engines exceeding 1500 Kw dated 5 August 1974 of the Industries Assistance Commission.

page 2029

PASSENGER MOTOR INDUSTRY

Senator MURPHY:
New South WalesLeader of the Government in the Senate · ALP

– For the information of honourable senators I present the exchange of correspondence between the Standing Interdepartmental Committee on Assistance to Industries and the Industries Assistance Commission on the Commission’s report on the passenger motor industry. I also present 2 reports commissioned by the Department of the Prime Minister and Cabinet from Martec Pty Ltd on specialised aspects of the Australian motor vehicle industry. Due to the limited numbers of the Martec reports available reference copies have been placed in the Parliamentary Library. I further present the Commission’s comments on the 2 Martec reports.

page 2029

GRANTS COMMISSION

Senator WILLESEE:
Western AustraliaMinister for Foreign Affairs · ALP

– Pursuant to section 25 of the Grants Commission Act, 1973 I present for the information of honourable senators the forty-first report 1974 by the Grants Commission on special assistance for States.

page 2029

AUSTRALIAN COASTAL SHIPPING COMMISSION

Senator CAVANAGH:
South AustraliaMinister for Aboriginal Affairs · ALP

– Pursuant to section 39 of the Australian Shipping Commission Act 1974, 1 present the annual report on the operations of the Australian Coastal Shipping Commission for the year ended 30 June 1974, together with financial statements and the Auditor-General’s report on those statements.

page 2029

THE PUBLIC AND THE MEDIA

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

- Mr President, for the information of the honourable senators I table a discussion paper entitled ‘The Public and the Media’ prepared by the Planning and Research Section of the Department of the Media. I seek leave to make a short statement thereon.

The PRESIDENT:

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

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

– In tabling this document I want to emphasise, as I have emphasised in the foreword to this document, that it is not intended that this document should be taken as a statement of the Government’s views on access to the media. This is, I emphasise, a discussion paper intended to stimulate the flow of information within the Australian community, including people involved in Government and broadcasting. It does not insist on any particular solution to the problems involved in the relationships between the public and the media. Instead it attempts simply to summarise the results of some of the work done so far in gathering together information about possible solutions.

I suggest to honourable senators who are interested in this field that they will find the report informative and stimulating, and I extend an invitation to all interested people or groups to approach my Department with any suggestions for the development of public access, accountability and participation in the media.

I congratulate the officers of my Department for the thoroughness of their research work to date. I suggest that the critics, after reading this report, w3l be able to agree that there is much more work involved in access broadcasting than that which initially meets the eye, and I trust that the tabling of this discussion paper in the Senate will dispel for all time the idea that some persons attempt to moot abroad that the Department of the Media is not interested in public broadcasting. Nothing could be further from the truth.

Senator GUILFOYLE:
Victoria

-Mr President, I seek leave to make a short statement on the report that has just been tabled.

The PRESIDENT:

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

Senator GUILFOYLE:

- Mr President, I welcome the opportunity to have placed before the Senate a report setting out the work that has been done to date by the Planning and Research Section of the Department of the Media. As the Minister for the Media (Senator Douglas McClelland) has said, the subject of this report is a complex problem. I believe that many honourable senators would wish to have an opportunity to discuss this matter at a more appropriate time. I am interested to see in the report the views which have been expressed about public access, accountability and participation in the media. I am also interested to see reference to a series of unresolved problems which the report specifies in chapter 5. For the reasons that I have mentionedthe interest in this matter and the obvious detail which has been placed before us- I should like to have an opportunity to discuss this report at some other time

Senator WITHERS:
Western AustraliaLeader of the Opposition in the Senate

– I seek leave to propose a motion for the noting of the paper.

The PRESIDENT:

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

Senator WITHERS:

-I move:

Having proposed that motion, I now move:

That the debate be now adjourned.

Senator Guilfoyle:

- Mr President, I seek leave to continue my earlier remarks at a later stage.

Leave granted; debate adjourned.

page 2030

ORDER OF BUSINESS

Senator Sir KENNETH ANDERSON:
New South Wales

– I seek leave to raise a matter in connection with the placing of business.

The PRESIDENT:

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

Senator Sir KENNETH ANDERSONWhile recognising that the order of business is the prerogative of the Leader of the Government in the Senate (Senator Murphy) and the Manager of Government Business in the Senate (Senator Douglas McClelland) and without in any way reflecting upon what I may subsequently do in respect of the Family Law Bill in an entirely different context from the present context, I suggest to Senator Murphy that having regard to the tremendous concern and interest as borne out by the number of petitions to the Senate in respect of the Family Law Bill, and also having in mind the nature of reporting of Senate proceedings, I ask him to consider bringing the Family Law Bill on tomorrow instead of today. Tomorrow our proceedings will be broadcast and I am sure that there would be a tremendous listening audience tomorrow which cannot listen to today’s proceedings. Senator Murphy may say that the debate could well continue into tomorrow, and that is possible. However, in view of the interest which has been created in this measure some senators may prefer to speak on it tomorrow. Probably those speeches would be much shorter tomorrow in view of our half-hour rule on broadcast days.

Senator MURPHY (New South WalesAttorneyGeneral and Minister for Customs and

Excise)- It was arranged last week that the Family Law Bill would be brought on today and I do not see that those arrangements ought to be altered. In any event, the clauses of the Bill will have to be discussed and I am sure that whatever is said in the debate will be widely reported. There is such a great deal of public attention that the proceedings will be widely reported. I do not think we will see the end of this Bill in one day. The clauses of the Bill could well become more important for discussion than the second reading speech. Arrangements have been made. I have just now discussed the matter with Senator Douglas McClelland and I do not think it would be right to attempt any alteration.

Senator Sir KENNETH ANDERSON:

-What we are saying now does not prejudice what I may move in relation to the Bill.

Senator MURPHY:
NEW SOUTH WALES · ALP

-That is so.

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

– by leave- Discussions were held towards the end of last week between myself and the Leader of the Opposition in the Senate about the proposed arrangement of government business and Senate business this week. It was agreed between us that debate on the Family Law Bill, as a result of constant representations brought to me by Senator Murphy, would take place today. I was under the impression that after the second reading debate was disposed of it was probable that the Committee stage of the Bill would be held over until the Senate resumed after the week’s recess. That is why this debate has been arranged for today. It has also been arranged that, subject to Senator Wheeldon being here at 8 o’clock, the debate on the Family Law Bill will be interrupted so that Senator Wheeldon can have the Repatriation Acts Amendment Bill 1974 and the Social Services Bill (No. 3) 1974 dealt with. Frankly, the Government’s legislative program is such that I hope we will be able to get on to dealing with Government business some time tomorrow.

page 2030

FAMILY LAW BILL 1974

Second Reading

Debate resumed from 1 August on motion by Senator Murphy:

That the Bill be now read a second time.

Senator WITHERS:
Western AustraliaLeader of the Opposition in the Senate

– Before the debate proceeds, I seek leave to indicate to the Senate the Opposition’s attitude in relation to this Bill.

The PRESIDENT:

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

Senator WITHERS:

-I do this for the sole reason that I think each time Senator Murphy has put down a Bill of this nature he has indicated officially to the Senate that Government senators would have what he terms a free vote. I wish only to indicate to the Senate that Liberal Party senators also will have a free vote, not only in relation to the contents of the Bill but also in relation to the procedural motions which might be moved during consideration of the Bill.

Senator Webster:

– In the absence of my Leader, who will return shortly, I indicate that the Country Party holds the same view as does the Leader of the Opposition in the Senate (Senator Withers), namely, that our Party will be holding a free vote.

Senator MISSEN:
Victoria

-The Family Law Bill 1974 is a Bill of the greatest importance to the Australian people. It is of considerable importance in the moral and economic senses and also to the lives of many thousands of people who have been awaiting the appearance of this Bill before the Senate. We must, I think, recall that this is the first major occasion since the Matrimonial Causes Act was adopted in 19S9 on which the legislation has been thoroughly reviewed. During the debate on this Bill we must bear in mind that there is also in existence the Marriage Act which covers many areas that are complementary to the Family Law Bill. I understand that some amendments to the Marriage Act are in contemplation. They may be very necessary to complement the changes which will be made in the family law as provided in this Bill.

It is, as has been said, a matter on which a free vote will be exercised on all sides of the chamber. This is a matter in relation to which we in conscience must give very great consideration. This applies not only to consideration of the Bill but also to the proposed amendments which are complex but highly essential.

The Act that was passed in 1959 was a landmark in its time because it brought together the Commonwealth legislation in this field, whereas previously such legislation had been a subject for the State laws. At that stage the Commonwealth took unto itself the powers which the Constitution had given it and created a uniform divorce procedure and law throughout Australia. In this Bill, and particularly in the amendments which the Senate Standing Committee on Constitutional and Legal Affairs proposes, there are suggestions that the Commonwealth should go further in exercising its powers over marriage, divorce and matrimonial affairs. The present Act stands, as I say, as a landmark in its time, but it has proved to be defective in operation. It is essentially admitted on all sides that there are provisions in that Act which must be changed to bring justice to this area of the law.

I think it must be said early in the debate that the family as we know it in Australia is not broken, as some people seem to think; it is in fact a greater institution than it has ever been in this country. While the divorce rate has risen in Australia rather slowly and not in accord with many other developed western countries whose divorce rates are much higher, nonetheless there is every indication that families and marriage are institutions which are not upheld in the strongest regard by the great majority of the Australian people. It was said in 1 959, when the ground of 5 years separation was introduced, that this would open the floodgates and it would cause the destruction of marriage. Many of the arguments which one hears in various quarters today can be read in the debates and in the writings of 1959. They reappear again. But in 1959 and since then separation did not open the floodgates.

Whereas, for example, in 1967, 17 per cent of the petitioners were using the ground of separation, in 1971 it had been reduced to 12 per cent. It has not become a major ground for divorce. Yet, on the other hand, because of the urgency with which many people in this country required a divorce, because they have lived in circumstances which are intolerable, the ground of adultery has risen considerably. In 1963 there were 17 per cent petitioning on this ground. In 1973, 38 per cent were petitioning on the ground of adultery. That was the immediate ground and together with the ground of cruelty, now makes up something like 45 per cent of all the petitions in this country. One must note that under this Bill- far from it being a ‘quickie’ divorce Bill which will give quick divorces- a great number, 45 per cent, of petitioners will be required to wait longer for the divorces which they seek. I say this about the development of the Bill up to this day: Many defects have occurred in it, defects which I will not detail because they have been written about many times. I refer to matters of bitterness arising under the grounds which presently exist, matters of great delay and costs, and other indignities and problems which have caused the examination of this matter and the emergence of this Bill.

In this country marriage is, as I said earlier, a popular institution. In 1960- the latest figures I have- 6 per cent of women and 7 per cent of men only were unmarried in Australia. If one goes back to the 1930s one will find twice as many unmarried people. If one goes back to the 19th century one will find 4 times as many people unmarried. It can clearly be said that marriage is still a very popular institution in this country. So far as people who obtain a divorce are concerned, three-quarters of them re-marry. They do not generally re-marry more than once but they are getting their divorces because they want to remarry, not because they have lost their faith in the institution of marriage.

I wish to refer- because I think it is relevant to this whole debate- to some excellent research which has been done by Dr Ailsa Burns. Dr Burns, of the School of Behavioural Science at Macquarie University, has written an article in the magazine ‘Search’ of July 1974. She entitled it: ‘Marital Breakdown and Divorce’. She detailed some of the assumptions that people make which, on examination, prove to be false. She stated:

The history of divorce legislation indicates that harsh laws have frequently been introduced and retained not because they were considered meritorious in themselves but because they were considered a safeguard to the stability of the family. The assumptions underlying this attitude can be stated as follows:

Easy divorce laws will lead to a high divorce rate.

A high divorce rate will weaken the structure of the family in society.

Since society is based on the family unit, society itself will therefore be threatened.

A number of recent writers suggest that this is a false formulation, and that no such conflict of interests in reality exists. Rather it is held that the present high divorce rates found iti virtually all Western countries must be seen in their context of high marriage, parenthood and remarriage rates. Marriage in fact is more popular and more idealized than ever before.

She goes on to explain various other aspects which, I believe, should be borne in mind. For example, the situation in regard to re-marriage rates is stated as follows:

Remarriage rates in the U.S. and U.K. are high (local figures are not available), with around 75 per cent of U.S. divorcees being remarried within five years of divorce, and the divorced-not-remarried group representing at any one time around 2 per cent of the population for men and around 3 per cent for women. Divorce can thus be seen as actually contributing to marriage stability, by rechannelling conflicting partners and their children into more viable family settings.

The doctor makes the following comments on the facts and figures relating specifically to Australia:

Two features of the Australian divorce rate are particularly notable; firstly, it is the relatively low level -

I emphasise the words ‘relatively low level’ - and secondly, the fidelity with which its course over the twentieth century has paralleled that of comparable countries.

The doctor gives a number of figures and a demonstration of the changes over a period. She makes the point, which I think it important, that over a 20-year period until 1966 the number of Australians who were married but permanently separated was much greater than the number of Australians who were divorced, although I point out that there has been some change in the ratio recently. Taking the figures that she has given and the situation in the United States of America which is even more extreme, she concludes:

Taking Figure 3 and these figures together it seems clearly indicated that Australians have up till now preferred to dissolve their marriages de facto rather than de jure; or perhaps more accurately, that the legal dissolution machinery is not operating efficiently to legitimate the decisions, and the subsequent unions, of separating persons; and that in consequence the country is perpetuating the existence of a large minority of citizens (over 1 per cent of the total population) who are in the marital sense stateless, and faced with all the problems of illegitimacy that statelessness involves.

If we take the situation of pensioners, we find that the ratio of deserted wives to divorcees is 5 to 1; that is, there are 5 pensioners who are deserted wives to one pensioner who is a divorcee. In fact, the position in this country is that those who are privileged have an opportunity to divorce and those who are poor and who are probably in the greatest need of support and of marriage support are the ones who cannot afford divorce. I believe that these figures and calculations do a great deal to remove some of the misconceptions and mere assertions that are made on this subject.

I turn to the Bill which is before the Senate and the features of it. It is designed, as the AttorneyGeneral has said, to alleviate the high costs, delays and indignities of divorce and other aspects of family law. I believe that in many ways it certainly does that. Firstly, I will deal with the grounds for divorce which, of course, have received great attention in the debates that have been conducted in the last few years. The Bill provides a ground based on non-fault and irretrievable breakdown’ is described as the term of the ground. But the fact is, of course, that separation for a fixed period is the way in which the ground is proved. I do not propose to repeat the whole argument about fault grounds and non-fault grounds. Of course, since 1959 we have had a non-fault ground in our legislation. So it is no good for people to talk about the function of marriage being changed by the introduction of this type of ground. It has been in the legislation since 1959 and that argument has been resolved.

I have found in a long period of practice in this jurisdiction that it is very difficult to find a person who can be described as the innocent party in a divorce. We go through a charade of trying to establish guilt; of trying to establish that some person is responsible. I suggest that we do this to no real purpose. In fact, in most cases it is a matter of some sort of incompatibility that has led to the breakdown of the marriage; it is not a matter of one person being at fault. There are no or very few innocent parties in any complete sense. Those who have endeavoured in the past to obtain a divorce in a decent civilised fashion, who have separated and made arrangements, have found themselves either waiting many years or unable to divorce on a ground which exists at present. I suggest to the Senate that this is not a desirable situation. Indeed, it is an exercise in futility and an exercise in creating animosities that we continue to retain that type of requirement of fault.

Mr W. W. Hartin, the Deputy Director of the Cairnmillar Institute of Melbourne, made a submission to the Senate Standing Committee on Constitutional and Legal Affairs on this question of blame, guilt and fault. He said:

The attempt to apportion blame to one or other partner can be nothing more than an exercise in futility, and the grounds on which the divorce is eventually granted reflect only the legal provisions for recognising the breakdown of the marriage, and not its real causes. In the case of such conflict-ridden marriages it would seem realistic and humane to provide a way out of such marriages by the recognition of irretrievable breakdown as a sufficient ground for divorce.

The great consensus of opinion, as it was called by the Chairman, that came in evidence before the Senate Committee over a period of years certainly demonstrates overwhelmingly in favour of that view. We have in the Bill the change in the grounds, about which 1 shall say something when I deal with the Committee’s recommendations, and a 12 months period of separation is provided for. I shall speak further of this but let us say that it is a compromise because some people would be giving up immediate grounds- 45 per cent of them- and others would be getting divorces a little earlier than they did before. In my opinion that is a fair compromise and a fair arrangement providing the period of 12 months is absolutely completed before proceedings commence.

At the moment I am detailing what seems to me to be the main aspects of the Bill. The Bill provides for the abolition of various absolute and discretionary bars against divorce- such as collusion, the requirement of discretion statementsthat was once part of the ludicrous practice of this law- the removal of judicial separation and other unnecessary and rarely used remedies. The next important aspect of the Bill is the removal of what was the prohibition on divorce within 3 years from the date of marriage. This was never an overall prohibition because in the case of divorce on the ground of adultery and a couple of other grounds this ban did not apply. One can quote examples of people who have been divorced under the present Act and the decree absolute has been granted within a year of marriage. It is a restriction now to be taken- I trust- from the Act. It was illogical because it applied to some persons and not to others and was positively unjust to some.

In the area of custody and access this Bill does a great deal. Among its most valuable achievements is the work done in this respect. It would create the concept of joint custody under the law, providing for representation of children in cases where their interests are different, possibly, from those of both their parents and where the court feels they ought to be represented. The Bill provides for compulsory conferences in many cases with welfare officers so that the problems, disputes and hatreds can be avoided and so that common sense in the interests of the children can prevail. The Bill also contains enforcement powers in respect to custody and access. They are invaluable. I regret to say that some of the persons who have commented on this Bill- even Archbishop Sambell in Perth- have not noted the fact that the conduct of the parties is not excluded from consideration by a court when considering custody and access. It must be obvious surely that it is a very relevant aspect when the decision is to be made as to which parent will have custody of the children. Unfortunately he based his opinion of the Bill on that. The conduct of the parties cannot be removed from consideration nor it is removed under the Bill.

In the area of maintenance the Bill makes substantial change, and it has been a highly criticised change because it bases the award of maintenance, in the future, on need. It seeks to promote- and I think this is justified- the independence which a wife will have so that she will not forever be in a position of dependence, of self-commiseration, and will be able wherever possible to take her place in the world after divorce. I shall have more to say about that because I think that the provisions which appear in the Bill are too harsh to wives. So far as property and the disposition of property between the parties are concerned, brought together in this Bill are all the miscellaneous jurisdictions of State and Federal governments, of lower and higher courts which deal in one way or other with the preservation and distribution of property. This Bill at least will put to an end the hopping from jurisdiction to jurisdiction to stop and reduce the consequent costs to litigants. Also it will provide some reality and recognition of the contribution as a home maker and in other capacities of wives who have no legal claim to property at the present time.

The Bill also abolishes imprisonment for maintenance debts. Many people have had doubts about this matter. But it should be recognised that, far from effecting the abolition altogether of imprisonment, there will remain the weapon of imprisonment in the case of the flouting of a court order or in the case of a contempt of court. This is the most important area where it should apply. The latest figures which the Senate Committee obtained on the number of such people who were imprisoned showed that in New South Wales there were 70 persons, in Queensland there were twenty, in South Australia there was one and in Victoria there were nine at that time. Consequently it appears that imprisonment is not a major factor in the enforcement of maintenance payments. I draw attention to the figure for South Australia. In that State a successful family court is operating and that may be the reason why it is not found necessary to use the power of imprisonment.

Lastly in dealing with the aspects of the Bill as I see them, the right to an order for costs is partially removed and orders may be made only in exceptional circumstances. I will have something further to say about that. The important thing is that, if the provisions of legal aid are properly clarified and if they are applied fairly and generously to the persons involved, they will do a great deal in bringing within the range of persons who need not only divorce but also remedies in the courts, some opportunity of having their cases heard. I summarise those matters as the main features, as I see them, of the Bill.

Since the Bill first came before the Senate in December 1973 there has been quite a deal of public criticism and comment on it. I think it has to be recognised that the Bill came forward in association with a Senate committee which sat for a period of 3 years taking submissions, hearing witnesses, discussing, receiving and reading the comments on each of the Bills. It should be borne in mind also that not only were 190 letters and 108 formal submissions received but also several have been received since and members of the Committee have read them. Recent submissions raise no new changes or new suggestions but they show the great interest throughout the community in this Bill. This Bill which is now before us is the third Bill. Anyone who has made a study of the 3 Bills will recognise that there are many, not major but quite valuable changes from one Bill to another. I compliment the AttorneyGeneral not only on his persistence in regard to this legislation but also on his adaptability and his willingness to listen and to change the Bills progressively as they have come along. Although there has been no debate on them, this Bill is already a great improvement on the first Bill.

I suggest that the criticisms which have appeared in the submissions and the various suggestions, have been embodied in very great degree in the Bill. They have been embodied still further in the recommendations of the Senate Committee. I will come to that matter in a moment. It is the constructive work that has been done by persons throughout the community that has built up this Bill and made it adequate for debate today. Two features of the community’s attitudes I think are worthy of note. Two polls were taken late last year just before the first Bill was first tabled. The first one was a Gallup Poll. The question asked of the people at that stage was:

The Federal Attorney-General has proposed that in future the only ground for divorce should be evidence of 12 months separation. This will make divorce easier to obtain. Do you think that this is a good thing or a bad thing?

I observe that I do not accept the contention that this makes divorce easier. Against that question, which I think was phrased unfortunately for the yes’ vote, one finds these answers: Sixty three per cent of all people said that it is a good thing, 32 per cent said that it is a bad thing and 5 per cent gave no answer. Among the States Western Australia, with 68 per cent, had the highest poll. I feel that this is some useful reflection of the opinion of the people on the subject of this type of Bill. Another poll, the results of which I shall seek leave to incorporate in Hansard, is a Morgan poll which was held at much the same time. That poll also covered the religious denominations of those who answered the questions. The subject was:

If a husband and wife tell the court their marriage is broken should a divorce be granted or not. If granted, immediately or after an interval. If interval, after how long.

The total Australian vote in favour of the proposition that a divorce should be granted immediately was 31.1 per cent. The percentage in favour of granting a divorce after an interval of 12 months was 38.6 per cent. That makes a total vote of those who favour a Bill of this nature of 69.7 per cent or almost 70 per cent. If one takes the Roman Catholic vote, the figure is 6 1 . 2 per cent. The total Protestant, Anglican and other votes in favour of granting a divorce immediately or after an interval of 12 months was 71.8 per cent. Throughout Australia 3.7 per cent of persons wanted a divorce granted after 2 years; those who would not grant a divorce at all were 12.2 per cent; and 8.8 per cent were undecided. I seek leave to incorporate the detailed poll records in Hansard.

The DEPUTY PRESIDENT (Senator Webster)- Is leave granted? There being no objection, leave is granted. (The document read as follows)-

Q 1 C- If a husband and wife tell the court their marriage is broken should a divorce be granted or not.

Q1D- If granted, immediately or after an interval.

Q1E- If interval, after how long.

Senator MISSEN:

-I thank the Senate. Both these polls indicate- I see no reason to think that the views have changed- an acceptance of the basic strategy and opinions which this Bill now incorporates. I believe that this is important in our consideration.

I turn to the work of the Senate Standing Committee on Constitutional and Legal Affairs which has presented 2 reports to the Senate on this subject. I am concerned mainly with the main features of the Final Report of that Committee. In that report we suggest substantial changes which pervade the Bill and which, I believe, will make many of the provisions of the Bill more effective.

The first of these proposals, which I consider the most important, is to recommend the establishment of a family court of Australia. It recommends that the court deal with all the various elements of jurisdiction which the Bill describes and that the court do this uniformly and with all necessary facilities which are of importance in this country. If honourable senators read pages 16 to 22 of the Final Report they will see the type of court which we recommend should be existent in this country.

It is important to recognise that in relation to the suggestion which we make we believe that judges should no longer be appointed for life as the Constitution requires. The judges who will go around the countryside sitting in one provincial city after another and doing most of the hard work of a family court should not be old judges or ‘geriatric judges’ as they have been described by one of our Senate colleagues. In fact, that work should be done by judges who are appointed by the States in agreement with the Commonwealth. Thereby we can have younger judges who are particularly suited to the work which a family court requires. That, above all, is the important thing. At the moment a judge might deal at one stage with this jurisdiction and at another stage with another. Occasionally he might do a little family court work, very often disliking that sort of work because it is not the matter on which he has spent most of his legal career. We have to have judges who are interested and qualified in this area. We have to have courts which will have the right types of facilities and will meet in an atmosphere which will be conducive to reconciliation. Such courts will need to have ancillary support from such people as social workers, conciliators, and legal advisers. It must encourage people to come to the court and use its facilities, not when proceedings have started but before, so that it can be an advising, helping court. I think that in doing this we will see a new era of law reform in this country.

Not so very long ago Mr G. J. F. Yuill of the Attorney-General’s Department went to the United States of America and Canada. In a very detailed study which he made of the family courts of America and Canada he came to the conclusion that such a court was a very suitable facility for this country. I quote his conclusions:

I have reached the conclusion that family courts would be a desirable improvement to Australia’s legal system, provided they have this ancillary function of counselling.

I also feel that the gathering together in the one court (or in 2 courts along the lines suggested by the Sydney University Law Graduates Association) of all the family matters mentioned in paragraph 4 above would be attractive to the legal profession and public alike.

The Committee recommended along the lines of that and many other recommendations. It recommended that a family court be adopted and that there be co-operation with the States so that it will work with success. In addition let me refer to a report from certain Canadian specialists who were asked to consider the question of a family court. This report is quoted in ‘The Australian Law Journal’ of November 1973 at page 653:

We believe that these problems of conflicting and fragmented jurisdictions, and the advantages of consistency in philosophy and approach, expertise in dealing with the family relationship, and practical use of social services, can best be dealt with by the creation of one Court with exclusive jurisdiction in the field of Family Law . . .

The group further concluded:

As a blue print for the future, this kind of scheme is being given very serious consideration in Canada, and indeed a pilot Family Court Conciliation scheme has recently been set up by the Canadian Federal Government in Edmonton, where its success is exceeding all expectations.

In Australia the one family court which has been set up in South Australia, which unfortunately is dealing only with those jurisdictions below the Supreme Court level, has been an outstanding success in the last year. The Committee heard evidence of this court’s operations and it concluded that a court of this nature ought to be operating throughout this country.

The Committee considered many other aspects of the Bill apart from the family court. It considered the question of 12 months separation which had been so criticised in various parts of the country. It was firmly of the conclusion that there should be a period in which persons could not rush out of their house after an argument and seek immediate remedies which they later feel they must go on with. The opportunity for reconciliation should always be retained. At a seminar approximately 2Vi years ago a most experienced judge in this field, Mr Justice Selby of the New South Wales bench, in answer to a question from me, said: ‘Yes, there must be a cooling-off period’. He agreed that people ‘must not be able immediately to take proceedings which they may regret’. The recommendation of the Committee, which the Attorney-General (Senator Murphy) accepted, is that there should be a 12-month period of separation before a divorce can commence.

In the last few days I received a letter from the Secretary of the Anglican Synod of the Diocese of Melbourne advising me of a resolution which the Synod adopted on 10 October. The resolution states:

That Synod urgently commends to the Australian Parliament that the Family Law Bill 1974 be amended in the interests of the preservation of the family as the basic unit of our society to provide that no application may be made for divorce under the Bill until the parties have lived separately and apart for at least 12 months.

That was also the recommendation of the Senate Committee. The secretary of the Synod said in his letter that although the Synod considered that there were other matters of importance, the amendment supported in the motion appeared to be the most important. I think there are many other people in this society who feel that this is a very important matter.

The third aspect to which one must draw attention is that in the final report of the Committee there was no unanimity on the subject of whether the period of separation should be a completed period of 12 months or a completed period of 2 years. This is an important matter for the consideration of the Senate. From my experience and the views which I have formed over the years, I believe that a 2-year period would be unfair and that it would be quite wrong for people who are having great difficulty in their marriages, who are suffering because their husband is living with someone else and the marriage is really dead or who are suffering cruelty. They will have their immediate grounds taken from them. I think that it would be unfair to expect those persons to wait 2 years before they can re-marry.

Sitting suspended from 1 to 2.15 p.m.

Senator MISSEN:

-Mr Deputy President, when the sitting of the Senate was suspended I was dealing with the one area in which there was some difference amongst members of the Committee; the majority favouring 12 months as the period of separation and the minority, 2 members, favouring 2 years. I had referred to the question of fairness which I pointed out was one basic reason why I favoured one year. I think that 2 other matters should be mentioned. We on the Committee see that we are dealing with a completely new ‘ball game’ in the sense that a family court will make a tremendous difference to all areas covered by the legislation and that proper operation of that family court will mean that throughout the year of separation there will be a helping, on-going court to which people can appeal and which can actually be involved in the problems surrounding the question of whether a reconciliation is possible. That is not the situation now. The court now comes upon a divorce situation after, say, 2 years of desertion have elapsed and after possibly another year has been wasted in bringing the proceeding to the court. In most cases the marriage is dead at that stage. But it is a different situation if there is an active, operating family court operating during the period of the separation. In that event I think that 1 year is sufficient for all those purposes.

There is a third reason. It is that throughout the experience which I have had in this jurisdiction over many years I have regarded the second year of separation when people are waiting for a divorce on the ground of desertion as largely a year of bitterness. It is a year in which very few reconciliations are achieved and in which very little change occurs. Often what happens in that period is that the parties grow to hate each other; they have fights over maintenance, custody and access, and it finishes with the children of the marriage no longer seeing one parent again. I really believe that in that second year very little is achieved in preserving the marriage or the interests of the children of the marriage. For those reasons I favour one full year as the period of separation.

The third area in which a question of time is involved and which is important in the Committee ‘s recommendations relates to the question of a marriage continuing for 3 years before a party may petition for divorce. I have already mentioned that matter. Honourable senators will read in the Committee’s recommendations that while we agree with the abolition of this provision, we strongly recommend the insertion of a provision that if any divorce application is made and the attention of the officials is drawn to the fact that the marriage has been in existence for no more than 2 years, they should be required to bring this fact to the attention of the judge, and the judge can require reconciliation proceedings between the parties to see whether in that young marriage, that new marriage, there are still grounds and hopes for believing that something can be done. This, I think, is completely different from what has happened in the past where there has been a 3-year prohibition with no active involvement by the court in that period. We strongly urge that change on the Senate as a desirable change.

I turn to the reconciliation provisions in this Bill. We bear in mind again the effect which a family court would have in filling out and giving substance to these provisions. It is also a fact that this is a change which will be a real change so far as the law is concerned, because lawyers throughout Australia recognise that to a great extent the reconciliation provisions of the present law have not really operated. We hope that the provision of a family court will make them matters of reality. But in addition we want to see the provision that there will be proper facilities for reconciliation; that there will be attempts at reconciliation not only at the time of divorce but also before, as soon as some problem arises in the marriage. The parties will have somewhere to go; a helpful facility will exist.

Part of the provisions which, we suggest, should be amended relates to the documents which should be given to the parties contemplating divorce. They should be informative, useful documents; that they should make clear to the parties not only the problems that they will experience after divorce but also the facilities that are available to them now and in their period of trial.

One other amendment which I think warrants the attention of the Senate is the one relating to the making of applications for various ancillary proceedings. There is a provision in the Bill that where applications are made for maintenance, custody or other ancillary matters like that, they must be made at least within 12 months of the decree for divorce being made. After 12 months a party cannot come back to the court; cannot proceed with these matters. Of course, the result could well be a grave injustice being done to the parties. A wife who is promised various things by her husband and who relies on that promise and takes no proceedings for maintenance or custody would find, after 12 months, that the time for taking such proceedings has elapsed. In the original 1973 Bill there was an exception to this; there was a provision that application could still be made by regulation or by leave of the court. It allowed the court to intervene and to take account of such circumstances and give redress. We want to see that provision, which went out of the 2 subsequent Bills, restored to this Bill because we believe that it is necessary to have it in the Act.

I turn to the question of custody and access proceedings. I have already said that I think that the provisions in this part of the legislation show great promise and great advance. But one or two things require alteration. One provision says that children’s opinions, views and wishes on matters of custody should be taken into account by the court when it is making orders. This, I think, is sensible. But there is a further provision which says that where a child is 14 years of age or over, no order shall be made contrary to the wishes of that child. The Committee believes that provision is not desirable. Some children of 14 years of age are mature; others are strongly under the influence of one parent. Therefore, it would be undesirable to deny a court the opportunity to make a decision on all the facts, and we believe that this embellishment on the general regard for a child ‘s wishes should be removed.

I turn to the very important area of maintenance. I mentioned earlier that there is the possibility of harshness being done to wives who have served and helped their husbands for many years, who have brought up the children and who find themselves turned away, and denied maintenance. There is a harshness in the present provisions of the Bill which I believe should be changed. We are proposing that clause 5 1 , which deals with the needs provision- it provides that maintenance is available only in a situation of need- should be tied more closely to the provision in clause 54 which sets out all the considerations and all the rights which the parties have which should be taken into account in making a maintenance order. We have made a number of proposals for changing various aspects of clause 54. We want to see standard of living taken into account, so far as a wife is concerned. Perhaps it should be the standard of living which she could reasonably have expected but which by reason of the breakup of the marriage she may not now enjoy.

The last of our amendments to this section, I believe, will create some controversy, but I think it is a matter of importance. We propose to have among the things considered in the awarding of maintenance, any fact or circumstance which the justice of the case requires to be considered. Some will say that this will bring into question argument about the conduct of the parties in this matter. But I do not think that it is possible to exclude altogether such conduct. I give 2 examples of this. There is the example of a husband who chooses to depart from his wife who has for many years worked and scraped and has not enjoyed the pleasures of life which she would reasonably expect in later life. The husband is in every position to maintain her but he chooses to go away and not do so. There may be such special circumstances where a wife is not by law entitled to any family property which she owns. She should not be expected necessarily to work, perhaps to become a junior typist in some firm; rather, she should be entitled to expect some further order for maintenance. There is the other case where a wife may leave her husband to go to live with some other man for many years and the husband may be left to bring up the children. Ten years later her friend dies. She goes back and says: ‘I want maintenance from my husband. He has not divorced me. I have been away 10 years. I now want some maintenance. ‘ On the mere test of need she would possibly be entitled to have it but we want it left open so that a court in such circumstances can say: ‘No, the special facts here require that in justice you be denied maintenance from your husband’. Looking at it from both sides, some amendment is needed in the maintenance provisions. There is also a need to amend them in regard to the variation of existing maintenance orders because, unless a court is left with some discretion, wives who are dependent on maintenance orders for 20 years and who are no longer capable of going to work, or who should not be expected to go to work, may be dealt with unjustly. We propose an amendment to that provision.

In regard to property the major amendment which the Committee has recommended is that a person can claim a settlement of property and not necessarily be required to start divorce proceedings to do so. On the present reading of the Bill it is almost essential that people who want a property settlement take divorce proceedings. I suggest to the Parliament that it is within the power of the Commonwealth to make provisions irrespective of whether divorce proceedings have been instituted or not. We do not want to see divorce proceedings instituted just because somebody has to take steps in respect of property.

Another recommendation of the Senate Committee relates to alteration to the injunctions provision in clause 90. It is proposed that orders can be made now whereby wives are not required any longer to live with their husbands. The Committee, and particularly myself, have been concerned about the problem of somebody who cannot leave a home because he or she has not the facilities to do so. Because the party has nowhere to go he or she is forced to stay on in intolerable circumstances. I am persuaded, with some remaining doubt, by my colleagues on the Committee that there should not be a second ground of divorce although I may be persuaded to another course. I think it essential that at the very least there should be a right by a party to go to a court and say: ‘I want an order in these circumstances. I am not required any longer to be regarded as living with my husband and I can enjoy the benefits of instituting divorce proceedings after a year of separation. ‘

On the question of costs the Committee recommends changes. We want to see the word ‘exceptional’ taken out. The present provision is that only in exceptional circumstances can costs be awarded. We put before the Senate the idea that in circumstances where the court actually sees some real cause it may make an order for costs. We hope that it will not often need to be used if the legal aid provisions are adequate and properly and consistently applied.

Another recommendation is that publicity of divorce proceedings should be stopped. We cannot see that any good is done except for the profits of certain newspapers when publicity is given to the travails of people in a divorce situation. Under the Commonwealth legislation at present very little can be printed but under the State maintenance legislation, which is to be taken over by this Bill, we want to see the same restriction on this type of publicity which is hurtful to children, harmful to individuals and of no benefit to the people generally.

One major recommendation of the Committee is the upgrading of the advisory body recommended in the Bill into a Family Law Commission. We want created an ongoing body which will not wait 1 5 years for the alteration of divorce legislation but will be able to act of its own volition, will be well representative of interested organisations, to pursue the need for law reform as it constantly sees it and be able to make recommendations to the Parliament. In that way we may have a law which remains constantly just and can pick up defects and which will not require such a major amendment every 15 years.

I have examined the Bill and the amendments which the Committee has recommended. I have examined as best I can the community needs and requirements. I have read with other members of the Committee and other senators the pleas and submissions which have been made over a long period by members of the public and interested organisations. A lot of fine work has been done which now puts the Parliament in the position where it can make a just law in this respect.

I believe strongly in the institution of marriage, in seeing it preserved and in making it workable. I believe that any family law must be strong, useful and constructive. We should not have to wait until the damage is done before we make any change. I hold out no real expectation that we will have a sudden change of human behaviour so that most of the threatened dissolutions will now be repaired. Nobody expects that. Most of the marriages which have broken up will stay broken up but surely we must provide for the necessary courts and facilities so that the break-up occurs with the least bitterness and humiliation and so that people will be able to have a continuing relationship one with another. I support the Bill, particularly with the amendments which the Committee has recommended. I support it with all my heart. I believe it is fair and just to the people of Australia and I hope that the motion for the second reading will be carried.

Senator James McClelland:
NEW SOUTH WALES · ALP

– I believe that this Bill gives the Twenty-ninth Parliament an opportunity to go down in history as the parliament which introduced into this country a matrimonial law as enlightened as any in the world. I say ‘the Parliament’ advisedly, because although this Bill has been introduced and re-introduced by a very dogged Attorney-General of a Labor government it will not become law unless it commands the support of some honourable senators on the other side of the chamber. A free vote is a rare phenomenon in this place. I suggest that it behoves us when we get the rare opportunity of freedom of decision to exercise it carefully and wisely. I propose to examine the Bill not in quite as much detail as Senator Missen has given to it in his very able and painstaking speech. I wish to concentrate on a few of the highlights of the specific alterations of the general philosophies of divorce law, maintenance and ancillary matters which are introduced by this Bill.

Easily the most important aspect of the Bill is the suggestion for the replacement of the grounds of fault in the present law- that is such grounds as adultery, cruelty and habitual drunkenness- with one ground of irretrievable breakdown. As Senator Missen has already pointed out, the notion of fault as the only ground for the dissolution of marriage has already been quite severely breached in the present Act, in what I might refer to as Sir Garfield Barwick ‘s divorce law. It introduced into this country the notion that a divorce could be obtained without any fault, merely on the ground that the parties had lived apart for S years. So that the principle that a fault is necessary before a marriage can be dissolved is a principle which has already disappeared, but the notion seems to have got around, especially during the currency of the present public debate on this Bill, that what we are suggesting stems only from the minds of permissive trendies who are attempting to undermine the institution of marriage.

I point out that although lawyers practising in matrimonial law and people whose marriages have broken down had for years discussed the notion that there should be a divorce law in which the only ground for dissolution was one of irretrievable breakdown, the real breakthrough came from what was known as the Archbishop of Canterbury’s Group. It was a group of churchmen which got together and published in 1966 a pamphlet of their Endings called ‘Putting Asunder’ in which it recommended that this should be the sole ground. I shall quote from what has become a classic passage in the findings of this group. In giving its considered opinion about irretrievable breakdown as the sole grounds for dissolution of marriage, the Archbishop of Canterbury’s Group said: we were persuaded that a divorce law founded on the doctrine of breakdown would not only accord better with social realities than the present law does, but would have the merit of showing up divorce for what in essence it is- not a reward for marital virtue on the one side and a penalty for marital delinquency on the other; not a victory for one spouse and a reverse for the other; but a defeat for both, a failure of the marital ‘two-in-oneship’ in which both its members, however unequal their responsibility, are inevitably involved together. J

That, I suggest, is not only a realistic but also a compassionate attitude towards what must always be a human tragedy. It takes the approach that such tragedies being inevitable, the role of the law, the role of the Government, is to make the dissolution of that dead marriage as dignified and as devoid of humiliation as it is possible for human institutions to do. After this archbishop’s group published its findings, what began as a trickle of opinion in favour of this sort of reform of matrimonial law became a flood, and country after country adopted, or is about to adopt, this ground either as the main ground or the sole ground. Among the legislatures which have adopted this ground either as a sole ground or the main ground in the United States of America are the States of California, Florida, Colorado, Iowa, Nebraska, Texas, New York, Alaska and Oklahoma. Canada has adopted this ground of irretrievable breakdown to be proved by 12 months separation as an additional ground to the other grounds. In Sweden, which has always been an avant-grade country in social matters, divorce can be had as of right on a unilateral request of either party. In Britain the principle of irretrievable breakdown has been adopted, although I would argue that the British system has certain defects in that it allows the notion or fault to survive alongside irretrievable breakdown by virtue of the fact that irretrievable breakdown can be proved by establishing several matters such as adultery- the old fault grounds.

There are many variations in the United States, but significantly there is a body known as the National Conference of Commissioners on Uniform State Laws, approved by the council of the American Bar Association, which on 9 November 1972 proposed that the dissolution of marriage should be granted only on the one ground of irretrievable breakdown. The notion that this ground as the sole ground for divorce will promote easy divorces, or quickie divorces as they are sometimes called, is not something which will hold up. I think this is a matter which was well disposed of by Senator Missen when he pointed out that under the present law there is an opportunity for immediate divorce on one of the fault grounds and that in fact something like 43 per cent of divorces are granted on such immediate grounds, whereas under the law as it will be amended by this Bill, if passed, there will be no possibility of filing for divorce until a period of 12 months of separation has gone by. I might refer to one of the authorities on this particular question, Mr Max Rheinstein- I think this is a particularly telling point- who says:

The second point which strikes the curious observer is that in every country where divorce on any ground is recognised, spouses who are united in the desire to put an end to their marriage succeed, sooner or later, in getting their divorce. The vast majority of divorce actions are undefended- the percentage varies slightly from country to country, but in England, Germany, France, Canada, the United States and, indeed, most western countries, it is in excess of 90 per cent.

I do not know the exact figures for Australia but I would be very surprised if they are less than those mentioned here. The authority goes on to say:

And where there is no contest, there is either agreement on the termination of the bond or at least acquiescence, i.e., consent. Whether in these cases the termination of the marriage is truly justified under the rules of the books, or whether grounds are fabricated or bars to divorce are concealed, the court does not know.

As the Archbishop’s group stated, every uncontested divorce is in fact a divorce by consent. So before we get carried away with the notion that this Bill, if passed, is going to open the flood gates to easy divorce or that something heinous and horrendous like divorce by consent will be introduced into our society for the first time, I suggest that those honourable senators taking part in this debate recall that in most civilised countries something like 90 per cent of divorces under the present law are in fact divorces by consent. Another point that is worth bearing in mind is that when you do have a fault system in the law the proof of fault is nearly always defective, often collusive and frequently manufactured.

Senator Poyser:

– In some cases, perjury is involved.

Senator James McClelland:
NEW SOUTH WALES · ALP

-This is so as Senator Poyser reminds me. Those who have been interested in this subject for some years will undoubtedly have read a book which was published many years ago by A. P. Herbert called ‘Holy Deadlock’. It is a very amusing book which introduced us for the first time, in English fiction at least, to the occupation of the professional co-respondent- the person, be it male or female, who was available for a fee to establish, complete with private detectives, photographs and so on, instant proof of the commission of adultery. This has been, as all lawyers know, a daily feature of divorce law in our country and in every other country. As has also been pointed out, in uncontested actions the judge, having neither the tools nor the inclination to probe the story the spouses tell him, has usually no choice but to grant a divorce on flimsy evidence or on evidence which he suspects may be collusive. Even where evidence by corroborating witnesses is required he can never be quite sure whether the matrimonial offence on which the petitioner relies was in truth committed. A professor of law at Bochum University, Germany, discussed the problems of the divorce law in Germany which I might mention is a very pressing matter at the moment. A new divorce code has been discussed for some months in the West German Republic, and all of these aspects have been considered by German lawyers, the German Parliament and the public generally. Professor Giesen points out:

The fact that 80 to 90 per cent of divorce actions that are formally brought on the ground of adultery or some other matrimonial offence are actually conducted by means of play-acting by both parties suffices to show both the urgent need felt for means of circumventing the existing law and the deep gap between law and reality.

I would like to refer to one final quotation on this matter which is from another German publication. I think it sums up the whole matter of public opinion marching ahead of the law. The quotation reads:

Life with its necessities is punishing an obsolete principle with a thousand lies.

Of course, it takes only a moment’s reflection to realise that there is little to be gained by keeping a so-called guilty spouse in a marriage merely by making it difficult for him or her to be divorced. There is no way known to the law to make a reluctant spouse return to the marriage bed nor of restraining him from joining his paramour, if that is his wish. What we are doing in effect, by making divorce difficult, if you care to look at it in that way, is inviting immorality. It has been estimated, for example, that in England some 40 per cent of illegitimate children are born to stable illicit unions- that is the sort of union formed by people who for some reason or other, say a dog in the manger attitude on the part of the spouse who will not divorce, are not able to contract a second marriage.

If the policy of a matrimonial law should be to protect the institution of marriage, surely one of the strongest arguments against making it difficult for marriages which have foundered to be sundered is that we are inviting people who cannot be freed of a union with which they no longer wish to be encumbered with to free themselves and to undertake a second union. As I think Senator Missen pointed out very cogently, even though it is a fact that more and more people are being divorced it certainly cannot be said that marriage is becoming unpopular. More people are marrying today, perhaps for the second or even third time. But the fact of the matter is that even though a great number of people are being divorced a greater number of people are being married than ever before.

It has been suggested that to allow one party, in effect, to bring a marriage to an end- it is freely conceded that that is the effect of this legislation- is in some way a retrograde step because there should be a consent of both parties. This is the notion of the contract which has been voiced in the course of this discussion. I think that this also is a proposition which will not stand a real examination. It is a matter which was adverted to by the Archbishop’s group in the pamphlet ‘Putting Asunder’ to which I have referred. This matter was dealt with in these words:

The fatal defect of the concensual principle is not that it requires both parties to agree in wanting divorce (that spouse do agree on this not infrequently is a fact that a realistic law needs to be taken into account) . . .

That is the point which I have just been talking about. It states further: but that it subjects marriage absolutely to the joint will of the parties, so making it in essence a private contract. Since it gives the court, as representing the community, no effectual part in divorce, it virtually repudiates the community’s interests in the stability of marriage.

In other words, there is no role for the States or for the courts to intervene to bring a marriage to an end which, for all practical purposes, is dead and which surely, if only in the interests of the children, should be decently buried. I will not refer at length to the point which was made, I think, adequately by Senator Missen that the grounds on which divorces are granted in Australia at the present time are very largely immediate grounds. On the figures for 1973, at least 43 per cent of divorces were obtained on grounds which enabled people to obtain a divorce more quickly than they would under this Bill.

I should like to turn briefly to the question of the period of separation provided by sub-clause (2) of clause 26 of the Bill which states:

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

As Senator Missen pointed out, our Committee took the view that this was a clause which could stand some improvement. We have recommended, in accordance with the proposal from the Anglican Diocese of Melbourne which was read to the Senate by Senator Missen, that the grounds should be altered so that proceedings cannot be commenced until after a period of 12 months separation has elapsed. As will be clear from the words that I have read from clause 26 of the Bill, if it were not amended it would be possible for parties to a marriage who believe that the marriage had foundered to commence proceedings almost immediately after they were married. Of course, they would not be entitled to a dissolution of marriage until after 12 months separation had elapsed. To that extent the idea of married couples separating after a trifling tiff would not get any momentum even from the Bill as it is because people who did separate after some trifling disagreement and filed an application for a dissolution would have to wait 12 months and, of course, would have every opportunity for reconciliation within that period.

The Committee believed and recommendedI understand that the Attorney-General will accept this recommendation- that subclause (2) of clause 26 of the Bill should be amended so as to provide that the proceedings cannot be commenced until a period of 12 months’ separation had elapsed. I take it that this will raise one of the vexed matters of discussion in this chamber. That is: Is 12 months a sufficient period to determine that a marriage has in fact irretrievably broken down? As can be imagined, the various bodies such as the Archbishop’s group which have considered this question gave a lot of thought to this matter. Some, of course, have suggested that this period was really too long. Some people have suggested, especially in the case of an application for dissolution being unopposed, that a period of 6 months would be enough. Others have suggested, as indeed a couple of the members of the Senate Standing Committee on Constitutional and Legal Affairs has suggested, that 12 months is too short and that we should opt for 2 years.

I would like to quote something which supports the proposition that 12 months separation is really, on balance, the ideal period to establish that a marriage has in fact broken down. It is generally accepted by the authorities that after a year of separation- I think Senator Missen said that his own experience as a practitioner confirmed this- all prospects of reconciliation have in the vast majority of cases evaporated. It is no accident that countries which have adopted separation for a specific period as the test of whether a marriage has irretrievably broken down have in no cases by subsequent amendment lengthened the period but several, by subsequent amendment, have substantially shortened the period. As was put by the Scottish Law Commission:

The time required must be sufficiently long to give the spouse a reasonable chance to be reconciled, but it must not be longer. If it is, the separation ground has to be supplemented with a ‘short-road’ divorce on the ground of matrimonial offence, and the fault principle, with all its defects, has to be perpetuated.

Whilst I respect the opinion of those who feel some misgivings about the period, I suggest that if we are to eliminate fault as a ground for divorce and are to opt for one ground only- that is, irretrievable breakdown- we are logically committed to a period of 12 months. I suggest that extending the period would not really work a great improvement in the present law. Of course, there are many intolerable situations in marriage which make it undesirable that a shattered marriage should survive for any longer than is socially desirable. If we are to abolish the instant grounds- the abolition of fault does involve the abolition of the instant grounds- we cannot make the period of separation so long that people wishing to dissolve their marriage are no better off- indeed, are slightly worse off than they would be under the existing law. For that reason, I am convinced, as was the majority of our Committee, that the ideal period required to establish that a marriage has broken down irretrievably is 12 months.

As Senator Missen has pointed out, the reconciliation provisions in the Bill give some reality to the notion of reconciliation. Anybody who has practised in this field will be able to tell you that reconciliation under the existing Act is more or less a hollow farce. It is one of the forms through which parties to a marriage wishing to dissolve their marriage have to go. They have to sign certain forms. They have to go through the act of pretending that they made a serious effort to be reconciled when, in fact, they had come to the lawyers and started their proceedings for divorce long after any hope of reconciliation had vanished. I will not bother to go into the details of the reconciliation provisions because I believe that they have been canvassed sufficiently by Senator Missen. But I would like to draw attention to the fact that in clause 26 of the Bill- that is the clause which establishes the ground of irretrievable breakdown based on 12 months separation- sub-clause (3) states:

A degree of dissolution of marriage shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

In other words, the court- in a moment I will come to the notion of a new court which the Committee has adopted- would have to persuade itself, with all the aids that we propose that such a court would have in the way of welfare officers, counsellors and marriage guidance people, that, in fact, there was no prospect of cohabitation being resumed. I commend to the Senate the reconciliation provisions which are spelt out in clauses 14 and 15 of the Bill. I commend these clauses as providing a realistic and sincere effort to make available to parties to a marriage which is in danger intelligent, dedicated and well-trained counsellors and welfare officers to help the marriage to survive if, in fact, there is any chance that it will survive.

The other matter which, in my view, will make this divorce law an enlightened, humane and dignified proceeding is found in the suggestion that has come from our Committee for the institution of a Family Court. The original Bill brought before the Senate by the AttorneyGeneral (Senator Murphy) contained the suggestion that the jurisdiction in matrimonial matters should be exercised by a section of a proposed Superior Court. I am pleased that the Attorney-General has been persuaded that the suggestion that has come from the Committee for the institution of an entirely separate Family Court of Australia is a good one. The notion of a Family Court is well established in some parts of the world. It has taken root particularly in Japan and California and, as Senator Missen pointed out, in South Australia. We had the benefit of some evidence from a judge of the South Australian Family Court. As Senator Missen pointed out, the Court has limited jurisdiction. It does not have the right to grant principal relief, but we believe that it is a trail blazing institution that points the way to what we should have here.

One of the most humiliating and distressing aspects of marital upset in this country is that much of the jurisdiction in what are known to lawyers as ancillary matters- maintenance, custody applications and the like- is exercised by magistrates who are exercising a generalised jurisdiction in criminal matters. So the wife, who is already in the distressed condition which normally accompanies the breakdown of marriage, has to take her place in the queue with prostitutes, pickpockets and the general criminal element of society, waiting her turn in the rather sleezy atmosphere of the magistrates courts, especially in the big cities. We say that that is something to which parties to a breakdown of marriage should not be submitted. We suggest that a court should be set up which deals with nothing but family matters. I commend to honourable senators the passage on page 1 7 of the Committee’s report which points out that what we have in mind is:

The assimilation of all family matters into one court, with active pre-divorce and post-divorce counselling not merely to assist reconciliation but also to provide for the reduction of bitterness and distress and in alleviating on-going postdivorce problems.

Of course, the human problems do not cease with the mere dissolution of the marriage. Custody problems and access problems are a continuing feature of the lives of persons whose marriage has gone on the rocks. Our Committee formed the view that the civilised way to handle all these matters is to have them concentrated in one court- a specialist court- with judges selected not only for their knowledge of the law but also for their general humanitarian approach to these matters. Our view was that gradually the role of magistrates in matrimonial matters should be phased out.

We faced quite realistically the fact that that is not something that it would be possible to do over-night, primarily because of the geographical complications of a country like Australia. After all, a woman living in Bourke may have to make an immediate application- a custody application or a maintenance application. In the present circumstances it is unreasonable that she should have to wait until a circuit Family Court visited Bourke or some neighbouring large town, or that she should have to go to Sydney or even to Dubbo or some place like that. This is what we have in mind as a development of this Family Court. We see it as a 2-tier Court with judges of Supreme Court status handling large mattersmatters of principal relief- and judges of perhaps district court or county court status handling the ancillary matters which presently are handled by magistrates. We imagine this Court being a court which goes to the people, which travels around the country and, indeed, which travels to places like Bourke and not at long intervals, so that the atmosphere of the family court which we regard as so important will be available not only to dwellers in the big metropolitan centres but also to people in far-flung, small towns and isolated localities throughout the country. As I say, this will take some time to build up. But we believe that a start should be made and made as soon as possible.

We believe in a combination of this humanitarian ground of irretrievable breakdown provable by 12 months separation and a Family Court- an exclusive, specialist Family Courtstaffed by carefully selected judges and assisted by experts such as welfare officers, counsellors, psychologists, accountants and other people such as accountants who might advise those whose marriage is in difficulty primarily because they cannot handle their finances on how to get their affairs in order. In other words it would be, as the Committee says in its report, a genuine helping court. We believe that this, allied to the humanitarian ground we suggest, would for the first time in this country produce a genuinely civilised code of matrimonial affairs.

Senator Baume:

– Would it take over such matters as delinquency?

Senator James McClelland:
NEW SOUTH WALES · ALP

-There are some constitutional difficulties there. The power to set up this court and the power in respect of matrimonial matters generally rests on 2 placita in section 5 1 of the Constitution.

Senator Baume:

– They are 2 1 and 22, 1 think.

Senator James McClelland:
NEW SOUTH WALES · ALP

-Yes, which we might as well look at The Parliament of Australia is given power to make laws under placitum 21 in respect of marriage and under placitum 22 in respect of divorce and matrimonial causes and, in relation thereto, parental rights and the custody and guardianship of infants. It is doubtful whether these 2 placita confer the power on the Australian Parliament to make laws with respect to affiliationparenthood claims, or matters of delinquency. But logically they belong in the sort of court I am talking about. The Committee hopes, especially if this court gets off the ground and shows itself to be a social advance and a success that it would be possible to persuade the States to confer power on the Australian Government to make laws in respect of those matters also. But in reply to Senator Baume ‘s question, there must be grave doubt at this time whether this sort of thing could be taken within the purview of the family court.

I turn briefly to a matter that has also been covered by Senator Missen at considerable length, the matter of maintenance. The Committee believes that the provisions in this Bill with respect to maintenance represent a considerable advance on the thinking and philosophy which have informed such provisions in the past. In an era when women are asserting more and more successfully and more justifiably their equality before the law and in all respects with men, I suggest it is not appropriate that marriage should be regarded as constituting a right to permanent support no matter what the circumstances and no matter whether or not a woman is capable of taking her place in the work force. The provisions for maintenance, commencing with clause 50 of the Bill, establish a new code based primarily on the matter of need. Clause 5 1 says:

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

Later clauses spell out the detail of the criteria which should be taken into account by the court first of all in deciding whether maintenance should be paid and then in fixing the amount. In examining these clauses, as Senator Missen pointed out, the Committee came to the conclusion that the Bill had not paid quite enough regard to the situation of a woman, say, in middle life who may never have entered the work force or may have been in the work force so long ago that she would find it inordinantly difficult, if not impossible, to enter or re-enter the work force or be trained for some sort of work but who may have made a career of being a housewife and a mother. This is not a dishonourable calling, not matter how unfashionable it may be with the more militantly liberationist of modern woman- and I do not say that as any reflection on them but neither do I consider it to be any reflection on a woman to have chosen to live her life that way. The Committee has proposed amendments which it believes will rectify what it regards as shortcomings in the Bill on this matter and allow greater judicial discretion to take account of all the circumstances, such as the one I have mentioned.

To give an example, take the case of a couple who married comparatively young and the male partner undertook, say, a medical course and, in order to make it possible for him to study fulltime, his wife went out to work and, in effect, kept him for a few years. Then the marriage went on the rocks. Clause 54 (2) (f) states in respect of the matters the court shall take into account in fixing the amount of maintenance:

Where the parties have separated or the marriage has been dissolved, the standard of living of the parties before the breakdown of the marriage . . .

The Committee suggested an alteration to that which would give the judge deciding this sort of matter the right to take other things into account, including the circumstances I have just mentioned. It might be argued that a woman who has made such sacrifices as I have just suggested in the interests of the marriage would be entitled to a level of maintenance that would take into account not merely the standard of living which the couple enjoyed at the time the marriage broke down but also the fact that the efforts of such a woman have made it possible for such a man to enjoy a standard of life considerably higher than they had during the marriage. The Committee considered that that should be taken into account. This is the sort of improvement which I believe the Committee has injected into this Bill.

On this question which is embedded in the modern debate on the relationships between men and women, on authority- Professor L. Neville Brown- had this to say on the general philosophical question of maintenance: . . the private law of maintenance will tend to wither away and its place be assumed by social security legislation. In other words, by the year 2000 the law will have abandoned as socially undesirable, frequently ineffectual and wholly uneconomic the hounding of spouses through the courts for non-support of their families. Non-support by spouses or parent will be ranged alongside those other vicissitudes of life- unemployment, sickness, industrial injury, child birth, death itself- for which social insurance should make provision.

Of course, the framers of this Bill and, also the Committee accept the fact that at the present stage of human development and at the present stage of our social institutions there can be no question of doing away with maintenence. In his report to the Swedish Government one of its Ministers, in talking about the overhaul of legislation on family matters in 1969, put it in this way:

Within the growing up generation it is natural for girls to seek equally good vocational education as boys, and the girls who are now leaving school are probably in general prepared to have gainful employment during the major part of their adult lives. However, many families in the now grownup generations have adapted themselves to the system where the wife exclusively devotes her labour to her household. In certain parts of the country opportunities for work are too few and industry too one-sided to enable employment to be provided for all the women who want to undertake gainful employment. A family’s options are also frequently limited by a lack of child day-care centres and nursery schools.

In other words, whilst I think we can look forward to a social consciousness developing which will eliminate the notion of maintenance altogether, at the present stage of the development of our institutions, having regard to the fact that there is still a large generation of women who have undertaken as their sole life work the upkeep of a home and the nurture of their children, account has to be taken of these people with these attitudes and in this situation in life. Our Committee was very conscious of the situation of such women. The members believe that we have strengthered the Bill by making more adequate provision for people in that situation without derogating from the general philosophical basis of maintenance which is contained in clause 5 1 of this Bill.

Senator Missen has already referred to the question of the privacy of proceedings connected with matrimonial breakdown. I do not think I need labour this point because surely there would be a consensus among all honourable senators that proceedings between husband and wife in a dissolution of marriage or proceedings involving children in matters of maintenance and custody are really their concern alone. There should not be from such proceedings an opportunity for newspapers or anybody else to sell their wares. There has been a quite distressing example of that sort of thing in recent months when a few celebrities have had themselves paraded through the newspapers in matters which obviously were of no concern to anybody but themselves and to the authority- that is, the court- which has to arbitrate in these matters and see that justice is done. So we have suggested a strengthening of the provisions designed to ensure privacy in a way which will become clear in the Committee stage of the debate.

Another matter was adverted to by Senator Missen in what was so comprehensive a speech that it is hard for me to find anything else to say about the matter. He referred to the fact that in matrimonial matters there has been traditionally a great deal of class distinction. It is no secret that for a great part of human history dissolution of marriage has really been something that could be afforded only by the well-off. There is no doubt that a great number of poorer people have put up with intolerable marriages primarily because they could not afford either to go to court to have them dissolved or to have 2 separate establishments. Willy nilly, they were joined together in misery. This is one of the reasons why we have suggested- it is implicit in the whole of the approach of the Attorney-General in this as in other spheres- that there should be a system of legal aid and that no person need be prevented from obtaining matrimonial relief merely because he or she has not the means to hire a lawyer.

On this matter I would like to grasp a nettle about which many lawyers feel somewhat chary. That is the attitude, which has been spread, largely by an organisation calling itself the Divorce Law Reform Association, that somehow or other the lawyer can be totally eliminated from proceedings involving the breakdown of marriage. I submit that if we simplify the grounds in the way that this Bill proposes- that is, if it is merely a matter of establishing that the parties have separated for 12 months for them to be entitled to a decree for dissolution- obviously the role of a lawyer in that process reaches vanishing point in most cases. There will not be a contest in more than an infinitesimal number of cases about that issue. The long, hard fought out contests about whether in fact a divorce should occur will largely disappear. But I would suggest with respect to these zealots of the Divorce Law Reform Association, who have become well known for their suggestion of do-it-yourself kits, that they are going to lead people into more trouble than they are going to save them if they suggest that in all cases there is no need for a lawyer,

The healthier a society is, I suppose one would agree, the less need there is for lawyers in all sorts of fields. But let us face the fact that we still live in an imperfect society and there is no arena of human conflict or endeavour in which lawyers are, unfortunately, less dispensable than in matters of thrashing out who is entitled to property, what maintenance should be paid or vexed contested matters of custody. The solution at this stage of human development, I suggest with respect to the Divorce Law Reform Association, is not the total elimination of lawyers and not the attempt to do it all yourself with divorce kits but for the State to shoulder its responsibility in this as in other fields and to provide a reasonable level of legal aid to enable people who find themselves in these distressing circumstances to be adequately and properly represented. I say that not by any means in support of the notion that divorce and its attendant problems should provide a field day for the lawyers but as a matter of reality, knowing how bitter and how complex contests between persons in this situation can become.

Finally I would like to say just this, that the illusion that tightening up divorce laws is the best way to counter the disintegration of the family is something that we have to face squarely. We have to face the fact that it is an illusion. For example, in countries where there is no divorce law at all- a spectacular example, of course, is Italy until recently- can it be suggested that there are no broken marriages, no immorality and no illegitimacy? Anybody who is any sort of student of the Italian scene will tell you that quite the contrary is the case. When we look to the causes of the disintegration of marriage I think we have to say quite honestly that none of those causes has anything to do with the divorce law of a country. The real causes of the disintegration of marriage, I suggest, are to be found in such things as increasing urbanisation, increasing industrialisation, greater social mobility, the emancipation of women, the weakening of religious sanctions and, I suppose we could say, the increased all-round prosperity. It is just a fact that we have to face, that more people today are able to get divorced and to go on having a resonable standard of life than was the case in the past. In a period of 2 -income families, the woman who just has to grit her teeth and bear an intolerable marriage is, I am glad to say, disappearing. There are still plenty of them around, but the social tendency is for bad marriages no longer to be prisons from which the spouses cannot escape.

We are looking in the wrong direction if we are suggesting that by making divorce more humane, simple and less expensive we are fostering the breakdown of marriage. It is part of the human condition and part of the developments which I have just listed that marriage is less stable today than it was in the past, just as many institutions are less stable. But, as has been pointed out by Senator Missen, this does not mean that marriage is disappearing. It does not mean that people no longer want to marry. On the contrary, all the evidence seems to point to the fact that marriage is here for a long while yet. It behoves us, then, to know that the real causes of the disintegration of marriage are not to be found in permissive or easier divorce laws. On this point I conclude by quoting Professor Kahn.Freund. I think this is a point which honourable members should contemplate. It is an original and very thought-provoking contribution to this debate. The professor stated:

Is not the rising divorce rate very largely a reflection of increasing social equality; what was yesterday the habit of the privileged few is today the right of the many? How far, again, does the growing number of divorces indicate a more widespread inclination to prefer marriage to factual union? Is it not true that not so long ago masses of people never bothered to get married at all, and that consequently the dissolution of their unions did not appear in the divorce statistics? And does it perhaps indicate an enhanced rather than a diminished respect for marriage as an institution if people insist on having a marriage dissolved and on getting married again rather than having a mistress or a lover?

Senator BAUME:
New South Wales

– We are discussing the Family Law Bill 1974. 1 understand that this is the first time this BUI has come up for debate, although the Attorney-General (Senator Murphy) has had the depressing experience of having to present more than one- I believe three- second reading speeches during the time that this Bill has been acooking. I understand, too, that this is the first of 2 debates which we will have and that the Committee stage of the Bill will engender a lot of discussion and debate. At this stage it might be worth while looking at the philosophy of divorce and at what we think we should be aiming for. If we can define that and get a good idea of where we think we are heading, we might be in a better position to examine the proposals and to decide whether they are good or bad.

I place my own position on record, not least of all because I would like to satisfy the large number of people who, as has happened to everyone in this chamber, have been lobbying me- people who want to impose one view or the other. I thought Senator James McClelland was extremely tolerant in referring to the Queensland branch of the Divorce Law Reform Association. My inclination to support the Bill has not been helped by the extreme and unpleasant way in which this branch of the Divorce Law Reform Association has done its lobbying. Its cause has not been advanced by the vituperative language or by the extreme way in which it has presented its view. In particular, I was disgusted by the latest circular to reach me from this organisation. It is the October 1974 circular of the Queensland branch of the Divorce Law Reform Association. I think that it should be ashamed of the words it has written.

Senator Georges:

– You should put it in the waste paper basket.

Senator BAUME:

– I will quote it. I think it is disgusting. It says:

Once again the members and the public are staggered that the Senate appointed a Committee of Lawyers to provide amendments to the Family Law Bill. The result is recommendations that will make greater profits than ever for the legal profession. The public is sick and tired of a sell-out to lawyers particularly with a social and medical problem and which is not a legal issue.

The writer goes on to criticise various parties. As a non-lawyer I place on record the fact that it is the Senate which created the Committee, it is the Senate to which the report came; and it is the Senate which will make its own judgment. If we choose to select from among our members those with legal training to advise us, that is ‘our right. It is no business of any association such as this to criticise us and to claim that we are in any way selling out or giving up our responsibilities.

As I said, I am inclined to support many parts of this Bill. I think there are many ways of looking at it. So far we have had 2 speeches from men with legal backgrounds. I think it is good that the debate include as many people as possible who bring other points of view, such as those who in their professional life have seen divorce from other aspects. In my own work, where I have been involved in counselling in a professional sense, I have seen many instances in which human distress springs out of unhappy marriages and out of the present divorce law as it exists. I have seen degradation. I have seen people who have had to resort to subterfuge and hypocrisy and who have had to invent reasons for getting divorced. I have seen people locked into marriage because of inadequate law and inequitable legal practices.

I understand that other speakers will concentrate on detailed provisions of the Bill. I shall not try to do this, so that I will not take up too much time of the Senate. I shall limit my contribution to some of the social areas; to discussing what we mean by marriage, what we mean by divorce and what we should mean by family law. Before doing that I shall make a comment about this debate going on today. The Bill which we are considering will have offered to it a number of amendments which are contained in the large report from the Senate Standing Committee on Constitutional and Legal Affairs. This report came to us only 2 weeks ago. I have no objection to the second reading debate going on. But I know that many people in society- people whose views I do not share and people whose views I will not necessarily support- feel that if the Committee stage of the Bill goes on quickly they will be denied the chance of analysing this document and of preparing what they think are amendments which could be useful for consideration by honourable senators.

It is my view that there should be some adequate time for those groups in society which are interested enough to want to work on this Bill to present their cases. It is my view that 6 weeks from the date of the presentation of this report would not have been unreasonable. It would be a finite time. It would bring back debate. It would still force us to debate the Bill and to make up our minds. Six weeks from the presentation of this report would be about 26 or 27 November. I think that that would be a fair and reasonable time to go on with the debate or, at least, to go on with the Committee stage of the debate. I hope that the Attorney-General will consider this point and consider whether we can give these groups a period of time. As I have said, I am not inclined necessarily to support the ideas such groups will put forward. But I would hate anyone in society, particularly in the emotionally charged atmosphere which surrounds this debate, to go away saying that he did not think he had had a fair go. I suggest that the Bill which may emerge as a result of these amendments is different from the Bill which has been around for two or three months. These amendments create a different piece of legislation. The people who have been looking at the Bill and who have been lobbying us have a valid point if they say that it is only in the past 2 weeks- it is less than that actually, because this document has not been on sale for the past 2 weeks- or during the period that the report has been on sale in the bookshops that they have been able to analyse the new, new, new Family Law Bill, depending upon which model we look at, to analyse the amendments and to work out what they might want to say in reply. It is my feeling that we should go ahead with this second reading debate because it is a debate of principle and belief; but for the detailed consideration in Committee I hope the Senate will defer further debate.

I believe that there are 2 aspects to marriage. One of those aspects concerns relationships between people. Those relationships do not require any legal backing at all. As Senator James McClelland has made clear, those relationships will exist no matter what the law is or in spite of any law. In the end it is those relationships which are really important in marriage from society’s point of view. If we approve of marriage it is not necessarily because we approve of the legal state of marriage. We approve of the situation which marriage creates for the protection of society. That is one part of marriage.

The second part is the legal framework which we have found necessary to regulate marriage and to help us to decide a number of matters which come out of it. It would be wrong if we saw the Family Law Bill solely in terms of the legal framework of marriage. I agree that if we are altering the law we must consider this. We must know what these legal consequences are, but we must examine also what the social consequences will be. What will happen to people who are caught in relationships or who must exist and cope irrespective of the law? Our law on marriage is quite different to the law operating in some other countries. That law is peculiar to this country, but the relationships between men and women tend to be more universal and more important. In our society the social relationship of marriage implies certain things. It implies exclusivity between partners and permanence. I am talking about marriages that work. It may change in future. Society and many features of society are changing. At present we see marriage as a union which tends to be an exclusive and permanent union. No matter what new ideas come, we must try now to protect the stable bonding of man and woman and provide a stable situation in which children can be brought up and protected and in which family life can be established.

These relationships are very difficult. They depend upon the mores of society as they exist at any moment. Various groups in society may not believe in marriage. Marriage is becoming more popular. Both Senator. Missen and Senator James McClelland have adverted to this fact. Many of the patients to whom I have spoken in the last few years- young men and womenhave impressed me with the morality of their relationships. Many of them are not married but are living together quite monogamously. After a period, when they feel that they are ready, they marry. I am not saying necessarily that this is what I wish to see but I appreciate that this is essentially a very moral way of approaching relationships with the other sex. In our society marriage is related to our past experience, past expectations, history and this kind of thing. For example, each of us understands, whether we are men or women in terms of our genetic make-up, that we are caught in a situation in which we see our functioning in terms of our being male or female. It could be that in society from now on we will need to change that idea. We will need to see our gender roles changed to protect our society. If women become better educated and liberated they may wish to return to the work force, and the men in society may have to take over more of the role of home making and child rearing. If we are to protect the institution of marriage, if we are to stop women being slaves, caught in the home, and men being free and able to work, we may need to look at this social aspect. We may have to move this way.

Marriage is more difficult today. There is more stress on people as individuals; less of our needs are met from within the family; more things are done in schools; more of our needs are met from outside; people turn less to the family for their recreational needs. The family structure itself has altered. The family is less supported and less extended. Fewer generations can lend support. Women have been liberated and have different expectations, not only because their attitudes are different but also because their education is better. The laws of the land are changing. Modern contraceptive practice has enabled women to control child bearing. The Finer Commission on one-parent families in the United Kingdom was established in 1969 to report upon the effects of Britain’s new divorce law. It made a large number of comments relating to family life, family structure and family stability. It made the point that marriage is being entered into at a younger age and child bearing is being controlled and compressed into a much shorter period. So there are smaller families rather than larger families, and women are tending to return to the work force in their mid-thirties whereas previously they worked in that brief period between school and marriage.

Early in this century most marriages were broken by death, few were broken by divorce.

Today with modern medicine and modern divorce practice the reverse is the case. The Finer Commission which examined divorce practice in the United Kingdom reached the conclusion that we can expect at least 1 5 per cent and possibly 25 per cent of all marriages to end in divorce from now on. If we are thinking about family law and family law Bills we are thinking about a situation in which one-fifth or one-quarter of the marriages in our society will break down and end in the divorce court. I would hope that one of the things we wish to do for children in our society is to teach them about the kind of relationships that go into a marriage. We need to commence this education in early childhood. It is not good enough for us to start talking about buttressing the family at the point of divorce.

Senator James McClelland:
NEW SOUTH WALES · ALP

– It should be harder to get married.

Senator BAUME:

-That is a statement with which I agree. We should start preparing people at an early age for marriage, the responsibilities of marriage and their role in the kind of relationships they will need to make, and we should keep this kind of education going forward. It is more important than learning algebra. Yet in our educational system we give a high value to matters which are often largely irrelevant for the kind of life we will live. We are ignoring totally many of the behavioural sciences and skills which we will need to survive socially. It is a topsy turvy situation.

Senator Coleman:

– We cannot even get sex education in a lot of the schools.

Senator BAUME:

– If Senator Coleman lives in hope it may yet happen. My response to her plea is that the biology of these relationships just is not enough. We must teach something much more than biology, and one of the criticisms of present day sex education is that it is too factual. The teaching of relationships is difficult and is a lot more than the factual business of the birds and the bees. We know that more people are marrying, divorcing and re-marrying. This in itself is not a bad thing, but the Senate may care to know a few basic health facts about marriage. If one examines the death rates, sickness rates and psychiatric illness rates of married men and single men and married women and single women one will find that married men are healthier than single men and have lower mortality rates. One will find also that married women are worse off than single women. Marriage, as it exists at present in Australia, has a very marked medical disadvantage for women. They have an excessive mortality rate, especially during the period they are bringing up children. This is something we should understand if we are examining the structure of marriage and its relationships and what is happening to them.

I would like to refer now to the Committee to which Senator James McClelland referred in his speech. It was set up by the Archbishop of Canterbury to study divorce. The Committee’s report was published as the document ‘Putting Asunder A Divorce Law for Contemporary Society’.

The Archbishop’s Committee recommended the abolition of all existing grounds for divorce and the substitution of the sole ground of breakdown of marriage. The Committee recommended also- I think this is an important point in a consideration of some points of the Bill- that to discover whether the breakdown was irretrievable a court should always investigate the breakdown. I want to get round to the point that most of us would agree with the concept that there is only one real ground for divorce, and that ground is irretrievable breakdown of marriage. But I would go further and say that it has always been the ground for divorce. We have only ever had divorce where marriages have broken down. It is just that we have applied different tests to determine whether or not a marriage has broken down.

The Archbishop’s Committee which has been quoted recommended that we should always investigate whether a particular marriage has broken down. I take it from this that that Committee was concerned about the methods of proving irretrievable breakdown. When we are looking at the matter of dissolution of marriage, it is in this question of how we determine irretrievable breakdown that some doubt starts to appear. I am grateful to Senator Missen and to Senator James McClelland for the way in which they have explained the views of the Senate Standing Committee on Constitutional and Legal Affairs and the purposes of the Bill. But there are problems with accepting one year’s separation as a blanket ground for dissolution and saying that in all cases that proves that there has been irreconcilable breakdown. Even though there exists a provision for one partner to object, you get the kind of situation where separation could occur quite normally. For example, someone might volunteer to work in the Antarctic and be sent there and be physically separated for a period of time.

Senator Missen:

– They have to separate first.

Senator BAUME:

– If they have separated and they are apart for a year, one partner to the marriage could petition for divorce.

Senator James McClelland:
NEW SOUTH WALES · ALP

– That is covered by clause 3.

Senator BAUME:

– I am aware of the fact that the other partner could object to that kind of a ground, but I am not convinced that one year’s separation in itself is complete or adequate proof of irretrievable breakdown, nor am I convinced that it is necessarily the only ground which we should accept. What I want to do is to join Senator James McClelland in finding some way of defining ‘irretrievable breakdown’, and when that has been found to get dignified, simple divorce, and to get it without the kind of dishonesty that goes on at the present time. I suggest that there is some virtue in seeking a system where there might be another ground, and that ground would be intolerable conduct. This matter has been canvassed already. In one of the paragraphs of the report of the Senate Standing Committee on Constitutional and Legal Affairs it was suggested that there could be another ground for dissolution, and that is the ground of intolerable conduct. I would see that as another way of proving irretrievable breakdown of marriage.

I agree still with the central theme of the Bill and with the Committee ‘s idea that it is only irretrievable breakdown that we want as a ground for divorce, and that we want to do away with some of the other fault provisions which in themselves have been quite degrading. But I am concerned that there should still be immediate relief available for those who want it. I suggest that if we have one year’s separation, or whatever period the Senate and the Parliament decides, as one way of proving irretrievable breakdown and we have another method available as well, most people will avail themselves of the first method; most people will avail themselves of the separation ground, because it is simpler and cleaner. The only people who would need or use the other ground are those who would want immediate relief under special circumstances. I hope that at the Committee stage of the debate an amendment will be moved to include a second method of proving irretrievable breakdown of marriage, and I hope that if that happens it will be acceptable to the Committee. I believe that it would allay the worries of some people and obviously it would strengthen the Bill.

I do not wish to comment on the other aspects of the dissolution clause except to answer one criticism which I get from a great number of people who are writing to me, and that is that we may well get a rising divorce rate. Senator James McClelland referred to this point in the concluding words of his speech. A rising divorce rate in itself says nothing about the relationships between people. What has gone wrong is the breakdown in marriage. A rising divorce rate is merely an indicator of something more basic that is going on in society. The rate of divorce itself is not a true indication of how people are relating one to the other. There are other ways of making that kind of a judgment. I would expect that if we altered the divorce rules there would be a rise in the number of divorces registered, and I think it would be quite wrong under those circumstances for us to proceed to assume that our society was falling apart or that marriage was becoming less stable. A rising divorce rate merely reveals a previously existing rate of failed marriage- that is all- and in those circumstances it would be wrong for people to make erroneous conclusions as to what they read into what follows the passage of a Bill like this.

The other provisions of the Bill which are causing concern are the provisions relating to maintenance and custody. I am very grateful to the Senate Standing Committee for the breadth and detail of its report. It has clarified quite a few issues. There has been a lot of concern in society that many women would be disadvantaged. I think it is fair to say that women will be potentially disadvantaged. I put the point of view that marriages contracted 15 years or 20 years ago were contracted on the understanding between the parties that they were working within a certain set of understood rules. We now propose to change the rules so that those marriages could be dissolved under a completely different set of rules. There seems to me to be some possible injustice being done to people who might have married on one set of assumptions, that they were undertaking a certain kind of commitment one to the other, and who may now find that that commitment no longer exists. It may be true to argue that that commitment is no longer relevant, but I should like to think that in fact it should apply in the future or that there should be some adequate transitional period during which people can decide whether or not they wish to get divorced under the old rules which they understood to operate when they married and at the time when they set up their married life together.

I am anxious that we should get justice for the women who have been a disadvantaged group in our society up to now. They have been deprived of the same educational opportunities as men, they have been deprived of the same work opportunities, and they have been deprived of the same financial opportunities. Up to this stage they have not been able to compete equally with men in the divorce arena, except perhaps as regards their rights to maintenance. Under this Bill, I believe, husbands are less liable to maintain their ex-wives than they were previously, but the wife is more liable to support an ex-husband than she was previously because if a husband can show need he may well be able to get support and maintenance. The wife may have this positive legal duty to maintain her husband.

All that this tells me is that there is an area of potential hardship for some women, especially ibr the mature woman to whom Senator James McClelland referred who may have had only a brief period in the workforce. They may have stopped working when they were 21 or 22 years of age and spent the next 20 years bringing up their children, but at the age of 45 years they may be told to go back to work. They can go back to work all right at the same level as they were in the workforce at the age of 22 years. If they were employed at the age of 22 years as a secretary, that is what they will go back to the workforce as when they are 45 years of age. Their chance of going back to the workforce in some senior position is zero. Their chance of maintaining the same standard of living is nonexistent. I am very keen to ensure that under this Bill we do not create the situation where a whole generation of women who have contributed to family life and to the bringing up of children are now left with nothing but the chance to go back and work for subsistence. I hope that the kind of factors taken into consideration will enable these women to get adequate protection for maintenance, because I again draw your attention to the comments on the British divorce Bill and to the actions which followed it. The comment was made that financial and ancillary matters remained bitter conflicts even after the passage of that legislation which was designed to make the dissolution of marriage simpler and fairer. I do not want that to happen in this country where we are simply removing the area of battle from the dissolution of marriage to the financial and other considerations which flow on, the ancillary matters to which Senator James McClelland referred. If we do that, we have not really progressed very far at all. If we return to the situation of a full-scale battle so that all the legal trappings we see now in the divorce courts are to be the future surroundings of applications for maintenance, custody and property, I do not think we will have made the kind of progress we would have expected. Many people in Australia will be sorely disappointed because they are looking to this Bill to simplify divorce and associated matters. This will happen only if the ancillary matters are adequately coped with.

On the question of custody particularly I cannot see how we can move away from some consideration of conduct in arriving at custody decisions. I have had numerous patients who have been divorced and who have had grave psychological problems. I have known people wanting custody of their children who have been alcoholic or psychiatrically disturbed. It has been recorded that people seeking custody of their children have been cruel and sadistic. If the courts are not allowed to take those kinds of factors into consideration, and they should be able to do that -

Senator James McClelland:
NEW SOUTH WALES · ALP

– They will be able to do that.

Senator BAUME:

-They will be able to do that. We have a situation where conduct comes back into the field of family law and no one society should think of a family law situation where conduct is not relevant. It is relevant. Even if it is not revelant to the dissolution of marriage it becomes relevant again in the determination of these other matters.

In a family law Bill- not necessarily this Family Law Bill but an ideal Bill- we should be seeking a way of creating better marriages and in some way of maintaining those marriages. The three areas of marriage are entry, the period of marriage and the dissolution. With all respect to those people who have worked so hard on this Bill, it confines itself to the point of break-up. It is achieving some very great advances in doing so but it is still ignoring the long period during marriage and the period at which people enter into marriage. Both are very important stages at which we could do so much to protect the marriage bond and to make divorce less likely.

The Catholic bishops of Australia, as honourable senators probably know, have recommended positively that marriage should be made more difficult. They have suggested that those who are very young and who wish to marry should have to give a fairly lengthy period of notice and should be encouraged to seek counselling during that time. That has some virtue. Divorce being an area of such disputation and the cause of so much unhappiness in marriage and in the light of the divorce statistics showing that young marriages tend to break up there is some virtue in the suggestion from the Catholic bishops that there should be some kind of extra waiting period except when a special dispensation is given by a magistrate before people under 18 years of age can marry.

The Catholic bishops went further and suggested that for everyone the waiting period between the application to marry and the marriage ceremony should be 4 weeks. Again there seems to be a lot of merit in this suggestion. It is such a simple thing to do. It would cause no real hardship and could do something to make people think just a little more before they enter into marriage and bring upon themselves all the difficulties which may ensue if the marriage is unhappy and they have to seek dissolution at a later date.

In our present society protection of existing marriages is really lacking. The situation in New South Wales is abysmal. One of the only counselling bureaus available to low income families recently had to close. At a time when we are discussing a Bill which will set up counselling services a counselling bureau in Sydney went out of business because of lack of money. The result is that people in New South Wales who have not the money to go to expensive private counsellors have lost one of the only agencies which could have helped and was helping up to a few months ago.

If we are serious in our desire to buttress marriage, let us do it at some point prior to the entry into the divorce courts. It is all very well to say that a reconciliation service will be set up and that we will insist on people using it. We will not insist upon their using it until they have decided to get a divorce. That is an empty way to use marriage counselling, to wait until people have made the decision to separate before saying that they must seek reconciliation. The time to do that is at a much earlier stage. We should have marriage counselling with all the facilities available in a widespread way throughout the community. I believe it would be better if the counselling services were provided separately from the family courts.

My view is that the family courts will use these facilities well- there is no question about thatand they will be extremely valuable to their functioning. However, there will be a tendency to limit their operation to marriages that are already in bad trouble and to couples who in some way have found their way to the courts. It would be desirable if the counselling structure were separate but had close links with the courts. By being separate it could attract people who at present might be a little reluctant to seek counselling when it is available only from the court which handles divorce. I do not think that idea is too extreme.

Professor Julian Katz, professor of child psychiatry at the University of Sydney, recently at a large Sydney hospital discussed divorce. He commented, as we all know, that divorce is a crisis in the lives of all the people involved- the two parents and the children. All the counselling facilities we can get to provide for these people are valuable but I do not see them operating necessarily to effect reconciliation. I believe this is an empty thought. I see them operating to offer therapy to people at a time of crisis, to help children through a period when they are likely to get very disturbed, and to help men and women who have to make decisions about their own worth and future. I hope that when the counselling services come into operation they will see this therapeutic function as a major activity and will not simply concentrate on patching up marriages. Attention should be given to helping people to live better in the divorced state and to getting the children used to the idea that they are going to exist without one or other parent in the house. Looking at what the Americans have done, I remind the Senate that they set up an ad hoc committee on a Standard Family Court and the National Council of Crime and Delinquency. That committee reported in 1959 and recommended, regarding counselling services, as follows. . . does not insist that the service be located principally in the court. The court should support the idea of a community clinic outside the court through suitable referrals to private agencies.

The recommendations go on to say that counselling can often be more effective if it is outside the court than if it is within it.

Finally, I believe that what we are looking at here is primarily a divorce Bill. It is not really a family law Bill in the sense that it takes in the measures which I would like to have seen to support and strengthen marriage. It does not discuss marriage and it does not really discuss the needs of couples during the long period of marriage and during the time when their troubles develop. That it is a divorce Bill I do not say in any critical way. I think we require a reform of our present divorce law. It is only secondarily a family law Bill of the kind I would like to see. The aspects of the Bill devoted to counselling, reconciliation and to this kind of support are, to my mind, inadequate. This Bill is concerned with the dissolution of families. It will work, I believe, to minimise the distress and the unhappiness of dissolution as we have it at the present time. But to the extent that the Bill does not work to hold families together or to strengthen the family unit in our society, the Bill fails. I would think that it will require further legislation from this Government or from some other government to offer the kind of measures to support families in what is becoming an increasingly difficult world in which small isolated families can survive.

I hope that during the Committee stage of consideration of the Bill we may see amendments proposed which will seek to add an extra way of proving that irretrievable breakdown of marriage has occurred, and that is the ground of intolerable conduct. I would support such an amendment. I hope to see some consideration given to whether counselling services might better exist outside the family court, though still working closely with it. I do not believe that 12 months separation is necessarily proof of irretrievable breakdown, nor do I believe that it is in itself the only proof. In fact, the only reason that we have chosen it is that it is administratively simple. It is something we can define and it is something which could work. A Bill which promises so much will be a farce if social justice does not follow it and if in fact the same kind of bitterness that we see at the present time carries on after this Bill is passed.

I would like to congratulate those people who have involved themselves in the Bill. I congratulate the Attorney-General who has presented the Bill to us on a number of occasions and the members of the Senate Committee who have done so much to examine it, to improve it, and to enlighten the Senate as a whole. I am grateful for the examination which they have given the Bill and for the help which they have given to all honourable senators. I do hope to see the Bill passed into law; I hope to see it become law with amendments. I hope that when it does become law it can usher in a new era for divorce practice in Australia. I also hope it will be followed by the other measures which are so necessary to strengthen marriage and to buttress family life.

Senator EVERETT:
Tasmania

– I think it is true to say that the attention of many thousands of people throughout Australia is focused on the Senate as it debates the Family Law Bill and that that attention will continue to be given to this debate until the Committee stage has been concluded. It is therefore to me pleasing to observe, if I may do so, that the debate on this Bill, which by now has extended over some hours, has been of an extremely high standard, free from the acrimony which is often associated with debates in this chamber and, I believe, indicative of the fact that it is the wish of all honourable senators to ensure that the best family law legislation can be enacted without undue delay. I certainly recognise that the Bill is an extremely important measure which potentially can affect a significant number of Australian citizens. I believe that it therefore merits the utmost attention of the Senate. Before I deal with some matters of detail I wish to place on record 2 facts; firstly that I was a member of the Senate Standing Committee on Constitutional and Legal Affairs which examined the detailed provisions of this Bill and, secondly, that over a long period I practised professionally in this jurisdiction in the State of Tasmania both at supreme court and lower court levels.

When one examines the divorce laws which have existed over a long period in England and in Australia it is obvious that they reflect the social attitudes and the mores of their time. Specifically, it is clear that over the past 15 years there has been a significant transition from the law and practice of the ecclesiastical courts, as it was reflected in our law, towards a less rigid attitude, towards a desire that much of the acrimony that traditionally has been associated with proceedings in this jurisdiction should be abated. For many years, ever since the passage of the Matrimonial Causes Act 1959 and its coming into operation in early 1961, attention has been paid by politicians, lawyers, church groups and the like to whether the existing law measured up to the standards that were appropriate in these times. I simply mention that the former Liberal Party Attorney-General, the Honourable Nigel Bowen, as long ago as early 1968, in writing a foreword to a standard textbook on Australian divorce law and practice, used these words:

Once again, only some 8 years after the passing of the Act, we are entering a further period of discussion and debate as to the adequacy of our divorce law, not because of faults in the legislation but because divorce law is so closely tied to social attitudes and conventions which are these days subjected to continual revaluation.

Proposals of reform have ranged from the suggestion that marriage should be a 5 -year renewable contract, recently put forward by an American social worker, Mrs Virginia Satir, to more sophisticated proposals for including breakdown of marriage as a ground for divorce and the introduction of family courts and courts of domestic relations.

I wish to refer now to what the authors of that standard textbook said in their introduction.’ Writing as they were in relation to the new Federal Matrimonial Causes Act, I think it is significant that even then they cast their minds ahead as to whether the 1959 legislation had gone far enough. In their introduction the authors state:

In order to obtain a decree of dissolution of marriage, one of the grounds set out in section 28 of the Act must be proved, but it is becoming increasingly clear that the facts which constitute the individual grounds are normally only manifestations of the breakdown of the marriage. Lawyers practising in this field now, to a greater extent than in previous generations, tend to investigate first whether there has been such a breakdown before they determine what particular ground is then available, or may become available, to the party seeking dissolution. . . . It is to be expected therefore that the next substantial legislative change to the grounds will be to add a ground which refers simply to the breakdown of a marriage rather than a ground which selects yet another of the various types of human conduct which might be thought to be a matrimonial offence.

The proposal has already been made both in England and in Australia that a further ground to be added should be that, if the court is satisfied that the marriage has irreparably or irredeemably broken down that should be alone a sufficient ground for dissolving the marriage.

I think that it is proper in considering whether this Bill should be read a second time and whether the Committee should proceed, to ask oneself the question: Do the existing laws, practice and procedure measure up to the standard that we consider is appropriate and proper in 1974? For that purpose it is necessary to consider what the existing law provides and the extent, if any, to which it has been proved to be deficient. So I proceed in the introductory part of my speech to the Senate to examine the case for change. The first point that I would stress is that the concepts and the procedure of the existing law are still rooted in the ecclesiastical past. The shadow of the ecclesiastical courts of England still hangs heavily over our divorce law, practice and procedure. The 1959 Act really did not achieve the reforms that perhaps some people believed it did achieve. I think that it is true to say that it affected only 2 significant reforms. It did certainly reform procedure- whether for better or for worse I will examine later- but there were really only 2 significant substantive provisions which emerged from that legislation.

The first was the introduction on a national scale, for the first time, of 5 years separation as an additional ground for divorce. But, of course, separation for that period had already been the law in Western Australia since, I think, 1944, and for some time in New Zealand. The second set of provisions of a substantial kind which the 1959 legislation introduced was in relation to property settlements. The rigidity which had applied before 1959, or before 1961 when the Act became effective, was to some degree taken out of the law but- in a manner that I hope to examine later- only to some extent. Side by side with those merely 2 significant amendments of the law, the 1959 legislation still preserved the criminal nature- I emphasise the words ‘criminal nature’- of the proceedings in the old ecclesiastical courts. Thus, the 1959 legislation still referred to jactitation of marriage and I doubt whether more than one in a thousand would know precisely what that was; damages against a co-respondent preserved the old action for criminal conversation, as is was called; discretion statements were made which seem to have been devised simply for the edification or enjoyment of the privileged class, the judges, who alone were entitled to read them; collusion was a bar although in a modified form; and there were other relics of an ecclesiastical past that was concentrated on the criminal aspect of these matrimonial matters.

So the first point in considering whether or not there is a case for change is whether or not the concepts and procedures of the existing divorce law are such as improperly and unnecessarily to preserve an association with the attitudes of the old ecclesiastical courts. I think the second matter that is relevant in this consideration is the excessive legalism which has surrounded the divorce law and its practice. I believe that it is true to say that, even worse than the first point I have made, the 1959 legislation preserved the old procedure and the attitude of the courts to matrimonial causes. The result of that has been excessive legalism causing delay and expense in a jurisdiction which even then demanded the very opposite approach. I think it is true to say in this context that the traditional role of the courts has been based on the fallacious assumptionfallacious so I would argue- that to make divorce difficult, costly, degrading and certainly undignified would contribute to the so-called sanctity of marriage. I believe that that concept heavily lies over both our law and our practice during recent decades. I repeat that I consider it to be a fallacious assumption. The result has been that unnecessary humiliation and distress have been caused in a way which I do not think has particularly reflected credit on our legislators.

By and large, the attitude of the courts has been a conservative one. I do not blame them for that because the pattern and the legislative framework were determined by Parliament. One only has to read some of the law reports to appreciate how formalistic the approach of the courts has been, despite the 1959 legislation, and still is. Let me give some examples. So far as the standard of proof of adultery is concerned Briginshaw’s case- which perhaps is the most well known- and a number of other subsequent cases laid down that the standard, so the High Court determined, was to be that of the ordinary civil jurisdiction but subject to the rule of prudence, that a court should act with caution before finding such a ground established. That enunciation of the standard of proof has led to lengthy trials in which the evidence is based on association, on opportunity and on intimacy whilstthis is the point in relation to this Bill- the judge, the parties and their counsel all know that the marriage had finished before the acts complained of for other causes and that the alleged ground was the outcome rather than the cause of the breakdown.

Secondly, so far as desertion is concerned, I say positively from experience that perfectly decent people have been obliged to distort the facts to accord with the law’s requirement that one party, in order to establish desertion, must be found to have left the other party against the will of that other party; whereas those with experience in this jurisdiction know full well that in a very large number of desertion cases the leaving is consensual; but to prevent the other party defending the case and revealing the true position large sums are frequently paid or extorted from the petitioning party and are blessed by the court- because the court has no option to do otherwise- as a so-called property settlement. These farcical hearings have brought the courts and the administration of justice into disrepute and have been humiliating to judges and to legal practitioners alike.

I mention a third so-called fault ground that is in our present law and that is, cruelty. The simple fact is that the anxiety of the courts in Australia to avoid divorce on the ground of mental cruelty or incompatibility has made the legal requirement to satisfy this ground increasingly difficult to meet, thus causing considerable hardship to wives who are regrettably ill-treated. The legal position is that until 1963 when the House of Lords made 2 decisions in this context, it was necessary for the petitioning party to prove that the other spouse intended to injure her by the cruel acts alleged. Similarly, in constructive desertion it has been necessary that the other spouse intended his expulsive conduct to drive a petitioner out of the home, that is, that an intention to cause those results had to be established. It is true that this position was rectified by section 29 of the present Matrimonial Causes Act. But, almost as if by a reflex action in reverse and in response to the legislature’s amendment- this is well acknowledged in the legal profession- the courts toughened up the standard of conduct required to justify a spouse leaving the home to such an extent that in Tasmania constructive desertion has almost disappeared as a ground for divorce.

Also, it is true in Tasmania and I believe in at least some other States, depending upon the particular judge before whom a particular matter comes, that in respect of the ground of cruelty although it is no longer necessary to prove an intention it is still necessary to establish what the courts have called ‘grave and weighty misconduct’ and, in addition, actual injury to the health of the complaining spouse or serious apprehension thereof. The simple fact is that continuous physical violence for 12 months and sexual perversity of an aggravated kind for the same period, so far as Tasmania is concerned and I do not imagine the position there is essentially different from that in other States, have become the only certain criteria for divorce based on the ground of cruelty.

One can consider finally in this context the question of habitual drunkenness. I make the assertion that the standard of proof in relation to habitual drunkenness has been maintained at unrealistic standards by many judges. In a recent case in Tasmania a judge held that because there was no definition of ‘habitual drunkenness’ in the present legislation the proper course to take was to apply the common law rules, and that he could not grant a petition in the case of a person who was habitually drunk but was not violent in association with his drunkenness. This case is reported in the law reports; I do not mention the names of the parties involved. It was a case in which a man drank himself into a condition of complete stupor continually and habitually. He did this until he reached a stage where it was necessary to take him to hospital. He was there dried out and returned home, where the same procedure went on again until he was again back in hospital. The court, no doubt thinking that it was applying the law properly, took the view that because there was no actual violence or cruelty to the wife in the course of the drunken episodes the ground of habitual drunkenness had not been made out.

Another respect in which I think it is necessary to examine whether or not the present law is in need of alteration is the procedure. This is because it is based on the adversary system of justice. That simply means that from the moment a party approaches a solicitor the conflict begins in a litigious form of a very complex kind. I do not doubt that most solicitors do their best to resolve matrimonial disputes short of divorce in an understanding way, in the hope of reconciliation or at least with a view to agreement rather than litigation between the parties. But the adversary system makes that very difficult and highly improbable in most cases.

The present adversary system is, in my submission to the Senate, singularly unsuitable for the trial of matrimonial issues which under a fault system involve a meticulous examination of the most minute details of marital life to be conducted in an atmosphere of bitter recrimination, usually involving relatives and children and sometimes dividing families. As a supreme example of that, I cite a fairly recent Tasmanian case in which a woman in defended divorce proceedings was cross-examined so comprehensively in relation to the intimate personal details of her marital life that during the course of the case she committed suicide. Do we really wish to retain a system that can lead to those results? I suggest no.

The procedural rules and the legal principles developed over centuries in relation to the application of the Matrimonial Causes Act to factual circumstances are extremely complex. They are choked with fine definitions and doctrines having little bearing on the reality of life as it exists today. The fact is that the standard text book on Australian matrimonial law, practice and procedure runs to over 1,000 pages, with already a supplement of over 200 pages. There are over 300 procedural rules. By the time all the prescribed steps have been taken, an ordinary undefended divorce usually occupies some months in preparation for hearing and then there is a wait of another period of months and at times years before a judge can be found to deal with the matter.

Dealing with the complexity of the present rules, I hope I do not bore honourable senators when I read out to them what seems to me to be a supreme example of complexity that I hope will not be perpetuated in the new regulations under this legislation if it is passed. I refer to rule 20 sub-rule (2). If honourable senators who are listening cannot understand it, let me assure them that I have read this many times over many years and I do not know what it means. But let me see whether somebody else does. It is a rule relating to proceedings for default in payment of amounts assessed. It states:

The last preceding sub-rule does not require the registrar to refer proceedings to the court unless the registrar is satisfied, by affidavit, that the total amount of the payments (including payments in respect of a period preceding the date of the assessment) that would have become due and payable on or before the date on which the request is filed if the assessment has been an order for the payment of maintenance in accordance with its tenor exceeds, by more than the amount of the weekly rate, or the sum of the weekly rates, specified in the assessment in pursuance of paragraph (a) of sub-rule (5.) of rule 204 of these Rules, the total amount paid by the spouse of the claimant for the maintenance of the claimant, of the child or of the claimant and the child, as the case may be, since the date of the assessment (excluding so much of any maintenance so paid as relates to a period preceding the date specified in the assessment in pursuance of paragraph (b) of that sub-rule).

All that is stated almost without a comma, but with a few brackets apparently intended to make it a little more comprehensible. All I can say is that the draftsman has not made it comprehensible to me and I do not know what it means.

Senator LAWRIE:
QUEENSLAND · CP; NCP from May 1975

– It is as clear as a dust storm.

Senator EVERETT:

-As Senator Lawrie says, it is as clear as a dust storm. The next aspect with which I deal as indicating that the present law is inadequate relates to the property law provisions under the existing legislation. Without pausing to deal with it at any great length, I make the observation that one English judge- Lord Denningwhen he was a member of the Court of Appeal a long time ago endeavoured to ameliorate the position of a wife in this situation by holding that she had a right that transcended the ordinary legal position to an interest in the matrimonial home. But neither the House of Lords on appeal nor the High Court of Australia, in a case that went to that court, was willing to accept Lord Denning ‘s principle. So, as I have said, an endeavour to ameliorate the wife ‘s position failed.

There are other respects in which the law relating to property matters is inadequate. One of them sees a situation in which, in order to prevent a particular piece of property, usually the matrimonial home, being dealt with by the courts in future divorce proceedings under the existing legislation, a husband will take action prematurely outside the divorce law in order to beat the wife’s claims that he apprehends. I simply mention it now as the sort of thing which the Bill before the Senate makes impossible in the future. The detail of it I shall deal with later.

The other area in which I feel there is considerable injustice now- injustice of a real characteris in relation to costs. I say without hesitation that a vast amount of the money that has been paid to lawyers over the years under the present system would have been far better spent in being applied to the proper purposes of the family, including the children. So long as the present system remains and so long as present procedure remains, the payment of sums that ought to be kept within the family or within one or more members of the family will go on. That also is one of the matters under this new Bill that I shall refer to later.

Very briefly I have traversed a number of respects in which I believe it is true to say that the present law is inadequate and ineffective and there is a strong case for change. Once you reach the situation where you acknowledge that there is a strong case for change the question is: To what do you change the existing law? It was with that thought that I played my part as a member of the Senate Committee in making the report that has been distributed to the Senate.

Although I do not know the precise form of the amendments to be moved, I understand that most of the recommendations of the Committee will be accepted by the Attorney-General. So it is proper that one should look at what is proposed to be substituted for the existing law. One should look at some of the detail of the Bill and of the Senate Committee’s report. It would, of course, be true to say very simply that the 2 principal amendments that are proposed to the existing law are, firstly, with regard to the ground for dissolution of marriage and, secondly, with regard to the family court, and I propose to deal with each of those in turn. So far as the ground is concerned, I submit to the Senate that the experience of those who are familiar with the problems with which we are concerned- lawyers, sociologists and many other types of persons, including marriage guidance counsellors- is that the time has come to eliminate the fault concept so far as dissolution is concerned. In an endeavour to get what I hope would be regarded as an unbiased approach to this matter I quote a letter which I have no doubt all honourable senators have received from the Marriage Guidance Council of Australia, a Council with no vested interest in any respect in this matter. Its members have done considerable voluntary work in this context over a very long period and are persons who are able to see both sides of a deeply human problem. The letter, dated 24 September this year, reads as follows:

Recently the Annual General Meeting of the National Marriage Guidance Council of Australia, comprising representatives of its Constituent Councils from all States, the Australian Capital Territory and Darwin, was held in Hoban. During its sessions a Resolution was carried in relation to the current Family Law Bill, August 1974.

I have been instructed to write to you and your colleagues in both Houses of the Australian Parliament giving information concerning the terms of the Resolution.

Resolution: ‘That this National Marriage Guidance Council of Australia, in relation to the Family Law Bill, August 1974, welcomes the removal of” fault”, and the introduction of “irretrievable breakdown” as the sole ground for dissolution of marriage. Far from viewing the change as a threat to the basis of marriage in Australia, it views the Bill as upholding the voluntary principle in marriage and thus enhances the marital relationship. It is also pleased to see the opportunity taken for the introduction in the Bill of a uniform Australian law concerning maintenance of spouses and children.’

That, one would imagine, was the unanimous resolution of the Council and it is something that ought to be taken into account quite seriously by the Senate in determining whether or not clause 26 of this Bill expresses a proper attitude.

I was interested in listening to the remarks of Senator Baume in relation to this matter and I would like to deal with two of the aspects with which he dealt. Although this is not necessarily the order in which Senator Baume presented them, first he said that he would like to see intolerable conduct introduced as an alternative basis of proof of irretrievable breakdown. I concede that superficially that is an attractive proposition. I want to be quite frank with the Senate and say that the Committee canvassed this quite considerably over a significant period and at one stage there was even an amendment prepared for consideration. But as the Committee’s consideration went on, the view that I ultimately reached- albeit with some reservation- and that other members ultimately reached, I believe, and it is so recorded in the report, was that to introduce that alternative ground would be really putting the clock right back to a full maintenance of the concept of fault in our legislation. Senator Baume, I think rather charitably, did not refer in the context of having a fault ground retained, to the class of person- regrettably it exists and we have all had experience of itwhich will insist on complete vindictiveness in this situation. Where the alternative existed I concede that a lot of people would choose the easier path but there would be many persons, regrettably, who would choose the fault path. I believe that would destroy many of the good basic features of this legislation.

Secondly, I am not certain that I was satisfied that Senator Baume was completely understanding what is meant in the technical sense by ‘separation’. At one stage I thought he was and at another stage, perhaps because I missed some words, I thought he was not. But I want to make it perfectly plain that clause 26, as presented and in the form recommended by the Committee, requires that there be an actual separation followed by a period of continuous separation and living apart for 12 months. ‘Separation’ in this context is a well understood legal expression. It means an abandonment or repudiation if it is unilateral, or it could be bilateral, of the normal things that are involved in the marriage relationship. It is not a case of going to the Antarctic and having one’s ship not turn up till 9 months after it should have. There must be a proven actual severing of the marriage relationship and a continuance of that for a period of 12 months before the ground could be established. Even so, there is in sub-clause 3 of clause 26 the saving provision so far as the court is concerned that it must not make a decree if it is satisfied that there is a reasonable likelihood of cohabitation being resumed.

Let me say to Senator Baume that the experience of persons who have been involved, collectively, in thousands of cases- I will explain why I say that in a moment- is that after 12 months separation the chances of a resumption of the relationship are minimal in the extreme. I did not want to take my own professional experience as the only proof of that. I have taken pains in recent weeks to question my colleagues in the legal profession as to what their experience has been. Invariably, persons with 20, 30 or 40 years active experience in this jurisdiction have said: ‘I find it hard to recollect a case in which, after separation of 12 months, the parties have come back again together in a normal matrimonial relationship’. I concede that that is not good proof. It is not the best proof, but perhaps it is the best proof that is available to me in this situation because I am not aware of statistics existing in relation to this matter. But that is the experience of those people.

I say that in relation to the question whether the period should be 2 years or one year. As a member of the Committee, I supported one year because I felt that the very purpose of those who would seek to make it 2 years would be frustrated unwittingly if they did it. I will explain what I mean by that in a moment. In many cases in which a separation has begun there is association between one at least of the parties and someone else. If that situation is to continue legally for 2 years then I suggest that it would discourage the very moral desiderata that the proponents of 2 years had. I do not think there is any doubt whatsoever from actual cases that it could mean that a person who had been badly wronged- if I may continue to use that expression for the moment- matrimonially would have to wait for what could appear to that person to be an unconscionable period.

I have in mind the young wife who is perhaps married to someone considerably older and a situation arises- the husband, let us say, leaves the matrimonial home. The wife is compelled to wait for a period of 2 years. The point is: Should she? Once we recognise that statutory provision for divorce is proper, and we have recognised it for a very long time, why should we impose an undue waiting period in those circumstances? The only reason, I feel, could be that it would preserve some marriages. But again I come back to the point that has been made by Senator Missen and Senator James McClelland this afternoon, that those with practical experience in these situations are convinced that it is not a case of saving marriages at all but that the breakdown has occurred before the parties seek advice and determine what they are going to do. The next thing I say to Senator Baume is that, under clause 90 of the present Bill, there is an immediate right of access to the courts in relation to matters other than dissolution. I would think from a practical point of view that clause 90 would be frequently availed of. Indeed, it would be necessary for some persons to avail themselves of clause 90 in that period after separation had begun and before any proceedings could be instituted under this legislation.

Senator Baume:

– But they lose their right to immediate dissolution which now exists.

Senator EVERETT:

– Yes, they do, but I think that in that respect one has to remember that the procedure under this new legislation will be much quicker than under the existing legislation and that although one could immediately- let us say, in 3 months- institute proceedings now, in most States it would probably take another year before one could get to court, especially if there were any contest on the matter, because of the procedural requirements to which I have referred. I do not know whether anyone has the statistics on what is the average period from the time of the filing of a petition to the actual appearance in court. Even in Tasmania, where the numbers are not so great and the facilities to determine these matters exist, the period between the case being ready and the case being heard is now several months. That was not the position some few years ago. In other words, the delay is increasing. It has been said that in New South Wales in particular the delay is very great. I do not know precisely what it is. We may be told.

But I just want to point out to Senator Baume that by this Bill there is not a full period of 12 months being withdrawn, as it were, from the party who wishes to avail himself or herself of the legislation because the simplified procedure will reduce the period that it will take in order to obtain a dissolution of marriage. I hope I have made that clear. So for those reasons I submit that the Committee’s majority report is propernamely, that the period should be 12 months and not 2 years, as two of the members of the Committee urged.

The second basic feature of the Committee’s report which one understands will be accepted by the Government is the institution of the family court and the making of the family court the kernel of the administrative processes of the system established by this Bill. Senator Missen and

Senator James McClelland dealt with it in considerable detail. I will not pause to delay the Senate on that other than to say 2 things: Firstly, at the time of the Committee’s deliberations the South Australian family court system was beginning to be regarded as the model on which the States could well base their systems. I know that in one State an investigation had been made and early this year legislation was about to be prepared for the establishment of a court on lines similar to that of South Australia. Secondly, and this is specifically in reply to Senator Baume, if the Committee’s recommendation is adopted by the Senate there will be provision for reconciliation procedures without the filing of any papers whatsoever. Under the Act no application need be made if the Committee’s recommendation is adopted before the counselling procedures of the family court can be set in train. That is something that may not be clear to some persons. I think it appears on page 22 of the report.

The Committee certainly did not envisage, so far as I am aware, that the only source of counselling should be through the family court. It envisaged that twin streams of counselling procedures would be available. Those who chose to use the court’s stream would have the right to do so irrespective of whether there was any application of any sort in contemplation or in actuality. On the other hand, if they preferred to use the stream of counselling procedures in what I might term the private sector they would be equally at liberty to do that. So it is not a case, if this was what Senator Baume had in his mind, where the family court counselling procedures would be in any way exclusive. The 2 streams would be available. I do not wish to detain the Senate on matters of detail at this stage because I imagine that it will be necessary to canvass many of them in the Committee stage.

I refer to 2 aspects of the Bill and the Standing Committee ‘s report which I think are important from a practical point of view. One such aspect is legal aid and the recommendation of the Committee that it should be widely available. I do not hesitate to say that I am in no doubt that in the past there have been many cases in which the question of costs in relation to divorce and associated matters has been a complete scandal. I know of cases in which thousands of dollars has been expended on legal procedures which, as I said earlier, could much more properly have been put at the disposal of members of the family. Following the Committee’s report I hope that the Australian Government in this area- I regard it as extremely important because it relates among other things to human happiness- will be generous in the degree of legal aid which it makes possible. That is not the present position. I understand that in some States legal aid is not available for matrimonial matters and in other States it is available but on a somewhat parsimonious scale.

The remaining matter I want to mention relates to the Family Law Council which is dealt with on page 35 of the report of the Committee. Again I agree with Senator Baume. Even if this Bill is passed, I doubt whether we have seen the last of the efforts of the Australian Parliament to pass a completely proper family law Bill. I believe that that will occur only when the Council which is dealt with in clause 91 of the Bill- it is called a committee in the Bill as printed; but the Senate Committee recommended that it be termed a council- has embarked on its task in the expanded form which the Committee recommended. I think it is absolutely essential that that expansion take place. My personal comment on clause 91 as it stands is that it reads far too perfunctorily of a body which is set up to keep an eye on things and, maybe, to do something about them. I think the Family Law Council has to be brought into the on-going consideration of the propriety of our legislation in a very vital and very concerned way. I believe that out of its consideration of the effect of this legislation will ultimately come, together with some constitutional amendments- if they are possible- the ideal measure which Senator Baume has in mind.

I wish to mention only 2 other matters. I see this Bill, if it is passed in substantially the form recommended by the Committee, as introducing for the first dme a benign, nationalistic approach to a matter which either affects or potentially can affect any family in the community. As such it must be regarded as an extremely important piece of legislation. Too often in the past we have had fragmented State approaches to these matters. I do not pause to go into them in detail. I can remember how clients used to ask about the blessedness of Western Australia as a place where they would like to live purely to enable them to establish a period of separation of 5 years when Western Australia was the only State in which that provision was the law. So, as I have said, this Bill is a nationalistic approach to a national problem. As such, in my submission, it should be accepted by the community.

I conclude on a somewhat poignant note by giving the Senate the experience of a personal friend of mine who, unfortunately, at this moment is having to seek redress under the existing matrimonial law and whom I advised to write a full account of all the details of the matrimonial life for the benefit of his legal adviser. Only last Friday I was shown a copy of the document which runs to 43 pages. It concludes with these words:

Writing this account of my life has given me no pleasure at all and it goes without saying that if I had my time all over again I would have gone about things very differently, lt is to be hoped that the new Family Law Bill will go a long way to eliminating this humiliating and degrading exercise and make settlements fairer and less traumatic. I hope that it also strengthens marriage. A marriage based on loyalty, faithfulness, stability, and security, without the need to always be looking over one ‘s shoulder, must really be bliss. One hopes that such marriages are possible.

That was an unsolicited and spontaneous acceptance of the basic principles of the Bill by a person who is obviously in a traumatic state. If this Bill does not pass, one apprehends from what he writes that he will be subject to the indignities, the expense and all the other defects which a law, based essentially as it is on preserving the attitudes of ecclesiastical courts, has brought into our community. I would have supported the Bill in its original form. I even more enthusiastically support the Bill in the form in which I hope it will be when it leaves the Senate, namely, with the incorporation of most of the recommendations of the Senate Committee of which I was privileged to be a member.

I conclude by paying a tribute, because I feel it ought to be paid, to the manner in which Senator Missen, Senator Durack and Senator Chaney combined with the 3 members of the Committee from the Government side to examine a matter of extreme social importance. I wish it to be recorded that at no stage during a very long series of deliberations were party political considerations intruded into the matter. I hope that, as far as that Committee is concerned, I will have the pleasure of working again on an important subject with persons who are as objective as were the 3 honourable senators opposite to whom I have referred.

Senator BUTTON:
Victoria

– I rise to speak very briefly in relation to the Family Law Bill- perhaps, Mr Deputy President, I should warn you of that fact in view of the state of the Senate- because much of the ground which one might cover has already been covered so competently by Senator Missen, Senator James McClellend and Senator Everett among other honourable senators who have already spoken. The Bill proposes substantial change in the existing law relating to divorce and to the victims of divorce, if I can so describe them.

I, like previous speakers, have had the privilege of serving on the Senate Standing Committee on Constitutional and Legal Affairs which examined a great deal of material on this matter. The Attorney-General (Senator Murphy) is to be complimented and the members of the Committee, particularly Senator Missen and Senator James McClelland, are to be complimented on the diligence and good faith with which they approached this important social question. I believe that as a result of the deliberations of the Committeeif the Senate sees fit to adopt the report when the legislation is dealt with in the Committee stage- this will be a piece of legislation of which this Parliament can be proud. The bulk of the material which was put before the Committee, in terms of evidence and submissions of one kind and another, led me to the conclusion that the Bill, as recommended for amendment, is deserving of the overwhelming support of this Parliament and of the Australian people. I did not need to be persuaded by the evidence which was put before the Committee, having had some experience, from colleagues and friends and as a legal practitioner, of the injustices and inhumanity, as I see it, of the existing legislation. Those injustices and that inhumanity arise because the present legislation, based, as it is, on a fault ground for dissolution of marriage, is undignified and inhumane in the way it works.

In my experience, divorce is seen by many people who seek it as some form of punishment because the notion is popular in the community that courts are for inflicting punishment on transgressors in society and divorce is often seen as the last round in a series of matrimonial disputes which may have gone on for many years. The effects of that sort of attitude of the fault concept in divorce is measured not so much in terms of its effect upon the parties, which is bad, but more particularly in the effects upon the children of divorced couples. I illustrate the point I am trying to make by referring to the grounds of divorce contained in section 28 of the Matrimonial Causes Act 1 959. 1 do not wish to do this in great detail, but let me enumerate them. They are: Adultery, wilful desertion, refusal to consummate the marriage- however that might be proved- habitual cruelty, the sexual crimes of rape, sodomy or bestiality, habitual drunkenness, convictions for criminal offences, a period of imprisonment, an attempt to murder or unlawfully kill, failure to pay maintenance and so on. All those grounds for the dissolution of a marriage, which may have lasted many years and may have been accepted for a number of years, involve one human being making allegations of that kind against another.

The consequent effects not only on those parties but also on the children, if there are any, is one of complete breakdown- if I can use an expression which we are now using in another contextof any possibility of the continuation of a viable human relationship either within or without marriage. The effects on children are simply that frequently a mother or a father has to explain his or her conduct and what has happened to the marriage by saying to the children: ‘Your father is not here any longer because he is an adulterer’, ‘because he is a drunkard’, ‘because he has been in prison’ or because of the sort of reasons which are set out in section 28 of the present legislation. Not only does that undermine for all time the relationship between the 2 parties to the marriage but it seriously undermines, in my view, the possibility of a proper relationship being arrived at after divorce by the parents with each other and with their children so that some degree of family fabric and a proper relationship may be maintained for the benefit of those children. They are basically the reasons which have led me, both as a legal practitioner and as a member of the Senate Committee on Constitutional and Legal Affairs, to reject entirely the present fault grounds for dissolution of marriage. The experience of most legal practitioners, of most marriage guidance counsellors and indeed of the majority of commentators on the present divorce legislation has led them to the conclusion that the legislation of 1959 is not working in 1 9 74, that the legislation of 1 9 5 9 is no longer socially desirable, that divorce will go on and that in 1974 if that is the case it is desirable that divorces be conducted with the utmost dignity for the people involved and more particularly for the children involved.

There has been much discussion in the course of this debate about the fact that there is an increasing divorce rate in Australia, as there is in most other Western democracies. I think it proper that we try to examine as a serious matter in the course of these proceedings in the Senate the reasons for that increasing divorce rate. As Senator James McClelland and others have told us, marriage as an institution is still extremely popular. Prior to the Industrial Revolution it was part of a much wider network of social relationships. It involved not only the parties to a particular marriage but also a whole network of relationships with relatives of various kinds in what might properly be called an extended family. However, in the 1970s the extended family relationships which existed and which, I believe, may have been a very strong bolster to the institution of marriage, no longer exist to the same extent in urbanised societies. The current urban society is anonymous. Its people are alienated from each other, and its family units are no longer of an extended nature in that they are alienated by distance and by the complexities of travel in large cities and so on. The romantic view of even the 19th century of the marriage which came about through a relationship with the girl next door progressing through school, and so on, to ultimate marriage and the establishment of a stable peer group, is no longer possible.

Today engagements tend to be of shorter duration and are part of a much more anonymous society than the one which existed when marriage was a truly viable institution of the extended family. What I am really putting is that the problems of existing marriages are not problems of marriage law or divorce law. They are problems of the pressure which our society inflicts on the marriage institution and on human relationships generally. We, as legislators in this Parliament, all have a responsibility, whether we are considering social welfare legislation, economic legislation or the various other types of legislation which come before us, to consider the effect of that legislation on these types of pressures which exist in our society which are detrimental to the institution of marriage and to human relationships altogether. Mr Deputy President, I put it in the words of Peter Berger, the eminent American sociologist and theologian, who. said:

Divorce is not a denial of the importance of marriage. On the contrary it is an affirmation of the crucial need for meaning and self-validation through an intimate relationship.

I believe that that sort of view of human relationships is supported by the work of a number of Australian sociological institutes and other organisations which have arrived from practical experience at much the same conclusion. I refer, for example, to the work of the Cairnmillar Institute in Melbourne where the experiences of social workers reinforce the view that a relationship which is maintained by the parties being locked together, as it were, is not one which can be anything but acrimonious and socially undesirable. It has been suggested that this legislation in fact constitutes an attack on the institution of the family. As I said earlier, the family as an institution is under attack, and it is under attack because of the pressures of urban life, the alienation of citizens one from the other, and an inability to cope with the pressures and complexities of life generally. There is no indication that that situation will get anything but worse. I remind the Senate of works such as ‘Future Shock’ by Alvin Toffler which suggests that these pressures will greatly increase.

Senator Baume referred at some length to these inadequacies which exist within our society. I agree with many of the criticisms which he made and I will support any private member’s Bill which he introduces into the Senate to try to tackle some of the problems to which he referred. However, I do not think that this Bill is the appropriate one in which to try to legislate for all the problems of human relationships to many of which Senator Baume referred. The simple point that I would try to make about this matter is that we cannot preserve the institution of marriage, if that be considered desirable, by constraint. I am reminded of Aldous Huxley’s work ‘Brave New World’ in which happiness was attained by the citizens of that society by taking a soma tablet. I regard some of the views which have been expressed in opposition to this legislation as in the same way trying to prescribe for citizens in our community a happiness remedy which is seen by the protagonists of that view as being constituted by the institution of marriage and an absence of breakdown of marriage in a significant way.

I think that it is important to distinguish between the bond of a happy marriage and the miserable bondage of an unhappy marriage. For those who enjoy the bond of a happy marriage it can surely be said that they are to be envied. For those who suffer the bondage of an unhappy marriage it is surely the task of legislators to see that that unhappiness can be ended. Some of the criticisms which have been made range from those profound and, I believe, quite sensitive criticisms of, for example, the Catholic bishops’ statement. In their concern to preserve the institution of marriage, for reasons which are expressed in that document, they set out a number of considerations which they regard as important in the institution of the family. Of course, most of the comments made in the bishops’ statement go directly to this question of trying to arrive at legislative systems for relieving the pressures which are placed on people both in families and elsewhere.

I think it is proper to say that the institution of the family must be seen in its historical context and as subject to change under contemporary pressures which cannot be relieved or even improved upon by legislation of this kind. There are, however, some other criticisms of the legislation which I think can be described only as irresponsible. For example, one claim made by a body known as the Foundation for the Family in relation to the fault ground is as follows:

Fault should be disclosed so that a possible future spouse of the guilty party can be aware of the type of person with whom a marriage contract can be made. The law protects the citizen from contracting to buy a second-hand motor car which has revealed ‘faults’. Is the contract of marriage not more important than the purchase of a second-hand car?

Of course, Senator Missen pointed out that there is a high incidence of re-marriage amongst divorced persons, and that is an obvious factual answer to that sort of a comment. But it needs more than a factual answer because it is in itself an indictment of that view expressed in comments of that kind. It is a view which in the first place tries to draw an analogy between the contract of marriage and contracts of another much more venial kind, if that is the right description in the circumstances.

Senator Durack:

– Venial?

Senator BUTTON:

-I am using the word ‘venial’ as it might be denned not in the ‘Shorter Oxford Dictionary’ but in a more technical theological sense.

Senator James McClelland:
NEW SOUTH WALES · ALP

– A term of art.

Senator BUTTON:

-I am indebted to Senator James McClelland. My Latin fails me, but I am sure that there is an appropriate expression to describe a theological term of art. The point that I am simply trying to make is that we are concerned with this legislation on human relationships and the viability of human relationships. To draw this kind of analogy is nothing but a commentary on the lack of understanding of human relationships of the sort of people who make comments of that kind. In dealing with this legislation I think it is perhaps necessary to say that in our society there are people who are very adamantly opposed to the legislation and, I quite frequently believe, they are opposed to it for reasons which they see as being sound. But of course we live in a pluralist society, and we should not just use that expression without making some effort to analyse what it means.

It may be a very shallow analogy to say, for example, that a change in the price of meat should not affect vegetarians and, accordingly, that a change in the law of divorce should not affect people who are happily married, who are in that fortunate position. That may be a shallow analogy because divorce may be said to affect in some way the fabric of our society if one accepts the view, which I think we must subject to critical analysis, that the family is not itself a changing institution and that the tendency in our society is for relationships to develop outside the marriage extra-marital relationships- in a way to which we might not have been used some 20 years or 25 years ago. But I think we have to accept the consequences of living in a society where there are people with different social and personal problems. We have to accept the consequences of living in a society in which there are people who are happily married and those who are not. Of course, this legislation is concerned with those who are not happily married.

This legislation does direct itself in a positive way to trying to grapple, insofar as man-made institutions can do, with the preservation of family relationships and of human relationships in a much more meaningful way than I believe the existing legislation does. I refer to just 4 matters which have been dealt with in great detail by my colleagues on the Senate Standing Committee on Constitutional and Legal Affairs. The first of those relates to the provision of a family court. I urge senators who have some doubts left as to whether the present fault ground should be maintained to spend some time in the forthcoming break visiting divorce courts or magistrates courts in which matters relating to custody of children, maintenance and so on are being dealt with.

I believe that the divorce court as it is currently constituted in most States is one of the most degrading institutions in our society. Its atmosphere is one of suspicion and allegation- often false allegation, I believe. Not only does it become a court which is concerned to break legal bonds; in most instances it has become a court which breaks most human bonds in the same process. I invite senators who are concerned about the maintenance and custody of children to visit magistrates courts and observe the atmosphere in which these matters are dealt with. I put to the Senate that it is a most degrading experience in terms of the social wellbeing of our community.

This legislation proposes a family court. I wish that all honourable senators had had the opportunity to hear the views of the witnesses who gave evidence to the Senate Standing Committee on Constitutional and Legal Affairs and particularly the evidence of Judge Burnett of the South Australian Family Court. We heard the views and experience of a very distinguished South Australian legal practitioner, now a judge, who after years of almost despair and synicism, as he put it, over the operations of divorce law and its effects in Australia, is now a judge of the Family Court of South Australia. We gained the impression from him- and I hope that some honourable senators will have an opportunity to visit the South Australian Family Court and to observe it- of a court which deals with problems which come before it with great dignity, humanity and compassion.

It is set in a physical environment and atmosphere far away from the courts which are associated in the minds of most people with criminal matters and various ether matters involving money transactions. It is set quite apart. It provides its own welfare and counselling facilities and the judge plays a relatively informal role, almost as an adviser to the parties, and ultimately if reconciliation cannot be effected providing the particular orders in relations to custody, maintenance and so on. Its atmosphere is totally different from that with which lawyers are currently familiar. I commend the family court proposals to the Senate, without dealing with them in any detail, as a new and desirable social concept.

I likewise commend the reconciliation provisions which under the 1 959 legislation have become recognised by practitioners and observers generally as nothing more than a farce. The new reconciliation provisions, as other speakers have informed the Senate, will make available expert counsellors and advisers at an early stage and will do so before proceedings have even been started in the courts. As Senator Missen pointed out, we have in Australia a quite desperate need for increased expertise and the availability of persons trained in the social sciences. We have a quite desperate need, if this legislation is passed, for lawyers who have a much greater appreciation of the social sciences. I hope that this need for the ancillary skills of people trained in these disciplines will be fulfilled and these services will be available to the courts in the future.

I turn now to the question of legal aid in divorce. Under the present legislation legal aid has been largely absent and questions of whether a marriage unhappily constituted can be dissolved, custody and maintenance have in many instances been the prerogative of people who can afford them. The Committee’s report recommends a substantial improvement in this situation so that future family problems will not be determined in part by the availability of finance to the parties involved.

Clause 9 1 of the Bill provides for the establishment of a Family Law Advisory Committee in respect of which a new draft section has been suggested in the report of the Constitutional and Legal Affairs Committee. The importance of the establishment of such a body is simply that it recognises something we have lost sight of in the last few years, namely, the fact that marriage is an important social institution. It is a social institution which is subject, like everything else in our society, to changes in social mores, views and pressures generated from within our society. The suggestion to establish a Family Law Advisory Committee to see family law legislation as a continually evolving and growing thing is a very important recommendation of the Committee and a very important provision in the Bill.

For the reasons which I have given and which have been given in much more detail by earlier speakers I believe that this measure has the support of all those people who are concerned with the problems with which it seeks to deal in a practical and personal way. It is supported by marriage guidance counsellors and social workers. Judged by the correspondence one receives as a senator it is supported by all people who have had some personal experience of problems associated with the existing legislation. I believe that it is also supported by the majority of the Australian people and that belief is reinforced by the figures which Senator Missen had incorporated in Hansard this morning.

Since 1 959 our society has changed. The views of the majority of the people have changed considerably as changed pressures have affected human relationships. In the minds of most people an obvious need has developed for a revision of divorce legislation. At the Committee stage we will no doubt have an opportunity for discussion, and one hopes agreement, on many of the issues suggested in the report. At this stage I am concerned for reasons which I regard as being of fundamental principle to the wellbeing of our society to support the second reading of this Bill.

Senator LAUCKE:
South Australia

– This legislation is indeed of supreme importance to our society. I have listened with great interest to the debate this afternoon and have admired the tenor of calm and critical reference to the legislation. I pay tribute to the Senate Standing Committee on Constitutional and Legal Affairs for having done in a very short time a terrific amount of work on this highly important legislation. But I must say that I am deeply concerned at the implications which go with and are part of family law legislation generally and, in particular, that legislation which is before us now. There are two distinct schools of thought, as I see them, on this highly important matter. On the one hand we have people who strongly emphasise the need for abolishing the concept of matrimonial fault or matrimonial offence. That is just what this Family Law Bill does; it provides for a separation of a couple for 12 months as absolute grounds for a divorce. There are people who are forceful in their praises of the concept of no matrimonial fault and of having the separation period of 12 months as the only ground for dissolution. They say that this is good divorce law and that the time has come to rid the law entirely of the 14 grounds for divorce which are now standardised in Australia with the advent of the Matrimonial Causes Act 1 959.

It is true to say that the present divorce procedures are, to many people, too complicated, too expensive and totally outdated. It has been argued that the application of the existing law has caused much abuse, much intrusion into one’s private life and a great deal of hardship and bitterness. One could very quickly give instances of those things. The time has certainly come when we have to have a serious look at the existing state of affairs relating to divorce, the existing legal provisions, and the actual experience of those who have decided to break their marriage relationship. We all know that marriages break down. We know that the number of people seeking divorce is increasing. We all know that the area of family law has become the object of increasing concern to the whole community. Therefore a thorough contemplation of the Family Law Bill is very necessary, but to look at the proposed Bill solely from the viewpoint of divorce is, I think, irresponsible.

I refer now to the other group which looks at the Bill in the light of what the Australian community understands by marriage and the family. Section 69 (2) of the Marriage Act 1961 defines marriage ‘ as follows:

Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

The United Nations International Covenant on Civil and Political Rights, article 23(1), with which we have declared ourselves to be in agreement, says that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State. If we accept these 2 definitions, I cannot but have serious doubt about the consequences of enacting the Family Law Bill 1974 as it has been presented to us. It will certainly have to be amended in areas which, in my view anyhow, must be varied better to ensure a continuation of our society as we now know it. Clause 26 ( 1 ) of the Bill-without this the Bill becomes meaningless- introduces irretrievable breakdown as the sole ground for dissolution of marriage without the necessary consent of both parties. This means that whatever one of the partners to the marriage says is sufficient for a court to give a divorce, and the only procedural formula necessary is described in clause 26 (2) which simply states that the court must be satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the commencement of the hearing of the application.

Those who take the marriage contract seriously and those who verify the importance of a stable family life within society point to these facts: The Bill is not related merely to divorce. The Bill makes major changes in the structure of the existing marriage. It changes marriage from a contract between 2 parties for permanent union, determinable in law only by the intervention of a State, to a contractual union determinable at any time by one party subject to a 12 months procedural wait. This Bill’s divorce aspects do not deal with marriage as now understood but deal with the breakdown of a new kind of marriage and change all existing marriages into the new kind of marriage to which I have referred and which can be broken up within 12 months on the say of one person. It is more than divorce by consent or deregistration by consent because one party to the agreement is capable of terminating that agreement, and the Bill implies that the state has no say in the matter of dissolution of marriage. The court of the land must grant a divorce if one party says that the marriage has irretrievably broken down and shows that they have been separated for 12 months. There are no objective tests of breakdown.

The Bill also changes relations within marriage itself which society has so far accepted. It is the law that the husband has the duty to support his wife. A wife has no legal duty to support her husband. On these concepts marriage in the Australian society has been built, and from them spring much of the laws which relate to property rights, to testamentary disposition and so on. Clause 5 1 of the Bill says that a party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so and the extent to which the other party is unable to support himself or herself adequately. This is what I am perturbed about, because this clause removes from the husband his legal duty to maintain his wife. This has been a basic principle. I may sound as though I am talking at a level which is not in keeping with a very modern attitude towards the independence of people, even within the marriage set-up, but fundamental to our society through the ages has been the principle that the husband is responsible for the wellbeing of his wife and his children. Now we find this is to be pushed aside and the wife is to have imposed upon her the positive primary legal duty of maintaining herself. It imposes on a wife a positive legal duty to maintain her husband in certain circumstances. It imposes on a husband a legal duty to maintain his wife only in special circumstances.

The second portion of clause 5 1 relates to the maintenance of children who have not attained the age of 18 years. The whole matter of maintenance is based on need and ability and not on responsibility and paternal care. I can see that this will cause a major change to the situation which we have come to accept in Western countries as the basis of our society. The family is the centre of our way of living, and I can see more and more that this will be broken down unless some amendments are introduced to the Bill. I shall be seeking to move amendments in the Committee stage which will the better ensure that in the first instance there is provision for more than just 12 months’ separation as the sole ground for divorce. There has to be greater consideration given to children under 18 years of age. This could well call for an amendment to clause 26 of the Bill which would increase the period of separation to 3 years in the case of a family in which there are children under the age of 18 but retain the period of 1 year where the children have been brought up and are over the age of 18 years. That is just an indication of an intention to propose an amendment to clause 26 of the Bill during the Committee stages of the debate.

This Bill does not simply update or simplify and cheapen divorce proceedings. It changes fundamentally existing marriages, continuing marriages and the family which develops about those marriages and, as I have said, our whole society. These facts, I think, are in themselves serious and will have far reaching consequences which lead me to view this Bill with doubt and with trepidation. It is true that the Family Law Bill does attempt to improve reconciliation and counselling procedures. I am all for that. It is also true that it imposes upon the parties to a marriage a legal duty to maintain their children until the children are aged 18 years. The Bill provides also for separate representation of a child before a court under clause 44. It clearly states, with respect to the custody of, guardianship of or access to children of a marriage, that the court shall regard the welfare of the children as the paramount consideration. But maintenance and custody decisions issued by the court cannot take into account irresponsible parental behaviour on the part of a husband or wife because the Bill itself eliminates the present concept of matrimonial fault which is very often the cause of irresponsible parental behaviour.

So if one weighs the arguments for and against the proposed Family Law Bill; if one takes into account the fact that the majority of people have not been in a position to study the Bill and do not have a clear picture of the implications of the Bill; and if one has serious doubts whether the Bill promotes marriage and the family as stable institutions guaranteeing the healthy nurture of children, one cannot but have feelings of grave doubt with respect to the enactment of this Bill in its present form.

I believe that family law should at all times be beyond any reasonable doubt of benefit to the members of our society. The Family Law Bill certainly will benefit those who wish to break the marriage relationship in a speedy and convenient manner but it does not benefit those who seek the legal protection of their marriage relationship and their family and who are prepared to do their part by living up to individual and communal responsibilities. I understand that it is anticipated that an amendment will be moved to have further consideration of this Bill in the Committee stages deferred for a time. I shall be supporting that motion because I feel that it is necessary when considering legislation of such wide importance, the ramifications of which go so deeply into the structure of society, that every person who is now alert to the contents of this Bill in its present form should have an opportunity to discuss with honourable senators further the clauses of the Bill with a view to amending the legislation so as it will ensure to the best possible degree the retention of what has been so basic to us through the years.

I have indicated in broad and general terms my attitude to this legislation. I felt it was my duty so to do. I look forward to the ensuing debate and further discussion. I hope that this will not take place quickly and precipitately but after due time has been given to allow all persons in the community who are interested in this legislation to indicate their points of view. Again I say to the members of the Committee who brought down the 2 reports, the interim report and the main report, that they did an enormous job in a short while. They considered and reported on the matter in 35 days, from the time when the reference was first given to them. The Committee was granted an extension of time on 1 7 September to 18 October, or thereabouts. The Committee did a very fine job based on the evidence presented to it. I do not take the credit for that away from the Committee at all. But I do think there is room for further amendment to this legislation before it is acceptable to many of us.

Senator DEVITT:
Tasmania

– I appreciate the opportunity to make a few observations on the matter now before the Senate. I was very pleased to hear the comments of Senator Laucke when he paid tribute to the members of the Senate Standing Committee on Constitutional and Legal Affairs. I think that there is no doubt that the Committee, in the course of its work in relation to this Family Law Bill, was a very great credit to the Senate indeed. That Committee took on a most difficult brief. It was a deep, involved and complex matter concerning the most intimate human relationship- that is the relationship which exists between a man and his wife in the intimacy of the family. That Committee was able to provide this Senate with a basis of judgment on this matter which is of tremendous value to us. I, like other honourable senators who have preceded me in this debate, feel indebted to the excellent work done by that Committee.

Up to the present time we have heard largely, in this debate, from members of the legal profession. I suppose that is not to be wondered at because members of the legal profession comprised the majority of the membership of the Constitutional and Legal Affairs Committee. I think it was proper in the circumstances, particularly since there is to be a free vote, that they should have given to the Senate their own particular views on the matter- a compound of what had come to them, plus a blend of the undoubted knowledge and experience they possess of matters of this kind. It is not one of those occasions, I suggest, when we are dealing in an abstract way with a matter which is before the chamber for debate. We have happily and fortunately had laid out before us the facts of the matter by our colleagues who served on that Committee. They have given us the substantial basis for their judgment. They have given us the reasons for their decisions and the reasons why their analysis of the information given to them came out in this way.

During the course of some comments which were made on this subject a week or so ago, I elicited some information from Senator Missen, I think it was. Senator Missen may recall the occasion when I asked him, in the course of those few words that he spoke on that occasion, how many submissions or items in the nature of submissions or observations were put to the Committee and were analysed by the Committee in order to arrive at its decisions. I recall that Senator Missen said there was something in excess of 100 submissions. I have heard a great deal of criticism from both sides- although principally from the other side of the chamber- of the fact that sufficient opportunity has not been given for the Australian community to make some observation or pronouncements on the matter. It has been stated that the Australian community has not been given enough opportunity to express its concern about this matter or in some other way to make known to the Committee its views. I find it hard to accept that viewpoint because the Bill has been in the air, as it were, and before the Parliament for a considerable period of time. In view of the fact that more than 100 submissions were examined and deeply analysed by the Committee- as I am quite sure would have happenedI find it hard to accept that sufficient opportunity has not been given to the Australian community to make its views known on this matter. Perhaps in the course of further debate that point will be expanded and expounded and we will obtain a better appreciation of the underlying reasons for statements of that kind being made.

I have looked at this Bill very carefully. I have had people come to me in my office in relation to it. In fact, wherever I have been in Australia and it has been known that I am a member of this honoured chamber, people have come to me and passed comments, made observations or expressed views and opinions both for and against the provisions of the Bill. As so often is the case in respect of matters of this kind, some of the thoughts which were put to me were based upon ignorance of the true reasons for the legislation which we are now considering. So it has been a happy circumstance that I have been able to express- I have done this quite openly and frankly- my opinions as to the merits of the legislation. At this point, I state that I believe that the legislation has a great deal of merit.

The points which were made in the 2 reports of the Senate Standing Committee on Constitutional and Legal Affairs- the interim report and latterly the substantial report- representing the judgment of the Committee on the Bill, have been of tremendous guidance to us. They have given a very good and critical analysis of what the Bill is all about. As I said earlier in my remarks, they have been tremendously valuable documents. Those of us who had any doubts as to what the intentions were had the opportunity, of which I took advantage, to go to the members of the Committee who were ever approachable. In more than one instance they were able to extract for me a submission which I thought had particular relevance to the matter under debate so that my mind could be disabused on a number of aspects of this very important matter. Nobody would doubt that this is a tremendously important question from the human relationships point of view as it affects homes, families and marital relationships. In fact, as an honourable senator wisely stated earlier in the debate, it affects the very basis of our human society in this country. Mr Deputy President, I want to say a little more about that later. But at this stage I seek leave to continue my remarks later.

Leave granted; debate adjourned.

Sitting suspended from 5.59 to 8 p.m.

page 2068

REPATRIATION ACTS AMENDMENT BILL 1974

Second Reading

Debate resumed from 24 October on motion by Senator Wheeldon:

That the Bill be now read a second time.

Senator MARRIOTT:
Tasmania

-It is a happy coincidence that the Senate is, I hope, going to put into legislative form the Bill before the Senate on a night when the National Congress of the Returned Services League is meeting in Melbourne. I believe the Minister for Repatriation and Compensation (Senator Wheeldon) had the privilege of being in attendance and no doubt opened the Congress or addressed it. We will look forward to getting the verbatim report of his message to the RSL. Mr President, you and I, although on different sides of the Senate, have spoken on many a repatriation Bill over the years. They are now history. I think it will be agreed by most members of the Senate that this particular Bill is more extensive than many we have debated because it brings under the principal Act, the Repatriation Act 1920-1973, the following Bills to which it will authorise changes: The Interim Forces Benefits Act, the Repatriation (Far East Strategic Reserve) Act, the Repatriation (Special Overseas Service) Act, the Native Members of the Forces Benefits Act to be retitled the Papua New Guinea (Members of the Forces Benefits) Act, and the Seamen’s War Pensions and Allowances Act. I name them into the record because of some references I shall make to some of them in the comparatively short speech I intend to make on this legislation.

The second point that I want to emphasise early in this speech is that the Minister and, I presume, the Government have initiated and put into the record the term ‘veterans’ which the Minister defines as those ex-servicemen and women covered by repatriation legislation. This initiative appears to have been well received. I have not had the official advice from the headquarters of the RSL because it is meeting in Melbourne but from what I have heard and been able to find out the term ‘veteran’ is acceptable. I think this is for 2 reasons. One reason is that it shows our continuing friendship with the American people, and I am glad that the Minister is supporting this line of policy because Australian-American relationships are very important. The other is that most countries, I understand, use the term ‘veteran’ and wonder what ‘repatriation’ means in our legislation. So I have no criticism to offer. As a matter of fact, I think it shows that we in Australia are able as time marches on to adopt changes. I remember in the early years after the Second World War the Returned Servicemen’s League was known as the RSS&AILA-the Returned Soldiers, Sailors and Airmen’s Imperial League of Australia. It was born in about 1917. Then it became the Returned Soldiers League- the RSLbecause somehow or other it was thought that, the majority having served in the Army, it should be called the Soldiers League. Better advice and thought predominated and those of us who are members of the League are now known as returned servicemen and the League is now known as the Returned Services League. Whether or not there will be any change of that name I strongly doubt but it could become the Veteran’s League or the Veteran’s Association.

The Bill before the Senate increases most of the benefits payable to beneficiaries under all the legislation which I have enumerated. The details are set forth in the Senate Hansard of Thursday, 24 October 1974, in the Minister’s second reading speech, starting at page 2001. I will not repeat those details because they are in the record and, more importantly, as soon as we pass this Act it will receive royal assent and those who are to be beneficiaries will receive the benefits and will know the details. They are the ones principally concerned. Of course, the taxpayers who provide the money also have a right to be concerned.

In addition to the increases in actual payments to the beneficiaries, the Bill takes two welcome steps forward and I have no hesitation in congratulating the Minister and the Government. They have provided in the legislation that prisoners-of-war of the Second World War will be entitled to full repatriation medical and hospital attention. As the Minister said, it might be wondered why prisoners-of-war are singled out but there are prisoners-of-war in both Houses of this Parliament who would be able to tell us from their own experience why now, many years after the Second World War, medical and hospital benefits for all requirements will be available to them. This is a step in the right direction. There is another important addition to the advance made last year when Senator Bishop was Minister for Repatriation- and I shall say something about senators and repatriation in a moment. Last year those ex-servicemen who had served in a theatre of war became entitled to medical and hospital benefits if they became victims of cancer. In this legislation the Minister has widened the scope of that provision and now it includes all veterans of the Second World War and, I presume, wars before that and since. All veterans, and that means all servicemen, are accepted for repatriation benefits.

In an aside I said I would refer to Ministers for Repatriation from the Senate and from another place. When I first came into Parliament in 1953 -the Liberal-Country Party Government was in office and stayed there for 23 years- the slogan in respect to repatriation was: ‘Whom Caucus first wishes to destroy, it makes Minister for Repatriation’, because both the previous 2 Labor Ministers for Repatriation in another place had lost their seats when facing the electors. Senator Wheeldon, like many Liberal senators, obviously will not suffer that fate, particularly after this Bill becomes law.

According to the official records, it is estimated that some 13,600 veterans who were prisoners of war will be eligible for the medical and hospital benefit. The Department has even gone on record as estimating that, by widening the scope of eligibility for medical and hospital treatment to include cancer, another 2,400 ex-servicemen could be included. That is the good news. But mostly these days good news is followed by serious news. I do not use the phrase ‘bad news’. The serious news is that, according to the Minister’s second reading speech, repatriation benefits this financial year in total will cost this nation of 13 million people- let us assume that there are 5 million taxpayers- the sum of $650m. That is an increase in 4 years- I am not being party politicalof some $272m, an increase of 33 W per cent.

We are dealing with the Repatriation Act 1920-1973. 1 understand that this year the total increased payments will be $ 143m for the part of the year. The payments do not fall due until royal assent has been given to this legislation. Last financial year for the full year the cost of repatriation benefits increased by $88m. So the people of Australia- you and I, the taxpayershave to realise that, regardless of the rights or wrongs, the Government is saying to the people:

In about two to three years time, as the aftermath of participation in war and in war only, the cost to this underpopulated country’- honourable senators opposite like a lot of idiots are talking about zero population- ‘will be $ 1,000m’. Alternatively the Labor Party may do what it did when it was in government during the depressionreduce pensions. I do not think that even this Government would have the nerve to do that.

There is no doubt that the benefits being made available under this legislation will add to the inflationary pressures that are muddling Australia and confusing the Cabinet, the Caucus, the Caucus cabinet and the kitchen cabinet. Everyone is confused and everyone is worried about inflation. By passing this legislation we are knowingly adding to the pressures of inflation. But what I want to say is this: A government is elected to govern. I choose my words very carefully. A government is responsible for its own policy and a government must bear the brunt of the effects of its policy both on the recipients and on the people who pay- the people of Australia. As I have said, this Bill will add to inflation. 1 say to the Government: Those who live by inflation, politically, will die because of inflation. The vote seekers will find before they are many months older politically that what is won on the roundabouts is lost on the swings. That is the responsibility of honourable senators opposite. They knew it when they took over government. They know it now and they must stand up to the test of time.

The Opposition will not delay the passage of the Bill because it knows that, once it receives royal assent, the benefits will become payable from that day or from the nearest pension day afterwards. Normally the Budget would have been brought down in August and by 1 October the new benefits would have been payable. Now it looks like early November or mid November. Already a month of inflation, rising at 20 per cent odd a year, has bitten into the benefits that were promised and that we are putting into law tonight. So the Opposition wants the Bill to become law before too much more of the benefits is eaten away. As I said earlier, I congratulate the Minister, the Government and the Department on the fact that they have had a look at other things. They have not just had their minds on financial and hospital and medical benefits. In legal terms, as I understand them, it has made certain that the majority decisions of the determining authorities- that is, the tribunals and the boards which are mostly composed of 3 membersare valid in law. There appears to have been some doubt about their validity because of what has happened in respect of enlarging the scope whereby the reasons for the decisions will be made known to ex-servicemen and for other reasons, it has been necessary to put a little strength into the Act to ensure that validity and also to strengthen the famous section 47 of the principal Act, which has been debated so often and so long and which relates to the onus of proof.

It may interest honourable senators who have not studied the Bill- if there are any- to know that the independence of Papua New Guinea is acknowledged and the effect on ex-servicemen resident in that emerging country is covered by this Bill. In other words, those who are entitled to repatriation benefits, service pensions and the like who are going to remain living in Papua New Guinea will, under this Bill, be able to draw their Australian entitlements. In addition the Department and the Minister have picked out from the legislation the fact that mariners- merchant seamen- have been under some disability in the past. This is being rectified. In future those who are entitled under the Seamen’s War Pensions and Allowances Act will be able, if they so desire, to have the right of appeal to repatriation tribunals. In other words, we are saying that Service personnel who are in the same category as veterans will have the same right of appeal to the same tribunals. That will ensure an equalising of benefits. I congratulate the Minister for including this provision in the Bill.

As we know, the Minister is not only known as the Minister for Repatriation; he is also known as the Minister for Repatriation and Compensation. The new title has caused him to include in this Bill a provision that the person who will be appointed Secretary to the Department of Repatriation and Compensation will also be Chairman of the Repatriation Commission. The Minister goes out of his way to say quietly that that gentleman, with the added duties, will receive no extra salary. He is like a parliamentarian in that respect.

Senator Poyser:

– You voted against it.

Senator MARRIOTT:

– I wish Senator Poyser would keep quiet, because I am taking no real notice of him. I hope that the Chairman and Secretary will have added help in performing his extra duties; otherwise he will not be able to give the necessary amount of time to the details to which we would like to see him give attention. The Minister- I wish he could keep that broken record player behind him quiet- or his speech writers in optimistic mood forecast something for the autumn session. Fancy a Labor Government Minister forecasting that he will do something in the future! How amusing! But, if he is still here as Minister, if his Party is still here as Government and if they bring into the Senate the increases forecast by the Minister, I assure him that if I feel that the Treasury has the moneynot the fiduciary issue- to pay for the increases, he will receive at least my support. He gives service pensioners that light on the hill to look to and to hope for in that if they are 70 years of age or over- neither the Minister nor I am near that mark- they will receive their pension regardless of any means test qualification.

The Bill before us encompasses more than 50 amendments. I congratulate the Department on providing the document which sets out clearly, even for laymen, the details and the explanations of the amendments which are wide-ranging but effective in the general tenor of what they strive to attain. The Repatriation Act is tidied up. I have to make a confession here. For some years I urged on previous governments and Ministers that the Repatriation Act be completely revised, reprinted and published because of the problem facing Returned Services League clubs, Legacy clubs and other ex-service associations in trying to interpret for the many inquirers from whom they receive queries the actual up to date details of the Act. This is a massive task. As I have said, we are considering the Repatriation Act 1920-1973. I believe it is time the Repatriation Act 1974-75 was produced. Finally, I say quite seriously to the Government that it is to be congratulated on the repatriation legislation. My only fear is that, although the Government’s repatriation policy is good, its fiscal or economic policy has gone haywire. I wonder whether one is going to go one way and the other is going to go the other way. That is my only fear for the future. These benefits will be as nothing -

Senator McAuliffe:

– Never fear, we’ll be here.

Senator MARRIOTT:

- Senator McAuliffe can say: ‘Never fear’. He can sit back in his usual placid manner. But I am thinking of the people who suffer.

Senator McAuliffe:

– Do you not think that we think of them?

Senator MARRIOTT:

– No, I do not think the Government gives a continental, because of the way Government senators are laughing and joking on a serious matter. I say that this is a very serious matter. If the Government’s fiscal or economic policy is such that inflation goes ahead by 25 per cent next year and many of these recipients of benefits are among the 200,000 unemployed, these benefits are as nothing. I say to the Government: ‘Bring your fiscal policy into a common sense policy. Have a good economic policy. Get hold of the government of this country. Get us back to normal or get out ‘.

Senator McAuliffe:

– It will be hard to do that with you.

Senator MARRIOTT:

– The honourable senator would not know what normality was. He probably does not even know what it means. With those few kind words, on behalf of the Opposition I say that we support the legislation but we fear that the Government’s policy will ruin the benefits which may be derived from the legislation.

Senator WHEELDON:
Minister for Repatriation and Compensation · Western AustraliaMinister for Repatriation and Compensation · ALP

– in reply- I appreciate the congratulations of Senator Marriott. I realise that he was so magnetised by his admiration for me that he found it difficult to engage in the prognostications of gloom which he found necessary to incorporate in the rest of his otherwise sensible remarks. I though that the congratulatory parts of his speech were eminently sensible but some of the others were not quite so useful a contribution to the deliberations of this chamber. There are several things which perhaps ought to be commented on very briefly- perhaps rather more briefly than Senator Marriott commented on them. They are, first of all, that whatever the rate of inflation may be the increase in repatriation benefits while the Labor Government has been in office has been at a much greater rate that the rate of inflation. The increase has not been merely keeping up with inflation. It has gone a long way ahead of inflation.

In fact, among the benefits which this Government has increased- not only in these proposals but also in other proposals- have been the miserly allowances given by the previous Government to veterans of the Vietnam War. As a Party our position has been that although we were opposed to that war we believed that those Australians who were conscripted to fight in it were entitled to adequate repatriation benefits of a much greater nature than those given to them by the people who sent them off to that war. I must say that there is something of a syndrome to be found in these things. Just recently in New Zealand I happened to meet Senator Vance Hartke, the Chairman of the United States Senate Veteran Affairs Committee. He was one of the first members of the United States Congress to come out in total opposition to American participation in the Vietnam War. Senator Hartke. as Chairman of the United States Senate Veteran Affairs Committee, was responsible for a Bill which passed through both Houses of the United States Congress, giving adequate repatriationtype benefits to the American veterans of the Vietnam War. That Bill was vetoed by that great patriot and exponent of the Vietnam War, former President Nixon. I think something of a syndrome can be found. The generosity of the Governments in benefits to the veterans of the Vietnam War is in inverse proportion to their enthusiasm for sending conscripts to fight in it. We are proud of our record on both issues. We did not believe in sending the conscripts there, but when they were sent there they were entitled to receive adequate compensation for what they suffered as a result of serving in that war.

Senator Marriott has said that the Repatriation Act should be consolidated. He has mentioned the fact that this Bill goes part of the way, which indeed it does. Since I became Minister I have been concerned to have a consolidated Repatriation Act prepared. Part of that consolidation was accomplished, I believe, insofar as the amendments to various Acts were dealt with here in the one Bill. At the moment one of the problems which we have is finding sufficient time for the draftsmen to prepare these Bills. The weight of legislation- important, necessary and overdue legislation- which this Government has introduced means that the draftsmen do not have the same time available as they had in the 23 years of lackadaisical, anti-Labor government. If the Opposition when in Government had been concerned about consolidating the Repatriation Act, there were 23 wasted years in which it could have done this instead of fiddling around doing so many unnecessary things.

When Senator Marriott apparently grudgingly supports these proposals but at the same time says that we must beware because they are inflationary and that the Government must take heed and be careful, and also makes some suggestion about the reduction of pensions at some future time, I think one clearly sees the thinking of the anti-Labor Parties on inflation. If the Opposition became the Government it would slash Bills such as the Bill which is before the Senate tonight which increases the benefits payable to the veterans of this country. The Opposition regards it as inflationary. I hope that every Returned Services League sub-branch in Australia is presented with a copy of Senator Marriott’s speech on this question so that they can understand what Senator Marriott, speaking on behalf of the

Opposition, believes causes inflation and the sort of thing which he suggests should be done to stop inflation. I thank Senator Marriott once again for his congratulations and the Opposition for its cooperation in allowing the speedy passage of this Bill.

Question resolved in the affirmative.

Bill read a second time, and passed through its remaining stages without amendment or debate.

page 2072

SOCIAL SERVICES BILL (No. 3) 1974

Second Reading

Debate resumed from 24 October on motion by Senator Wheeldon:

That the Bill be now read a second time.

Senator GUILFOYLE:
Victoria

-The Opposition supports the measures which are contained in the Social Services Bill (No. 3) but wishes to move an amendment. I move:

I shall address some remarks to that amendment a little later, but I take this opportunity to note that the Social Services Bill (No. 3) is the Government’s program for social welfare in the Budget of this year. It is of interest to us to notice that the Government has provided additional payments to children of pensioners. It has advanced that payment to $5.50 a week. We are pleased to see also that there is an increase of $1 a week to a total of $1 1 in supplementary assistance and supplementary allowance for pensioners and sickness beneficiaries. We are delighted to see that the Government has sought to introduce a handicapped children’s allowance. We support the inclusion in this year’s Budget of $ 10 a week as a payment to parents or guardians of physically or mentally / handicapped children under the age of 16 who are cared for in a family environment. We believe that it will be of considerable assistance to those families who have accepted this responsibility in the home. It is pleasing to see that that assistance is not subject to a means test and is not treated as income in assessing other social security benefits. We believe that this measure which provides $10 a week and which will cover approximately 20,000 children should have the support of all members of the Senate.

A variety of other measures have been covered by increased benefits in the Bill, and they have our support. I am particularly delighted to see the attitude with regard to disabled people employed in sheltered workshops which also should have the support of all honourable senators. The fact that we are now encouraging more people to enter sheltered workshop employment and that we will eliminate the disincentive effect that supplementary assistance has had on earnings is of advantage to those people who can seek a degree of independence in a sheltered workshop situation without feeling that they jeopardise other support which may be basic to their needs. I believe that most of the matters in the Bill should have our support for the very simple reason that the people in Australia who are living under the inflationary conditions which we are all experiencing need assistance in a variety of ways. But most of all the people who are living on fixed incomes and pension incomes need assistance as a matter of urgency. For this reason we would not wish to hold up the Bill at a time when we have had a 5.4 per cent increase in the consumer price index in the September quarter. This leads us to understand that anyone who is dependent on social service benefits has a real need at this time for an increase in whatever payment is made to him.

I was hopeful that there may have been some initiatives in the matter of social welfare this year. It is a matter that concerns us all. This is important to the people who require government assistance and government programs have had a great deal of discussion. Social patterns are changing, and I had hoped that there may be some recognition of some of them. A considerable number of commissions and bodies have been studying the needs of the disadvantaged sectors in our community, and I had hoped that there may have been initiatives on some new areas. I speak particularly of the work that has been done by Professor Henderson and his institute, and I had hoped that some of the recommendations which were included in the reporting he has done to the government would have been carried.

I was somewhat surprised that there was not any evidence of a recognition ‘:v the Government of the changing social terns which I mentioned a little earlier. The . concept of parental roles in relat-‘ jil to children is changing and it will be well for the Government and people in this country to recognise that no longer is it the exclusive responsibility of the mother to stay in the home to care for and bring up the children. There is a role for the father figure in our society. In some cases this role has been forced upon the father who has become a single parent by the loss of a wife through either death, or desertionindeed a single parent who has been deserted and who has been given the custody of his children. It was for this reason that we wished to include in the Bill the amendment which I moved earlier to draw attention to the need of the supporting fathers in Australia and the lack of accessibility by them to any government programs of social welfare. I have seen figures which show that there are approximately 25,000 families in this category covering approximately 50,000 children. The work that was done by the voluntary organisations of supporting fathers and single parents prior to the Budget had led me to hope that Government could have given recognition to this group in our community who desperately needed access to some assistance. I know that deputations and representations were made to Government. Prior to the formation of the Budget I spoke in the Senate of the hope that I had that it would be possible this year to assist supporting fathers and the children in those families.

I also hoped that there may have been recognition by the Government that an advisory body which was easily accessible to supporting fathers would be of assistance to them in making many of the decisions which they have to make in their one-parent responsibility. I had hoped, too, that there may have been recognition by the Government of the work of the voluntary associations as groups of people with a common problem hoping to achieve the best for the children who are their responsibility, and that perhaps some Government assistance would be given for the administration of those associations. Representations have been made and questions have been asked by such people as my colleague Senator Martin in order to determine the Government’s attitude with regard to supporting fathers and their needs. We have no evidence to indicate that the Government recognises the problem. Yet I am sure that those who work within the social welfare field acknowledge that there is deprivation in the emotional sense in a one-parent family and that there is deprivation in those families who reach the poverty level because of the problems of single parenthood. I had hoped that those disadvantaged groups which are living in poverty because of special problems may have been reached through this year’s Budget.

Again it is the people who are important. I think that in this situation we are talking about the children in Australia who are increasing in number to such an extent that at least some 50,000 of them need assistance, and perhaps financial assistance to help to ease the disadvantage which they suffer. To this extent it was a disappointment to read the comment made by the Minister for Social Security (Mr Hayden) in the other House when the matter was raised. The Minister’s response to the amendment which was put forward by our colleagues in the other place was as follows:

There was a proposal to have included in this Bill an allowance for supporting fathers, if we can call it that treating the widowed, the deserted father, the supporting father with dependent children in the same way in which widows are treated. This is a highly commendable proposal and one for which there is total sympathy in principle from this side of the House. As I indicated only last week, the Government has under way an investigation into ways in which it can introduce a guaranteed income concept which will get rid of the categorisation 1 referred to then and which I repeat now.

He then talked about feeling no embarrassment in referring to categorisation. But I wonder whether there is a recognition of the immediate problem. It is not a matter of forming another committee or another commission to discuss the problem. It really is a matter of some Government action being taken and some access to Government support being given to families who have special needs at this time. It is not a matter of discussing these people any further to decide whether we are talking about a minimum level of income for all people. We are talking about a group of people who have been isolated from social welfare programs and the fact that the Government has acknowledged the needs of single-parent families if that parent is a mother. Apparently there is no recognition of the difficulties which can be faced by a father.

In this regard I mention the need for fathers in these situations to have access to retraining programs for employment opportunities. So often the hours of care that these fathers need to give to quite young children make it difficult for them to continue in the work for which they have been trained and in which they have been engaged. I hope that this sort of recognition is given perhaps at the same time as we are talking about the need for child care facilities for all of the children of working parents in Australia. These are the things which we regret are not contained in the Budget. But perhaps we also regret the fact that other disadvantages are now becoming apparent in the highly inflationary situation in which we find ourselves.

Professor Harris’s report discussed the way in which we could fulfil the Government’s program to raise the standard rate of pension to onequarter of average weekly earnings. Professor Harris pointed out that the likely success of the $ 1 .50 a week increase in pension which was originally mentioned by the Government would be related to an inflation rate of about 6 per cent per annum. Those of us who understand the inflation rate which we are now experiencing know that no longer would the granting of a pension increase of $1.50 a week achieve the Government’s promise outlined in the beginning that it would award such increases until the pension rate represented one-quarter of average weekly earnings. I think that that problem will affect all of the people who receive pension payments from the Government. It is a national responsibility to undertake to decrease the level of inflation and the rate of increase in the consumer price index in order to allow these people to have the same purchasing power for the pension entitlements which the Government has granted to them. This problem is shared by all of us, but more particularly by those people who receive social security payments.

I wonder whether the Government, in forming the Budget, reached any closer to the proposal which was outlined earlier by the Minister with regard to a mother’s wage payment? It will be recalled that the Minister mentioned the idea of providing a wage for the mother who is employed totally in the home in caring for young children. It will be recalled that the Department talked about this matter and that members of the Government Party talked about it. Then in October 1973 the Minister very quickly decided that it was a quite implausible situation to consider at that time. The Minister stated in 1973 that unfortunately it was not possible ‘this year’. Do we take it from the casting of this year’s Budget that it is also not possible this year and perhaps next year, or has the Government changed its attitude on this question which was formerly expressed by the Minister?

There are different points of view regarding the granting of a wage to a woman who is employed within the home. There is the conflict of interest of women who assert that there is economic value in the work that they do. There is the other point of view that the level of a pension payment of about $20 a week which would be set for that economic work would disadvantage the woman who is seeking to assert herself in the economic climate of our community. They are matters of interest in the changing social patterns which we are experiencing. Apparently in this year’s Budget no attempt was made to present any new Government initiatives.

I return to the amendment which has been moved by the Opposition. It is impossible for us to cost what the benefit would be if access to social security benefits were given to supporting fathers in the way in which it is given to supporting mothers. A figure of some $35m has been mentioned by the Minister as being the cost of the program. We have a costing which would lead us to think that a figure of $20m or $25m would be the cost. The point we are making in our amendment is not to highlight the cost or the need to develop any accurate figures at this time but to show that there is a sector of the community which has been excluded from the Government’s social welfare program. We believe that for this reason the wording of our amendment is wide enough to allow deserted husbands with dependent children to be eligible to receive benefits on the same basis as widows and deserted wives. We recognise that many income earning fathers in this situation would be means tested in such a way that possibly they would be excluded from receiving many of the benefits that are paid to a widow who is in the same situation of caring for young children. However, it is access to the programs and the support that we believe is needed. For this reason I commend the amendment which has been moved by the Opposition. Having taken this opportunity to express again our concern about this group in the community we hope that the Government will show new initiative in recognising the need and not talk about it any further, not set up a commission or an inquiry, but recognise the immediate need and the value of our proposal which will advantage many children throughout Australia. I commend the amendment to the motion for the second reading of this Bill.

Senator BAUME:
New South Wales

– The Senate is debating the Social Services Bill (No. 3). I support Senator Guilfoyle and wish to make a few observations upon the Bill and its shortcomings. For a Labor Government that places such store on its social welfare initiatives this Bill is pitiful in the small amount of benefit it offers to people and the small number of initiatives it takes. It offers very little. We are very pleased about what it does offer, about the fact that there is to be additional payment for children of pensioners and beneficiaries, raising the payment from $5 to $5.50 a week. We applaud the supplementary assistance and allowance increase by $1 a week to $5 a week and the increase in the double orphans’ pension by $1 to $11 a week. However, these increases plus a few other minor benefits are all that is offered. It is deplorable and we have nothing in prospect to suggest that any further benefits are to become available if this is in fact the Government’s social welfare package as a consequence of the Budget it brought down.

My remarks are not entirely unfair because we had come to expect from the Government a continuing program of social welfare initiatives. We had every reason to expect that in this Budget we would see further action. Senator Guilfoyle mentioned an inflation rate measured at this stage at over 16 per cent and likely to be much higher next year, on the admission of the Prime Minister (Mr Whitlam). Unless the benefits paid to pensioners and other social service beneficiaries are increased they are in fact dropping behind all the time. The failure to give any extra increase in the basic standard pension in this year’s Budget means that the pensioners are already receiving less than 25 per cent of average weekly earnings and will be receiving considerably less by the time we reach the autumn session of the Parliament.

We have available to us a document which should have guided the Government in its preparation of the Budget. We know that when Mr McMahon was Prime Minister he appointed a commission of inquiry into poverty to be headed by Professor Henderson. When the Labor Party / came to power, far from abolishing the commission it expanded and widened its powers. We know further that the Labor Government asked the commission to provide it with an interim report in May of this year so that the proposals it contained could be considered for inclusion in the Budget. The Budget was delayed, so that there was every opportunity for these particular proposals to be considered by the Government.

I am not saying that all the proposals put up by the commission are necessarily correct but the fact that almost none of them has been accepted is a sorry commentary upon the social welfare capacity of this kind of socialist government. The proposals put up by the Henderson Commission as matters of urgent need included a major increase in child endowment payments but in that regard there has been no action. It recommended changes in taxation deductions for dependent children and further increases in the basic rate of pensions, and sickness and unemployment benefits, special benefits, and supporting mothers’ benefits, but in not one of those areas has the benefit been increased. The commission recommended an increase in the mother’s or guardian’s allowance from $4 to $8 a “week but no action has been taken. It recommended fringe benefits for fatherless families but there has been very little improvement in that field. It recommended that a pension and fringe benefits as are paid to widows and subject to similar conditions be paid to men bringing up children on their own, but again no action was taken.

The Henderson Commission recommended fringe benefits and health care be made available to all invalid pensioners so long as any part pension is paid; again no action has resulted. It recommended abolition of the 7-day waiting period for unemployment and sickness benefits, but nothing in that regard has been done. It recommended an increase in the amount of supplementary assistance from $4 to $8 a week. A pitiful increase of $1 a week has been granted. It recommended a change in the means test for supplementary assistance and offered recommendations on the general question of abolishing the means test.

We have to ask ourselves whether the Government has decided to repudiate the Henderson Commission’s approach to poverty. Is the Government no longer interested in the problems of poverty? Does it not accept the figures as to the extent of poverty in Australia as set out by Professor Henderson in his interim report? If it accepts the figures which show the very great amount of poverty and the extent of the problem why has no action been taken?

Senator McLaren:

– What government was the cause of those conditions?

Senator BAUME:

– That is quite irrelevant. We are looking at what is being done by this Government and the answer is that nothing is being done. We can look around to find what other people have had to say about this Government’s efforts in the field of social welfare, particularly in the last Budget and the Bill before us. The Australian Council of Social Service is a very respected body which makes many submissions.

Senator Button:

– Hear, hear!

Senator BAUME:

– I thank Senator Button for his agreement. The Australian Council of Social Service makes submissions on many matters of social importance and speaks generally with a responsible and moderate voice. It issued a Press statement after the Budget, on 20 September 1974, over the signature of the SecretaryGeneral, Edward J. Pennington. The Council said:

The Budget as a whole, however, is another piecemeal approach to the question of social development and shows once again the need for an economic and social planning unit.

We certainly see nothing in this Bill to give any hope that the Government has a commitment to the proposals put forward by Professor Henderson. I hope that when his final report comes down it is given a better hearing and that more action follows. ACOSS goes on about some of the other effects of the Budget and has some detailed comment to offer about the Government’s proposal to tax income from rental property. It points out quite correctly that the people in receipt of social service benefits are the people paying rent. They are the people likely to be especially disadvantaged by the proposed tax because their rents will rise and there will be a disincentive to people to invest in building accommodation for rental. Therefore the stock of housing is not likely to increase appropriately. ACOSS goes on to comment that the Government’s offer to increase supplementary assistance is supposed to help people in a rental situation and adds:

Further, the $ 1 increase to the supplementary benefit is completely inadequate, particularly in times when rents are rising quickly.

That is the story of the Social Services Bill. It is inadequate in its scope, its provisions and amount.

Senator Jessop:

– It is too little too late.

Senator BAUME:

-That is so. The ACOSS report finally comments on the Budget:

Thus although ACOSS welcomes the initiative that the Government has taken in several broad areas of social welfare it feels that the Budget has done little to help the ordinary person on a low income struggling to make his way in an inflationary society. In particular the present beneficiaries and the lowest income groups renting a home have received little help.

There is nothing in this Bill to make the Government proud. It has done the absolute minimum in terms of making any progress on the broad canvas of social welfare policy. This Bill has totally failed to achieve its aim. It is nothing more than window dressing. It provides nothing to attack any of the deep-seated problems, and I think it is shameful that it so completely ignores the recommendations of the Henderson Commission which were given in detail. It is a tragedy that so little acknowledgement was given to this report when the Budget was brought down.

Naturally I will support the Bill, because any benefits that flow are benefits that we will welcome. I also support the amendment moved by Senator Guilfoyle because it so obviously refers to an area of need not being met. I plead with the Government to accept this amendment and to try to extend these kinds of benefits to the group of people for whom Senator Guilfoyle has spoken so that we can do something at least to raise the level of this Bill to something decent and acceptable.

Senator STEELE HALL:
South AustraliaLeader of the Liberal Movement

- Mr

President, I join with those who sit on your left in supporting the Social Services Bill (No. 3). I have very few remarks to address to it, except to say that I congratulate the Opposition on the form of its amendment. I think it is the third amendment of this type that it has chosen to move during this session, but this is the first of the three which is constructive. I will be pleased to support it because it is constructive and not destructive as have been the other amendments. I refer especially to the one in relation to the payment to Tasmania. However, I am somewhat intrigued by the advocacy of Opposition senators that a great deal more money should be spent at this time, because their Leader is advocating a very great reduction in the planned expenditure of government from 32.5 per cent to 25 per cent, I believe. The figure of 25 per cent is one with which I really agree. It seems to me that this is a legitimate figure and one that can be supported by the rate of inflation and, hopefully, some productivity increase in the community. But I cannot see how Opposition senators can reconcile their advocacy tonight to spend many hundreds of millions of dollars more of the community’s funds as I imagine Senator Baume ‘s advocacy would mean.

Senator Baume:

– Pipeline money.

Senator STEELE HALL:

– It is a special sort of money apparently. But I take it it would have to come out of the Budget recommendations. I assume it would cost an enormous amount of money, and I cannot reconcile the honourable senator’s advocacy with that of his leader. If the Senate is to mean anything in its approach to the problems of Australia at this time it is up to the honourable senators who advocate the spending of more money to say how much they are going to put on the figure which is presented to them here.

At least Senator Guilfoyle was more specific. She advocated the spending of $25m to $35m additional for those people included in the terms of her amendment, namely, widowers and deserted husbands with dependent children. She has put forward the proposition that they should be eligible for benefit on the same basis as widows and deserted wives. I am happy to support this amendment. I understand from the honourable senator who moved the amendment that this would amount to between $2 5 m and $35m. I assume, of course, that this is an Opposition promise. I assume that what is contained in this amendment is a promise to the community by the Opposition if it comes to office in the near future or in the longer period of time. In the same way I take it that the amendment moved in relation to the grants to Tasmania was a promise to the community. As I said in this House, that promise would have to be extended, in my view, to Kangaroo Island in South Australia. Senator Withers, who is interjecting, will have a considerable amount of trouble if he does not intend to be equitable in the moves he supports in this House. I refer to the several together because we are seeing the development of a certain aggregate of promises on behalf of the Opposition. If the Opposition comes to office, as it is widely predicted it will, in the first half of next year, we will look for an early fulfilment of those programs. Certainly as an interested observer I will do what I can to ensure that the Opposition fulfils its promises if it is in any position to do so.

I simply want to say that in voting for this amendment and the promise which it involves I am rather intrigued that the Leader of the Liberal Party in the Opposition in Australia is travelling this country advocating a reduction of a very considerable percentage in government spending. I would just voice my interest in that very adept proposition, namely, that one can increase expenditure very considerably at the same time as one can reduce it. So I will do my best to see that the Opposition fulfils its rather miraculous promises.

Senator MARTIN:
Queensland

-I do not wish to prolong this debate unduly but there are some points that I want to make about the amendment. I have already raised the matter of pensions for supporting fathers a couple of times in the Senate. It is a matter in which I am interested as a matter of simple justice and a matter which I think the Government would do well to look at clearly and carefully early in the piece. We in the Senate are able only to move an amendment expressing the Senate’s opinion that the Government should consent to the incorporation of this provision for widowers and deserted husbands with dependent children. In the other place it was possible to move during the second reading debate of the Bill an amendment that the Government consent to the incorporation of this provision before the Bill was read a second time. Of course, in the Senate we cannot go that far. But that amendment was defeated in the House of Representatives. I think it was a great shame that it was. In his reply to the amendment the Minister for Social Security (Mr Hayden) showed a very real lack of understanding of the basis of this appeal.

The need for such a benefit for supporting fathers is very clear and very simple. It is not one which requires a great deal of elaboration. The simple fact is that, at the moment, a supporting father- that is, a father who is trying to raise children by himself without the assistance of a mate- raises his children under a special disability. He is not entitled to the sorts of pensions to which a woman in the same circumstances is entitled.

It is estimated that at present something like 25,000 families and 50,000 children are affected. In terms of the overall scheme of the Australian family, in terms of the overall total population, both adult and child in Australia, that is not a large number. I suggest that the emphasis should be placed on the 50,000 children. The hardship caused to the father is readily apparent, but we should be very concerned about the hardship that is caused to the children. While this is a comparatively small need, it is nevertheless, in the case of individual children, a total need when they are in that position.

The position that many fathers, who have to raise children on their own, are presently put into is that either they must go to work and almost compulsorily turn their children into latch-key children with virtually no choice because they get no special assistance for whatever costs they may incur in making arrangements for the children- I refer particularly to those costs which are necessarily incurred for the care of very young children- or they must put their children in the care of either their parents or elderly relatives, or they must institutionalise them. In any event, I would think, and I would imagine that everybody would agree with me, that the stable family life is the one we wish to see all Australian children enjoy, and I think putting the emphasis on the effect of this type of situation on this admittedly comparatively small number of children is what we should be concentrating on.

There is, of course, special strain placed on the fathers in these circumstances. The strain is special only because the fathers in this position in Australia do not get the same sorts of benefits as do mothers in a comparable position. It is only very recently that this subject has been a matter of some real public debate in Australia. It is only recently that much attention has been paid to the fact that deserted fathers or widowers are in an invidious postition in Australia. But with the growth in the divorce rate, about which we hear plenty, particularly at the moment, the numbers are increasing. The reason that I am not satisfied with the sort of answer that the Minister gave in the House is that he referred to such things as special inquiries’. This must raise the question: Does the Minister have some intention or do his advisers have some intention of instituting some sort of assistance on a basis different from the assistance given to women? I would make a very strong plea for equal treatment under the circumstances.

We have talked much in public and in the Senate today about equal treatment for men and women in Australia. I can think of no area in which there is a stronger case for totally equal treatment than there is in this one. I am in fact sorry, in a way, that there has been specially privileged treatment given to women in this area in the past. I do not think it has done the women of Australia any good to have this special privilege in the area of widows pensions because it makes it look as though it is a problem germane only to women in Australia instead of what it truly is, namely a family problem in Australia. I make a strong plea to the Government that, in these inquiries and considerations that it appears to be undertaking, it look at just the simple facts, and that is that we have a family situation in which there is only one parent. There may be special mitigating circumstances in the case of women in terms of their earning capacity. I think in the case of a man who wishes to stay at home to care for his children full time or who wishes to take a part-time job and receive a part-time pension, there should be no difference made between him, in that reduced earning capacity, and women who have been in that capacity traditionally for a long time in Australia.

We have heard a lot of interjections and a lot of nonsense during this debate this evening. We have been asked whose fault it is and why this legislation was not introduced sooner. It is a pity that there have not been more speakers from the other side because I am sure that sooner or later we would have had the statement: ‘Well, you had 23 years. What did you do about it?’ I would like to point out to the Senate that that statement is now 2 years out of date. I was only 7 years old 25 years ago- my age is no secret, of course- and I admit I was then doing absolutely nothing about the matter of pensions in Australia. But I do not believe that I should now be held responsible, or that those who are new to this place, or that those who have now come to a new realisation of the situation, should be held responsible for an accusation which is now becoming several years out of date. It was, in fact, the honourable member for Griffith (Mr Donald Cameron) who was responsible for bringing the special plight of the deserted father or the widower to the attention of the Australian public Australia-wide. Up until that stage nobody had stated the situation publicly.

Senator Poyser:

– Nonsense.

Senator MARTIN:

– He was the one who brought it to the attention of the Australian people, Australia- wide. I certainly do not think he was the first one who was aware of the situation. Others may have been. But the honourable senator cannot in any way dispute the fact that Mr Cameron had a very large hand in raising the public awareness and starting the public debate, which was so important, on this particular matter.

A couple of weeks ago I asked a question in the Senate in relation to this matter at that time. I would like to give a brief summary of the situation. At approximately the time of the joint sitting of both Houses of Parliament- in July and August of the previous sessional period- many of us received representations from the Supporting Fathers Association. They wanted to know whether we would agree to supporting fathers having the same pension entitlement as is available to single supporting mothers, widows or deserted wives at present. That group was particularly active during the week of the joint sitting. The following week, the Minister for Social Security (Mr Hayden) made a highly misleading statement to the Press. The Minister, while he had undoubtedly taken into account the fact that the House of Representatives was no longer sitting, had apparently overlooked the fact that the Senate was sitting at a time when there was a fairly high awareness of this matter amongst senators because of these representations that had been made to us by the representatives of the Supporting Fathers Association. The Minister for Social Security made a statement which was highly misleading, but there was an opportunity to ask a question about it in the Senate.

I was of the understanding- I thought it was a fairly clear understanding- that no pensions were available for Australian family men in this situation. I checked with the Department of Social Security in Brisbane. I was told very clearly the circumstances under which a pension or support is available to the supporting father in Australia. It was spelled out to me quite specifically. I thereupon asked a question in the week following the joint sitting of the Minister representing the Minister for Social Security in the Senate (Senator Wheeldon). I put it to him in the question that the benefits are normally available at present only for short periods to the father of an ill pre-school-aged child, and then only if it is not possible to arrange any other form of care for the child, such care being entirely at his own cost. I asked him whether it was true that fathers of children suffering chronic or long-term illness could obtain extended periods of payment of this benefit only in very special circumstances.

I was informed by the Department of Social Security in Queensland- I am sure I have breached no confidence because the information has been repeated since then- that in recent years there have actually been only a couple of such applications from Queensland approved. The applications had to come to the Director General of Social Security in Canberra. Decisions were made at a distance, while individuals at the Department of Social Security in Queensland were certainly aware of the problem because they faced the problem- they literally came face to face with the men who were in this invidious position- and there was virtually no support available. Under those circumstances the Minister’s statement that there was support available along the lines of benefits payable under the provisions for unemployment or sickness benefits was highly misleading. He certainly was not backed up by the information given by his own Department.

Recently Senator Wheeldon, who represents the Minister for Social Security, was kind enough to give me a reply to my question. In his reply he told me that the Minister for Social Security had advised him that a special benefit may be paid to a person who, under these circumstances, because of age, physical or mental disability or domestic circumstances, is unable to earn a sufficient livelihood for himself or herself and his or her dependants. I would suggest that the criteria for the payment of benefit- age, physical or mental disability- rules out persons who are bringing up children of their own in Australia. They are extreme circumstances and they are not any sort of defence. They certainly do not square with the earlier statement made by the Minister.

Senator Wheeldon went on to say that any supporting father suffering hardship as a result of having to remain at home from work to look after his children may qualify for special benefits. The facts are that those special benefits are very rarely given. If we average one a year then the supporting fathers can count themselves very lucky indeed. In fact, from the rest of the answer to my question it is clear that those benefits are available when the mother is temporarily absent. This was clear from the whole tone and the words of the rest of the answer that I was given. Reference was made particularly to the absence of the mother’s care because the mother was in hospital or she was temporarily absent from the family. So, short term benefits are available.

In fact, a supporting father who wishes to apply for the so-called special provisions on a long term basis, for unemployment or sickness benefits will find that long term benefits are not available because they are not available to him on special basis. If he applies for them under the unemployment provisions he comes under exactly the provisions which apply to anybody else who seeks unemployment benefits. That is, in the short term, he is expected to take a job if it is offered to him. So, that is really not a generous provision. I think that needs to be made clear. The Government should say: ‘Yes, we are not making very many benefits available but we do think that the Senate’s amendment is a good thing’. It is a pity that in the House of Representatives the Government did not take this action.

The estimated cost is somewhere between $20m and $3 5m. The Minister’s estimate is $35m. The Opposition does not believe that it would be quite that high for a number of reasons. It would not be expected, for example, that all fathers would claim the full amount because not all the children involved are fully dependent. Some children in the 16 to 21 age group would not be eligible and a means test also operates. The net cost should be actually much lower than $35m.

It is very easy for the Government to answer by saying that the Opposition has been advocating the cutting of Government expenditure. Here we are putting forward a proposition for an increase of somewhere between $20m to $35m- on that much we can agree. The Opposition is saying is that we advocate the spending of Government money which is spent for a clear purpose. What the Opposition is concerned about at the moment is the Government moving into large areas of expenditure which we do not think are necessary; which we think can be adequately catered for by private enterprise; and which we think are unnecessarily overexpansionary at this stage. I would suggest to honourable senators that whatever the final figure actually is, be it the upper estimate of $35m or not, for the sake of the welfare of 50,000 Australian people it is money spent very much for a purpose. I have great pleasure in supporting Senator Guilfoyle ‘s amendment.

Senator JESSOP:
South Australia

– I would like to intrude into this debate for 2 minutes.

Senator Poyser:

– I think you are unfair because you are not on the list.

Senator JESSOP:

-I know that the Government Whip would afford me one or two minutes in order to support the Opposition’s point of view with respect to this Bill. I, of course, endorse the action taken by the Government in raising the pensions by the amount in the Bill, that is, by 50c a week which will bring the increase to $5.50 a week. No doubt the Minister for Repatriation and Compensation (Senator Wheeldon) who represents the Minister for Social Security (Mr Hayden) in his flamboyant reply will demonstrate that the Government has made some concessions in this regard since coming to office. But we on this side of the Senate suggest that the increase is not sufficient because of the rate at which costs are increasing in the community. Of course, the people who can least afford this increase in costs are those on fixed incomes, including those people whose suffering we are trying to alleviate tonight. We have seen in recent times the increase in postal charges which will affect the pensioners. We have seen the increased charges in other areas which certainly will touch the pockets of these people. Therefore, the Opposition is quite correct in bringing these points to the attention of the Government.

It is quite pleasing to me that Senator Hall is supporting the amendment that has been proposed by Senator Guilfoyle on behalf of the Opposition, namely, that there be incorporated in this measure some consideration for widowers and deserted husbands with dependent children. We state that they ought to be eligible for some benefit on the same basis as widows and deserted wives. It gives me some encouragement that Senator Hall chooses to support us in this regard. Over the last 30 sitting days of the Parliament he has chosen to support the Government 49 times in votes in this chamber. I believe that we ought to be working towards helping the people who are mentioned in this amendment. This is a matter to which the Opposition will pay regard when we unseat the present Labor Government. The Leader of the Opposition (Mr Snedden) has indicated ways in which some economies could be effected by the present Government. We have suggested that $ 1,000m could be saved in public expenditure. But just because we suggest that -

Senator Milliner:

– Where would that money be saved?

Senator JESSOP:

– It would be saved in certain public works and matters of extravagance in this economic situation. We have also suggested that $ 1,000m ought to be paid back to the taxpayers of Australia. These suggestions represent real attempts to do something about the economic situation at the present time. We would reduce the increase in public expenditure to 25 per cent from 32 per cent, which is the percentage the present Government is contemplating. In this way, we believe that we could effect economies that would enable the Government to provide far more benefits in the way of social services, and in particular with respect to the Bill that we are discussing tonight. With those few remarks, I support the Opposition amendment.

Senator WHEELDON:
Western AustraliaMinister for Repatriation and Compensation · ALP

– In many respects I find this debate rather curious. On the one hand it would seem to indicate some sort of Scandinavianisation of Australia whereby the conservative Opposition attempts to outbid the social democratic government in the social services which it has -

Senator Withers:

– I thought you were a democratic socialist.

Senator WHEELDON:

-Senator Withers, with all the erudition which befits the Leader of the Liberal Party in the Senate, said ‘I thought you were a democratic socialist’, which, of course, is the same thing. The terms ‘social democrat’ and ‘democratic socialist’ are the same.

Senator Withers:

– You could have fooled me.

Senator WHEELDON:

– I refer the honourable senator to any standard text on the subject. I could have fooled him. I am sure that I could have. I am sure that there would be very few people who could not fool Senator Withers. I find it very easy to do that. I assure Senator Withers that the words ‘social democrat’ and ‘democratic socialist’ have precisely the same meaning.

Senator Withers:

– Use the term ‘democratic socialist’.

Senator WHEELDON:

– I will use whichever term I choose to use. For example, the Social Democratic Party of Sweden is a democratic socialist party. It describes itself as such. Senator Withers may or may not like it, but that is its terminology. That is that Party’s name and that is the name which I think it will continue to use even if someone as easy to fool as Senator Withers does not like it.

Senator Withers:

– I thought that you believed in democratic socialism.

Senator WHEELDON:

-Yes, I do believe in democratic socialism and social democracy. I think the honourable senator will find that they are interchangeable terms.

Senator Withers:
Senator WHEELDON:

-Senator Withers does not know that, but I think most other honourable senators know that. Apparently, what honourable senators opposite are putting forward to us tonight is the proposition that the Government is being miserly in the expenditure of public funds; that, in fact, we have a Scroogelike attitude towards the expenditure of taxpayers’ money on social services. We have been told that if Opposition senators were in government they would be much more lavish and the present miserable amounts spent by this Government on social services would be greatly extended. The proposals contained in our Bill that is before the Senate at the present time provide for an annual expenditure of $33m. The estimates by the Opposition and the Government of the cost of the proposals which the Opposition has put forward for increased benefits range between $25m and $3Sm per annum. That is approximately double the expenditure under the proposal which the Government is putting forward.

We have asked the question before: What is the Opposition’s economic policy? I point out that it is no use for Senator Martin to say that she knows someone will raise that question and, having said that she knows someone will raise the question, to think that she has succeeded in disposing of the problem, because I state that somebody will raise the question. I will raise it now. I would like the Opposition to tell us some time precisely what is its economic policy. This is the same question as was asked during the debate on the subsidy for Tasmania. We have even had Senator Jessop tonight deploring the increases in postal charges. Apparently, we are to take it from the Opposition, if Senator Jessop is a spokesman for some element within the OppositionI am sure that there must be some loose strand on whose behalf he speaks- that the Opposition is opposed to increases in postal charges. If that were the case there would be a decrease in the revenue of the Government. But we are told that we ought to be doubling our expenditurepossibly more than doubling it or possibly somewhat less than doubling it- as proposed in the Social Services Bill (No. 3) which is before us tonight. We have heard Senator Marriott warning us during the debate on the Repatriation Acts Amendment Bill that we must be very careful.

Senator Marriott:

– You are completely out of order in referring to that debate.

Senator WHEELDON:

– I am not out of order. I am in order because this is relevant to the discussion. The same sort of proposition was put before.

Senator Marriott:

– You are out of order, though.

Senator WHEELDON:

– I thought that somebody might raise this question; so I have the Standing Orders in front of me. If the honourable senator refers to standing order 413 he will see that it says:

No Senator shall allude to any debate or proceedings of the same Session unless such allusion be relevant to the matter under discussion.

This is clearly relevant because it is relevant to the relationship between expenditure on social services and inflation. It is no use for Senator Marriott to say one minute that the Government must be very careful and that these additional moneys that are being spent on repatriation are inflationary and for Senator Guilfoyle to say the next minute that the Government ought to be doubling its expenditure under the Social Services Bill because somehow this is necessary. If it is inflationary in one case, it is inflationary in the other case.

I am yet to detect what is the Opposition ‘s policy on inflation. The Opposition has raised the matter of inflation tonight. I would like to know what its members are saying. How it is going to cut $ 1 ,000m from Government expenditure? Yet the Opposition would spend more on Tasmania. If Senator Jessop is a spokesman for the OppositionI assume that he was put up as a spokesman for the Opposition- the Opposition will cut down the revenue from postal charges and it will increase the payments under the Social Services Bill. So from where will this $ 1 ,000m come? The amount involved must be much more than $ 1,000m because it will be $ 1,000m plus what the Opposition will spend on Tasmania, plus what it will spend on social services, plus what it will give back in the reduced postal charges which I take it Senator Jessop, on behalf of the Liberal Party, has undertaken the Opposition will reduce if the unhappy day ever comes when it is in Government. But that is so obscure a possibility that I will not waste the time of the Senate developing it at too great a length.

Let us have a look at this Bill which the Opposition has said is so miserable. It does not only add 50c or whatever amount was mentioned to the pension. Members of the Opposition seem to have overlooked these matters in their rather churlish approach to what they see as our miserliness when compared with their tremendous generosity, their free wheeling approach to the public purse whereby no expenditure is too great for the Liberal and Country Parties. They say: Let us forget about the $ 1,000m. The sky is the limit as far as we are concerned’. We have been told that tonight by the Liberal Party. It believes in doubling the social security payments under this Bill.

But look at the proposals we are putting forward. We are providing for an increase of 50c a week to $5.50 a week in the rate of additional payments for children of pensioners, supporting mothers and unemployment and sickness beneficiaries; an increase of $ 1 a week to $5 a week in the rate of supplementary assistance and supplementary allowance; the removal of the residence requirement for invalid pension where permanent incapacity or blindness occurs in Australia; changes in the residence qualifications for widows’ pensions and supporting mothers’ benefits to permit a woman who becomes a widow or supporting mother while absent from Australia to obtain a pension or benefit on return to Australia if she has lived in Australia for 10 years continually at any time; payment of a mother’s allowance and an additional pension for the children of class D widows; and the repeal of the ‘character’ and the ‘not deserving’ provisions of the Act.

I am enumerating these because we have been told that there are one or two things in the Bill. There are a lot of things in the Bill other than those which Opposition speakers were gracious enough to refer to. In addition we are providing for the payment of additional benefits to the de facto wives of unemployment and sickness beneficiaries where the relationship has existed for not less than 3 years; an increase of $ 1 to $ 1 1 a week in the rate of double orphan’s pension; the introduction of a handicapped children’s allowance of $10 a week- the introduction of that allowance; a means-test-free incentive allowance to $5 a week in lieu of supplementary assistance for people receiving the sheltered unemployment allowance; and changes in the rehabilitation provisions to make training and living away from home allowances payable at rates comparable with those under the national unemployment and training system.

I can understand Senator Martin’s desire to dissociate herself from the previous LiberalCountry Party Government. Anybody would. She can say that she was not here then so she is not responsible. But that cannot be said of very many people sitting on the Opposition benches at present. Some of them were here for part of that time, some were here for most of the time, and some of them were here for all of the time that the previous Liberal Party-Country Party Government was in office. Let us look at its record with regard to widows ‘ pensions. (Opposition senators interjecting)-

Senator WHEELDON:

– It is different now that honourable senators opposite are in Oppositionit is very different- and it will stay different for a long time. Honourable senators will remember what the situation was for a deserted wife trying to obtain a widow’s pension. Under the aggregation of parties which occupied the government benches for 23 miserable years, she had to prove to the then Department of Social Services that she had taken every available step to track down her absconding husband. She could not just go along and say: ‘I have been deserted; I cannot find my husband ‘. She had to prove, and go through all sorts of rigmarole to do it, that every possible step had been taken to find her absconding husband and obtain a maintenance award against him.

It is not a very long time that this Government has been in office but I know that a number of Opposition senators have aged a great deal in that period of little over 1 8 months. But it is still a little too soon, I would suggest, in all decency for a party which tolerated and maintained that situation to come along and complain about our lack of generosity towards these people. I suggest that it ill behoves the Opposition to talk in these terms. I come back again to what the Minister for Social Security (Mr Hayden) said in another place when a similar amendment was proposed there. He said that the Government did not accept the amendment but promised to give considerationwe have made a promise to give considerationto the proposal. In the meantime the special benefit is available at the same rate as widow’s pension and there are certain circumstances in which the special benefit is made available.

I do not wish to detain the Senate on this issue but I do wish to say this: If anything has illustrated the total humbug of the Opposition it is its whole approach to economic policy. It can stump the country talking glibly about cutting out $ 1,000m of expenditure and every time a social security provision comes before this Parliament say it wants to increase the provision. Every time some local interest, for instance in Tasmania, says that it wants some special benefit, the Opposition promises to give it. Every time some group of farmers says that it wants the reintroduction of the superphosphate bounty the Opposition promises it. At the same time it will carry on as though it is going to reduce the expenditure of this Government. It is an Opposition which is totally devoid of any economic policy.

If it wants to have any plausibility at all I believe that its proper position is to stand up in this Parliament, as its ideological predecessors used to do, and say that social security payments should not be made at all because people were only hanging around the pubs spending their pensions. This is the sort of thing it used to say. I believe the Opposition would be much more consistent if it stuck to that rather than coming along here and performing as though it was the founder of the welfare State while on the other hand saying that it stands for a surplus Budget. The Opposition cannot have it both ways but certainly it will have to explain what its policy is. It cannot say it is going to make a $ 1,000m reduction and then on a social security Bill, or something else of this nature, come along and say: We are going to increase whatever payments you want’. On this Bill which we have before us at the moment it says that it will approximately double the Government’s expenditure when already the Bill exceeds by far in generosity anything that the miserable collection of parties which made up the previous Government produced in its 23 years of misrule.

Question put:

That the words proposed to be added (Senator Guilfoyle’s amendment) be added.

The Senate divided. (The President- Senator the Hon. Justin O ‘Byrne)

AYES: 28

NOES: 26

Majority……. 2

AYES

NOES

Question so resolved in the affirmative.

Original question, as amended, resolved in the affirmative.

Bill read a second time, and passed through its remaining stages without amendment or debate.

page 2083

FAMILY LAW BILL 1974

Second Reading

Debate resumed.

Senator DEVITT:
Tasmania

-When the debate was interrupted this evening I had gone so far as to pay a well-deserved tribute to the Senate Standing Committee on Constitutional and Legal Affairs for the very valuable work which that Committee carried out in analysing submissions, approaching 120 in number, which were made to it and which enabled it to produce for the benefit of the Senate, firstly, an interim report and, subsequently, a substantive report based upon the Committee’s analysis and judgment of those submissions. I think that in making those comments I would have the support of every honourable senator because whether or not we agree with the terms of a Bill, completely or in regard to some particular, we would nevertheless feel very much obliged and indebted to the Committee for what it has done in enlightening us as to the provisions of this Bill.

The Senate is not debating the question of whether there should be a legal process for dissolution of marriage in this country. Indeed, that decision was made many years ago. The institution, or legal process, of divorce has been part of the legal and social life of this country for many decades. So we are not making a judgment as to whether we should or should not have divorce. If we were, I suggest that the course of this debate would be very much different from its present course. The purpose of the Bill is not to encourage the dissolution of marriage or divorce; the purpose of the Bill, as I see it, is to lay down a humane, sensible code of procedure for people who find that they cannot continue in a marriage relationship and who accept the legal practice laid down for the dissolution of marriage. That is the substance of the Bill as I see it.

The nub of the whole question is, firstly, having a process whereby there can be a dissolution of the marriage. Then it behoves the legislators to bring down a law which provides the most humane, sensible, reasonable approach to this very unhappy and very emotional question. I do not think we can allow ourselves as legislators to become emotional over this issue. I suppose that for most of us the problem of marital relationships is very close to our daily lives. I do not suppose there would be one of us in this chamber who has not at some stage come face to face with the reality of the problems of marital relationships in some part of his family. We have to be honest when we speak on these issues. We have to project into the debate our own experience, so far as we can do so, to bring to it a balance and a roundness which a debate of this kind needs.

We have had a most valuable contribution from members of this chamber who have a legal background, who have been closely associated with and who have worked intimately in this field. But it would be insufficient for us to accept that the legal submissions which have been made to us are enough to enable us to make a total judgment on the merit of the legislation. We come from all walks of life. I accept unreservedly the tremendous value of what has been put to us up to the present time, but it is necessary for those of us who have had experience in family relationships, as many of us have, to relate to this chamber our own experience and to bring a fullness to the debate which will enable us to make a quiet, dispassionate judgment on the merit of the legislation.

What has happened is that in the interim report and in the later report from the Committee there is a brief analysis of the provisions of the Bill which leads us to accept that this legislation will wipe out the fault procedure when people go before a court, or whatever tribunal it may be, to have their marital relationship resolved in the legal sense. We wipe it out; there will be no fault basis for the dissolution of a marital relationship. It is suggested- we are open to persuasion on this-that the ground should be what we have come to understand as the irretrievable breakdown of a relationship for 12 months. This matter can be debated. No doubt, in the course of the various observations which will be made this point will be alluded to very strongly.

But the great attraction that this Bill has for me is the provision of a Family Court and also the understanding which I have that proper procedures will be laid down and proper attention will be given to the economic circumstances of families or parts of families who are so seriously disadvantaged as a consequence of the dissolution of a marriage. If there were not the provision for the Family Court in this legislation, my attitude to it would take a different course altogether. Over the years that I have been here I have mentioned to the Senate that in my past life I was a municipal clerk, town clerk or, as we know them in Tasmania, council clerk. In some of the isolated communities of the country it is not always possible to get immediate legal advice. So people tended to come to me- they did in the case which I am about to relate to honourable senators- as the local municipal person or the administrative officer of the local council to get advice on all manner of problems. So I gained a greater knowledge of the day to day workings of the law than otherwise might have been the case.

But one of the most distressing, difficult and exhausting things which I ever undertook was a service of a voluntary nature whereby, so far as it was possible for me to do so, I encouraged people who had problems in their marriages to come and talk sensibly to me about them. This came about initially because, as I was an officer of the court or, as we call it, Clerk of Petty Sessions, people came with their problems, particularly in relation to maintenance questions, they would seek to make a complaint and application under the Maintenance Act for separation on the ground of cruelty, misconduct, or failure to provide the necessities of life, or other provisions which were in the Act and which enabled them to live apart. When these circumstances arose I used to make some sort of private judgment of them. I am happy to say that during the course of those years when I made myself available- I suppose one might call it a counselling role- I was able to restore a number of marriages. I was tremendously happy about this because it involved not only the husband and wife but often the children as well.

My experience in maintenance matters led me to a very real understanding that in proceedings for maintenance and in the subsequent enforcement of maintenance orders there were always great difficulties. There were defaults on the part of the husband in providing the fortnightly maintenance payment, or whatever it was, and there were always great difficulties in enforcing those orders. I saw distress caused to families because before they were able to get any assistance from the community they were obliged to institute legal proceedings and to make it known that legal proceedings had been instituted for the recovery of maintenance arrears. Then the processes of the law took their course and people were able to be helped through the social services system.

I had a very real understanding of the problems, so much so that I think I could sit down right now and write out the terms of a complaint and application under the Tasmanian Maintenance Act, so deeply is the whole thing engrained in my mind. These were distressing matters, particularly when their resolution before the law was done in open court. Can honourable senators imagine a situation in which a husband and wife come before a magistrate? They are bound by the requirements of the law to parade before the court, in their own defence or in justification of their own position, some of the worst features of their married lives together. Some of the most intimate details of their married lives together are paraded for public exhibition and amusement. If anybody asked me to support a situation which took people into open court, where they took their place in the line among the felons, the thieves and the villains of the community, to get a resolution of this deep, emotional and complex family problem, I say here and now that I would never do it. That reason alone is sufficient to induce me to have great sympathy with the provisions of this legislation.

The question of the term of breakdown of marriage during which people live apart is open to another consideration. But in my experience of adopting the role of a quasi-counsellor in relation to those deep, perplexing, distressing and troubling sorts of problems, I found that where there was a sincere desire on the part of both partners to get away from those influences in the community which seemed to want to perpetuate the difficulties between them- often times family, friends, acquaintances and associates in the community- by getting them to talk like sensible, reasonable, fully developed and intellectually developed human beings one could get some sense into the situation. Probably there would be a resolution of a problem which had been magnified to a stage it should never have reached by feelings, thoughts, guilt complexes and a number of other things. As I say, when one got them apart and talked to them about these things, and when they analysed these things sensibly and rationally, frequently it was possible to get them back together.

I found in some people a strong desire- in fact, I think one can pick the people with this desire- to resume their relationship together, to go on and be sensible and normal citizens in the community fulfilling their social obligations, playing their role in the community, bringing up their children and providing the necessities of life for them. Then there was the other type whom all the counselling in the world could not help. I fear that, if such people are required to live apart for a period longer than 12 months when it is evident right from the start that the whole thing is washed up and unworkable, then obliging these people to stay married will cause only deep distress and scars upon their whole being. I think that a law which provides for the acceptance of irretrievable breakdown of marriage after 12 months apart is reasonable and sensible. I am talking about a particular type of person for whom counselling, guidance and the offer of help does not really work. There are many people like this. These are the sorts of people whom we must have in our minds when we talk about 12 months separation.

Senator Baume:

– Would it ever have worked?

Senator DEVITT:

– What is that?

Senator Baume:

– Counselling. Do you think we get to them too late?

Senator DEVITT:

– As I said a while ago, I think there are cases which are almost identifiable. Somebody has kicked over the traces and done something silly. We can say that concessions have to be made. The parties can say: You have talked to us about this. We see the error of our ways. If we are both prepared to make some concessions, then we will go back together’. But there is the other case in which I do not think anything on this earth can get the parties together. To require them to carry on a fake sort of relationship or to live apart for 2 years and to observe the sorts of social conventions which we talk about is completely unrealistic. While, on the one hand, people may say that we are preserving something- I do not think we are- on the other hand, are we not inviting people to enter into de facto relationships? I think that we are laying the ground for this to a degree at least. I am one of those old-fashioned people who look askance at this sort of thing, believe me, but I have a strong feeling that I am pretty much out of date and people do not tend to conform to the pattern of social behaviour that they used to even 5 years ago.

There has been a dramatic change in our society. I have very sincere reasons for saying that when people are compelled to present a facade of a relationship together, my goodness, it can have a damaging effect upon members of a family. I know of one situation- I will not go deeply into the circumstances of it- in which a husband and wife were compelled by all sorts of social conventions, family urgings and that sort of thing to stay together. Eventually they wrecked the mental health of the 3 children of the family. Those parents fell into a category which I remember was referred to by a great public speaker some years ago. I am referring now to the American Catholic Bishop Fulton Sheen. I was terribly impressed by him. I heard his address on 2 occasions on the subject of delinquent children. I recall very clearly his reference to the 3 ‘Ds’ when he spoke on the subject of delinquent children. His final comment was: ‘There are no delinquent children, there are only delinquent parents’. The 3 ‘Ds’ related to drinking parents, doting parents and discordant parents. I think the latter is the most important. One of the worst crimes in American history was committed by children of doting parents who had every conceivable thing they could wish for. I think that if a husband and wife are compelled by social conventions or some other reason to maintain a false relationship of this kind there can be very serious consequences indeed. I would think that every honourable senator would have had experience of a situation of this kind.

I want to see the removal from the ordinary courts of the land of any process for the resolution of family problems, whether it is divorce, maintenance or anything else. I think that will be one of the consequences of the Bill. Another consequence will be a greater emphasis on councelling. I think we are indebted to Senator Laucke for raising the question of the serious lack of qualified counsellors in Australia. As Senator Baume will recall, a few nights ago during the consideration of the Estimates we were all, I think, pretty unhappy to see the lack of sufficient people in the social welfare area. I think this is something to which we, as legislators, ought to turn our attention with great force and direction because if anything is needed in this country it is in the area of counselling to which Senator Laucke referred. I suggest that emphasis will be placed upon that aspect of human behaviour as a consequence of this Billfamily courts, counselling. There must be a considerable focus upon the economic welfare of people who are affected as a consequence of the dissolution of marriages.

I think I have indicated to the Senate that the present situation in which there is a court contest between 2 parties who were married as to who can produce the most telling evidence of the worst features of their lives together must be taken out of the public forum where it provides a source of great amusement to people who are not working at the time. I am referring to shift workers and so on. I am quoting again from my past experience. People go for a day’s amusement to hear the dreadful, sordid details of people’s lives. If we were completely honest with one another we would all have great difficulty in standing up in court and justifying some of the things which we do. This is the reality of the situation. The Senate is dealing with the reality of the situation. I think we have reached the stage in the social history of this country which we must face up to the fact that if somebody were to say we will abolish divorce’, one would then be looking at this matter in an entirely different light. I do not think anybody- somebody may correct me on this- who made a submission to the Committee suggested that the legal process of divorce should be wiped out. If that is the accepted standard that the community wants we must make a law that is humane, decent, reasonable and appropriate in all the circumstances.

I do not wish to weary the Senate any longer with my observations on this matter. I felt it was important for me as a layman, which I claim to be, to speak of past experience of matters of this kind. I have had some success in counselling and have seen very clearly that there are cases which all the counselling in the world will not help. I think that in those circumstances we must do all we can to assuage the grief of people who are caught up in these matters and apportion a reasonable degree of responsibility to people who have accepted an economic responsibility of raising a family. I think that if we pay proper attention to these matters we will bring into being a law that is humane, reasonable and, in this day and age, necessary. I wished to say these things because many people have asked me my attitude. A great many people have been quite surprised when I have spoken as I have to them and as I now speak publicly tonight. One cannot run away from reality, especially in this chamber. We have the custody of the social well-being of the people of this country in our hands. I do not think this is a bad piece of legislation. I think it is an appropriate, well-meaning and good piece of legislation. I commend it to the Senate.

Senator WEBSTER:
Victoria

– Probably one of the most important pieces of legislation ever to come before a parliament in this country is one that deals directly with the domestic affairs of the community. In such an important area as marriage and matrimonial law or, as it is called in this Bill, family law, we certainly find a great deal of interest shown by members of the Senate. The debate this afternoon and this evening has been of particular interest. I believe the Senate has shown a great depth of understanding of this problem, and one could read into it that there is general agreement that a new type of matrimonial law is required in Australia today. Those who have not had direct participation in the problems of divorce can scarcely understand the problems that are felt by the parties to a divorce. A very large body of people in the Australian community has witnessed at first hand the trauma experienced by the parties to divorce and the effect on related parties. The loyalties of those previously considered close friends to the parties become divided by the assertions and the charges by either party to a divorce. We should be concerned more about the effect upon the offspring of any marriage. This area of the Bill perhaps requires more scrutiny. The subject is of great interest, and sound law is imperative. Our society charges this Parliament with the responsibility of placing a fair and reasonable law upon the statute book. I have met no one in the community who would claim that the existing divorce law is appropriate and completely adequate for this society or for this age. I believe there is a necessity for divorce law to be reformed.

I congratulate the Attorney-General (Senator Murphy) for his persistence in promoting so dramatic a change in the law. I do not agree with all aspects of it, but I do congratulate him for his persistence in this matter. I congratulate those areas of community interest, the various divorce law reform groups, which at very great expense over many years have prompted the Senate, undoubtedly the Attorney-General and those people in areas of legal interest in the community that the present laws are inadequate and do require reform. It is unfair that the charge should be levelled against the Senate, as I have noted it has been done by some members of divorce law reform groups- some who have written to methat the Senate has held up, delayed or frustrated the early implementation of an updated divorce law. I think that that charge is generally unworthy of those who have made it. If one were to apply that comment to the Family Law Bill, as Senator Murphy has named it, one could readily recall what has happened since the introduction of the first Family Law Bill some years ago. Perhaps we should go back further and refer to the fact that immediately on this Government’s taking office, in 1973 a great list of regulations was introduced because of a demand from some sections of the community that such regulations be implemented. Had they been implemented I think it would have been to the great disadvantage of our community.

Senator Murphy has progressively introduced several Family Law Bills- I think that this is the third. After the introduction of the initial Bill he saw wisdom in what was suggested and he altered the provisions in the second Bill. He has been prompted into accepting the view that alteration of the original provisions and clauses was necessary. Finally he has introduced a third Bill. I understand that not only the Opposition believes that a variation is required to a number of clauses of the Bill. Many of the variations are prompted by the report of the Senate Standing Committee on Constitutional and Legal Affairs which was presented this month. The report stated that certain variations are needed to the Bill which has been introduced. I understand that the Attorney-General, even as late as today, believes that certain alterations should be made to his proposed law. So one can be very satisfied that the instigation of alteration to the proposal in this particularly important area of community interest over the years should finally result in a Bill being presented to the Senate on a form which, I believe, in respect of most of its clauses would find support from most sections of the community.

This is a new divorce law Bill. The title of the Bill, the Family Law Bill, is an innovation in terms of its objective. I do not agree that the Bill is correctly cited as the Family Law Bill. Indeed, it can well be argued that some of the provisions of the Bill make it possible for the family to be broken up earlier than would be the case under the existing matrimonial law. But it is an attractive title and it is one which perhaps we embrace as we embark further on into the 1970s in the hope that our society, as has been mentioned, will lead the world in having a sound basis of matrimonial law. If one looks at the nature and structure of the family, one can certainly refer to ouselves as being a signatory to the United Nations International Convention on Civil and Political Rights. Article 23(1) of that Convention states:

The family is a natural and fundamental group unit of society and is entitled to protection by society and by the state.

If we are a signatory to the Convention, we must uphold with law the family group in our society. I believe that that is essential. I know of no society which manages its affairs as well as we do in all the difficulties which we face. Whether it is from the point of view of the development of the economy, whether it is from the point of view of the development of the citizen himself or whether it is from the point of view of the upbringing of children and their gradual enrolment in our society, one sees that the basis of the family unit is something which we in this Senate must uphold.

I think that there can be a criticism of Senator Murphy. In relation to the Bill which he introduced in 1973 he is reported as having said:

The California Family Act of 1969 contains only 2 grounds: irreconcilable differences which have caused the irredeemable breakdown of marriage, and incurable insanity. No period of breakdown is prescribed. Final judgment may be entered 6 months after service of the petition. This is obviously an attractive precedent.

One may be misreading what Senator Murphy said to suggest that such a law would be his ultimate aim were he to have his way in this matter. He is quoted as saying that the California Family Act of 1969 is obviously an attractive precedent There was an English Law Commission which suggested that an explicit agreement that the 2 criteria adopted by the English Law Commission should be the grounds for good divorce law. Perhaps we in the Senate should be interested in that. It was also stated that it should buttress rather than undermine the stability of marriage, and when a marriage is irretrievably broken down it should enable the empty shell to be destroyed with a maximum of fairness and with a minimum of bitterness, distress and humiliation. I would generally support that view. I support the principle inherent in this Bill, in the loose way in which it is expressed, that once established- I emphasise the words ‘once established’- by some method, irretrievable breakdown should be the basis on which a marriage contract should be broken.

There is a fear that the aims for divorce reform can result in the destruction of marriage prior to that point of irretrievable breakdown being reached. One has to establish the suggestion that 12 months should be the period in which to establish irretrievable breakdown- the period in which the parties have separated. It has been suggested that it would be better if the period were 2 years, and I find that that extra period was suggested in the minority report that accompanied the report of the Senate Standing Committee on Constitutional and Legal Affairs. From my reading of this Bill, this legislation is creating the situation in which one partner, should he or she so desire, can leave the family bed for a period of more than 12 months. One party may wish to do that and the other party may be left distressed or in distressed circumstances. It is upon that basis that an application for the voiding of this contract can be made. I would not agree with that basis. I think that there is a necessity for those parts of the Bill to be emphasised. I also think that great wisdom has been shown in the promotion of certain clauses of the Bill. I refer to Part III which states that reconciliation is to be a vital part of the proposed new family law. The provisions for that reconciliation are set out in that section.

I think that the recent development of marriage counselling organisations should be encouraged. It is interesting to note that not so many years have passed since public attention has been directed to marriage guidance counsels or counselling organisations. In my own State of Victoria many church organisations are available which would call themselves professional bodies capable of giving sound advice based on experience here and in other countries so that reconciliations may be effected.

I have been attracted by the efficient way in which the Attorney-General has welcomed, at least on one occasion to my knowledge, the approach by a marriage guidance organisation in Victoria. On my approach to the AttorneyGeneral he acted as I have scarcely found any other Minister to act. He immediately picked up his telephone and contacted the organisation, arranging inside half an hour’s discussion to see its representatives in Canberra. I have not had that information from the Minister but from the organisation with which he treated. He was efficient in discussion and conducted direct questioning between the organisation and the departmental heads. The representatives of the organisation were able to go away satisfied that at least they had had sound attention from the Minister. I am confident that Senator Murphy has acted efficiently in relation to this Bill and in acting on a marriage guidance basis, at least in respect of Victoria. I repeat that it is an efficiency which I have not noted in Ministers on other occasions and I congratulate him for it.

Senator Murphy:

– Thank you.

Senator WEBSTER:

-There will be other times. As the Attorney-General is here I think I should say that he has attempted in many ways during his term to place among the statutes of this country acceptable matrimonial law, irrespective of whether it is called family law. He has taken every action possible to see that church groups, bodies which are interested in psychology and all other areas in the community have had an opportunity to approach him or his officers. That cannot be denied. Some sections of the Bill concern me greatly. I would like the Minister when he is replying to assist me in understanding the meaning of ‘domicile’ in this Bill. It has not been raised by any of the legal people associated with the report. It has not been raised by any senator who has spoken so far in this debate. My understanding from discussion with divorce judges in Victoria is that there is a very loose interpretation of ‘domicile’. It is a subject which I am not competent to debate but I understand that eventually in court proceedings it may raise some difficulty.

Part IV deals with matters that are very much in the air at the moment. Whilst it is not authenticated I believe that the Minister is likely to agree with the proposal for family courts. The suggestions that there will be jurisdiction of the Superior Court in this matter will not necessarily be applicable. The problems of divorce are not readily acknowledged purely by a parting for 12 months, a decision then being made. Parts of this Bill will create great hardship if they are put into effect. I cite the instance of a husband of a wife who married him at the age of 20 or 21 years. After 30 years of marriage during which she faithfully served her husband and family she may find that her husband wishes to dissolve the marriage. From my reading of this measure upon the application of only one of the partners the divorce can take place. That is of great concern to me. I turn now to Part V which is headed’Dissolution and Nullity of Marriage’. Clause 26 provides:

  1. ( 1 ) An application under this Act by a party to a marriage for a decree of dissolution of the marriage shall be based on the ground that the marriage has broken down irretrievably.

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

My reading of those provisions prompts the belief that only one party need be truly separated for the application to be made. Sub-clause (3) of clause 26 provides:

  1. A decree of dissolution of marriage shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

Clause 27(1) provides:

  1. ( 1 ) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.

I again refer to the situation of a wife who has lived 30 years away from any type of business or factory employment. She has left far behind her the two or three years of work in which she acquired expertise in an office of factory and now, being competent only as a mother and housekeeper, is left to fend for herself, according to the provisions of this Bill, if she is in good health and capable of getting a job. I do not believe that that provision is in the interests of the community or of our society. Surely we should do something to see that in such circumstances a woman is supported if it can be readily proved that her husband caused the problem. Clearly the courts must take some interest in determining the liability for the breakdown of marriage. My understanding is that under this Bill the situation I have described could arise and no objection could be put to the dissolution of the marriage or to the requirements to be found in other clauses of the Bill.

Senator Everett:

– The Committee’s recommendation will take care of that.

Senator WEBSTER:

– If the Committee’s amendment is accepted and Senator Everett can assure me that that would take care of the position I will readily support it.

Senator Everett:

- Senator Missen earlier today referred to that situation and in particular to a proposed new paragraph (m).

Senator WEBSTER:

-That would probably apply to clause 5 1 which appears in Part VII entitled ‘Maintenance and Property’. It provides:

A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately, whether by reason of having the care or control of a child of the marriage who has not attained the age of 1 8 years, or by reason of age or physical or mental incapacity for gainful employment or for any other adequate reason.

That wording appears to be very loose.

Debate interrupted.

page 2089

ADJOURNMENT

Fuel and Energy Legislation: Western Australia- United Nations Resolution on South Africa: Australia’s Policy on Aboriginal Affairs

The PRESIDENT:

– Order! It being 10.30 p.m., under the sessional order relating to the adjournment of the Senate, I put the question:

That the Senate do now adjourn.

Senator COLEMAN:
Western Australia

– I rise to draw the attention of the Senate once again, as I have done over the past few weeks by asking questions in this House, to the situation which exists in Western Australia with the repressive legislation now in force there under the rather misleading title of the Fuel, Energy and Power Resources Act Amendment Act 1974.I want particularly to give an indication of the ignorance of the State Government in Western Australia in introducing legislation of this nature which could be used and abused at some time in the future. I think the Senate would agree that governments change; the world changes; our lifestyle changes. No one could possibly try to predict the ways in which there could be abuse now that this legislation is on the statute book.

There are certain sections of the Act which are not only repressive but in actual fact can be made retrospective. This is unprecedented in a democratic country, as ours is supposed to be. For instance, section 41 provides for emergency regulations to be made and have effect notwithstanding anything ‘whether expressed or implied, in any other Act or in any law’. This gives the Minister the power to override centuries of common law rights, criminal law appeals, industrial awards and so on. In short, it gives the Minister power so sweeping as to be reminiscent of a dictatorship. Section 43 is designed to allow for a state of emergency when any situation exists which will affect the provision, supply or distribution of fuel, power or energy. So if members of a trade union, for instance, took action against a company providing any of those sources of power and the action was taken with regard to safety measures or wage issues, it would be enough to invoke these sweeping powers.

These powers are even more repressive if one takes into consideration the most unusual and most offensive provision in the legislation. I refer to section 45 which allows for retrospectivity. So an act which was committed before the emergency regulations were made and which was illegal at the time could in actual fact be made valid if regulations were made at a later date. There is little or no provision for the protection of the rights of the individual in Western Australia. Indeed, there are some sections of the Act which provide for the delegation of authority to any person or persons for any purpose with the exception of the actual declaration of emergency and the actual making of regulations.

Traditional individual liberties in democratic countries throughout the world have always provided for the right to refuse to incriminate oneself and that premises occupied are sacrosanct unless a search warrant has been issued. But under this legislation that is no longer the case. Regulations can be made requiring people to answer all questions on pain of penalty. Provision is also made for inspection of premises without the necessary warrants having to be issued. There are even provisions in this Act for the conscription of labour in the event of a state of emergency being declared. To say that this is an appalling situation is to put it mildly. No one in this chamber or in any other place should cast it off lightly. It is something which could extend to other States. The information which I have given has come from extremely reliable sources and I would like to name some of the eminent people who have spoken out against the legislation in Western Australia. They are: Professor Harding, Professor of Law at the University of Western Australia; the Law Society of Western Australia, in which only 4 members dissented from a report given on the Bill; various trade union leaders; Sister Veronica Brady, lecturer in English at the Western Austraiian University; and Mr Leslie Steen, lecturer in Law at the University of Western Australia.

I am sure that most honourable senators are conscious of the demonstrations that were held in Western Australia prior to the Bill actually being made law in Western Australia. In actual fact some of these demonstrations took place while the Bill was before the State House of Parliament. But just to refresh the memories of honourable senators let me tell them some of the things that occurred. There were 2 demonstrations. One was a very orderly march on Parliament House which was followed by a rally held on the Esplanade; and on the day that the Bill went before the Legislative Council a protest rally was held in the Supreme Court gardens. Most of the media acknowledged that some 15,000 to 16,000 people were present. There were talk-back programs on radio stations which kept the people of Western Australia up to date with what was going on at the rally and the points of view expressed by the various speakers. There was television coverage from an outside broadcast van to keep those who could not attend the rally abreast of what was happening. Commentators in the Press and on radio claimed that it was the largest demonstration held in Western Australia since the Second World War. But the Premier, Sir Charles Court, when asked for his comments the next day said with his customary contempt for the people of his State that it was just the usual gathering of people who had their lunch at the Supreme Court gardens to eat their pies. All I can say to that is that it must have been a record day for Peters. The resolution which was carried unanimously at that rally said in part:

We demand that the Government test its leaders’ assertions that it has the people’s support for the Bill by submitting the measure to a referendum.

Some members of this place may not be aware of the situation in relation to daylight saving in Western Australia. When the Labor Government took office in 1971 and endeavoured to introduce daylight saving quite a comprehensive campaign was mounted by the Opposition against a daylight saving Bill being introduced. The Labor Government tried for 3 years to introduce such a Bill. One of the first Bills that was introduced after the Liberal Government took office in Western Australia in March of this year was in relation to daylight saving. We now have the rather ridiculous situation that there is to be a referendum at the end of this period of daylight saving to ensure that the people of Western Australia do in actual fact get what they want next year. To me this is not democracy. If we can have a referendum on whether we should have daylight saving, surely to goodness we can have a referendum to ensure that the people’s right are protected. The trade union movement has never been opposed to emergency legislation as long as it is not repressive. This Act is repressive in the extreme.

I have drawn these matters to the attention of the Senate in the hope that an examination of the legislation will be made to ensure that the rights of individuals in Western Australia are safeguarded and that the livelihood of residents is not in any jeopardy. No State government should renegue or be allowed to renegue on commitments where there has been ratification of the International Labour Organisation convention and the United Nations Charter on Human Rights. I ask that the Senate now give consideration to what has happened in Western Australia and to ensure that no such thing will happen in any other State in Australia, and that to the best of our ability here we will ensure that nothing in our Constitution is contravened but that we will, if necessary, go across State borders and ensure that the rights of the people in Western Australia are maintained.

Senator WEBSTER:
Victoria

– Today in the Senate I asked the Minister for Foreign Affairs (Senator Willesee) the following question:

Is it a fact that a draft resolution has been presented to the United Nations which seeks the expulsion of South Africa from that body? Has the Australian Government directed its United Nations representative to support such a measure? What are the reasons for such action?

We know that the Minister indicated in the Senate today that the Australian Government has directed its United Nations representative to vote in favour of the resolution. My understanding from earlier today has been that the resolution is likely to come before the United Nations Security Council today, although there was some doubt that the resolution may be disturbed by way of amendment. The Minister may be able to tell us later whether it has proceeded. I wish to plead with the Government not to . take this action. My understanding is that it would be the first instance in which we had moved along this particular line. I do not think we, in Australia, will be serving our best interests in this part of the world.

Are we to be aligned with the demand that South Africa be expelled? The problems of South Africa both internally and externally have been very great. There are the problems of any community in an advanced society attempting to uplift those of lesser advantage. The problems which can be noted within this nation and certainly within South Africa by those who look on, are not easily resolved. This is to be admitted by all of us. The aim must be for progressive development of any people who are disadvantaged or discriminated against. But Australia has her own problems in these matters. Those problems of race relations and colour relations still exist in this country. It ill befits us to be aligning ourselves with those members of the world community who would be condemning South Africa in the current situation. Would anyone in this country be so bold as to say that Australia has assessed the debt owed to certain of its Aboriginal people? Would our bold moving Minister for Foreign Affairs say that no discrimination of any kind exists in Australia today? Perhaps he may quote the facts to us on the health standards of our black brothers and sisters. We saw a report in recent days of one group in western New South Wales -

Senator Baume:

– At Collarenebri.

Senator WEBSTER:

-Yes. That information must have been known to our Minister for Aboriginal Affairs (Senator Cavanagh) since he has been in office.

Senator Mulvihill:

– That is a leak from a Senate Committee.

Senator WEBSTER:

-It was even known in those days, apparently. Apparently, with the small number of our black brothers in this community that situation must be known to the Department of Aboriginal Affairs. What has this Government done in its 2 years of office? I ask honourable senators opposite to stand up and say that the previous government did not do anything sufficient. I accept that we did not do anything sufficient. But I point out to honourable senators opposite that in October, while we as a nation are willing to stand up and criticise South Africa, we have our own problems of apartheid in this country. These problems should be known within the United Nations. When our Minister goes there he should declare our problems before he commences directing Sir Laurence

Mclntyre to vote in a particular way to exclude South Africa.

Our white community has no such problems as the blacks have in housing at present in Australia. Perhaps the Minister may care to quote to the United Nations our lack of provision of adequate housing for our black brothers and sisters. Again, a report within the last few days indicates that there is a disastrous situation. Did the report not say that because of the housing situation, the lack of amenities by way of drainage and other matters, that children would be dying this year?

Senator Milliner:

– How long were you in power? Twenty-three years?

Senator WEBSTER:

– We hear the inane comment of a senator from Queensland: ‘How long were you in power?’ The honourable senator does not wish to examine the matter today and sympathise with me. I am an Australian citizen who knows the problems within our community in regard to the attitude that we take to black people. We have a Minister and a Government directing our representative to vote for the exclusion of South Africa from the United Nations on apartheid grounds. I was formerly a member of the Senate Select Committee on Social Environment which investigated the environmental conditions of Aborigines. I travelled the length and breadth of Australia and know the Aboriginal position reasonably well. The present Chairman of that Committee, Senator Keeffe, would know the current position even better than 1. 1 suggest that he would agree with me that Aboriginals in our community are discriminated against.

Senator Milliner:

– You say that, do you?

Senator WEBSTER:

-I say that-yes.

Senator Milliner:

– Tell us where.

Senator WEBSTER:

-Did you not listen to Senator Keeffe the other night? The Aboriginals are part of our responsibility. I mentioned the problem of Aborigines in New South Wales. Senator Keeffe mentioned the position in Queensland. There is also a problem in the Northern Territory. Wherever Aborigines exist they are our responsibility. I do not know that the Government of Mr Vorster looks over his shoulder and says: ‘What did the previous government do?’ We are all responsible for the situation. But surely we should be ashamed that we would stand in the United Nations and say that we should put a nation out of the United Nations because of its apartheid policy. What has the Labor Government done in relation to an apartheid policy in Australia in the last 2 years? This Labor Government is developing apartheid. Is there not, Senator Cavanagh, some area in Sydney where the Government is putting a rope around it and is going to build an entirely Aboriginal area?

Senator Cavanagh:

– No.

Senator Milliner:

– You are wrong.

Senator WEBSTER:

-One could point to statements that have been made previously by Senator Cavanagh. They indicate that an area that was distressed will be upgraded and money will be spent on behalf of the Aboriginal people by the Commonwealth. Money which is greatly deserved will go to an Aboriginal area which is to be separated from the white area in a part of Sydney.

Senator Cavanagh:

– It is not. You do not know what you are talking about.

Senator WEBSTER:

– It is very interesting to hear Senator Cavanagh say that we do not know what we are talking about.

Senator Wriedt:

– He said that you do not know what you are talking about.

Senator WEBSTER:

-Honourable senators on the other side laugh and interject. Yet I am having cross-fire with a Minister who is willing to say under some circumstances that the Labor Government’s policy in relation to Aborigines in this country has been a disaster.

Senator Cavanagh:

– I have never said that in my life.

Senator WEBSTER:

-I hope we get the right words. I hope I misrepresent the Minister for Aboriginal Affairs. It is a pity that the Minister does not make a statement in the Senate about what he did say. I saw a report in the Press the week before last concerning a black parliament. I do not know whether those words were used. But it was reported that a former Minister for Aboriginal Affairs, in pursuit of apartheid in this country, had set up an Aboriginal council or a black parliament on the grounds that it was only Aboriginals who should advise the Government on policies for Aboriginals. Is that a suggestion that apartheid is encouraged by the Minister? I would like the Minister to tell me whether I am misrepresenting him or whether the Press report misrepresented him. Did he alert the Press that he had been wrong when he said that this council which the Labor Party has set up was not representative of the Aboriginal people?

Senator Cavanagh:

– You cannot read straight.

Senator WEBSTER:

-Did I make a mistake in that interpretation?

Senator Cavanagh:

– You have been making mistakes ever since you stood up.

Senator WEBSTER:

– You have not denied that you said it, have you?

Senator Cavanagh:

– What am I alleged to have said now?

Senator WEBSTER:

– You are alleged to have said that the Aboriginal council is not representative of the Aboriginal people.

Senator Cavanagh:

– All right.

Senator WEBSTER:

– All right! Well I hope that is reported in Hansard as ‘all right’. The Minister is vocal in telling me everything is wrong. Apparently we can nail him on that comment. The Aboriginal black apartheid council which this Labor Party has set up is apparently not representative of the Aboriginal people. But it is a matter of grave importance from which I should not be taken away by those vocal clowns on the Government side. This matter is one at which we need to look to examine the policies that we are pursuing in Australia. Indeed, one article in the Press said that those in glass houses should not throw stones. I hope to quote that article later on. But certainly I, knowing the situation as a parliamentarian in Australia, am aware that there is a great deal that we must do for the black people in our society before we ever equate them to our own white society. I doubt whether any member of the Government Party would disagree with that statement. The position has been known over the years. One can recognise the left wing attitude of the Government. It is evident in a letter which was placed on the desks of all honourable senators, although I do not know from exactly where the letter came. It is headed: ‘Copy of letter addressed to managing directors of all Australian companies which have subsidiaries or associated firms in South Africa’. It commences with the words ‘Dear Sir’ and concludes with the words ‘ D. R. Willesee ‘.

I am interested to know exactly where our allegiance ties in this matter. I know that it does not lie with Great Britain. If one enters Senator Willesee ‘s office, the first picture one sees on the wall is that of Ho Chi Minh; one does not see a picture which would indicate any other allegiance. I think that that in itself is regrettable. Perhaps the hanging of that picture could be attributed to staff and not to Senator Willesee. The document to which I have referred is signed by the Minister and indicates the type of attitude the Government is taking. There is not encouragement of investment by Australians in South Africa for the benefit of the coloured people or the deprived people of that country; rather there is an indication that managing directors and businesses should look to their policies to see that they are upgraded in reasonable terms and higher standards are applied. It is certainly not a letter that I believe would be embraced by everybody in the community. But it does contain one interesting paragraph. The letter states, inter alia:

To date no other developed nations have imposed such sanctions and Australia will not curtail trade with South Africa unilaterally.

I wonder what other developed nations are doing in regard to their vote at this time. It will be interesting to see where Australia aligns herself in this matter. I believe that a statement made by Ambassador Botha in the Security Council on Thursday, 24 October 1974, is of interest. My understanding is that it is addressed from the Permanent South African Mission to the United Nations. I say to all honourable senators that they should read this document. Let me quote some parts of it. I would dearly love to have it all included in the record. It is very important statement.

Senator McAuliffe:

– Why do you not read it all?

Senator WEBSTER:

-I will take some time to read some parts of it. It states:

Mr President, the Council has been asked to review the relationship between the United Nations and South Africa in the light of our alleged violation of the principles of the Charter and the Universal Declaration of Human Rights.

What valid reason can be advanced for singling out South Africa’s relations with the United Nations for review by the Security Council? There is none. This is really just a political move in the vendetta being conducted by certain members of the United Nations against my Government.

I ask you to consider briefly some of the developments in the world in the period since the United Nations has been concerning itself with South Africa’s affairs. Several wars have been fought on four continents; numerous governments have been forced from office by unconstitutional means, frequently involving violence and bloodshed; countries have been occupied by the armed forces of foreign powers; population groups in a number of countries have turned on each other with ferocity, and so on. In the most important spheres of human life the world is faced with a number of crisesunderdevelopment, illiteracy, famine, pollution and many related socio-economic problems to which the world’s most responsible and best qualified commentators foresee no immediate or viable solution. Many think we may be on the brink of a world economic catastrophe of unprecendented proportions and incalculable consequences, political as well as socio-economic.

It is towards such situations and matters, Mr President, that one would expect this Council to turn its urgent attentionnot towards South Africa which in no way constitutes a threat to international peace, and where, although we have our problems, we are well on our way to solving them in a peaceful manner.

It is said that we have disregarded resolutions of United Nations organs. But next to nothing is said of the nature and quality of the information and documentation upon which those resolutions were based. Closer analysis will show that the material in question was unbelievably onesided, that is uniformly hostile to South Africa, that it was often completely unsubstantiated, and that much of it emanated from persons and bodies known for their biased opposition to South Africa’s policies. Information favourable to South Africa was simply ignored.

In consequence, the resolutions in question were based on inadequate, prejudiced and often grossly distorted information

The statement goes on. I take it up again on page 5, where it states:

It is no exaggeration, Sir, to say that this is the picture which emerges from the sources to which I have referred. But surely not even the most prejudiced members of the United Nations can believe that a picture of such unmitigated terror and oppression can really be true. For how can such a picture possibly be reconciled with the observable conditions prevailing in South Africa, with readily available and indisputable facts and figures, many of which emanate from technical and statistical documentation of this Organization itself?

Why is it, if the position of the blacks in South Africa is really so intolerable, that hundreds of thousands of black workers from other countries of Africa voluntarily come to South Africa for employment- many of them entering the country illegally for that purpose?

Why is it that according to figures as at 1 January 1972, released by the United Nations High Commissioner for Refugees, there were a mere 300 refugees from South Africa out of a total of 988,000 refugees in Africa?

Can it be denied that the wage gap between black and white is being continually narrowed and that it is the Government itself which is taking an active lead in the matter? The figures will show it.

Is it denied that black leaders, chosen by majorities of their own people, freely and often criticise the South African Government, in public and in private, on many aspects of its policies? This Organisation seizes upon such criticism. But let such a leader come to the General Assembly as a member of the South African delegation, and he suddenly becomes a stooge ‘ora’ puppet ‘.

Is it not manifest that millions and millions of rands are spent in South Africa to provide free or virtually free medical services to the blacks? In the financial year 1972-73, $282m was expended by public undertakings on health services for the Black, Coloured and Indian peoples.

Need it be recorded that South Africa has never experienced famine? South Africa is virtually self sufficient in foodstuffs of a quality comparable with the world ‘s best.

I could go on and say -

Senator Primmer:

– Why do you think people are leaving South Africa?

Senator WEBSTER:

-An honourable senator interjects to say that black labour is -

Senator Primmer:

– Why are such people coming to Australia? Is it because they fear that the position will blow up?

Senator WEBSTER:

– Why does the honourable senator believe people are leaving Australia? Is it because they feel that it is a rotten place under Labor? That is probably why.

Senator Poyser:

– You are obviously going completely mental.

Senator WEBSTER:

-I will take a trip on a bus and the honourable senator can be the conductor. I will quote at length from 2 articles. One appeared in the ‘Canberra Times’ newspaper. It is a criticism of all of us. I do not blame the Government if it takes this action in the United Nations while we sit idly by. We are all involved in this horrible action. The editorial in the ‘Canberra Times’ of Saturday, 26 October, which is headed ‘Bigotry at UN’ explains our situation. It states:

The Minister for Foreign Affairs, Senator Willesee, and more particularly the Prime Minister, Mr Whitlam, would do well to remember that it is just as unwise to throw stones in glass houses as to stow thrones in grass houses. No criticism of other nations is acceptable unless it is objective, realistic, and informed by a modicum of humility. Australian criticism of racial discrimination in South Africa, and the Government ‘s unofficial proposal to vote in the UN Security Council for the expulsion of South Africa, either choose to ignore facts that are being given wide publicity or to interpret them as gimmicks and window-dressing. South Africa’s Ambassador to the UN, Mr Botha, made admissions on Thursday of discrimination and promises to improve. It is better to steadfastly hold Mr Botha’s government to its word than to disbelieve it merely to satisfy self-righteousness and an entirely negative hate.

The facts are increasing multi-racial sport and some multiracial diplomatic staffs, official moves to gradually get away from colour discrimination, and preparations for the complete independence of the Bantu homelands. South Africa is not yet a paradise but neither are Uganda, Burundi, Nigeria, or Ethiopia.

May I interrupt my reading to say that I do not remember hearing any great criticism from our Minister for Foreign Affairs of the day when President Amin took some of his racial discrimination to heart and proceeded to act in a reverse way. The editorial continues:

But to slam the door which is just creaking open reeks of the same bigotry that sustains the system of apartheid.

The lack of realism lies in the belief that the entire South African social and political system, along with the anti-black prejudices of the whites, can be changed overnight. It would be just as easy to ignore the official pronouncements of the Australian Government and to focus exclusively on the discrimination which the white Australians practise against the black Australians.

If the Government of South Africa is expelled from the UN who will represent there the 14 million non-whites Mr Whitlam is supposed to be so concerned about? Membership of the UN, like marriage, is for better or for worse.

Without delaying the Senate, I refer it to the leading article in the ‘Sydney Morning Herald’ of Wednesday, 23 October, on South Africa and the United Nations. This article, too, subjects us to criticism. I do not see how we can avoid this criticism that will be levelled at us in future years if we take this action to vote in the United Nations for the expulsion of South Africa. Our interests in this area of the world will increasingly he with South Africa. It is a wonderful country. It is a country which has ranged through the problems of racial discrimination. We have seen the same thing practised in this country. If we were excluded from the United Nations on some of the grounds I have raised we could be criticised as we are criticising South Africa. I plead with the Minister to direct his official at the United Nations not to take this action.

Senator CAVANAGH:
South AustraliaMinister for Aboriginal Affairs · ALP

– I feel compelled to rise in this debate to correct some of the misstatements that have been made and to put the record straight It has been a most interesting adjournment debate. We have had 2 speakers. Senator Coleman told us of the undemocratic legislation cutting across human rights which has been put into operation by a Liberal Government in Western Australia. She expressed condemnation of it. There we see discrimination in Western Australia through legislation which has recently been introduced. Senator Webster’s remarks are not far removed from this subject. He acknowledges that attitudes contrary to human rights are not correct but says that we should not try to stop them in South Africa because we have them in Australia. He condemns the attitude to Aborigines in this country. He is not appreciative of it; he condemns it and says it is wrong, it is rotten. I admit that there are sections of discrimination against Aborigines.

Senator Webster:

– I hope you send that to the United Nations from our Minister for Aboriginal Affairs. What a great statement! If you do not send it, I will.

Senator CAVANAGH:

– I admit that there are pockets of discrimination against Aborigines and other low socio-economic sections of our community but honourable senators will see this in many countries. We have condemned it. Senator Webster wants us to go to the United Nations to show that we are not pure and that we are deserving of condemnation. He comes out with the same utterances as Senator Coleman who is concerned with discrimination against a section of the community. But Senator Webster says that we should not take any action to stop it from happening in some other country because it is happening here on a lesser scale. If we think it is wrong surely we should try to stop it here just as we are trying to stop it by supporting a resolution at the United Nations against South Africa. We should be united in this protest to see that discrimination ceases in Australia also- both in respect of the legislation passed in Western Australia and in respect of the Country Party’s attitude particularly to Aborigines within Australia.

If honourable senators want to see the greatest discrimination in Australia we have it in the Queensland Parliament against the Aborigines. In Queensland a white man is covered by an award wage while an Aboriginal doing the same work gets $53 a week. Do honourable senators say that that is not discrimination? Under the laws of the land, whereby Aborigines are on enclosed settlements, white men cannot go there without the permission of the Department of Aboriginal Affairs in Queensland. Is this not discrimination? Surely the advocacy of Senator Webster will justify his voting for our Queensland Aborigines anti-discrimination Bill when it comes before the Senate. He could not refuse to vote for it. I applaud him for his attitude towards and his condemnation of the discrimination which has existed in Australia, but he says that because it exists here, because we are guilty, because we are rotten, low-down and contemptible for tolerating it, we should do nothing to cut it out anywhere else in the world. He then comes around to say that we should not take this action against South Africa because in fact it does not happen in South Africa. He quoted an anonymous document that he found on his desk. He never quotes proof. He never quotes an authority on any question and it is contrary to the principles of Parliament to quote anonymous documents in the Senate. But let us come to the question-

Senator Webster:

– I said it was signed by Mr Willis.

Senator CAVANAGH:

– Let me say this: From the statements that have been made tonight, if we are sincere we should be hand in hand in unity- Senator Coleman, Senator Webster and I- to stop discrimination where it exists in Australia or any other country. Misstatements have been made about the tying up of a group of Aborigines in one settlement in Sydney. In Redfern, where the Aborigines mostly live, there is a row of attached houses which not a government but an Aboriginal community purchased and is in the process of renovating. Those attached houses will be occupied by Aborigines. Most of them were previously. The houses they could not purchase will be occupied by Europeans. The houses across the street will be occupied by

Europeans. It is a street which everyone has freedom to go down. This is not blocking Aborigines away on their own. That is what is happening at Redfern in a housing project. It has been stated right throughout Australia that I said that Labor’s policy on Aboriginal affairs was a disaster. Soon after I took up the portfolio of Aboriginal Affairs, when speaking to a National Press Club luncheon in Canberra I stated that the implementation of Labor’s policy on Aboriginal Affairs had been a disaster.

Senator Jessop:

– Were you having a shot at the previous Minister?

Senator CAVANAGH:

– No, I was not having a shot at the previous Minister. I was referring to the zealousness of those connected with Aboriginal affairs and saying that at last they had a Government that was determined to do something. Formerly they went in, spent money and put some people in jeopardy, without proper accountability or accountancy. This has been proved by the Auditor-General’s report. At no time did I say that Labor’s policy on Aboriginal affairs was a disaster. The implementation of Labor’s policy on Aboriginal affairs is bringing praise from all sections of Australia at the present time. We are showing results. For the first time we have some self-determination by Aborigines. The people in the Aboriginal community are deciding their own destiny. It gives them some purpose in life and some aspiration for which to work. No one can say that that is a condemnation of Labor’s policy on Aboriginal affairs.

Let me turn to the question of the National Aboriginal Consultative Committee and the suggestion that I said that it is not representative of Aboriginal people. I stated to its recent conference that I thought that under its previous constitution it was not receiving the expression of Aboriginal people. The members agreed with me to change the constitution so that the proposed National Aboriginal Congress would be meeting in committee at the settlement level and from there at the regional level. So there is no doubt that it will be hearing the voice of the Aboriginal people. These are the questions about which there have been misstatements. Labor’s policy on Aboriginal affairs is the only hope we have in Australia of stopping discrimination.

Let us remember that the things that Senator Webster hates about discrimination in Australia and the things that Senator Coleman dislikes about Western Australian legislation are hated by all free men and all democrats. Let us clean up our own house. Let us stop discrimination and apartheid wherever it may raise its ugly head. If we unite and join in support for the Minister for Foreign Affairs we will be striking a blow for democracy throughout Australia and for the human civil rights of citizens.

Senator BONNER:
Queensland

-I do not want to detain the Senate for any great length of time but Senator Webster has brought up a matter here this evening concerning Australia’s stand at the United Nations in relation to South Africa. I think it is hypocritical for Australia to take such a stand when there is discrimination and prejudice against the indigenous people of this country. Very little has been done about it in almost 200 years. I support Senator Webster in what he has said, that it is hypocritical of this Government to go over -

Senator McAuliffe:

– His party backed off you in Queensland when you looked like leading the ticket.

Senator BONNER:

– You can have your say when I am finished, little man, because the only thing you know about is running a third rate hotel down on the Gold Coast. You are good at that sort of thing but you know little about the relationships of people. There is a good old proverb that says that it is always the empty vessels that make the most sound. There are quite a few empty vessels on the other side of the chamber. Just a moment ago the Minister for Aboriginal Affairs (Senator Cavanagh) and some of the bright sparks on the other side of the House were talking about Queensland. I become sick and tired of listening to them talking about what is happening in Queensland. In his own words the Minister outlined to us that the National Aboriginal Consultative Committee was the body that should make the decisions and should be advising the Minister, but the voices from the other side have the audacity to condemn the Queensland legislation. May I point out to the Senate- I think it is very relevant that I do so here this evening- that when we talk about the Queensland legislation we should remember that the Aboriginal councils in Queensland, elected by the Aboriginal people from all Aboriginal communities, looked at the Queensland legislation and told the Queensland Government the changes that they want in that piece of legislation. The Queensland Government is now going to change the things that the Aboriginal people want changed.

Senator Keeffe:

– That is not quite right.

Senator BONNER:

– It is no good Senator Keeffe talking because, in the first place, he is not an Aborigine. He is not affected by the Act. The people who are changing the Act in Queensland are elected by the Aboriginal people who are affected by the Act. We hear the present Government and the Minister for Aboriginal Affairs talk about Aboriginal self-determination. If that is not Aboriginal self-determination, what is he talking about? The Queensland Government is not prepared to bow to the Minister, like our Prime Minister (Mr Whitlam) seems to want to bow to Chairman Mao. The Minister was making a lot of noises long before he even thought of talking to the Queensland Government or the Queensland Minister. He was making all sorts of threats. I might even add that those threats were going further back than the present Minister; they were going back to the previous Minister who was threatening Queensland that this Government was going to go into Queensland and take control of Aborigines. I can tell the Senate that no one is going to take control of Aborigines in Queensland because if they take control over Aborigines they will do so over my dead body. No one is going to control me. The Government can accept the responsibility, if it so desires for Aboriginal advancement. If this is what it wants to do, I am in its corner. But its supporters start talking about taking over control of Aborigines they have a fight on their hands because we in Queensland are not going to allow anyone to take control of Aborigines. We happen to be human beings. Even though we are black we are still human beings and no one is going to control us. But that crowd over there would like to control us. They would like to control all of Queensland but we in Queensland will not let them control us.

Senator Jessop:

– That is why we will bolt in in Queensland.

Senator BONNER:

-That is right. As I started out to say, I support my colleague Senator Webster in bringing this matter before the chamber tonight because I seriously believe that it is hypocritical of the Australian people to go over to the United Nations and talk about the situation in South Africa when we have not cleaned up our own backyard. Before we start telling anyone else how they should run their country let us get down to running our own country properly. Let us clean up the problems that we have in this country. Then, maybe, we can go over and start telling someone else what to do.

Senator KEEFFE:
Queensland

-Mr President, I will be 2 minutes. I want to protect Senator Bonner from himself. His was a tragic contribution. Frankly, I am doing this for Senator Bonner’s own protection. I do not think the honourable senator should have become involved in a case like this by defending the Queensland Country Party which has been racially biased ever since it has been in government. The honourable senator knows that. The Country Party members are the people who have caused Aborigines on reserves in Queensland to live on a total fortnightly allowance of about $50-odd. That is true. It is equally true that the Country Party in Queensland discriminated against Senator Bonner in 2 Senate elections. It did that because he is black. That is to the standing disgrace of the Country Party in Queensland. When Senator Bonner looked like being No. 1 on the Liberal Party ticket the Country Party bent over backwards to make sure that he was pushed down the list.

It is racial discrimination in its worst form when an Aboriginal senator is discriminated against to that extent. Accusations have been made by colleagues on this side of the chamber that the Liberal Party in this Parliament prevented Senator Bonner from being a delegate to the United Nations. Again, that is discrimination by his own parliamentary party. The hypocrisy which stands out ought to be exposed. The suggestion which the good senator makes about the Aborigines in Queensland being free to make their own decisions is not true. Frankly, I suppose he has to defend the organisation. He is a victim of the machine. But this is not true. In many instances people on reserves have not had an election for years. I will tell the Senate why they have not. It is because white management does not allow them to have an election.

Senator Maunsell:

– What about Palm Island?

Senator KEEFFE:

– It is not of much use interjecting about Palm Island. That was a hoax. A forged petition was put up by the white man’s vote in order to let the Townsville City Council take over at that time. Within 2 hours, under white domination, the new council agreed to let the City Council take it over. Negotiations are now proceeding with Ansett Transport Industries Ltd or with a subsidiary of that organisation for the establishment of a tourist spot on the island and to kick the blacks off. So I ask Senator Maunsell not to interpect about Palm Island. In any case, he should not object because he is part of the organisation which has kept Senator Bonner down all the way through in Queensland. I think that those few points ought to be made known to keep the record straight.

Senator BONNER (Queensland)-I wish to make a personal explanation.

The PRESIDENT:

– Does the honourable senator claim to have been misrepresented?

Senator BONNER:

-Yes. Senator Keeffe said that the Liberal-Country Party in opposition would not allow me to go to the United Nations. That is a lie.

The PRESIDENT:

– Order! Senator Bonner, you will have to withdraw that remark. You cannot use the word ‘lie’.

Senator BONNER:

-Mr President, let me then say that it is not the truth. At no time did I put my name on a piece of paper in our Party room as nominating to go to the United Nations.

Senator Devitt:

- Mr President, I raise a point of order. Do I understand Senator Bonner to have withdrawn the expression: ‘That is a lie*? I insist upon it being done.

The PRESIDENT:

– Order! I asked the honourable senator to withdraw the expression. He substituted the words: ‘It is not the truth’.

Senator Cavanagh:

- Mr President, I raise a point of order. The honourable senator got permission to make a personal explanation. I thought it would have been a personal explanation because he was misreported or misquoted or something. But his explanation is not a complaint about anything that was said against him. It is about something which was said against his Party. Is an honourable senator entitled to get up and complain that something was said against his Party? That is not a personal explanation.

The PRESIDENT:

- Senator Bonner, will you proceed to show the Senate in which way you have been misrepresented?

Senator BONNER:

- Mr President, it was a personal reflection on me. I feel that I have the right to explain exactly what happened.

The PRESIDENT:

- Senator Bonner, confine yourself to the personal explanation.

Senator BONNER:

-Mr President, a notice was put on the notice board in our Party room calling for nominations to go to New York to the United Nations. At no time did I put my name on that notice board. At no time was I prevented in any way. I did not nominate. I had no intention of going to the United Nations. I have no desire to go to the United Nations. Therefore it is a reflection on me as a person to say that I was stopped from going to the United Nations or rejected by my Party or by the Country Party at any time.

Senator WILLESEE:
Western AustraliaMinister for Foreign Affairs · ALP

– Tonight Senator Webster raised a matter in relation to the answer which I gave this morning about a vote which will come up in the Security Council, probably tomorrow, in relation to South Africa. Senator Webster quoted from several newspapers which suited him. He did not quote from other newspapers which had taken rather a different line. He took the South African case completely and placed it before us. He even quoted from Mr Botha’s statement in the Security Council. He criticised Australia’s attitude towards Aborigines. This seemed to be the one reason he gave why we should not vote the way I have instructed Sir Laurence Mclntyre to vote at the Security Council. He further criticised me because I did not criticise Uganda and such other countries. It seemed to me that in some way- I did not quite follow it- this was related to the action I am about to take at the Security Council. The fact is that I do not go around criticising every other country, because that is hardly a way to improve relationships.

It is quite right that any country can criticise another country. Other countries can criticise us. They can find plenty to criticise, particularly on the Aboriginal question. The fact is that because we are on the Security Council and because we will be there for another 2 months we have had placed before us fairly and squarely by the General Assembly the question of South Africa. It was referred to the Security Council overwhelmingly by the General Assembly. We have to make up our minds how we will vote on this matter. There could be a debate which would go on forever. But what is the correct thing to do? One of the arguments which come forward is that we may harden South Africa in its attitudes and that this would make apartheid even worse than it is today, if this is possible; South Africa would not do any of those things which we want it to do. That is one angle that can be taken. That is one argument which I have seen advanced. That is one argument which some of the people at the Security Council will advance.

But when we sit down and analyse this matter, as we had to do, we found that there had been no movement in apartheid- not for one or two years, but for 25 years. South Africa has consistently defied the United Nations, the resolutions which it has passed, and the pressures which have been put on South Africa. One of the first reports which come in at the United Nations is the report of the Credentials Committee. Up until this year that Committee would make the recommendation that the United Nations accept South Africa and a group of nations would move that the credentials be accepted, with the exception of those of South Africa. This was always carried. Under a ruling which was referred to as the Hambro ruling- it was given by Mr President Hambro- the vote was to be taken as a condemnation of South African policies but it did not affect the right of participation in the Assembly. So this was done every year as a condemnation of South Africa.

Because those sorts of moves were not getting anywhere, this year the procedure was reversed. When the report came from the Credentials Committee the recommendation was to exclude South Africa. A vote was taken on that and it was carried overwhelmingly. Another vote was taken which was to refer this matter to the General Assembly. That was carried by 125 for to one against- South Africa, of course- with 9 abstentions. So it was an overwhelming vote indeed which sent the matter to this body. We are faced with the position of what we are going to do about it. As I explained in answer to Senator Webster this morning, because of South Africa’s persistency over 25 years, because there has been no movement towards what the United Nations has asked South Africa to do in relation to apartheid and because there has been no change in its policy, I believe that now there is only one thing for Australia to do. Because of the stand we have taken, because of the stand which the previous Government took and because of the things we have said about racism, we believe it is time to vote for the expulsion of South Africa. One of the nations could use its power of veto. There is no indication at the moment whether that power of veto will be used. It is not true to say that anybody can vote with safety on this sort of matter knowing full well that South Africa will not be expelled. That is not certain at all. The African countries are pushing this matter and will take the main responsibility. Australia will take its responsibility because of the way we will vote.

The honourable senator asked: Will expulsion make South Africa worse? Nobody really knows. Senator Webster has pointed out that Ambassador Botha said that South Africa will get rid of apartheid and there will be an improvement in sport. Does that not suggest the opposite? Does that not suggest that at long last, when it is put on the line, after 25 years of pious resolutions, when the matter is before the Security Council that one is starting to get some action from South Africa? There is no real movement in sport in South Africa because at the club level where sport starts, not necessarily at the international level, there is still segregation and discrimination. Mr Vorster made a speech which has been answered by Mr Kenneth Kaunda of Zambia in the last few days, but it is very late in the day. This matter could have been raised quite a long time ago.

I come to the question of whether by excluding South Africa one will weaken the United Nations. That is one argument. On the other hand, how much more will one weaken the United Nations if South Africa defiantly and consistently over a quarter of a century has completely ignored the United Nations resolutions. One can argue both ways, but it seems to me that the correct thing is being done and that the pressure suggested by some of the newspapers which Senator Webster did not quote must be kept up so that at least these words which have come out only in the last few days while the Security Council has been meeting can be put into action.

The question of Aborigines was raised. In fact it just about took over.

Senator Jessop:

– So it should.

Senator WILLESEE:

– Maybe it should have.

Senator Webster:

– One would think we would not criticise others when we are as bad ourselves.

Senator WILLESEE:

-I am coming to that point, and I acknowledge that it was Senator Webster’s point. The honourable senator acknowledged in turn that the reason that we should vote against South Africa is that we have not clean hands on the question of social discrimination. Of course we have not. The Minister said that. The attitude of Australian governments and the Australian people as regards Aborigines is vastly different to the attitudes in South Africa. A few years ago in Australia a referendum was supported by all parties and was carried overwhelmingly. The previous Government in its dying days was starting to step up its expenditure on Aborigines. Under this Government for the first time in our history we have a full time Minister for Aboriginal Affairs. That is the opposite to moving towards apartheid. Whatever faults we still have this Government is backed by a referendum of the people. Let me acknowledge that the previous Government was starting to move towards a greater expenditure on Aboriginal people. So it is the complete opposite to what is happening in South Africa.

I disagree with Senator Bonner when he took up Senator Webster’s attitude because I would have thought that if we had not condemned apartheid in South Africa we would have been condemned by the Aboriginal people. I would say that that would have been the attitude of the Aboriginal people. How can we in Australia say that we are trying to get rid of racial discrimination and that we believe we should not judge one another because of the colour of our skins, yet turn round and vote the other way when it conies to South Africa? I disagree with my friend Senator Bonner. I think that that Aboriginal attitude would be vastly different to what he said it is. Senator Webster said that I wrote a letter to all companies in Australia which have subsidiaries or brother organisations in South Africa. He said that this was a left wing move. I do not quite know how he works that out because all that this letter did was to say: ‘Look, it is for everybody’s benefit to be a good employer and these are some of the suggestions we can make. ‘ I found to my dismay that the United Kingdom and the United States of America had done it some dme before. So my motivation was hardly left wing because the United Kingdom and the United States had done a lot more than we had done.

I think many irrelevances came into the debate. I do not think the Aboriginal question is relevant. We are doing the opposite to South Africa. We are passing laws and establishing departments to assist and uplift and to get away from racial discrimination. The opposite is being done in South Africa today and has been done persistently for 25 years. I do not think that the position is analogous at all. For years the previous Govement voted in the United Nations against apartheid. Now that Australia is a member of the Security Council surely it does not expect us to do less.

Question resolved in the affirmative.

Senate adjourned at 11.36 p.m.

page 2101

ANSWERS TO QUESTIONS

The following answers to questions were circulated:

Alleged Persecution of Jews in Syria

Senate Elections: Voting System (Question No.225)

Senator Baume:

asked the Minister representing the Minister for Services and Property, upon notice:

Did the Minister for Services and Property state in a press release on 19 September 1974 that proposed changes in the Senate voting system would not affect the result of one Senate election in 100 years, as compared with the present system; if so, will the Minister for Services and Property arrange to have tabled in the Senate the advice, given to him by the

Chief Australian Electoral Officer, which purports to put the view of the effects of the proposed electoral changes.

Senator Willesee:
ALP

– The Minister for Services and Property has supplied the following answer to the honourable senator’s question:

Yes, the Minister for Services and Property made the statement referred to by the honourable senator. This statement concerning the electoral effect of the proposed change to optional preferential voting for the Senate was based on verbal advice given to the Minister by the Chief Australian Electoral Officer.

Department of Foreign Affairs: Residential Accommodation in Florence, Italy (Question No. 236)

Senator Jessop:

asked the Minister for Foreign Affairs, upon notice:

Has the Department of Foreign Affairs purchased a villa in Florence, Italy; if so, (a) when was the purchase made; (b) what was the purchase price; and (c) why was the purchase necessary.

Senator Willesee:
ALP

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

No; the Department of Foreign Affairs has not purchased a villa, or any other residential accommodation in Florence.

South Pacific Conference (Question No. 243)

Senator Georges:

asked the Minister for Foreign Affairs, upon notice:

  1. Is Australia being represented at the South Pacific Conference currently being held at Rarotonga, in the Cook Islands, by Mr J. H. A. Hoyle, Assistant Secretary, Pacific Branch, Department of Foreign Affairs, Mr M. R. Casson, Australian Consul at Noumea, New Caledonia, Miss M. McPherson, Head of the South Pacific Section, Department of Foreign Affairs and Mr R. J. Tyson, Second Secretary of the Australian High Commission, Wellington, New Zealand, all of whom are officials of the Department of Foreign Affairs.
  2. Do any of those officials speak any indigenous languages of the region; if so, which languages are spoken and by whom.
  3. Do any of the officials referred to in (1 ) hold academic qualifications having a specific focus on the Pacific Islands; if so, whom, and what are their specific qualifications.
  4. How many years’ experience has each of the officials referred to in ( 1 ) had in the handling of Pacific Islands affairs.
  5. What is the policy framework within which Australia will work at the South Pacific Conference.
Senator Willesee:
ALP

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

  1. The Australian Delegation to the South Pacific Conference at Rarotonga is led by the Honourable W. L. Morrison, Minister for Science, and comprises Mr J. H. A. Hoyle, Assistant Secretary, Pacific Branch, Department of Foreign Affairs; Mr M. R. Casson, Australian Consul, Noumea; Miss

    1. McPherson, Head, South Pacific Section, Department of Foreign Affairs; Mr C. Woodland, Senior Projects Officer, Office of the Australian Development Assistance Agency; Mr R. J. Tyson, Second Secretary of the Australian High Commission, Wellington. There are two Australian Parliamentary Observers at the Conference, Senators C. G. Primmer and N. T. Bonner.
  2. None of the officials speaks any of the indigenous languages of the Islands. The languages of the Commission, however, are both English and French. Mr Casson is fluent in French. Mr Hoyle and Miss McPherson have a working knowledge of it and the other members of the delegation understand it.
  3. Mr Hoyle and Miss McPherson studied Pacific Affairs for two years at the Canberra University College during their training as diplomatic cadets during the late 1940s. This course covered, inter alia, the Pacific Islands and PNG. Additionally, Mr Hoyle during his third year at the University of Sydney wrote a thesis on the history of race relations in Hawaii.
  4. Mr Hoyle was Second Secretary in Wellington from 1956 to 1959 during which time he made an official tour of Fiji, Western Samoa and the Cook Islands. In 1972/73 Mr Hoyle was Head of the South Pacific Section. Since 1 May 1973, he has been Assistant Secretary in charge of the Pacific Branch which covers both Papua New Guinea and the South Pacific. In January 1972 he became Australian Commissioner and in December 1973 Senior Australian Commissioner on the South Pacific Commission. In March 1974 he led the Australian Delegation at the Review Meeting on the South Pacific Commission held in Wellington from 5-8 March 1974.

Mr Casson worked in the Americas and South Pacific Sections from 1965 to 1967. In 1967 he accompanied a Parliamentary Mission to Fiji, Tonga, Western Samoa, American Samoa, the New Hebrides and New Caledonia. Mr Casson has, since October 1972, been Australian Consul, Noumea, and Alternate Australian Commissioner on the South Pacific Commission.

Miss McPherson has been Head of the South Pacific Section since May this year. She is attending the Rarotonga meeting to familiarise herself with the region.

Mr Woodland has been engaged in aid work for the last six years and has been responsible for the South Pacific Aid Program since 1972. In May 1973 he participated in an aid mission to the New Hebrides and Fiji. In May 1974 he attended the Planning Committee of the South Pacific Commission and subsequently was a member of aid mission teams to Fiji, Tonga, Western Samoa and the British Solomon Islands Protectorate.

Mr Tyson has been Second Secretary in Wellington since March 1972. He attended the South Pacific Forum held at Rarotonga in March 1974 and accompanied the Australian High Commissioner, Dame Annabelle Rankin, to the same place in July 1974.

  1. Australian policy towards the South Pacific Conference was expressed by the Minister for Foreign Affairs in a statement tabled in the Senate on 26 September 1973, reporting on the 1 3th South Pacific Conference at Guam.

International Convention on the Suppression and Punishment of the Crime of Apartheid (Question No. 261)

Senator Greenwood:

asked the Minister for Foreign Affairs, upon notice:

  1. I ) Did Australia vote in favour, vote against or abstain on the passing by the General Assembly of the United

Nations on 30 November 1973 of Resolution 3068 (XXVIII) adopting and opening for signature and ratification the International Convention on the Suppression and Punishment of the Crime of Apartheid.

  1. ) What was the reason for the vote cast by Australia.
  2. ) Is it proposed that Australia adopt and ratify the Convention; if so, why; if not, why not.
Senator Willesee:
ALP

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

  1. Australia abstained on Resolution 3068 (XXVIII) which was passed by the United Nations General Assembly on 30 November 1973 and which adopted and opened for signature and ratification the International Convention on the Suppression and Punishment of the Crime of Apartheid.
  2. Australia abstained because, notwithstanding its abhorrence of apartheid, which it has demonstrated by word and deed on numerous occasions, it had difficulties with the machinery provisions of the Convention, namely that States Parties to the Convention would have to create national criminal jurisdiction to try persons charged extraterritorially with crimes under a broad definition of apartheid. Twenty-five other countries abstained, and four opposed the Resolution, for similar reasons.
  3. The Australian Government will continue to be guided by the considerations mentioned in 2 above.

Motor Vehicle Industry- Industries Assistance Commission Report (Question No. 264)

Senator DRAKE-BROCKMAN:
WESTERN AUSTRALIA · CP; NCP from May 1975

-Brockman asked the Minister representing the Prime Minister, upon notice:

  1. 1 ) When will the Government announce a decision on the Industries Assistance Commission’s Report on the Motor Vehicle Industry.
  2. Was the Report of the Commission received by the Government three months ago; if so, has the situation within the industry rapidly deteriorated since that time.
  3. Does the urgency of the situation demand a prompt and clear statement of the Government ‘s intentions on the Report.
Senator Murphy:
ALP

– The Prime Minister has provided the following information for answer to the honourable senator’s question: (1), (2) and (3) The Government published the Industries Assistance Commission Report as soon as it was received and very extensive consultation with the industry and other interested parties has taken place on options for future policy since that time. The Government ‘s decision will be announced as soon as these consultations have been finalised and considered.

Papua New Guinea: Australian Servicemen (Question No. 283)

Senator Baume:

asked the Minister for Foreign Affairs, upon notice:

Will Australian Servicemen be with the armed forces of Papua New Guinea after it achieves independence on 1 December, 1 974: if so,

to whom will those servicemen be responsible; and

from whom will they take orders.

Senator Willesee:
ALP

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

I would refer the honourable senator to pages 27 to 34 of the speech on the Australian Defence Estimates 1974-75 tabled in the House of Representatives by my colleague, the Minister for Defence, on Thursday, 24 October.

Cite as: Australia, Senate, Debates, 29 October 1974, viewed 22 October 2017, <http://historichansard.net/senate/1974/19741029_senate_29_s62/>.

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