23rd Parliament · 1st Session
The PRESIDENT <Senator the Hon. Sir Alister McMullin) took the chair at 2.30 p.m., and read prayers. ,
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– My questions are addressed to the Minister representing the Treasurer. Is it a fact that the Government borrows money for short periods in order to cover the seasonal gap between Commonwealth revenue and Commonwealth expenditure? Is it also a fact that the average amount borrowed for this purpose during a year is £100,000,000? Prior to the passage of recent legislation, did the Government borrow this money from the Commonwealth Bank at an interest rate of 1 per cent, or at a total cost of £1,000,000 a year - an amount which, incidentally, was eventually returned to the Commonwealth as profits of the Commonwealth Bank? Is it now the Government’s intention to borrow this £100,000,000 each year from wealthy individuals and from private banks, finance houses and companies, and to pay 3 per cent, interest, or £3,000,000 a year, for this service? Is it correct to say that the net effect of this change will be to make a gift of £3,000,000 of the taxpayers’ money to the Government’s financial friends and backers?
– It is a longstanding practice that the Government borrows from the central bank, by way of treasury-bills, the moneys required to tide it over periods when revenue is slow in coming in. That practice has been adopted by all governments. It may well be that the average annual sum involved is approximately £100,000,000, but the sum would vary from year to year. It is a fact that recent legislation dealing with shortterm borrowing has established a new form of borrowing on government account. The Senate and the House of Representatives recently considered and passed that legislation, which provides for the introduction of seasonal treasury-notes. It should be realized that the seasonal treasury-notes will not replace the treasury-note issue, which will continue. This additional method of borrowing will be used by the Government for the purpose of taking advantage of the seasonal liquidity which occurs throughout the banking system and our financial structure generally. It is quite true that the rate of interest that will be paid to the private investors will, as is always the case, exceed the rate of interest applicable to internal Government loans raised by way of the issue of treasury-bills, but it is not true to say that the net effect of this new form of borrowing will be a gift of about £3,000,000 a year to the Government’s friends. That is far from being the case. This is a new form of borrowing which makes available to the Government added sources of funds at seasons of high liquidity and makes available to the private investors, as distinct from the banks, a form of investment which was not hitherto available to them.
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– The question that I shall direct to the Leader of the Government in the Senate springs from an article in this morning’s “ Canberra Times “, which is somewhat critical of the manner in which the Senate is discharging its parliamentary duties. Is it not a fact that the Minister has already indicated to the Government parties that the Senate will sit until all the business before it is completed? Is it not further a fact that he has at all times informed Government senators that their senatorial duties must come first?
– Yes, Mr. President, I read the leading article in this morning’s “ Canberra Times “. I thought it was not as well informed as that newspaper generally is. Apparently the newspaper missed the statement that 1 made by way of interjection to the Leader of the Opposition in the Senate yesterday, in which I said that ample time would be given for the consideration of the Matrimonial Causes Bill 1959. I agree with what Senator McKellar has said. We have, as a Senate, deliberately sat longer hours and on additional days in order to clear our business list so that we would have the time available to deal with the Matrimonial Causes Bill. When we rose last Friday, the only business on the noticepaper consisted of bills that had that day been introduced into the Senate. When we finish the Matrimonial Causes Bill, we will deal with other business on the notice-paper in the way in which the Senate desires.
– By way of a supplementary question, Mr. President, 1 should like to emphasize that the leading article in this morning’s “ Canberra Times “ stated that this Senate was trying to finish its business on Thursday by all-night sittings and then changed its mind and decided to finish at lunch time or early on Friday, and it indicated that presumably there were no wide-spread demands from senators to sit next Friday. I ask the Leader of the Government to give to the Senate information showing the incorrectness of that statement.
– 1 can say little more than I have already said. The business of the Senate is in the hands of the Senate. The Government has no intention of asking the Senate to sit all night during this week. The Senate will deal with the business that is before it when it has finished with the Matrimonial Causes Bill in what I hope we will all agree is an appropriate manner.
– You have the numbers. That is all that counts.
– I do not know whether the interjection is relevant.
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– I desire to ask the Minister representing the Minister for Primary Industry a question, without notice. By way of preface, I refer to the complaint, in the week-end New South Wales press, by Mr. R. Adams, manager of the Ulladulla Fishermen’s Co-operative Society, that the Federal Government is allowing to enter Australia a huge volume of imported fish, yet it will not give cheap long-term loans to fishermen to expand the Australian industry. This is only one of a number of complaints. I ask the Minister: Has not the Parliament been informed that legislation setting up the Fisheries Development Trust Fund will result in funds being made available for investment in commercial fishing concerns in those cases where, although proved opportunities for development of sound fishing enterprises have been demonstrated, private enterprise is not able or willing to provide investment funds of the magnitude required? Secondly, if that is so, why does the balance sheet of the fund as at 30th June. 1959. show that expenditure has been confined to survey work and investment in the Commonwealth-formed Southern Trawling
Enterprise? Why have applications by fishing interests, fishermen and organizations for loan assistance been rejected?
– The question is somewhat similar to one that was asked of me during the Estimates debate on this particular matter. I can only say, in answer to it, that it is, to my recollection, a fact that certain sums were set aside to make long-term loans to fishermen. The answer given by the department, at the time of the Estimates debate, to the two subsequent questions asked by the honorable senator was that so many applications had been made for the funds set aside that it was impossible to satisfy all of them, and that rather than try to choose between the applications, the funds had been devoted to such things as surveying work and other work which could be regarded as assistance to the industry generally.
– I address a supplementary question to the Minister representing the Minister for Primary Industry. Has the fishing industry received consideration from the Government, during the last twelve months, in the way of depreciation allowances? If so, can the Minister say what those allowances are, and also the extent of the previous allowances? Can he inform the Senate whether depreciation allowances have encouraged people to build fishing vessels?
– I do not know the figures for which the honorable senator has asked. I understand that some concession has been given to the fishing industry, as a result of which that industry is regarded in the same way as any other primary industry, and that the depreciation allowances are calculated by the same method as are depreciation allowances on the capital investment of farmers. But that is all I can say at the moment in answer to the honorable senator’s question.
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– I also address a question to the Minister representing the Minister for Primary Industry. My attention has been drawn by a Queensland colleague, Senator Wood, to an article in the “ Sunday Mail “, a Queensland week-end newpaper in which the writer claims that a new wonder spray from Italy, known as
Roger 40, spells sudden death to the Queensland fruit fly which causes so much loss and which is a constant threat to fruitgrowers in South Australia and in other States. It is claimed that, by merely spraying the fruit, complete immunity to fruit fly attacks is obtained, as the eggs of the fly fail to develop. In view of the great cost of steps taken to prevent the spread of fruit fly in South Australia and other States, I ask the Minister whether the Department of Primary Industry has any knowledge of this spray and, if not, whether inquiries will be made about it. If there is evidence to support the claims made by the correspondent, will State Departments of Agriculture be informed accordingly?
– I cannot say whether the department has paid specific attention to the spray Roger 40, imported from Italy, but I do know that only last week consultations were held in Canberra between the Minister for Primary Industry and the various State Ministers for Agriculture on this very important matter of the eradication of fruit fly. Because of the significance of the fruit fly to Queensland, Victoria, South Australia, New South Wales and Tasmania, I am confident that all claims for proprietary products that they are able to control this scourge will be, if they have not already been, thoroughly considered and investigated not only by the Minister for Primary Industry in the Federal Parliament, but by all the State Ministers for Agriculture as well.
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– In view of the fact that the State governments make available rail concessions for age and invalid pensioners, has the Minister for Shipping and Transport ever considered the granting of travel concessions on the Commonwealth Railways to such recipients of social service payments?
– It is a fact that some State governments make concessions available to age and invalid pensioners. Not all States make concessions similar to those made in Western Australia. Requests have been made to me from time to time for individual concessions. The volume of traffic represented by age pensioners and the like on the east-west railway is not of such an order as to warrant general coverage for that class of traffic, and each case submitted to me is dealt with on its merits.
– There is some concession available?
– There is no general concession available.
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– I preface a question to the Minister for National Development by stating that recently I heard that tourists have available to them the facility of boat travel on Lake Eucumbene, which is adjacent to the Snowy Mountains Hydroelectric Authority’s electricity and irrigation undertaking. What is the price charged to tourists who take advantage of this facility? Is it attracting tourists to the Snowy Mountains scheme? Does the Minister believe that the Snowy Mountains hydro-electric scheme is a tourist attraction that could be developed by private enterprise to attract visitors not only from all the States of Australia but also from overseas in particular?
– I am not familiar with the details of the arrangements at Lake Eucumbene, but my recollection is that persons on conducted tours of the Snowy Mountains scheme are given the opportunity to travel across the lake on one of the launches operating there. A charge is made for all facilities provided. A charge is made for lodgings and for the board of people who go over the scheme.
The Snowy Mountains Authority recoups itself for all the services that it provides for tourists. It has to do so because the number of people who go to see the scheme is increasing to such a degree that the provision of the services has become quite a large operation for the Snowy Mountains Authority. I share with Senator Scott the view that there is no doubt that as the years go by the Snowy Mountains area will increasingly become one of the great tourist areas of Australia.
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– I desire to ask the Minister representing the PostmasterGeneral a few questions. 1. Has he seen a report of the admissions made by the head of the Canberra bureau of the Sydney “ Daily Telegraph “ when he gave evidence before the Australian Broadcasting Control Board here into the granting of television licences in Canberra? 2. Is it a fact that the witness admitted that the “ Daily Telegraph “ station TCN believed that there should be relay stations in the country which would merely relay programmes piped in by the Sydney television stations? 3. Is he aware that stations ATN and TCN are controlled by the two newspaper groups in Sydney? 4. Will he therefore ask the Postmaster-General to issue a public warning that no licences will be granted to a company for any country television station which proposes to act merely as a relay station to the vast city combines which virtually monopolize the media of mass communication?
– Yes, I have read in the press all about the matters referred to in the honorable senator’s first, second and third questions. 1 shall put the fourth question before the Postmaster-General, and it will be for him to decide what is to be done. I point out to the honorable senator that the Australian Broadcasting Control Board is at present taking evidence on this matter. I presume that in due course it will make its recommendations to the Postmaster-General.
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– I direct three questions to the Minister representing the Treasurer. Has the special committee on taxation, promised some months ago by the Prime Minister, been constituted? If so, what, is the personnel of the committee? When are the sittings of the committee likely to commence?
– I think I can say that the personnel of the committee and details as to its sittings will be announced in the very near future.
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– Is the- Minister representing the Minister for Primary Industry able to inform the Senate whether the committee that has been appointed by the Government to inquire into the dairying industry has visited Western Australia? Has the committee submitted a report? If so, what does the report indicate? Finally,, what is the personnel of the committee?
– This question also, was specifically asked during the Estimates debate im the Senate, and I refer the honorable senator to the answer given at the time. I cannot, remember offhand the. personnel of the committee. The answer that the honorable senator will find in detail, in the “ Hansard “ report of the Estimates debate shows the States that have been visited by the committee. Speaking from memory, I think it indicates also that the chairman of the committee expects the report to be presented some time towards the beginning or middle of next year.
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– I direct to the Minister representing the PostmasterGeneral a question that I preface by stating that Brooklyn is a village situated on the Hawkesbury River, and that between Sydney and Brooklyn the ranges rise to 750 feet and then drop sharply to the Hawkesbury valley. Because of this configuration, television reception in Brooklyn by the private citizen is normally impossible. I ask the Minister whether it is a fact that a private enterprise firm has erected a special type of antenna in a suitable position, with distribution amplifiers, and has installed a lead-in or lead-down cable to enable several of the local residents to connect their sets to it and so receive proper television signals? Is it a fact that, although each of these local residents has secured, or is willing to secure, an individual television licence, the Postmaster-General’s Department has, by regulation, prohibited the common aerial scheme and that as a result, many residents, including the local orphanage, are deprived of television reception? Will the Minister make inquiries to ascertain whether some action can be taken to assist these people?
– I shall be only too glad to bring the matter before the Postmaster-General and see whether something can be done in the direction the honorable senator has suggested.
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– I direct to the Leader of the Government in the Senate a question that I preface by saying that I agreed with. every word I heard him say in reference to the importance to the Australian economy of the development of the Snowy Mountains scheme. In view of the various amounts cited by members of this place and of another place as being the expenditure on the scheme, I ask the Minister: What was the total amount expended on the scheme to 30th June, 1959? Secondly, what was the total amount spent on the scheme from Consolidated Revenue over the same period?
– The two figures are the same - £113,000,000.
page 1791
– My question is directed to the Minister representing the Minister for Health. Is the organization known as the Australian Medical Insurance Company registered under the Commonwealth hospital benefits scheme? In view of the fact that the company has notified some of its clients that they have been transferred to a friendly society, and that this society denies that they have been transferred, will the Minister inform the Senate what has taken place as many clients of the company in Western Australia are worried over the present situation?
– I am not aware whether or not the Australian Medical Insurance Company is registered under the Commonwealth hospital benefits scheme. I shall make inquiries of the Minister for Health and let the honorable senator know the result at once, as I think the matter is important. We do not want any of these mix-ups to happen in the health scheme.
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asked the Minister representing the Minister for the Interior, upon notice -
– The Minister for the Interior has now furnished the following replies: -
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asked the Minister representing the acting Minister for Works, upon notice -
– The
Minister for the Interior has supplied the following answers to the honorable senator’s questions: -
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asked the Minister representing the Minister for External Affairs, upon notice -
– The Minister for External Affairs has supplied the following answers to the honorable senator’s questions: -
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– by leave - I lay on the table the following paper: -
Inter-Parliamentary Union - Report of Australian Delegation to the 48th Conference held at Warsaw, August-September, 1959- and move -
That the paper be printed.
– I second the motion.
– I ask for leave to continue my remarks at a later stage.
Leave granted; debate adjourned.
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– On behalf of the Joint Committee on the Australian Capital Territory, I bring up the report of the committee on the provision of safe all-weather road access between Canberra and Tumut, a subject which was referred to the committee by the Minister for the Interior on 14th May. I also bring up the minutes of the evidence taken by the committee in its inquiry. I move -
That the report be printed.
I ask for leave to continue my remarks at a later stage.
Leave granted; debate adjourned.
page 1793
Motion (by Senator Spooner) agreed to -
That the Senate, at its rising, adjourn till to-morrow at 10.30 a.m.
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Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Paltridge) read a first time.
13.7]. - I move -
That the bill be now read a second time.
This bill is the first of four income tax measures designed to incorporate in the Australian taxing system a procedure whereby tax may be withheld at the source on dividends paid to non-resident shareholders.
Under the present law, dividends paid to overseas shareholders out of profits having an Australian source are subjected to Australian tax by the normal process of annual returns of income and assessment. It follows that, in these circumstances, the overseas shareholder is seldom aware of the amount of Australian tax payable until an assessment is forwarded by the Commissioner of Taxation. Frequently, the requirements of the Australian law are not known to residents of other countries and, as a result, misunderstandings and confusion occur. Uncertainty as to the amount that will be payable when an assessment issues is a source of considerable irritation. Assessments are made on an annual basis and, at best, a considerable period of time elapses between the receipt of a dividend and the settlement of the tax liability.
Overseas investors have pointed out, by way of contrast to the Australian system, that a number of countries impose a flat rate of tax on dividends leaving their jurisdiction. Under this system, a company or person paying a dividend to a shareholder resident in another country withholds the appropriate amount of tax from the dividends. The tax liability is thus settled at the time the dividend is paid. Not only does a withholding system establish a simplicity and certainty of liability that finds favour with many investors in other countries, but it also provides an efficient means for collecting tax expeditiously. In the light of these considerations, the Government, by the four measures before the Senate, proposes to introduce a withholding tax to apply to dividends derived by non-resident investors on or after 1st July, 1960, from Australian companies.
This tax will be the final liability for Australian tax on the dividends unless the recipient of the dividend elects to be assessed on a return and assessment basis, lt is recognized that in some circumstances a flat-rate withholding tax will give rise to a greater liability than the amount payable under the present law. This will be so where the amount of the dividends now attracts no tax and where the present rate of tax is less than the proposed withholding rate. In these circumstances, a withholding tax may act as a deterrent to the investment of capital in Australia. In order to avoid this situation, non-resident shareholders will be given an opportunity to account for dividends in a return to the Commissioner of Taxation and to have the tax payable assessed on the present basis. Should the amount withheld from the dividends exceed the tax assessed, the difference will be refunded. Entitlement to be taxed on an assessment basis will enable investors to avoid any increased liability for Australian tax as a result of the introduction of withholding tax.
Also included in the bill are provisions under which companies and persons in Australia will retain from dividends amounts sufficient to meet the withholding tax. The amounts to be retained are not specified in the bill but will, like the instalments from salary or wages, be prescribed by regulation. The withholding tax will ‘apply to dividends paid by Australian companies out of profits generally, but where specific exemptions have applied in the past they will be preserved. Thus dividends paid wholly and exclusively out of exempt mining profits will not attract withholding tax. Similarly, dividends paid by private companies out of profits that have borne undistributed income tax will be free of withholding tax if they carry exemption under the present law. Dividends paid to various exempt institutions such as religious and charitable organizations, employee superannuation funds and certain cultural organizations will also be exempt from withholding tax.
It is proposed that the general rate of withholding tax be 6s. in the £1. This rate is declared in an associated measure, the Income Tax and Social Services Contribution (Non-resident Dividends) Bill 1959.
It is important to mention, in relation to the withholding tax, that Australia has concluded reciprocal taxation agreements with the United Kingdom, the United States of America and Canada. Each agreement includes provisions relating to the taxation of dividends. The operation of those agreements will not be affected by this bill. Where it is appropriate under the provisions of any one of those agreements, the rate of withholding tax will be 3s. in the £1. The relevant provisions of the agreements are implemented by the allowance of a rebate in income tax assessments. The rebate is authorized by section 17 of the Income Tax (International Agreements) Act. It is proposed in a measure associated with this bill to amend that section to ensure that the introduction of withholding tax has no untoward effect upon the ascertainment of the rebate.
In any consideration of the incidence of the proposed rate of withholding tax, it is important to remember that, in the generality of cases, dividends liable to withholding tax will be paid out of profits that have previously borne the basic company tax of 7s. 6d. in the £1. As the withholding tax is technically income tax and social services contribution, it will be necessary, in consequence of the withholding tax, to ensure that references to income tax and social services contribution found in the act declaring the general rates of tax are not read as including withholding tax. This minor amendment associated with the withholding tax is proposed in the Income Tax and Social Services Contribution Bill (No. 2) 1959.
This bill, together with the related measures in respect of withholding tax, will introduce into the Australian income tax law a system that has had wide approval in other countries. Where, however, a shareholder signifies his desire to have the present assessment procedures applied, that course will be followed. By these steps, investment in Australian enterprises will, the Government believes, be further encouraged, so increasing the capital available for the development of the resources of this country.
In addition to the provisions mentioned, it is proposed by the bill to include in the income tax law a provision governing the taxation of seasonal securities issued by the Commonwealth. These securities are issued at a discount and are redeemed at par. As no interest, as such, is payable, the difference between the issue price and the amount received on redemption represents the earnings that arise during the currency of the securities. The bill provides that the earnings shall be liable for income tax, whether the securities be subscribed for at the time of issue by the Commonwealth or acquired at a later date. The earnings taxed under this provision will be regarded as Commonwealth loan interest, and the rebate of 2s. in the £1 allowable in respect of that interest will likewise apply in relation to earnings on the securities.
Also included in the bill is a provision relating to premiums to be paid on the redemption of special bonds. These Commonwealth securities carry interest that is taxed in the same manner as other Commonwealth loan interest. In addition, a lump sum premium is paid on redemption, if the bonds have been held for a specified period. It is proposed that the premium be exempt from income tax, except in the case of a person whose business it is to trade or deal in the bonds. An explanatory memorandum relating to all provisions of the bill has been distributed to honorable senators. In these circumstances, I think it unnecessary to outline a number of minor technical amendments that have been included in the bill.
Debate (on motion by Senator Willesee) adjourned.
page 1795
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Paltridge) read a first time.
– I move -
That the bill be now read a second time.
The purpose of this bill is to declare the rate of withholding tax to be paid on dividends paid by Australian companies to non-resident shareholders on and after 1st July, 1960. The purpose and nature of the withholding tax have already been outlined in an associated bill. I commend the bill to honorable senators.
Debate (on motion by Senator Willesee) adjourned.
page 1795
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Paltridge) read a first time.
.- I move -
That the bill be now read a second time.
This bill is consequential upon the introduction of a withholding tax on dividends paid to non-residents of Australia. Its purpose has already been indicated in my speech relating to the other legislation in respect of the proposed withholding tax.
Debate (on motion by Senator Willesee) adjourned.
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Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Paltridge) read a first time.
–
I move -
That the bill be now read a second time.
This is a further bill related to the proposed withholding tax on dividends. In addition, the bill proposes a drafting amendment of the present law that is consequential upon the reduction of 5 per cent, in the income tax and social services contribution payable by individuals for the 1959-60 financial year. This reduction is effected by the allowance of a rebate of tax which it will now be appropriate to take into account in ascertaining the average rate of tax payable on dividends. Determination of the average rate is necessary in order to give proper effect to the agreements, and the technical amendment proposed will enable the principles that have applied in the past to be maintained.
Debate (on motion by Senator Willesee) adjourned.
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Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Paltridge) read a first time.
–
I move -
That the bill be now read a second time.
This bill has one purpose only, and that is to take legislative action to prevent partial avoidance of sales tax as a result of a marketing procedure adopted by certain manufacturers of the station wagon type of motor vehicle. Under the law as it now stands, tax is payable at the rate of 30 per cent, in respect of motor cars designed primarily and principally for the transport of persons, including station wagons, estate cars and vehicles similar in design to station wagons or estate cars, but not including delivery vans. The latter bear tax at the rate of162/3 per cent, which is levied on commercial type vehicles.
Some manufacturers have engaged in the manufacture and sale of a type of vehicle which is usually described as a station van or an estate van. In external appearance, these vehicles resemble a station wagon or estate car, but they differ from the station wagon or estate car in varying degrees, generally in the following respects: -
Although these station vans are sold ostensibly for commercial use, they are readily convertible into station wagons, by means of a conversion kit which is separately marketed for that purpose. In the case of some makes, all the vehicles are converted, and, taking into account all of the makes involved, it is evident that no less than 85 per cent, of the vehicles sold are converted. The conversion may be effected by the user of the vehicle, but in most cases it would be done by a retail service station.
In the administration of the law, the Commissioner of Taxation found himself obliged to accept the view that, at the time of the wholesale sale upon which the sales tax liability arises, these “ station vans “ are not within the categories to which the rate of 30 per cent applies. Tax has therefore, been paid on them at the commercial vehicle rate of 161 per cent. only. Moreover the conversion kits used in transforming the vehicles into station wagons have also borne tax at 162/3 per cent., which is the rate applied by the law to parts for motor vehicles generally. When the conversion is effected for an owner by a person in the motor vehicle trade, further tax at the rate of 30 per cent, has been payableonly on the charge for the service of conversion.
Thus the way has been found to obtain certain kinds of fully finished station wagons subject to much less tax than is intended to apply to such vehicles. The difference in tax on some models has been as much as £188 and it is estimated that the loss of revenue has been of the order of £300,000’ per annum. It is understood that the larger manufacturers, who have not yet engaged in this marketing practice, would fall into line with their competitors unless the law were amended as now proposed. If they did so, the number of vehicles affected would increase enormously and the revenueloss could rise to £3,000,000 per annum.
The convertible vehicles are basically station wagons, and are of a type which is not suitable for the carriage of goods generally. They have fixed rear side doors and other features which add to the cost of the vehicle and serve no purpose in a vehicle intended to be used for delivery purposes. There is no substantial demand for the vehicles for commercial use, and most business people who desire vehicles for the delivery of goods find their needs much more satisfactorily met by the use of a commercial vehicle, such as a panel van or delivery van, with its greater space and more utilitarian finish. It is likely that production of the convertible type station wagon will be discontinued when the bill becomes operative, but as other suitable types of delivery vehicles are readily available, no inconvenience should be suffered by the business community.
As the convertible vehicles are basically of the station wagon type, and are intended for conversion into that type of vehicle, the Government takes the view that they should bear tax at the passenger car rate of 30 per cent, in the same manner as fully finished station wagons and passenger cars.
It is proposed that the amendment to this effect shall apply in respect of vehicles sold by wholesale on or after 14th December, 1959. 1 commend the bill to honorable senators as a measure which is necessary to give effect to the intention of the law as passed by Parliament.
Debate (on motion by Senator Willesee) adjourned.
page 1797
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Paltridge) read a first time.
–
I move -
That the bill be now read a second time.
The purpose of this bill is to amend the Life Insurance Act 1945-1958. The original act, which came into force on 20th June, 1946, set up in Australia a comprehensive code of laws for the conduct of life insurance business and provided a measure of protection for policy-holders. It replaced six different State acts and its introduction has been accompanied by a period of stability and growth in the Australian life insurance industry.
The three amendments now proposed have been the subject of careful examination by the Insurance Commissioner. They are, in brief -
The Government is satisfied that the first two proposals, when implemented, will ensure speedier service to claimants under small policies. As regards the third proposal, the act provides at present that where a policy-holder surrenders his policy prior to maturity, the surrender value he receives shall not be less than the amount calculated in accordance with the sixth schedule to the act. These minimum values have not been increased since the act came into force on 20th June, 1946.
A major result flowing from the Life Insurance Act has been a general improvement in the strength of the industry. This improvement, together with the higher interest rates currently being earned, have resulted, in most instances, in improved benefits for policy-holders in other directions, for example, bonus rates.
In order to preserve equity between policy-holders who discontinue their contracts and those who retain their policies until maturity, a moderate increase in the minimum surrender value basis is warranted. Where more than the minimum surrender value is already paid - and this occurs in many cases - no alteration in the rate of payment will occur. However, some additional benefit will now be available in those cases where the payment is based on the minimum provisions of the act. I commend this bill to honorable senators.
Debate (on motion by Senator Willesee) adjourned.
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Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Gorton) read a first time.
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Debate resumed from 24th November (vide page 1785), on motion by Senator Gorton -
That the bill be now read a second time.
– Last evening, when the debate on this bill was adjourned at 10.30 o’clock, I had made the point that it was a bill which was being debated on a nonparty basis and this, of necessity, required great tolerance on the part of honorable senators irrespective of the point of view they take. I do not want to make any further reference to that aspect of the matter.
I think I should say at the outset that the main purpose of this bill is to provide a uniform divorce code for Australia. I point out that the bill which preceded this measure, the one from which this measure stems, was initiated not by this Government in answer to demands from the Australian public, but by a private member in the House of Representatives. The bill now under consideration will have the effect of abrogating laws which were duly enacted by each of the parliaments of the sovereign States and which have stood the test of approximately 100 years in New South Wales and South Australia.
So far as I can ascertain, at no time has the opinion of the New South Wales Government, or, for that matter, of any State government, been sought as to whether a uniform Commonwealth matrimonial measure should supersede the State acts of parliament. Again, so far as I can ascertain, at no time has there been any demand by the people of New South Wales, or, for that matter, the residents of any other State for this measure or indeed the legislation that preceded it.
We have a federal system and I should like to believe that honorable senators on this side of the chamber subscribe to that system. Inherent in that federal system is the principle of observing the sovereign rights of the States. In the exercise of those sovereign rights, the States have passed their various laws. Every time I have spoken to those who are the champions of this bill, they have said to me, “That is right enough, but we have the constitutional power”. The whole basis of their argument seems to be that, because we have that constitutional power, we should have legislation such as that under consideration at the moment.
I have taken the trouble to search through the conventions that preceded the writing of the Australian Constitution by the founding fathers. I have before me the report of the proceedings of the 1897 Convention. That report covers something like 1,100 closely typed pages, of which two and a half pages are devoted to discussion of marriage and divorce codes. The whole basis for the inclusion of reference to power relating to marriage and divorce in the Constitution seems to be the issue of domicile. We know, of course, that the issue of domicile does not arise in the measure before us. That was dealt with by the Commonwealth Parliament in legislation passed, I think, in 1955. So the argument that is always hurled at us that because it is in the Constitution it is essential that we have a measure such as the one under discussion seems to fall to the ground.
If I may digress for a moment, I point out that it is interesting to read some extracts from the two and a half pages to which I have referred in the report of the proceedings of the 1897 Convention to see what took place relating to the inclusion of this proposal in the Constitution. At that time, the situation was somewhat similar to what we have to-day. At that convention, Sir Isaac Isaacs, who was then the Honorable Isaac Isaacs, said, “This is only that the Federal Parliament shall have the power “. Even there, the delegates were not so concerned about the Commonwealth’s taking power. Mr. Wise, one of the New South Wales representatives at that convention, then said -
They will get into trouble very quickly if they exercise it.
That is rather interesting in the light of the present debate. Later, Mr. Wise asked -
Why put it in when it will be a source of strife?
Apparently as far back as 1897 parliamentarians had a fair appreciation of the difficulties surrounding legislation such as this. The point I make is that whilst it is true that we have the constitutional power, that power was included in the Constitution to meet the difficulty of domicile in the various States. Domicile is not at issue in the bill before us.
I should say that legislation to bring about uniformity merely for uniformity’s sake is not good legislation. I am not opposed to a uniform matrimonial causes act if it is good legislation, but it must be good and, in my view, it should be acceptable to the States. As I say, the States have sovereign powers. At the moment they have varying laws; indeed, they have varying criminal codes. For instance, I have noticed that if someone commits a murder in certain States he or she will hang by the neck until he or she is dead, dead, dead! In other States, the murderer is kept by them for the rest of his or her natural life. I do not think that the desire for a uniform code is necessarily a strong argument in favour of this bill. I repeat that, in my opinion, if we are to have a uniform code, it must be good legislation acceptable to the States and the States should be invited to abrogate their particular rights. 1 think it is proper for me to say that in my view the bill is a mixture of good and bad. I believe there are many good things in it, and, in fairness to the bill and the Attorney-General (Sir Garfield Barwick), I propose to say what I think they are. I also believe there are some bad things in the bill. That being so, I suggest that the Minister for the Navy (Senator Gorton), who is piloting the measure through the Senate, and those honorable senators who strongly support the measure, should endeavour to convince me and other honorable senators who have some doubt, that our thinking is wrong in connexion with those things which we believe are bad.
I have said that I consider there are some good features in the bill. For instance, I believe that the proposed assistance to marriage guidance organizations is excellent. Indeed, I believe that the States could have given more assistance to these organizations under their acts. I believe it is good, too, that there should be placed on the judge a duty to consider the possibility of reconciliation at all stages of the case. I believe also that the restriction or moratorium - if that word is preferred - which it is proposed to place on the granting of decrees for a period of three years is an outstanding example of the great thought and consideration given to these problems by the Attorney-General. To my mind, that is the most outstanding feature of the bill.
During our lifetime, we have all had experience of how sometimes things happen to flare up and emotional reactions take place. I am speaking now in the broad sense, not in the matrimonial sense. There have been times when we have all thought that things were terrible, times when we were going to do all sorts of things which, if not violent, certainly would affect our whole lives. Then, in the fullness of time, perhaps after only one night, a week or a month, we have reflected upon those times and thought, “ After all, life is not so bad; the world is not such a bad old place. It is not so devastating. With a little tolerance, goodwill, and common sense we can beat these situations.” In the framing of that clause, there is evidence of great understanding of life and of the reactions of men and women to it, and I am the very first to give credit for that.
It is also good that there should be proper provision for the welfare of children. In my public life I have had some association with the tragedy of the children of broken marriages, particularly in connexion with maintenance cases. I suppose that the experience is common to most people in public life. It is good that, in certain circumstances, the right to sue for judicial separation should be preserved. The provisions in regard to the procedures applying to maintenance cases are good. It is ridiculous that persons should go into debtors’ prisons because they have not paid maintenance when, obviously, being in prison, they cannot earn money with which to pay maintenance. That is one of the absurdities of the New South Wales legislation that will be met by this bill.
– Without that provision in New South Wales the collection of maintenance would be made more ineffective.
– I suggest that the situation in New South Wales in regard to maintenance is almost hopeless in certain cases. Men are put into prison for failure to pay maintenance and then are unable to earn anything with which to pay it. The people who suffer then are the mothers and the children. In the bill we have an excellent provision in that regard. I am quite ready to acknowledge that fact and to pay my respects to the genius of the person who created the bill. The only other provision that appears to me to be good is the restriction on undesirable press publicity. This is a matter that must be handled with some delicacy and finesse. Some restriction should be placed on undue publicity given to tragedy in home life, which in itself must have an adverse effect upon the state of matrimony, which is so important to the welfare and character of the nation.
As good as Parts II. and III. of the bill are - they relate to marriage guidance organizations and reconciliation - I think that they do not go far enough. We all know that the time to help a marriage and try to save it is not when the parties get before a court and are confronted by legal processes. It seems to me that if reconciliation is to be effective at all it should be attempted before the parties begin legal proceedings. I am no lawyer, and therefore I must be very careful in the way I speak on this matter, but it seems to me that in relation to some of the grounds the bill should have included a provision that before the parties began legal processes they must have at least attempted a reconciliation through some agency completely removed from the atmosphere of court proceedings. There is provision that a divorce judge may ncc as conciliator, but surely the most effective reconciliation cannot be made by the court. The atmosphere of the court tends to drive the marriage partners into their separate litigant corners and the contending lawyers are set the task of painting with heavy brushes the alleged character defects and misdemeanours of the parties. That may be laying it on rather heavily, but that is the broad picture. Once the parties get into the court arena, with lawyers operating on either side, there is a duty upon each lawyer to do his best for his client. Perhaps I should not say what I was about to say, because it might give offence, but there is a danger that reconciliation will be made almost impossible.
– A little mild over-state-‘ ment occasionally is all right.
– Yes, a mild overstatement might be made. I echo Senator McKenna’s doubts and misgivings about the capacity of a judge to act both as judge and conciliator. Clause IS places some limitations upon a judge in cases where attempts at reconciliation have failed. It reads -
Where a judge has acted as a conciliator under paragraph (b) of sub-section (1.) of the last preceding section but the attempt to effect a reconciliation has failed, the Judge shall not, except at the request of the parties to the proceedings, continue to hear the proceedings, or determine the proceedings, and, in the absence of such a request, arrangements shall be made for the proceedings to be dealt with by another Judge.
I suggest that, even with the qualification, the provision is of very doubtful value and is, indeed, dangerous. At one stage I con templated going back to the debate on the Conciliation and Arbritration Bill 1956, so that I might read back to certain senators what they had said in relation to the proposition that a judge should attempt to fulfil the dual purposes of conciliator and arbitrator. I refrained from doing that, because that was quite a spirited debate. Senator Spicer, as he was then, who led tor the Government as Attorney-General, made a very strong case against that proposition. It seems to me that even though a judge may continue to hear the proceedings only at the request of the parties, after a couple has, in the judge’s chambers, failed to effect a reconciliation, their timidity might baulk them from saying, “We prefer to have the matter heard by another judge “. 1 think the members of the judiciary would be very unwise to hear and determine the proceedings, after having said they thought there was a chance of reconciliation. By all means let a judge attempt to make a reconciliation, because he will probably be a very good man for the task. But if the attempt fails, I think he should not continue with the case but should direct it to another judge.
– If the conciliation attempt in his chambers succeeded, it would be all right.
– Yes. Of course, a judge would not attempt to effect a reconciliation unless he felt that there was a reasonable chance of success. If it failed he should not, in my opinion, go on with the case. I do not want to let these remarks colour those I made earlier in regard to the good points of the bill. Tn the words of the classics, I want to have 2s. each way.
I now want to discuss some of the provisions in the bill that I dislike. In my view, its real weakness is that it tends to make divorce easier. In fairness to the Attorney-General, 1 must admit that he does not concede that point. I should like Senator Gorton, who is the Minister leading for the Government in this debate, to rebut my contention that the bill as it is presented will tend to make divorce easier. My argument rests largely on the summary issued by the Attorney-General himself. Clause 28 is the operative clause. You find that in New South Wales there are five new grounds for divorce. Five of the existing grounds are extended and one existing ground is restricted. In Victoria there are five new grounds, six existing grounds are extended and there are no restrictions of the existing grounds. In Queensland there are nine new grounds, two existing grounds are extended and there are no restrictions of the existing grounds. In South Australia there is one new ground, six existing grounds are extended and there are no restrictions. In Western Australia there are two new grounds, four existing grounds are extended and one existing ground is restricted. Finally, in Tasmania, there are five new grounds for divorce, five existing grounds are extended and two existing grounds are restricted.
That is the mathematics of the position. I suggest that, in the teeth of that mathematical proposition, it is rather difficult to argue a case - I will be prepared to listen attentively because I am keeping my mind open on this matter - that this bill does not in fact make divorce easier. However, as I have said, the Attorney-General does not concede the point, and in fairness to him I have to state what he has said -
In considering the grounds of marriage it is important to us to define the institution of marriage. It is not simply a status or contract between two people with certain rights and responsibilities between the two concerned. It involves legal, moral and spiritual relationships between the partners, their off-spring and the community.
From the spiritual aspect marriage is a sacrament, binding until death. In a truly Christian community the permanence of marriage is heavily underlined. The civil law in British communities is aimed to preserve and strengthen the institution of marriage. This should be the primary test, and not whether the law can provide some relief for a particular individual.
If family life is to be preserved, it is vital that the community should be conscious at all times of the permanent nature of marriage. Liberal divorce laws can create a wrong mental attitude. Successful marriage can be achieved only by the conscious and the continuous effort of both partners. The will to succeed is, therefore, essential. Easy escape routes can encourage collapse. It is clear then,-
I relate this to my argument about making divorce easier - that divorce should not be made easy. It should bc granted only when it can be established that the failure is total and the partners are permanently irreconcilable.
Much has been said already in the debate about the Royal Commission on Marriage and Divorce, of which Lord Morton was the chairman, which sat in Great Britain from 1951 to 1955. I wish to refer to clause 54 of the report because I think this question of making divorce laws easier is dealt within that clause by that great jurist and great man who I understand is at present a member of the Privy Council in the United Kingdom. Clause 54 of the report reads -
There are some of us who think that if this tendency continues unchecked, It may become necessary to consider whether the community as a whole would not be happier and more stable if it abolished divorce altogether and accepted the inevitable individual hardships that this would entail.
I do not subscribe entirely to that view. I believe that in certain circumstances it is necessary that we should have a divorce code which can meet situations, broadly speaking, that are incorporated in this bill. 1 think we have to be most careful that we do not introduce a law which is going to make divorce unduly easy.
I now wish to refer to clause 28 (m) and clause 28 (1). Clause 28 (m) has attracted to itself the burden, of most criticism in this debate. A brief way to describe it is the separation clause without any matrimonial offence. It is a provision about which most of us now have a fair idea. It is a new concept. When we consult the Morton Royal Commission on Marriage and Divorce we find that that commission would not have a bar of this concept. Tt did not believe that there should be a ground for divorce that did not provide tor a matrimonial offence. AH T want to say about it is that this paragraph definitely, to mv mind, sets about making provision for easier divorce. When we reach the committee stage I shall have to examine that paragraph in relation to the broad principles that T have been trying to enunciate.
I can refer to clause 28 (1) only briefly. That, of course, is the provision that relates to divorce on the ground of insanity. To my mind it perpetuates the mediaeval attitude to mental illness. If mental illness for five years is to be a ground for divorce T ask: What is the difference between a totally and permanente paralysed person - immobilized by a stroke and having lost the power of speech - and a person whom it is alleged has been mentally ill for a continuous period of five years? T have yet to find the doctor who is prepared to say that a mental illness of a certain nature is going to continue for all time. To say such a thing disregards all the advance that medical science has made in the last decade. It seems to me that it pays no regard to such things as shock treatment, tranquillizing drugs, and things of that nature which have revolutionized the position in regard to mental illness. There are people to-day in Australia walking around enjoying almost a normal life who ten or fifteen years ago would have been regarded as completely insane and incurable. I do not accept the view that mental illness, of necessity, is going to continue. I think that this particular paragraph will have to be examined very carefully when the bill is in committee because we want to be sure that we are not doing something which can hurt people and close the door to a person’s future recovery to health and happiness. Perhaps I have given more emphasis to the bad features of the bill than to the good, but I have done so deliberately in order to try to provoke discussion. There is much that is good in the bill, and there is some that is bad. I propose to support the motion for the second reading, but I preserve my right, when we come to the committee stage, to give very serious consideration to the clauses that I have just mentioned, in the hope that they will be improved, so that, in the result, Australia will have uniform matrimonial causes legislation which will meet the requirements and the varying points of view of all men of goodwill who want legislation that is good for Australia.
.- I have examined this bill very carefully, and I have decided to vote against the motion for its second reading. I shall vote in that way, first, because I do not agree with some of the provisions of the measure, and secondly, because it makes no provision for granting financial assistance to an innocent, destitute wife called upon to defend herself in a divorce court or in any proceedings relating to divorce.
May I state a hypothetical case? A typist or a shop assistant marries a tradesman who is in receipt of a wage of £16 or £17 a week, and they pool their funds for the purpose of acquiring a home and furniture for it. They live happily together for four or five years, and in that period two or three children are born to them. As time proceeds,* the husband becomes unsettled and commits matrimonial offences. Subsequently he leaves the home and, after a further lapse of time, sues for divorce. The wife is unable to find the sum of £50, or perhaps more, that she is required to find in order to file a defence to the petition for divorce, and so is unable to file a petition. The bill has omitted to make any provision for financial assistance to be given to destitute wives and mothers so that they can defend court proceedings in such circumstance.
– They are covered by the rules of the courts in most of the States of Australia.
– They are not covered by this bill, which aims at unifying the divorce laws of the States. I will not support the motion for the second reading of the bill, neither will I support any motion for it to be referred to a select committee for consideration.
Senator Sir NEIL O’SULLIVAN (Queensland) [4.8]. - Before I deal with the precise provisions of the bill, I invite honorable senators to cast their minds back through the corridor of time to those ages when the Church and the State worked each in its own sphere, not always harmoniously, but each recognizing the sphere and the jurisdiction of the other. I invite honorable senators to cast their minds back to the time when, in fact, the gospel injunction was observed, and the things that were Caesar’s were rendered to Caesar and the things that were God’s were rendered to God. During those ages there was built up a fund of Christian culture which to-day enriches our various cherished institutions and traditions. In the centuries that intervened between then and now, we have seen marked changes. In the Communist States, where God is officially banned and denied, Caesar cops the lot. But even in States with a long Christian tradition there has been a marked encroachment of Caesar into the realm of God.
Holding, as I do, the conviction that a valid consummated Christian marriage is indissoluble, I consider that divorce is not only a great social evil, but also a violation of the Divine Law. Divorce is not evil because it is forbidden. It is forbidden because it is evil. With due deference and great respect, I endorse the view that was expressed in the House of Lords in J 937 by Lord Russell of Killowen, when he was delivering a minority judgment. He said -
Counsel for the appellant contended that the solemnity of the institution of marriage was in no way involved in the appeal and that the tendency of his argument was to uphold the marriage tie. With all respect to him and those who share his view, I cannot agree. The institution of marriage has long been on a slippery slope. What was once a holy estate, enduring for the joint lives of the spouses, is steadily assuming the characteristics of a contract for a tenancy at will.
Later, Lord Russell quoted with approval some remarks of Chief Justice Beesly of the United States Supreme Court. They were -
The institution of marriage is the first act of civilization and the protection of the married state is a part of the policy of every people possessed of morals and laws.
The views and opinions of men so distinguished in the public life of their respective countries are worthy of great respect, particularly when we are considering a measure which in some ways both widens and expedites the approach to the divorce court.
If this were a bill introducing divorce into Australia for the first time, I would oppose it in its entirety, but divorce has been the law in the Australian States for 100 years or more. Upon those who hold the same views on marriage as I do, this bill, if it becomes the law, will have no personal impact at all. I hold the conviction that the State, regardless of whatever other authority it may justly claim in regard to matrimonial legislation, has no more authority or jurisdiction to dissolve the bond - I stress that word - of a consummated Christian marriage than it has to unbaptize a baptized person.
At this point, perhaps it would be appropriate to correct the view, widely but quite erroneously held, that the Roman Rota from time to time grants divorce. This view is generally accompanied by the insinuation that divorce in those circumstances is a privilege extended only to the wealthy and the influential. The fact, of course, is that the Church cannot dissolve a valid consummated Christian marriage. The indissolubility of such a marriage is not a law of the Church; it is a law proclaimed by Christ himself. What has happened is that, after due process of law, the Roman Court has found, in the case of an apparent marriage, that there has been an absence of true consent, or the presence of some invalidating impediment, or the absence of some other element necessary to constitute a valid marriage. In view of that finding of facts, the marriage has been annulled, on the basis that it was only an apparent marriage and had never, in fact, been a marriage at all. As far as costs are concerned, those who can pay counsel to conduct a case are expected to pay. Those who cannot pay have counsel assigned for them; no case is denied a hearing because of lack of means. Now, nobody can deny the right of the State to legislate in the field of marriage, because in an ordered society such laws are necessary to provide for the registration of marriages and to regulate the antecedent requirements and the civil consequences so far as marriage affects the civil status of the parties and their obligations and duties towards each other and towards their children, and so on. But for the State to claim that in relation to marriage it has the sole authority is to deny the Christian tradition.
This is the first attempt that a federal government has made to introduce into Australia a comprehensive Matrimonial Causes Bill, superseding the corresponding provisions of the various States. Uniformity in a matter such as this is much more preferable, for many reasons. Nobody can accurately foretell what the future holds, and in the absence of uniformity it is quite possible, however improbable, that some State or States may add facile divorce facilities to their tourist attractions. That is rather remote, but it is a possibility. Reno has done that, and in the six States that there are to-day we may one of these days see the unfortunate experience of one State or States competing with the others in order to attract tourists and prospective divorcees as Reno does.
If this bill becomes law, I consider it is less likely to be watered down than may be the case in some State or States if the six States’ acts still prevail. Furthermore, if in the future - in perhaps a more enlightened age - the Australian people press for a tightening of the divorce laws or if, as speculated upon in the Morton report, agitation ensues for the abolition of divorce, such a state of affairs could more readily and more speedily and more effectively be brought about by a uniform authority than by the six separate States. Of course, 1 must admit the possibility that the converse would hold, too.
Another reason for uniformity is that in a matter of such importance it is a further hallmark of our oneness as a people to have uniformity in a matter so intimately affecting the lives of so many. Although uniformity is more preferable, it is a pity, in my view, that it is being attempted on the most liberal rather than on the most conservative of the State laws now prevailing, lt is certainly rather a thoughtprovoking proposition when we realize that in the last century or so, or less than that, the States with the Christian tradition have eased and slackened their divorce legislation and rules pertaining to it, and the atheistic Communist States have tightened theirs. That goes to show that there is more than a religious significance, and more than a philosophical significance in this.
The Russians, by trial and error, have apparently found that easy divorce is a bad social medicine. When the revolution first broke, it was quite a simple thing for either one party or the other to go to the registry office, if they had been registered - but it was not an offence not to register - and say to the clerk, “ Just cut my name off the list; I am no longer married “ and an obliging civil servant just crossed the name off the list. That is how they started in 1917. Now it is much more difficult to obtain a divorce in atheistic communistic Russia than it is in many States of the western world. Certainly, the New South Wales period of 21 days in the case of disobedience to an order for the restitution of conjugal rights, has been extended to a period of 12 months, but the generally prevailing period for a petition for divorce on the ground of desertion is three years, with the exception of Tasmania - in the case of a husband, I think it is two years-
– It is two years by the wife.
– The period has been reduced to two years. That is an instance of what I mentioned earlier.
It is uniformity on the most liberal, rather than on the most conservative basis. There are other instances in different States of existing grounds being extended and of new grounds being introduced.
The provision to which 1 take the strongest exception - that contained in clause 28 (m) - entails a complete departure from the generally accepted rule of law where a party may be either the respondent or the defendant without any allegation being made against him or her of any wrong-doing, civil or otherwise. Apparently, it was regarded as of some abhorrence by Lord Morton and other members of the commission. It has been said to have worked satisfactorily in Western Australia.
– That is doubtful.
– I am objecting to it, not so much because I think it is going to make divorce easier; on the contrary, I think it will be very difficult with the precautions with which the Attorney-General has hedged it in. I am objecting to it mainly on the ground that it is a complete violation of and departure from what I consider to be the generally accepted rule of law. Furthermore, it introduces into what is already a fairly easy code - the matrimonial code - a nev* departure entirely; that is, the breakdown of marriage alone is to be regarded as a basis for divorce, whereas since the first Divorce Act of 1857, some matrimonial offences or alleged offences, have always been a basis upon which proceedings have been taken. 1 propose to deal further with this aspect. Mr. Deputy President, at the committee stage. I am not willing to support that clause or, indeed, any provision that either expedites or broadens the approaches to the divorce court.
Having said that, I now acknowledge that the bill has many admirable provisions absent from the current State laws. The prohibition against the institution of divorce proceedings until the marriage has endured for at least three years; the welfare of the children being made paramount before a divorce will be granted; the assistance to marriage guidance councils; the appointment of a conciliator - are all most admirable provisions. I have had personal ex- perience with the courts and with the law for over 40 years now, although my experience of divorce proceedings has been very, very limited. I do know and would have no hesitation in saying that most solicitors who are consulted upon matrimonial matters make very strenuous and very sincere efforts to bring about a reconciliation. Their greatest victory is not a win in the court in a matrimonial matter; the greatest victory is won in their own offices where they have had the satisfaction of reuniting a family that was on the verge of breaking down.
– Hear, hear!
– I am sure that Senator Laught personally has had that very experience, and 1 am sure that the Leader of the Opposition has had it, too. There are cases where the lawyers - and lawyers are a very respectable body of people; I have to admit that myself - do get great satisfaction out of rehabilitating what appears to be a wrecked or a broken marriage. I am quite sure that with these added facilities, with the marriage guidance councils, and the other facilities which are contemplated in this measure, many marriages which now, but for these provisions would be threatened with breakdown and disaster, will be rehabilitated.
Tt must be borne in mind that divorce is not the only evil. It is the end, as it were. The beginning of the evil is the attitude towards marriage that permits a breakdown of it and leads to the divorce court. I am confident that with the aid of the Church and the marriage guidance councils, a healthier and a more enlightened approach to the important state of matrimony will become more widespread, with a corresponding decrease in the number of divorces and broken homes. 1 thank the Attorney-General for the very generous amount of his time that he has given me in. discussing various aspects of this bill with me. The fact that we have not seen eye to eye on some points has in no way been due to his not being prepared to listen to me. I feel obliged to pay tribute also to Church leaders and spokesmen who have made available to honorable senators forceful and helpful views on this matter, which is so essentially within their province. If the provisions to which I have objected are deleted, this bill will be a considerable improvement on the conditions now prevailing under the several State laws. Accordingly, I support the motion for the second reading.
.- This bill is, of course, a confession of failure. In recommending it to the people of this country the Attorney-General (Sir Garfield Barwick) used these words -
One of the great foundations of our national life is the family and, in turn, the family is founded on marriage. The national interest is best served when marriage is truly lifelong. The prevalence of broken marriages does threaten our strength and imperil our future.
The Attorney-General went on to say -
The ideal society would know no occasion to divorce.
If that is the opinion of the AttorneyGeneral - and I believe it to be so - it ls also my opinion; but the introduction of a bill which extends the divorce facilities of this country and therefore takes us further and further away from the ideal which the Attorney-General and I share, is a simple confession of failure.
It will be said that this bill contains some provisions for the preservation of marriage, and I freely commend those clauses of the bill which provide for marriage guidance. My regret is that we did not try them out before simultaneously providing means to increase the opportunities for divorce. 1 always think that remedial action ought to be tried before you turn to the surgeon’s knife. I regret that we did not try out marriage guidance before proceeding to extend opportunities for divorce, and I point to the success that has been achieved in New Zealand where, it has been claimed, almost 25 per cent, of troubled marriages are being saved these days by effective marriage guidance. Such a policy would have been a Christian policy and a constructive policy.
T regret that in this bill there is so much that is contradictory. In the first half, there is a prescription to salve troubled marriages. What is there in the second half? At the moment, we have a doctor in the House, but T am sure that Senator Dittmer has never filed a prescription which, in the first part, provided a remedy for a sick patient and, in the second part, set out with cool, legal efficiency, the steps to be taken for the patient’s funeral. In regard to the marriage guidance provisions, there has been some concern among marriage guidance organizations because of the fact that there was an alteration of the original bill in regard to the question of assistance to be given to marriage guidance bodies. Originally, the bill stated that assistance would be given to those wholly or substantially engaged in marriage guidance. An amendment was carried to the effect that assistance would be given to those whose whole work, or the major part of it, was occupied by marriage guidance. That amendment has caused a lot of concern to Melbourne marriage guidance organizations which engage in marriage guidance as a part of their other social work. I want to stress that, obviously, it is better that marriage guidance should be in the hands of organizations which cover a wide social field, because a body that covers a wide social field has facilities for the care of children who may be involved in a broken marriage.
The amendment was carried in spite of the protests of a number of Melbourne organizations, including the Brotherhood of St. Laurence, the Catholic Family Welfare Service, the Citizens Welfare Service and the Red Cross Welfare Service. I am informed that they have since received correspondence from the Attorney-General in which he has advised them that it is not his intention to exclude bodies of their character from assistance, provided that they have a section of their organization which is devoted to this particular work. I am glad that the Attorney-General has given that promise, but I suggest that many people who look at the amendment which has been incorporated in the original bill will say that another Attorney-General could very well claim that he was bound by the provisions of the bill and that they prevented him from honouring a promise that was given by Sir Garfield Barwick. I should like the Minister in charge of the bill to say conclusively that the promise given by Sir Garfield Barwick can, under the terms of the bill, constitutionally be carried out.
I believe that the test of the marriage provisions will depend on the way in which the particular organizations apply them, and the way in which the Government provides assistance. It is necessary that those who are to give the marriage guidance should be individuals trained in social work. I strongly recommend, therefore, that the Government should co-operate with organizations of the kind to which I have referred, because all of them have trained personnel whose services can be most valuable in work of this nature. I leave the marriage guidance provisions by saying that I agree entirely with Senator McKenna, that they would have been far more appropriate in a bill on marriage which, in my opinion, obviously should have preceded a bill relating to divorce.
What are the objections that are raised to the second portion of the bill? Many people like myself who have had unhappy experiences in their association with eminent legal personages are not entirely happy with a bill which, to a large extent, emanates from legal sources and is based largely on legal concepts. We think that there are in marriage not only legal issues, but also social and religious issues. I know that some members of the Parliament have pleaded that this bill should be considered entirely on a secular basis. It is rather late in the day to make that claim. We began our proceedings this afternoon with a prayer in which we asked Divine Providence to be pleased to direct and prosper the work of us, the servants of Divine Providence. If we do not want Divine Providence to direct us in regard to this particular bill and other legislation, we ought to say so, but having said that we want Divine Providence to direct us, it is hardly right to adopt the attitude that we should not consider the views of leading representatives of the Churches who are regarded as the interpreters to us of the views of Divine Providence. I cannot, foi the life of me, see why there is this shamefacedness and embarrassment about the discussion of religious issues. Some years ago, I met a Danish lady, a prominent educational authority and a loyal adherent to the Confessional, or Lutheran, Protestant Church of her country. She said to me that in her opinion one of the indications of immaturity in this country was that we were most shamefaced, most embarrassed and at times almost bitter about discussing religious issues. She said that people in the democratic countries of Europe were much more civilized in that regard.
Now we are in the situation that representatives of the Churches which, if we are to accept census figures, have the adherence of some 85 per cent, of the population, have expressed opposition in some cases to all the provisions relating to divorce and in other cases to part of them. Are we to ignore their views because somebody thinks it will be less embarrassing if we deal with things on a secular basis?
The Church of England has very strong views on divorce and very strong views on remarriage. On two occasions in the last twenty years, in the case of our own Royal Family, the views of the Church of England have found very strong expression.
The Catholic Church, of which I am a humble member, also has strong views on divorce. lt is entirely opposed to remarriage. It represents from 25 per cent, to 30 per cent, of the people in this community. Those people are entitled to have their views heard; they are entitled to have their views considered even though the majority may disagree with them. They have some stake in this legislation when you reflect upon the undoubted fact that it may be used against a loyal member of the Catholic church but will never be used by or on behalf of a loyal member of that Church.
We have had the views of the representatives of other denominations strongly expressing opposition to certain sections of this bill. They are entitled to have their views heard. They are entitled not to have them bluntly rejected, and they are certainly not entitled to have their principles rejected on the base pretext that they can be regarded only as scruples. In these days when there is a world-wide attack on religion in all forms by Communist, materialist and atheistic sources, let us in this country at least respect the views of churchmen when they exercise their undoubted right to express their views upon a moral question of such importance as that of marriage.
One feature of discussions of this particular question which has been almost entirely avoided is the very important question of what are the main causes of divorce. That ought to come into a discussion of divorce. Surely, if you are going to deal with the breaking of the marriage tie, then, before you take the remedial action, you ought to look at the symptoms. The Marriage Guidance Council of New South Wales has put a great deal of work into examining the causes of broken marriages. 1 should think that if we are to try to remedy the cause of divorce we might first look at those causes to see if we can remedy them in a more desirable way.
That Marriage Guidance Council says that the causes of broken marriages to-day are, first, lack of adequate preparation, secondly, physical maladjustments, which are more important than most people think - I think Dr. Dittmer will agree with that statement - thirdly, troubles with relations, due mainly to the shortage of housing which compels them to live in the home of the in-laws, and fourthly, lack of religious background on the part of those who are married.
I do know that I would much prefer the Government to devote its attention to trying to remedy those causes of broken marriages than to providing an efficient method of breaking up marriages. The Church to which I belong, through what are called Cana conferences, is endeavouring to prepare young people for marriage. At these conferences, they are addressed by clergymen, medical men and persons experienced in marriage relations, all of whom try to show the young people what is ahead of them in life, and I think that helps to form a very good foundation for later life.
As to physical maladjustments, I think that the medical profession, in alliance with trained clergymen or social workers, could do much to help young people. The troubles that arise from two families being compelled, through shortage of housing, to live together could be solved if we pushed ahead with our housing programme which I think could still be improved.
I should like to refer to one other matter. The figures show that the great majority of divorces occur in those cases where there are either no children or where there is only one child. So long as we have a situation in which the huge cost of building a home and of buying land on which to build that home compels young women, immediately they are married, to go out to work because that is the only way they can hope to pay the huge interest charge on the cost of their home, so long as we have an economic situation which compels the young wife to go out to work, then so long shall we have small families. So long as that position continues, we shall have families of either no children or only one child. That has physical effects in a number of cases. In other cases, there are quarrels in the home because the wife is tired out when she comes home from work. In my belief, if the Government can do more to assist young people to have children and to assist family people, there would bs bigger families. And, in my experience, there is usually much better adjustment between husband and wife when there is a big family.
This bill has been commended by many people on the ground that it makes for uniformity. Uniformity is not a virtue in itself. You could have uniformity in this matter by completely abolishing divorce; you could have uniformity by legalizing polygamy. But we do not do that. The Government has an obligation not only to bring about uniformity, but to ensure that the measures included in the legislation seeking to establish uniformity are right. That involves some method of testing, of discarding what is bad and including what is good.
The bill introduced by Mr. Joske at least had the merit that it was drafted by him after he had examined the provisions of the various States, tried to evaluate what was good and what was bad, and endeavoured to take out of them all that was good. But the bill presented by the Attorney-General (Sir Garfield Barwick), which seeks to establish uniformity, is drafted on the basis that every provision included in any State legislation must be included in the new legislation. We were under the impression that if, in Western Australia, there was a particular provision that was good, it would go into the new legislation even though the other five States apparently thought it was not good and had never included it in their legislation.
I am not prepared to accept the dictum that when Western Australia is right, Victoria, New South Wales, South Australia, Tasmania and Queensland are wrong. I am not even prepared to say that Victoria is right on all occasions, but I do say it is most illogical to suggest that we shall get uniformity by grouping in one measure every provision contained in every State act. I have read with cynicism the suggestion that this particular Western Australian measure is the keystone of the whole fabric. Let me assure the Senate that 95 per cent, of us had never heard of it. If it had not happened to be in the Western Australian legislation - and I have heard most sinister statements from Western Australian, members of all parties as to the person who promoted it in Western Australia to get rid of the wife he no longer wanted - it would never have come before us here to-day. It is not the keystone of the legislation. It is simply, it appears to me, an illustration of the fact that some people have made up their minds that they will push through the bill, the whole bill, and nothing but the bill. In some quarters, that is interpreted as firmness. I simply suggest that there is a need to beware lest it be interpreted as arrogance.
It is essential in any country to preserve the climate that divorce is the unusual, and that adherence to the marriage tie is the usual and accepted thing. The wife in the home is entitled to feel that, when the husband stood at her side and promised to stay with her in sickness and in health till death did them part, she Had at least that permanence. I regret the oversentimentality that has been used to recommend this bill. One senator said, “ If I can legislate to make people happy, I shall do so “. Why does he not legislate to remove excise and make the hotel-keepers happy? The Attorney-General said, “ My purpose is to enable people who cannot get on In marriage to make a second happy marriage “. What he should have said was, “ My purpose is to enable them to make a second happy marriage or a second unhappy marriage “. What crystal ball does he look into to know that the beneficiaries of this legislation will be successful the second time? We will recall the statement of Dr. Johnson that a second marriage is the triumph of hope over experience. We have had tears wept over the children. Does any one think that it makes for the children’s happiness to know that when their mother becomes insane, the father, who promised to remain with her in sickness and in health, may discard their mother to provide them with a stepmother. I say: Be careful about providing a climate where divorce becomes accepted. In the United States there is that climate. One quarter of the marriages in the United States goes west. Be very careful that you do not produce that result here.
In conclusion, I want to pay a tribute to the speech that was delivered in the Senate last night by Senator Wright. I think it would bear comparison with any speech that has ever been delivered in this chamber. He said that he felt this bill should be referred to a select committee of the Senate. The motion before the Senate is -
That the bill be now read a second time.
I move -
Leave out all words after “ That “, insert “ the bill be referred to a select committee of the Senate “.
Senator Cole and I will vote for the amendment to provide that the bill be referred to a select committee. If the amendment is defeated, we shall vote against the motion for the second reading. If the second reading is approved, we shall oppose a number of provisions of the bill.
I hope that the bill will be fully discussed, even if we have to stay here till next week. In many ways, I think, it would be good for the reputation of the Senate if we did stay till next week and if we did give to this bill the full discussion that it merits. 1 believe that the bill is of vital importance to this country. My attitude to it will not be determined by the views or the unfortunate situation of the majority. Knowing the depths of human frailty, I have a great deal of sympathy for many people who have marriage difficulties, but my view has been determined by what I regard as the good of the great majority of the people, those people who believe, as I believe, that marriage is the voluntary union of two people for life, to the exclusion of all others.
– I preface my remarks on the bill by offering my very sincere congratulations to all those people who have preceded me in this debate. I have listened with particular interest to them all. It is quite clear that the challenge presented by the Government to make this measure a non-party measure and to provide a debate on the merits of the bill has been accepted by all concerned. They have my sincere congratulations and thanks for accepting the Government’s challenge. The bill is too important, I suggest, to be debated in any other way. Like Senator Wright, whom I congratulate for a profoundly thoughtful and learned speech on this all-important subject, I agree that this matter must he discussed at a secular level. I disagree entirely with Senator McManus who, I felt, discussed it from an entirely opposite angle. Until all the Churches make- up their minds on what they want in regard to divorce law, until they are reasonably unanimous about it, this Parliament and no other body must accept the responsibility for introducing laws relating to divorce, on their merits and on a secular level. I pay great respect to the views of the Churches. I happen to be a churchman myself. But on examination we find that not one Church in Australia agrees with all the principles of this bill. All of the Churches are at great variance. But that does not exclude us from making a decision on the bill. We have an obligation, which we must accept, to make a decision, and I suggest that the only way in which we can accept it is, as Senator Wright suggested last night, at the secular level.
I agree with Senator Wright’s submission that the only consideration in this matter is that the bill should be considered in such a way that full justice is accorded to all. I should like to dwell on that expression of Senator Wright’s, because I feel that therein lie some of the great things of the bill and also some of the elements in relation to which great differences of opinion are now prevailing. Justice is a somewhat difficult expression to define, but we must try to define it. The bill must give justice not only to the petitioner and the respondent in a divorce action. In a criminal case a juror swears that he will be just not only to the accused but also to the Crown. But the matter does not end there. Justice must be given to other parties, and that is where the complicating factors arise in divorce law. In a consideration of tangled and broken marriages, justice must be given to other parties, other innocent parties. These are entitled to justice, as well as are the husband and wife. Who will deny that the children of a marriage are entitled to justice? In this regard there are complicating factors that make the question not merely one of right and wrong or of justice to the wronged wife or wronged husband. It is far more complicated than that. I wish this bill dealt only with a simple matter of right and wrong between husbands and wives; but only in the rarest circumstances do you find that to be so. There are the children of the marriage; they are entitled to justice. They supply complicated factors which are most difficult to deal with in determining the justice to which they are entitled. Then again, there are not only the children of the marriage; there are the children of a union which is not a marriage. Those innocent children also are entitled to justice. The justice to which the innocent illegitimate child is entitled is just as important as the justice to which a wronged wife is entitled. Not only have you to give justice to all these parties - I could develop that view, but time does not permit me to do so - but you must have some regard to the public conscience. That is another factor that complicates this divorce issue. Justice must be given to the public interest because that is also a big factor when we come to talk about justice.
In my opinion, it is not just a matter of saying, “Let us be just to the wronged wife and let her have her merited deserts “. The problem is far more complicated than that. The speeches I have listened to have, in the main, been prone to err in respect of simplifying this theme. This is not a black and white issue at all; it is much more complicated than that. While I say that I agree with Senator Wright who stated that justice must be done, I add that justice must be done to all parties and not merely to one party in this horribly complicated and social problem with which we are faced.
Having said that, I wish to make some brief reference to the bill in general. Time does not permit me to traverse all the very fine features of this very fine document. One thing I wish to say is that the bill is not new. It consolidates, and I suggest improves very largely, the existing divorce laws that are now found in all of the six States. True, it does add new grounds of divorce, but that does not make divorce law. True, it adds new grounds in respect of some States, but that does not make the grounds new. They are already in existence in one or other of the States. I suggest, with respect, that Senator McManus devoted the whole of his speech to the theme that this is a new concept in social legislation. I think that he got right off the track. Divorce is as old as the Bible. Senator McManus will know that in biblical times a husband could put away his wife if she committed adultery, and he could put her away rather violently.
– Not in the New Testament.
– Well, in the Old Testament, which is a good deal older. We have had divorce and we have had grounds for divorce - admittedly with modifications, but not modifications in principle - in Australia for years. We must discuss this bill from the point of view of whether this consolidation is desirable and not from the point of view that it introduces a new theory of sociology.
I pass to one other aspect of the bill in general, namely, the importance of uniformity. I agree entirely with Senator McKenna that it is now time that we had a uniform divorce law in this country. No one likes divorce laws, but we must have them; we must not shirk our responsibility. No one will, I think, deny the proposition that the time is overdue when we should have uniformity in our divorce laws. We are one nation. We have one culture and we have one way of life. I think that one of the most important things in that way of life is the family life. This bill goes to the very heart of the principle of the retention of family life.
Senator Hannan gave one the impression that the divorce laws of Victoria are the only worthwhile ones, but we must get away from the parochial atmosphere in discussing the importance of family life in our nation. We must regard this as a national question and get outside the boundaries of our States. To do so may entail a little modification of our views, but not of our principles. I suggest that unless we are prepared to make that modification we are doing the Senate and our country a great disservice. I emphasize the point that we must, at this stage of our progress as a nation, accept the proposition that a uniform divorce law is absolutely essential.
I pass now to the most contentious aspect of this measure. I feel that coming from Western Australia, as I do, and having had experience for some 27 years in the law relating to divorce in that State, I am obliged to express my views in some detail on this aspect of the bill. I therefore excuse myself from dealing with the other very important aspects of the bill - except in committee - so that I can refer to the contentious clause 28 (m).
I think that Senator Hannan last night with a certain amount of enthusiasm postulated the idea that this provision protected the guilty party. That was, in essence, the criticism by Senator Hannan, and it is also the criticism spoken by many other people. Of course, I can understand many people believing that that might be so.
– Are you referring to the federal provision or the Western Australian provision?
– They are very similar. I will deal with their differences in a moment. Senator Wright dealt with the differences between them, but in substance the two are similar. The present bill provides for one important material difference, namely, the matter of discretion in relation to the commission of adultery, but apart from that I think we all agree that the two are identical in principle.
As I have said, it has been argued that this provision protects the guilty party. In the time I have at my disposal, let me say that the section in the Western Australian legislation, despite its origin - the reference made during debate to its origin is not actually correct - was not designed to protect the guilty party at all. It was designed essentially and substantially to protect neither the innocent nor the guilty. In most divorces - I speak with experience of this matter in Western Australia - that are granted under the separation clause neither party to the cause is either innocent or guilty. I do not mean innocent or guilty of a matrimonial offence. That is not what I think is meant by people who attack this provision. They are referring to some conduct not amounting to a matrimonial offence, some conduct which caused the separation but does not amount to what we know as a matrimonial offence. Let me again emphasize that this section in the
Western Australian act operates, in the main - I will come to the instances in a moment - to assist marriages that are hopelessly and permanently broken and for which neither side is to blame. There is no guilty party. There is the very essence of the Western Australian legislation. For many years, that has been proved to be so. I do not think that any Western Australian barrister would contradict me when I say that.
– Ask any woman.
– I am not trying to hide anything, and I agree entirely that clause 28 (m) does deal with a certain class of cases where blame can be attached to one of the parties. There is no doubt about that. I could cite cases in which this clause could operate - cases in which one of the parties to the marriage is to some degree to blame, but not to the point of being guilty of a matrimonial offence. I refer to cases in which one of the parties is to blame in some way for the separation that exists. I pause here for a moment to say that we have to be very careful when we speak of apportioning blame in these cases. It is most difficult to say with certainty which of the parties to a marriage is to blame for a separation. Except in clear-cut, black-and-white cases, in which we know the causes of the separation, who does know the real facts? In the majority of cases no one knows the facts and, therefore, I ask who can decide where the blame really lies? In some instances we should have to go back to the very day the parties were married. The events of the first night of the marriage might have started the move towards the separation. In the majority of broken marriages can any human being put his finger on the cause, and say, “ The husband is to blame “, or, “ The wife is to blame “? I make that observation because we are likely to fall into the error that it is simply a matter of postulating that a marriage has broken down because either the husband or the wife, as the case may be, is to blame. I suggest that that is a rather infantile approach to the subject. The problem is much more complicated than that.
– Courts of Petty Sessions decide such matters every day of the week.
– They do nothing of the sort. Courts of Petty Sessions grant separations in cases where there is a clearcut matrimonial offence. I am not talking of matrimonial offences. Those courts separate people for such reasons as desertion, cruelty, failure to maintain, adultery, and so on.
– They are some definitions of the criteria of faults in that jurisdiction.
– I am replying to Senator Hannan’s interruption. Those are matrimonial offences, and I am not talking about them. I am referring to other classes of conduct that are not matrimonial offences, but are the things that constitute the problems covered by clause 28 (m). As Senator Wright pointed out last night, New Zealand tried to get around that problem, but in Western Australia we have not touched on the causes of separation where the cause does not amount to a matrimonial offence. That is one of the weaknesses of the Western Australian law. I shall come to that point later.
In this bill the Government has included a clause which, I suggest, does as much as is humanly possible to deal with this human problem. I know that, even so, there must be exceptions, but this legislation is an earnest attempt to place the innocent party in the best situation possible.
I pass on to refer to clause 36, which might be capable of improvement, although I confess that I have still to find a way in which it can be improved. This clause deals with a situation in which a matrimonial offence is not associated with the separation. It gives the innocent party all possible protection when it comes to discussing who is to blame. It is not quite fair for people to criticize this measure, as Senator Hannan has done, and say it is a measure which protects the philanderer. That is not true. A man may commence a liaison and there may be no other circumstances. In order that justice can then be done to the parties, clause 36 has been incorporated in the bill. It copes with that problem satisfactorily. On balance, I think that we must incline to the view that in a minority of cases - they will be a minority; in Western Australia it has been proved to be a minority - there are merits and demerits on either side and some protection must be given. I believe that that protection has been given in clause 36 so far as it is humanly possible to do so.
I pass on now to refer to the remarks of Senator Wright, which I greatly appreciated, when he compared clause 28 (m) of this measure with the legislation in existence in New Zealand and Western Australia. I may be wrong, but I formed the opinion that the honorable senator preferred the New Zealand legislation to the proposal contained in clause 28 (m). In this matter I do not think that we can be dogmatic, but I prefer the provisions of this bill to the New Zealand act. I shall develop that point in committee, but I say now that clause 28 (m), read in conjunction with clause 36, is, in my opinion, a better piece of legislation than that in existence in New Zealand. I think so for two or three reasons. In the first place, the New Zealand legislation has a condition requiring the respondent to oppose the making of a decree. It must then be proved - and only then - to the satisfaction of the court that the separation is due to the wrongful action of the petitioner. I suggest that the weakness of that legislation is that it operates only when the respondent appears in court and objects to the petition for a divorce. When the respondent does not appear and object, the law takes an entirely different course. Unfortunately, in such cases there is no restriction on the judge. He is bound to make the decree without having any regard to the conduct of the parties at all. In my opinion, that is a fatal weakness in the New Zealand legislation. A stronger reason for my opinion is that the only factor that the judge has to take into consideration in making the decree is that the separation is due to the wrongful act or conduct of the petitioner. That is to say, the court does not, and cannot, take cognizance of the present circumstances of the parties. It might well be that the petitioner was guilty of some wrongful act which caused the separation. That wrongful act might not be a vital factor at the time of the hearing of the petition. There could be many other factors which alter the circumstances of both the parties at the time of the petition. Surely a better consideration of the situation would be that the court must take into consideration the circumstances of the innocent party, not at the time of the separation, but at the time of the hearing of the petition - and what her circumstances are likely to be in the future. The bill does attempt to ensure that that will be done. Clause 36 provides that if the court is satisfied that, by reason of the conduct of the petitioner, whether before or after the separation commenced, or for any other reason, it would, in the particular circumstances of the case, be harsh and oppressive to the respondent to grant a decree, the court shall refuse to grant it.
I think that the provisions in this bill go a long way further than the similar provisions in the New Zealand act. These are better provisions than the New Zealand provisions, because they look to the future welfare of the innocent party, not only at how the separation was caused. Surely the important questions are: How is the innocent party getting on to-day? How will she get on next month and next vear? What will be her circumstances then? I suggest that it is much more important to assure the welfare of the innocent party than it is to decide who caused the trouble in the first place. However, the bill will not prevent a judge from going into that question.
– In your opinion, it protects the innocent party, does it not?
– I do not know what the honorable senator means by his reference to protecting the innocent party. Senator Wright referred to the Western Australian provision. There is a great distinction in practice, although, not in principle, between the Western Australian provision and this provision. In Western Australia, adultery can be an absolute bar to obtaining a decree under that provision. However, the irony of it is that a person can commit adultery many times prior to the beginning of the five-year period of separation that is required, but if he has led a chaste life for the five years immediately preceding the hearing of the divorce action, the judge may grant the philanderer a divorce.
– But you agree that a judge in Western Australia has a discretion to refuse a decree on the ground of adultery before the five years?
– Yes, but under this provision there would be a discretion in respect of the whole of the period. That is a very logical solution. It is well known in Western Australia that, in order to secure a divorce on the ground of separation, one must have been chaste only for the five years immediately preceding the hearing of the action. That is one weakness of the Western Australian provision, but there is a more important weakness. A man can be a gambler or a drunkard, he can neglect or desert his wife, he can do practically everything except commit adultery during the five-year period, yet he can still obtain a divorce. The position under this provision will be different from that under the Western Australian provision, because the conduct and circumstances of the petitioner will have to be taken into consideration. I suggest that when we add up the merits and demerits of the New Zealand and the Western Australian provisions and compare them with the merits and demerits of these provisions, there is, on balance, a very strong case in favour of clause 28 (m) in conjunction with clause 36.
I should like to refer to the virtues, if 1 may use that word, of the principle embodied in clause 28 (m). The first virtue, of course, is that it deals with the problem presented by the hopelessly wrecked marriage - the marriage that cannot be mended and for the break-up of which neither party can be blamed. To my mind, matrimonial offences follow a wrecked marriage. They do not precede it. The matrimonial offence of adultery or of desertion is not the cause of a wrecked marriage; it is the sequel to a wrecked marriage. The marriage has been wrecked well and truly before the adultery begins. Clause 28 (m) has the great virtue of acknowledging that fact. It represents an attempt to cater for parties to wrecked marriages where neither side is absolutely right or wrong. I think it can be shown statistically, although I have not time to give the figures now, that the operation of this ground for divorce has not increased the divorce rate and has not made divorce easier. From the time when this ground for divorce came into operation, the divorce rate in Western Australia dropped faster than did the rate in any other State, and it is still dropping faster than in any other State, including Victoria.
One very important feature of the principle embodied in clause 28 (m) is that it makes divorce a little less unclean. Unfortunately, I have been concerned, as a lawyer, with many divorce cases. I can assure you, Sir, that in the majority of undefended divorce cases there is, in effect, divorce by consent. I regret to say that the evidence is obtained by arrangement, by collusive practices. My experience leads me to the conclusion that, if there is not what I may call a reasonably clean ground for divorce, people will resort to undesirable practices to obtain divorce decrees. Every member of the bar in Western Australia will tell you that the divorce provision we have been discussing has tended to keep the divorce courts clean in that State. People are now obtaining divorces under that provision and are not using the dirty, unclean subterfuges that are used by people in other States.
– Such as the professional witness.
– Yes, and the private inquiry agent who, by a curious coincidence, always arrives with the petitioner, not only at the correct address, but also at the vital time - the time when an act of adultery is taking place. We have all read the newspapers, and we know that that occurs with monotonous regularity. In cases of that kind, the evidence is obtained by arrangement between the husband and the wife. In those cases, it is divorce by consent. This clause will take the dirt out of divorce. The similar provision now operating in Western Australia is having the effect of upholding the law, but I regret to say that in most of the other States the divorce courts are treated with contempt and ridicule, because the evidence presented to them is concocted evidence. I have explained my experience in this field because I felt that I should be lacking in my duty if I did not do so. I am probably the only person in the Senate who has had practical experience of the operation of separation as a ground for divorce.
– Have you an AttorneyGeneral in Western Australia?
– Yes.
– I should not have thought so.
– Unfortunately, he is not here now. I say again that I believe that, in principle, clause 28 (m) is a good clause, and I think it is high time that it was included in a uniform divorce bill. 1 conclude by saying that we cannot consider this bill properly in principle or in detail if we continue to discuss it upon the childish basis that in all cases of separation one of the parties is to blame - one of the parties is the wrongdoer and the other party is a good person. That does not happen in life. In the vast majority of cases, you cannot attach blame to either party. However, in cases where it is established as a matter of law that blame is attachable to one party, this bill will protect the innocent party in all cases in which it is possible to give protection. I support the measure.
– The bill now before the Senate is cited as the Matrimonial Causes Bill 1959. Like Senator Vincent, I do not think that any new element of law, in respect of divorce, has been introduced into this measure. I think it is a shameful thing for anybody to attempt, as Senator Vincent did, to demolish with his own wit within a matter of a few minutes the whole basis of another man’s argument, particularly in relation to a matter that is so important as the one that is before us. Apparently, Senator Vincent believes that most of the provisions of the existing divorce law are being evaded by collusion and the giving of false evidence. If, as seems to be the case, he considers that the fabric of our nation is being challenged by this means, surely the correct approach to the matter is to endeavour to remedy the position by reviewing the existing law.
The one thing that this bill does which can be commended is the introduction of a uniform divorce law for Australia. I do not think that an assertion that it assists marriage or makes divorce harder to obtain could be sustained. Embodied in this measure are various features of the respective State divorce laws. It provides additional grounds for divorce in each State.
I concede readily that, in presenting this bill to the Parliament the Attorney-General (Sir Garfield Barwick) has displayed commendable tolerance and courtesy. However, I cannot regard him as the architect of the measure, nor do I think that he has performed an urgent service on behalf of the people of Australia by bringing down this measure. It will be recalled that some time ago the honorable member for Balaclava (Mr. Joske) brought down a private member’s bill on this subject, lt is reasonable to assume that on that bill, which would be a non-party measure, members of the Parliament would have been able to express their thoughts freely. However, that bill was not proceeded with, and the measure now before the chamber is a Government measure. It has been said that we may vote freely on the bill. That is the most that there is to commend it! We know very well that a certain amount of duress has been applied and lobbying has been engaged in in order to secure the passage of this measure. We know, too, that an attempt has been made to establish a sense of urgency about the passage of the bill. I do not think there is anything urgent about it.
– There has been no attempt to limit the debate.
– Let Senator Kendall use his words and I will use mine, lt is all very well for Senator Kendall to say that there has been no attempt to limit the debate. We all know that an attempt is being made to push this measure through so that it will become the fundamental law in Australia concerning marriage and family life. This measure is not so urgent that an opportunity could not have been afforded to the people of Australia who are vitally interested in this serious business to examine and analyse the bill properly.
– The people have had an opportunity over the last six months to express their views on the matter.
– I contend that ample opportunity should have been afforded to the people in the community to express their views on this vitally important measure.
– They have done so.
– At this stage, I want to make the point that this is positively a divorce bill. While the bill does not contain a definition of marriage, various pro visions are made in relation to the dissolution of marriage. Approaching this mattei, as I do, in a spirit of humility, I suggest that the term marriage denotes the contract upon which the union between a man and a woman is founded. It may be described as the union between a man and a woman made under contract and having for its object the procreation and education of children as well as mutual help and companionship. I believe that the sacrament of marriage has a spiritual content. In the vast majority of cases in a Christian nation, it is a contract between a man and a woman and God, as well as the State; each has a proportionate interest in the contract. The object of the contract, as I have said, is the procreation of children, and to provide them with loving care and attention and otherwise to discharge the responsibilities of marriage. In order to keep marriage strong, virile and good, the nation must make proper provisions in relation to marriage. I regard as a bad measure any measure that would lower the standards of marriage in relation to the responsibilities of marriage and the breaking down of marriage. I do not think that the measure that has been placed before us will improve the present situation. Under this bill, persons who have entered into the contract of marriage and taken the marriage vows can be released, by direction of the court, from all or some of the civil responsibilities of their contract.
Having regard to the nature of the society in which we live, there must be some law in regard to divorce. The bill before us sets out a number of grounds for divorce. It cannot be said that the measure does any more than that. It pays no regard to the sanctity of marriage. Clause 28 (m) provides that a divorce may be granted without a matrimonial offence having occurred. It can be granted on the ground of incompatibility. In effect, there are one hundred and one ways provided of breaking a very solemn contract. You arc saying to people who believe marriage to be a sacrament, “ We flout in your face the fact that marriage is a sacrament. You have no responsibilities but the civil responsibility. If there is incompatibility, you may obtain a release. If you want to avoid “ - as Senator Vincent said - “ the dirt and filth of divorce, here is an easy and cleaner way to do a filthy thing.” Well, that procedure makes no appeal to me. In a Christian community, I do not think that this should be a ground for divorce. This ground, good or bad, has spread from Western Australia to the other Australian States. I should say that it is a bad ground. The New South Wales provision regarding restitution of conjugal rights is based on a term of twenty-one days. The cause and effect of the proposed provisions in this bill may be discussed at length, but it cannot be denied that the bill will apply to all States a provision which operates in only one State at the moment. I agree that the position regarding restitution of conjugal rights may be corrected somewhat, in that the term is to be extended from twenty-one days, as it is in New South Wales, to twelve months. However, that will not do much to improve the position from either a spiritual or a civic point of view.
It has been claimed that this provision will be beneficial so far as the family and the community are concerned. In my opinion, it will have a bad effect on the entire community, particularly on families and the juvenile sections of the community.
– There could be a real restitution, though.
– There could be. The restitution provision affords a means by which people may take action, and to that extent it is preferable to clause 28 (m) which provides, in effect, for the making of a kind of agreement between two individuals that they are not prepared to continue with their contract and wish, by the effluxion of time, to be relieved of their responsibilities under it. One of the primary purposes of marriage is reproduction - the bearing of children. There is in marriage a duty on the part of both the husband and the wife. I should say that in the case of a marriage which had regard to the sanctity of marriage and the need for mutual respect between the parties to the marriage, the restitution provisions, or the provisions of clause 28 (m), would never have to be relied on. It can be said, I suppose, that the provisions are justified because there are in the community people who desire and demand that the law should enforce their marital obligations. We may have our individual opinions as to whether this bill will strengthen the national approach towards marriage and family life, but the point I want to make is that it seeks to apply to all States of the Commonwealth provisions which previously have applied only to certain States, and for which the majority of Australians have not made any demand because they do not require them.
My opinion is that there are in the bill clauses which are bad. With other honorable senators, I shall attempt to amend those clauses at the committee stage. Unless they are amended I shall vote against them at the committee stage, and I shall vote against the motion for the third reading. Let us consider how farreaching this bill is. The Government has said that the measure has been on the stocks for six months, and that anybody who wanted to talk about it to the Government could have done so. I believe that Sir Garfield Barwick has been very courteous and has listened to all those who have gone to him. He is said to have stated magnanimously that anybody could talk to him on the subject. This is an occasion when it is paramount that Church and civic leaders should be able to express themselves on a matter that is of such importance to the nation. I say that the Attorney-General has treated somewhat with disdain, if he has not actually affronted, the bishops of the Church of England and many other high-minded people who are well versed in matters pertaining to marriage. He has done so in the way in which he has presented the bill and in the remarks that he has made concerning criticisms that they have made of it. There should not have been a scintilla of evidence that that was intended. As I have said, from a national point of view there is no urgency about this measure. There should have been plenty of time for adequate consultation with Church and civic leaders.
When we consider provisions relating to divorce, we must agree that they impinge very closely on family life. It has been said that this bill will protect the family. It may do so in a very minor way, but I suggest that it affords no more protection than is contained in State divorce laws. The bill contains no provision for persons to intervene on behalf of children who are the issue of a troubled marriage, or children affected by matrimonial disturbances, although the children must suffer. Under this bill, the parties to a troubled marriage may be relieved of their civil obligations. I believe that the State should not interfere in any way with the unity and integrity of the family, or over-rule any of the essential obligations in domestic life; nor should1 it usurp the functions that natural law assigns to parents. Laws that tend even indirectly or remotely to prejudice domestic interests are opposed to the primary duty of civil powers
There is no sound basis for such a clause as 28 (m) in a case in which the marriage has been consummated, and children have been born and are dependent on their parents. Senator Vincent and other honorable senators opposite have said that there is no innocent party and no guilty party. I say that there are innocent parties to a marriage which has been consummated. The innocent parties are the children. The Government claims that suitable provision is being made for the protection of the family, and that, to the best of its ability, the warring parents will be made to provide for their children in a certain way. Such provision may satisfy the economic needs. Provision is being made for marriage guidance councils to be given the chance to intervene with a view to getting the parties to the marriage to come together again, but I think it is more essential, in a Commonwealth law relatin.*; to divorce, to ensure that there is always a protector of the really innocent parties of consummated marriages, namely, the children, regardless of whether the fault is on the side of the husband or the wife. The children should be properly represented at law.
If a person breaks a business contract and is sued, he may be declared bankrupt. He cannot walk away from his civil obligations as he can from his marriage contract. Yet, the breaking of a marriage contract may involve the welfare of the wife and the children of the marriage, and occasion them considerable financial loss. A bankrupt has to comply with the law and attempt to purge his bankruptcy. If we respect the principles of marriage, we should set no lower standard for marriage laws.
Sitting suspended from 5.45 to 8 p.m.
– Prior to the suspension of the sitting, I had spoken for twenty minutes to this measure which, in my opinion, is the most important, indeed the most conjectural piece of legislation which the Senate has had to consider for some time. This is the Matrimonial Causes Bill, introduced into the House of Representatives by the Attorney-General, Sir Garfield Barwick.
I have made the point that the bill had been foreshadowed by the Government. I have mentioned also that the original measure was a private bill submitted by Mr. Joske who gave a great deal of care and attention to the drafting of his proposals. That private bill was not proceeded with; instead, the Attorney-General introduced a Government bill and all honorable members of the House of Representatives and all honorable senators were given the doubtful privilege of electing to support or oppose the measure according to the dictates of their conscience. But it has become evident during the discussion in this Parliament that although no honorable member would be penalized for failing to vote as a member of a party according to the decision of the party, there has been a certain amount of regimentation in Cabinet and amongst private members to ensure that the bill will receive the same support from the Government side as if it were an ordinary piece of Government legislation.
I submit that, having regard to the importance of a measure such as this to the Australian nation, the bill has been hurried before us. There are many in the community who feel that divorce is a breakdown of marriage standards, an interference with religious beliefs and with that sanctity which is attached to marriage in a Christian community. Now, over half a century after the Commonwealth Constitution conferred upon the Commonwealth Parliament the right to make uniform laws with respect to divorce, this Government believes that the need for a uniform law with relation to divorce, a uniform law dealing with the breaking of the marriage contract is so urgent that it must be rushed through this Parliament without giving the Christian people of the community, the bishops, members of the various Churches, and others who will be vitally affected by it, the normal opportunity of saying, either through the medium of a royal commission or a joint committee of this Parliament, what they think of the proposed legislation. They are given no opportunity of voicing their opinions concerning a measure which proposes to confer the right to dissolve a marriage, to annul a marriage, to grant separations and to take other such actions as seriously interfere with the family life of the community.
I submit that this bill is of such importance and will have so much effect upon the fundamental fabric of the nation - marriage - that there should be no haste whatever in bringing it forward or in passing it through this Parliament. The widest possible scope should have been given to every person, every Church and every other interested instrumentality to place clearly before the Government their opinions before this legislation was submitted to the Parliament.
The bill contains fourteen proposed grounds for divorce. Some States approve of some of them while other States approve of others. For instance, one provision which has been acceptable to Western Australia but to no other State is to become part of the law applicable to all States. Again, the New South Wales provision relating to restitution of conjugal rights within 21 days is to become a part of the divorce law applicable to all States. In essence, the bill before us is really a consolidation of the divorce laws of all States. In future, all States are to be bound by laws which hitherto applied only to certain States.
The Attorney-General has been most courteous in dealing with all questions put to him. In the presentation of this measure, he has proved his undoubted skill as an advocate. No one will gainsay his ability, but these are all irrelevant considerations. They become infinitesimal when compared with the importance to the nation of interference with the marriage contract between man and woman and the protection of the issue of a consummated marriage.
Just prior to the suspension of the sitting, I was making the point that in all our other laws, whether they be applicable to contracts in relation to ordinary financial obligations, or contracts in relation to men in professional practice - and these are all matters of far less importance than the breaking of a marriage contract - penalties are provided. For instance, if a man is unable, either through inefficiency or lack of finance, to carry out an ordinary civil contract and becomes bankrupt, he is not released from that contract until he has satisfied the court that he has paid off his liabilities to those to whom he is indebted or, if he is an undischarged bankrupt, he is not discharged from bankruptcy until such time as he has satisfied the court or other proper legal authority that he has discharged as far as he possibly can his obligations under his original contract.
When we analyse the bill we find that, despite all the garnishing, despite all the assertion that it seeks to protect the family life of Australia, in effect it is very little more than an aggregation consolidation of the laws of all States relating to the dissolution or breaking up of marriage.
I readily admit that when we are dealing with a subject such as this it is essential that one exercise the greatest degree of tolerance. There are many who accept the marriage contract as merely a contract between a man and a woman to observe certain civic obligations required by law. Of course, when a marriage is. consummated, a great responsibility is placed upon both parties to it. Love and affection can make a marriage lasting and fruitful, something of great benefit to the community. But when a marriage is broken, the two parties to the contract are not the only ones affected. The issue of the marriage must be protected. We have been told that this bill will protect the children, the innocent victims of divorce. I say it will not do that adequately. I submit that the provision contained in clause 28 (m) under which a divorce may be obtained without the commission of a matrimonial offence but simply if, because of incompatibility or for some other reason the two parties to the marriage contract have lived apart for five years, is not good for the nation, especially if there are issue of the marriage. The level at which we keep the marriage contract will be the level on which we place the family life of the country, which is the very essence of the progress, stability and strength of the nation. When a government keeps in view only the interests of the individual, ignoring those of the family, the invariable result is a tendency, more or less strong, towards the weakening of the family and the disintegration of family life. This is one of the worst dangers facing civilization. The purpose of civil law must be to ensure, as far as possible, that family ties are kept strong and vigorous.
Healthy family life is essential to good nationhood. Where family life is pure and domestic ties are strong, the nation will be fundamentally sound, and such weaknesses and irregularities as may occur can be remedied. Marriage may be founded on love but if it is not accompanied by sacrifice and an acknowledgment that there are greater obligations than civil law demands, family life will be challenged by those people who are selfish enough to place themselves first when their children and the nation have a strong demand for consideration. Marriage should be clothed in all the sanctity and respect that a Christian nation can afford it. Once family life becomes undermined and shows signs of disintegration, the strength and quality of the nation is seriously weakened, if the law does not demand and nurture the acceptance of a very strong and serious obligation on the part of persons bound by the contract of marriage, a most serious injury will be caused to family life and bring about considerable suffering amongst parties who are innocent in the disputation between the two persons who have contracted the marriage, whether with the State, with their God, or with each other.
I do not think that this bill will provide sufficient protection for the sanctity of the marriage contract or for the innocent, who are hurt and hurt very badly, when a marriage comes to the stage where no obligations are felt other than those imposed by civil law. Then, in a spirit of tolerance, in a community such as this which, on the whole does not regard marriage as a sacrament, the civil law must provide reasonable relief, perhaps to avoid a worse calamity than the separation of parents and children.
It has always seemed peculiar to me. thai when a marriage has broken down, and action for divorce is taken, both parties to the marriage and possibly an interloper are represented at law by counsel, whereas the children of the marriage are never independently represented. The bill provides that the judge in a case must do all in his power to conciliate with the parties in an effort to ensure that the marriage contract is maintained. He will be both judge and conciliator. The bill also requires that reasonable provision be made for children. This is not done at present. We talk of delinquency. I have worked amongst it, and I have relatives working closely on the problem. The teenage children of divorced persons and broken homes provide a problem, although the law requires that some provision be made for them. Very often they become anti-social. 1 say with all humility, in the knowledge that it is not within our power to provide a perfect solution of the problem of incompatibility and the inability of parents to accept their responsibilities, that we should do all that we can, in a physical, mental or moral sense, to provide a law incorporating full protection of the national fabric. We should stress the high value of the marriage contract and we should protect the children who are the unfortunate victims when family life is broken up.
As we have waited half a century to introduce legislation of this type, should we not wait until this matter is considered further? Is it not reasonable that when we have royal commissions inquiring into starting price betting or a crime that may have been committed, we should examine more closely the most essential thing in our community, the sanctity of marriage and family life? It is not enough that the Minister be kind and courteous to people who come to him to raise objections. We should delay this measure until such time as the persons who have most to lose have the opportunity to place before the Attorney-General and the Government the principles that they believe should govern legislation that is so important.
Senator WADE (Victoria) [8.181. - I enter this debate but briefly and with some trepidation, because I know little of divorce and nothing of divorce laws. It has been claimed that this is a lawyers’ bill and that, generally, is a fair and adequate description of it. But I claim that, as it affects human relationships, it is much more than a lawyers’ bill. It is a measure of great significance, inasmuch as it affects the personal status and well-being of the individual. Whilst the percentage of people directly affected is and will continue to be comparatively small, this legislation is so fundamental and interwoven with their future happiness, that there is a heavy responsibility on this chamber to see that justice is done in every aspect of it.
Far too many people describe this bill as a divorce bill. We are not debating the merits or demerits of divorce. We are not debating whether we shall or shall not have divorce in Australia. Rather, we are deciding whether we shall have uniformity in a matter of great social importance. We have six States, all with their sovereign rights, the maintenance of which honorable senators on this side of the chamber, at least, are determined to ensure. In actual fact we are one people with one destiny. I am sure that few people will oppose the principle of unity as such. But having said that, I hasten to add that I agree that even for the sake of uniformity we should not grasp and endorse any bill that is put before us. I submit that every clause of the bill must be examined with minute care, and it is the responsibility of honorable senators individually to support those clauses that are good, and equally to discharge their responsibilities by rejecting any clauses that may be suspect.
I have no intention of speaking about the religious aspect of marriage or divorce, but I feel at this stage that I should say that the Churches have a right to express an opinion on this subject. Most people who have a correct appreciation of the marriage contract into which they enter seek the blessing of the Church upon their union, and the contract - not the legal contract, but the implied contract - when based upon Christian principles forms the basis of true home life. The maintenance of home life has done more for the preservation of democracy in this world than any other single factor. For that reason, too much emphasis cannot be placed upon the importance of this legislation, in continuing and strengthening Christian homes. The Churches labour from the cradle to the grave amongst the people to maintain home life. Who, then, can say that they have no right to express an opinion on this subject? Their very existence as organizations is woven into the maintenance of family life. That is the work, I suggest, for which they were ordained. They labour to preserve and maintain the principles that are the basis of our family life.
When I searched for some reasons for this legislation, 1 naturally went to the speech of the Attorney-General (Sir Garfield Barwick). I, for my part, wanted to determine in my own mind what were the motive* that prompted him to produce this legislation. I found what I believe to be his reasons in the first paragraph of his secondreading speech after he had dealt with introductory matters. He used these words -
That, Sir, I suggest, is the basis of this legislation. He realized that in a measure of this kind the preservation of marriage and home life are the fundamental factors that should predominate. Then he went on to use these words -
The prevalence of broken marriages does threaten our strength and imperil our future. The ideal society would know no occasion for divorce.
That brings me to the point that this is the first time in the history of the federation that the Commonwealth Parliament has dealt with legislation of this nature. This is a unique occasion in the history of any parliament in the Commonwealth of Australia. On this occasion - the first of its kind - the Attorney-General has made the preservation and maintenance of home life the basis of his legislation. Accepting the bill on that basis, I believe we can regard it as a declaration to the world at large that we Australian people, members of the British Commonwealth of Nations, desire to issue, shall I say, a white paper, declaring our attitude to the sanctity of marriage. In a changing world it is good to let other countries know where you stand on these matters because history has revealed that those nations that have not placed first things first regarding home life have passed on and are now in either oblivion or chaos.
It is interesting, therefore, to notice the first approach the Attorney-General makes to this legislation. The first important clause in the bill promotes the stability of marriage, in that it declares that a divorce will not be possible, without court sanction, until three years after marriage. It has been said many times in this debate, and who can disagree, that the first three years of married life are the years when two people have to adjust themselves. They have to make sacrifices; they have to be less selfish than they were when they were responsible to themselves alone. For that reason I suggest that the first clause is a splendid contribution to stabilizing the first three years of marriage, which, once safely passed, can eventually lead to many years of happiness and fruitful cohabitation.
The next point I wish to make has already been made on several occasions. My reference to it will be brief. This is the first time that the National Parliament has given any recognition to the value of marriage guidance councils. The Attorney-General has placed terrific emphasis on the value of reconciliation. I think that all honorable senators will support these clauses dealing with reconciliation because who can honestly challenge or criticize them? They indicate to the world at large that we as a people are determined to do all that we can to make certain that our homes are maintained for the benefit, not only of parents, but also of the children. The bill even places on the courts the expressed responsibility to give consideration to reconciliation, even when all other avenues of reconciliation have failed. That, Sir, places the bill on the highest plane, and is something that we must commend. I repeat that the writing ot these provisions into a federal bill is a declaration that we value these things very highly in our daily lives.
The next clauses to which I wish to refer are those which safeguard the interests of women and children. I want to be quite frank and say that I come down every time on the side of the women and children. There is nothing sadder in this world than to find a woman who is left with a young family and a determination that she will do her utmost to be mother and father to that family. She faces the world with that determination because she has been the victim of a worthless man who, having accepted responsibility, then walked out and left it. The children are always the greatest sufferers. Again, the Attorney-General has broken new ground in writing into this measure provision that the interests of thechildren must be protected before any decree can be issued.
I want to leave those features of the bill. One could talk for a long time in support of provisions in the bill that are most laudable and praiseworthy. The bill goes on to set out the uniform grounds for divorce, and on this point the Attorney-General, with a full knowledge or realization of the fact that we already have divorce laws in every State, set out to pursue a policy of uniformity. I believe he tried to take the best from each State and omit that which was of little value. Senator Sheehan is interjecting. 1 shall listen to him in silence, and I shall be grateful if he will do the same to me. This measure is of such great importance to so many people that we should be allowed to develop our arguments without being subjected to interruption by interjection. On other occasions, I shall be happy to reply to any interjections by Senator Sheehan, but on this occasion 1 think he should not interject.
The Attorney-General, knowing full well that there were six separate sets of divorce laws in this country, set about the task of forging what he considered to be a uniform code of divorce laws. The grounds for divorce that are proposed in the bill constitute the issues in respect of which we have the responsibility of casting an intelligent vote. For my part, I am determined that the passing of this measure shall not place any innocent party in a position less advantageous than that in which he or she is placed now under the laws of the State in which he or she lives. I am equally determined that no vehicle shall be provided for easier divorce or - I say this at the risk of being misunderstood - respectable divorce.
For those reasons, it is my intention to follow closely every utterance made by honorable senators on the question of the grounds for divorce, and particularly those stated in clause 28 (m), which embodies the separation principle. I shall make my decision solely in accordance with the weight of the evidence that is placed before the Senate.
Senator DITTMER (Queensland) [8.321. - Senator Wade said that this bill would be regarded as a white paper on marriage, ft may be regarded as a white paper, but it will be stained with blood from the hearts of sorrowing mothers and wet with the tears of deserted children. Let me paint for the Senate a picture of the bill as 1 see it. Excellent contributions have been made to this debate. The approach by honorable senators to the bill has been a deliberate and considered approach. They have spoken with a realization of the fact that, by and large, the effects of divorce are antisocial, but also with a realization of the fact that provision for divorce is now in existence in the Australian States, and that it has been in existence throughout the world for many centuries. It existed even before Christ.
I think that the outstanding contributions to the debate so far were those made by Senator McKenna, Senator Wright and Senator Hannan. The brilliant address given by Senator Wright last night was particularly interesting from the legal point of view. He dealt in detail with the controversial clause 28 (m), and he compared it with the similar provisions now in operation in Western Australia and New Zealand. I commend him for his speech.
Although the bill was known to contain controversial provisions which might conflict with the views held in conscience by many individuals, it was presented to the Parliament as a non-party measure, and I accepted it as such. However, pressure has been brought to bear recently to secure the passage of the bill. I do not say that the pressure can be called political pressure, but it has come from one section of the Parliament. Some members of the legal fraternity have brought pressure to bear in an effort to assure the passage of the bill, not only through the House of Representatives, but also through the Senate. I think that that action is quite out of accord with the decision to treat the measure as a nonparty measure, and it has become a party measure, in the sense that the opposition parties consist of those in favour of the bill in toto, those in favour of portions of it and those opposed to it completely.
I think the worst feature of this matter was that the Prime Minister (Mr. Menzies) said as recently as last week, when the bill was being discussed in the other place, that he was in favour of the bill and so were all the other members of Cabinet. Was that a measure of intimidation? I leave that question in the minds of honorable senators and in the minds of all those throughout
Australia who are listening to this debate now. The Prime Minister is entitled to cast a vote on the measure, but his decision should not carry more weight than that of any other member of the Parliament. I feel that that is how we should view the matter. It was decided that this should be treated as a non-party measure, so let us treat it in that way. Let each of us vote according to his judgment and his assessment of the social consequences of divorce.
Let us think in terms of the history of the subject. We have had a federation for 58 years. During that time, how many attempts have there been by the Commonwealth Parliament to cut across the authority of the States, acting outside the authority vested in the Commonwealth by section 51 of the Constitution to deal with divorce, matrimonial causes, parental rights and the custody of children in association with the States? Very soon after the Commonwealth Parliament was established, a private member’s bill relating to divorce was introduced, but nothing came of it. No further definite moves were made in that direction until 1945 and 1955, when Commonwealth acts were passed, affecting only domicile, in order to eliminate certain disabilities associated with the war. Then we had the entrance into the Parliament of Mr. Joske, as the member for Balaclava. Probably he stands pre-eminent amongst those practising in the divorce jurisdiction in Australia. He sought to introduce a private member’s bill to establish a uniform code of divorce laws in Australia. He was granted permission to do so, but the bill did not go beyond the second-reading stage.
Then, last year, there was a reference to divorce in the Prime Minister’s policy speech. I do not want any one to misunderstand my purpose in making these remarks. I am merely tracing the history of this matter. I am not trying to gain political capital from it. The Prime Minister said in that policy speech that consideration would be given by the Government to divorce laws. Prior to that, Mr. Beale, then the honorable member for Parramatta, had resigned from the Parliament, and a much heralded man had taken his place. I refer to the present AttorneyGeneral (Sir Garfield Barwick). He made a real sacrifice in giving up a very lucrative practice in the field of constitutional law, in which he stood pre-eminent, to enter the Parliament. He set an example to many men who have done well in Australia and whom Australia has done well by. Before he entered the Parliament, he was heralded as an outstanding man - and he was. A brilliant future in the Parliament was forecast for him, and it was not very long before he was made the AttorneyGeneral of the Commonwealth of Australia.
I should hate to be regarded as a suspicious man, but I cannot help asking: Why the sudden interest in divorce now? The man pre-eminent in the divorce jurisdiction has been discarded. I say with all respect to the extraordinary talents of the present Attorney-General that his practice was not associated with divorce. He was eminent in the field of constitutional law, and was interested in company law also, but he did not practise very much in the divorce jurisdiction. However, the task of presenting this bill was entrusted to him.
There was created, in some measure, a drama in which he could play the leading role. As I have said, I should hate to be regarded as suspicious, but the timing of these events seems to me to bs more than accidental or coincidental. For those reasons, I think that we should approach this measure with a realization, not only of its possible effects on the divorce laws of this country, but also of its possible effect on the political future of the AttorneyGeneral. If there were such a great desire or necessity for uniform divorce legislation, why was not the credit given to the man who pioneered it in the other place? He went to the trouble of determining the details in the bill. He was given credit by the Attorney-General in one of the early paragraphs of his speech. But the AttorneyGeneral immediately proceeded to show the difference between that bill and the measure that is now before us. According to my judgment, in relation to social implications there are many worse features in this bill than in the Joske bill. But if some honorable senators are so interested in having uniform divorce, let us have the Joske bill with some additions that are worth while. We all agree that uniformity is, if not necessary, at least desirable, but it is interesting to note that we have skipped over this matter. The Attorney-General at no stage sought to justify uniformity. We might say that we are the one people, the one country, and have the one language and the one destiny. But has it occurred to honorable senators that the biggest proportion of the population is in the capital cities? Sydney is a sophisticated, Americanized type of city. Melbourne, in some measure, exhibits old English conservatism. Brisbane, Hobart and Perth enjoy a more leisurely way of life. In large parts of Western Australia and Queensland the population is sparse. Does it follow that we necessarily need uniformity? I am just posing that question. I think that the brilliant Attorney-General should have approached this bill with all its implications in a better manner than he did. All the provisions of the various State acts and the Joske bill have been included willynilly in this measure. But times have been altered and purposes have been changed in accordance with the whims or the considered opinions of the Attorney-General.
The press has adopted the attitude on this occasion that this is a bill that affects only a very small minority of the people. But what has the press done? It has devoted hundreds of columns to the bill while other measures which have much greater and more universal application have been dismissed with a few columns. The press has glamourized the principle and has detailed the causes of divorce. I think that the worst effort by the press was produced only this week when the “ Sydney Morning Herald “, which prides itself on its so-called sense of responsibility and reliability, speaking in terms of names, stated that Messrs. Haylen and Ward were trying to make capital out of association with the groupers. What the newspaper meant by that, I do not know, but apparently Sir Wilfrid Kent Hughes and Messrs. Wentworth, Killen and Wheeler on occasions expressed a similar opinion. 1 have yet to learn that they were ever members of the industrial groups. To say the least of the matter, I think that the newspaper should have exhibited a greater sense of responsibility. Very rarely, if ever, has that newspaper analysed the provisions of the bill affecting social implications affecting the rights of women and children. I think that the newspaper has a responsibility to do this instead of encouraging the people of Australia to become headline readers and lookers at photographs presented in a sensational manner in order to increase its circulation.
Much has been made of the approach of the Attorney-General to the matter of assisting marriage guidance councils and conciliation. All credit to him! I commend him for that approach. However, it is interesting to assess the amount of time that he devoted in his speech to those features. Very little time was given to them, but quite a considerable portion of the Attorney-General’s time was devoted to the breakdown of marriage. It may be one of the handicaps of being a lawyer because in most cases, as I have said, lawyers seem to concentrate on destruction and matters associated with demolition. Like the undertakers, in relation to marriages they come in at the death when divorce is imminent. It must be said to the credit of some of them that they attempt to reconstruct marriages. When they play that role, credit is due to them. If the AttorneyGeneral, the Government and these people are so interested in the maintenance of marriage, do you not think they should have dealt with first things first and considered the fundamentals of marriage? I think that all honorable senators will agree with my contention that marriage is an integral part of our society and that its maintenance is all important. Do not honorable senators think that the real approach to this subject should have been made by inquiring as to the fundamental causes of divorce - not those recorded at the court, including adultery, desertion, cruelty, insanity and epilepsy? I repeat, do not honorable senators think that we should have conducted a full inquiry as to the fundamental causes? Frankly, I do not know the principal causes. It may be a matter of adjustment, or economic circumstances, or just that the parties do not suit each other. It may be that man is polygamous, because in the history of divorce the man is very often the guilty party. At least, we do not know what is the base cause of divorce. As I have said, it may be a matter of economics. I heard it said in the other place that economics do not play a part in the matter. When giving judgment in a New South Wales court recently, Mr. Justice Dovey, one of Aus tralia’s most widely experienced jurists in divorce, said -
It’s a sad thing to have to say, but of all young couples whose marriages break up in the first three to five years - sooner in some cases - the fact that they have been living with one or another of their in-laws is responsible in the great majority of cases. lt has been said that the tragedy lies in the fact that, in most cases, neither party is directly to blame. Both the host parents and the newlyweds are forced to cope with economic circumstances, accommodation problems and psychological developments with which neither, generally, is emotionally nor psychiatrically schooled to cope. The result is frustration, pin-pricking incidents, mounting tension that almost inevitably ends in a breakdown of what, under normal conditions of marriage, would have been an affectionate, companionable marriage.
Yet here we are, figuratively speaking, providing for amputation without seeking remedial measures! I should have thought that such a brilliant man as the AttorneyGeneral would have taken first things first.
Some have quarrelled with the bishops of various religions and leading members of the community who have come into the field - the Anglican Bishops, the Catholic Bishops, and leading Methodist and Presbyterian clergy. They are the leaders of 85 per cent, of the population, and they have a moral as well as a civic right to make known their views. It is interesting to note that the Attorney-General did not seek to consult them. If this had been an agricultural problem, doubtless the leaders of the farmers would have been called in to help solve the problem. If it were a pastoral problem, the graziers would have been here. As we saw, when the banking problem was being dealt with, the place was swarming with bankers. Despite the fact that this measure deals with social problems affecting all sections of the community the Attorney-General did not see fit !o consult the interests who had made known their opinions on this very difficult problem.
The other aspect of the matter is that the States have their own divorce laws. I am not decrying the desirability of having a uniform divorce law. As I said previously, divorce is inevitable. There was divorce long before the days of Christ. All we are seeking to do is to eliminate the evil consequences of its expansion, because I am sure that no honorable senator thinks that divorce is desirable. Nevertheless, in some instances it is necessary. That is why
I believe that the Attorney-General had a real responsibility to consult as many people as possible, in order to get the best possible bill. A committee of inquiry could have been established, or a royal commission appointed to inquire into the fundamental causes of divorce. But none of those preliminaries was adopted. In fact, the Attorney-General was almost contemptuous of the opinion of the bishops. I am not saying that we should necessarily have accepted that opinion, because we have a responsibility as parliamentarians to legislate for all sections of the community; but on no occasion was there any consultation with the States. Instead, there has been the instant imposition of all grounds, however acceptable or unacceptable they may be to the States.
One ground that exists in a particular State - Western Australia - and not the counterpart, as the Attorney-General would have us believe, of the famous, or perhaps infamous, clause 28 (m) in this bill - which can place the load on the shoulders of the innocent and put a premium on promiscuity, is to be imposed on five other States. The restitution of conjugal rights provision, applicable in New South Wales with no statutory period as to non-compliance, is to be applied to all States. The nearest provision to that is the South Australian provision, under which there is a threeyear period of non-compliance, and under which separation or relief from cohabitation, not divorce, can be granted. We are now to have the New South Wales provision, with the limitation that the period of non-compliance is to be a year. That is to be loaded on to the backs of all the other States. Does that show a sense of proportion or a realization of our responsibilities to the States?
This is a bill that has been prepared in a willy-nilly fashion. The Attorney-General has been congratulated on its drafting. When he brought forward all the amendments that were made, he said that they were only minor alterations to simplify the language of the bill. If that is so - and we accept his assurance and are grateful if the language has been simplified - surely that does not show much care in the early preparation of the bill. When we come to consider the objectives of the bill, we are told that they are uniformity, and provi sion for conciliation and marriage guidance. But due regard has not been paid to premarital advice. No real regard has been paid to the findings of the Morton commission, in relation to the bases of divorce. Incidentally, the Attorney-General used the report of the commission where it suited him and skimmed over the parts that did not suit him. I suppose that is a legal practice, in that you are entitled to win your case by any means, but when it comes to legislating for the people, I think that something more is expected of such a brilliant mind than just to use that which suits you and to eliminate that which does not.
It is alleged that provision is made in the bill for protection of children. That only means a measure of financial protection, and it may be only temporary, as we know, because it is very difficult, unless the guilty party is wealthy and a lump sum can be provided, to ensure the protection of people. These are the grounds to which I object, because I think they are anti-social. The Attorney-General spent much time on this phenomenon, which is comparatively new - the breakdown of marriage, rather than matrimonial offences. Whether we regard marriage as a secular contract or a sacrament, it is still important to the social well-being of the community, and particularly to the innocent party and to the children dependent on that contract or that sacrament.
The Attorney-General said that he was not dependent on the laws in existence in the States for the soundness of the grounds for divorce in the bill. He said himself that he had not had so very much practice in divorce. He consulted so very few people; he was not prepared to accept the evidence of the States; he was not prepared to have the bishops in conference; and he admitted that he knew very little about marriage guidance and conciliation. He further said - and I cannot follow this line of reasoning, but these are the figures that he used - that if, instead of twelve grounds for divorce, you provided fourteen grounds, you would not increase the number of divorces. It appears to me that if only two people took advantage of those two additional grounds you would increase the number of divorces. If no one took advantage of them, then to my way of thinking they would be superfluous and should not be in the bill.
The grounds in which I am particularly interested are those of insanity and repeated attacks of epilepsy. To my way of thinking, the expression “ repeated attacks of epilepsy “ is extremely indefinite. The requisite number of attacks is not mentioned, nor is the degree of severity of the disease mentioned. Are those matters to be left to the discretion of the judge, as happened in a case in New Zealand which Senator Wright mentioned last night? It may be remembered that that case raised such an outcry when it went to the Supreme Court that the Parliament, during its next session, had to amend the law.
The other ground in which I am particularly interested relates to restitution of conjugal rights. Selby, the Challis lecturer in divorce, has claimed that judges have said repeatedly that in 90 per cent, of cases collusion has been associated with this ground. In other words, a legal end has been attained by illegal means. There has been conspiracy, followed by perjury, and the criminal has benefited from his crime. That is something I cannot understand. I am not a lawyer - I want to make that quite clear - but I cannot understand how it is possible to dispense justice by perpetrating an injustice against an innocent party. Yet, it appears that that can be done on occasions, admittedly at the discretion of the judge. We have seen how judges exercise their discretion in practice. I do not want to decry the standards or the integrity of judges, but they have accepted that position in a material way when discretion has been vested in them.
Then we have indefinite terms such as “ harsh and oppressive to the respondent “ and “ against the public interest.” In this respect, I think the Attorney-General dealt particularly carelessly with the findings of the Morton commission. He said that ten of the nineteen members of the commission were in favour of divorce by separation - admittedly after seven years - and that they accepted the principle of breakdown of marriage. But when we analyse carefully the findings of the commission, it is rather interesting to see just what they are. Five of the members said that they would not be prepared to accept the provision in that way, if it was going to confer a benefit on the guilty. The Attorney-General further said, in relation to this clause, that it had been acceptable to Western Australia. I think most honorable senators know the sinister background of the introduction of this provision. A political figure saw fit to have it introduced to serve his own purpose, which was to divorce a devoted wife and desert sorrowing children. That is the history of that provision. It is no use saying that it has not increased the number of divorces, because in the last year, 133 of 541 divorces in Western Australia were sought on that ground. Yet, the Attorney-General has the temerity to say that it is acceptable in Western Australia, and he intends to impose it on the rest of Australia!
We have a responsibility to legislate for uniform divorce, but I think we should accept the common factors of the divorce laws as a commencement. If, in the process of time, the Parliament of this country sees fit to increase the grounds, then I say they should be increased. I think this is an ill-considered bill and that it will increase the number of divorces. I had hoped that the Attorney-General would devote his undoubted talents and influence to something more worthy of his brilliance. This chamber, as the representative of the States and as a house of review, has a responsibility in this matter, and I hope that it will at least ask the Attorney-General to re-cast the measure in order to make it more consistent with the desire of the Australian people and more in keeping with our social responsibilities.
– I shall not delay the Senate for long because this afternoon Senator McManus expressed the ideas and aims of our party regarding this bill. Our aim is its complete destruction. I should like to say, first of all, that in this morning’s Tasmanian newspapers I was reported as having said that I supported the bill. The report indicated that I had spoken on this measure last night. I am afraid that the representatives of those newspapers confused me with some one else. The fact is that the remarks of Senator Poke were attributed to me. I should like that statement to be wiped from the record at once.
This measure is known as the Matrimonial Causes Bill. Whatever flowery language may be used to describe it, the measure before us is a divorce bill - that and nothing else, lt is a divorce bill aimed at the destruction of family life in Australia.
– Rubbish!
– The second thing 1 Wish to say is that Senator McKellar, who has just interjected, said that the AttorneyGeneral (Sir Garfield Barwick) studied the various acts of the States, extracted the best provisions they contained, and then incorporated them in this bill.
– That is right.
– I tell Senator Wade that what the Attorney-General did was to take the acts of all the States and put them into one bill. 1 repeat that the bill before the Senate is a divorce bill, and that its aim is to destroy the sanctity of marriage. I say that because this is the first time that a bill dealing with divorce has been introduced into the Parliament of the Commonwealth of Australia. I know that the several States have passed legislation dealing with divorce, but this is the first time, after more than 50 years ot federation, that a bill dealing with divorce has been introduced into this legislature. And so I say from my place in the Senate to-night that the sponsors of this bill arc setting out to destroy something that should be sacred in this country. Some honorable senators have risen in their places and said, “ This is a secular matter “. 1 say here and now that it is not a secular matter. lt is something on which this country, and on which any Christian country, depends. Legislation of this kind, if taken to its ultimate conclusion, can destroy a country. In seeking approval to this divorce bill you are setting out to-night, in this Commonwealth Parliament, to begin the destruction of Australia. If we were doing that with some sense of responsibility I could understand it, but what are we doing? We are increasing the grounds for divorce above those of any State, notwithstanding that I believe every member of this Parliament disagrees with the breaking of the marriage contract.
I do not even concede that the civil courts of the land have the right to grant a divorce. No civil court has the right to break a marriage that has been performed before the altars of our churches. If people want secular divorce, I would say to them, “ All right; those people who only want to make a mockery of marriage, or want only a trial marriage, should go to the secular place where they can record their marriage, namely, the registry office “. I would then add, “ We can pass laws in this Parliament providing that those marriages can be broken “. If people regard their marriage as a secular contract, we as a secular body, can make rules and laws for such people. However, I say that where two people have decided that they wish to enter the bonds of matrimony, and they do so with the blessing of their Church, only the Church, before whose representative they made the contract, can pass judgment. Perhaps I should not use the word “ contract “ because marriage is more than a contract; it is a sacrament.
To-night the Senate has an opportunity to make this chamber really worth something in the life of this country. Honorable senators probably saw in a leading article in a certain newspaper recently a condemnation of the Senate. We have deserved that condemnation by being a party House. To-night we in this chamber have a unique opportunity; we can do something worth while, by getting rid of this bill for a start or, if you like, we could, as has already been mentioned, arrange for people to whom marriage means something to meet together before a select committee of this Senate to express their ideas and views about marriage and divorce. That would enable us to start off with a bill concerning marriage. That is what we should be dealing with, not a bill providing for divorce. If the Government were deal.ng with marriage first, it would be starting at the right end of the line. But it is not starting at the right end of the line. It has been reported that Sir Garfield Barwick proposes to introduce a bill relating to marriage. That being so, why deal first with this measure which relates to divorce? That is putting the cart before the horse. The right approach is to bring down first a bill dealing with the marriage contract. But, before that is done, the Government should obtain the opinions of those who understand these matters not from the legal point of view but from the human and Christian point of view. Such people should be given the opportunity to put their views before a Senate select committee. But the important thing is to deal with marriage first. Then, if there is to be any breaking of the marriage contract, that matter can be dealt with later.
Who are advocating the- Christian viewpoint? Certain honorable senators have claimed here to-night that they are advocating the Christian viewpoint. They say they want to see the people happily married. How in the world can we hope to have a happy marriage after divorce? I do not think that is possible. An investigation of second marriages will disclose that there are always suspicions and so on, and I do not think divorce is a basis for a happy second marriage.
If we are to have the Christian viewpoint, the Government should listen to those who lead us in our Christian teaching, whatever our denomination may be. They, not legal practitioners, are the real leaders from whom the Government should seek counsel. Counsel should be sought from those who understand human nature. I do not say that lawyers do not understand human nature. The leaders of our various denominations should be asked for their opinions, and, when those opinions have been offered, they should be adopted because the people who offer them know what they are talking about in that sphere of life. All honorable senators have either heard or read the opinions of the various leaders of the Christian community of Australia.
– And they all differ.
– They do not all differ a< all. I am speaking now of the leaders of all Christian denominations. I remind the Senate that the Australian Anglican archbishops and bishops said yesterday that they could not support the Federal Government’s uniform divorce bill in its present form. Other church leaders have expressed the same opinion. In effect, the Government is muzzling the Churches of Australia by introducing the bill in th s way. Once again, I ask honorable senators to vote for the proposal submitted by Senator McManus that a Senate select committee be set up to discuss this matter with our
Christian leaders because the Matrimonial Causes Bill before us could become the thin end of the wedge in disintegrating our community.
– If a select committee ratified this bill, would you vote for it?
– He would vote with a lot more knowledge than he has at the present time. At least he would have the opinions of a cross section of the community. This bill represents only the opinion of the legal fraternity.
– I thank Senator McManus for his remarks. I come now to one of the most important provisions in the bill. I refer to clause 28 (m). How any person can conscientiously vote for that clause, I cannot understand. We all know what has happened in America. We all know the results of the easy divorce laws in that country. For instance, there they have the Reno divorce laws. By including clause 28 (m) in this bill, we are making a Reno out of Australa.
– You are not comparing this bill with the Reno laws?
– I am comparing this bill with what happens in Reno.
– There is no comparison.
– There is, as the honorable senator shall see as I proceed. It is all a matter of degree. The principle is the same. For instance, take the question of domicile. The Reno law requires the domicile of six weeks; ours requires five years.
– There is a bit of a difference.
– There is a bit or a difference in time, but not in principle.
– Or quality of conduct.
– Or quality of conduct. I am speaking now of this bill as introduced by this Government at this particular time. Who is to say that within twelve months or two years we shall not have another government which will reduce the requirement from five years to two years and perhaps later reduce it to twelve months? Why, in no time at all, with the ideas on divorce that this Government is putting into the heads of the Australian people to-day, the five-year requirement will be reduced to the Reno six weeks!
– We will be here for a long time yet.
– You will be here only if we say so.
– They are legislating for Hollywood standards.
– That is what we are getting to in Australia. By including paragraph (m) of clause 28 in the bill, the Government is making divorce easy. At the present time, divorce is looked upon with repugnance by at least 95 per cent, of the Australian people. But, with the easy divorce laws, especially clause 28 (m)-
– They have not got it yet!
– And I hope they do not get it. The Government’s proposed easy divorce laws are leading the people to believe that, to the Government, divorce does not mean a thing. Under these laws, young people will set out on their marriage contact with the thought that they do not have to go through life married, that the Government thinks it is quite respectable to be divorced. That is what will happen. Eventually, we shall be reduced to Hollywood standards.
– You do not believe that.
– I do believe that. Let us look to the future. In a few short years we shall find that there has been a change in the Australian people’s outlook on divorce. We shall find the same outlook as there is in America where, for instance. Tommy Manville, who has plenty of money, has had ten wives. In other words, he is making a mockery of the marriage vows.
I should like to put the position right on the line. Grounds for divorce in ever State of Australia will be extended by this bill. In Victoria, New South Wales and Tasmania, they will be increased by five; in Queensland by nine; in Western Australia by two; and in South Australia by one. The Catholic Church, to which I belong, does not believe in divorce, and neither does the Church of England.
– That is not so.
– I say that the Church of England, as a Church, does not believe in divorce.
– It believes in uniformity.
– It does not believe in divorce, so it does not believe in uniformity of divorce laws. I do not know whether or not the denomination to which the honorable senator belongs believes in divorce
– This is a secular bill.
– That is what I was afraid the honorable senator would say. This is not a secular bill. It is something which deals with the religious life of this country. Those two great Churches, the Catholic Church and the Church of England, which have as their adherents 70 per cent, of the Australian people, do not believe in divorce. Therefore not one person who belongs to either of those Churches can honestly support the motion for the second reading of this bill, as it does propose additions to the grounds for divorce. It proposes more grounds for divorce in every State of the Commonwealth. So I say that the adherents of those two great Churches - I do not know about the others - cannot in conscience vote for the second reading of this bill.
An amendment has been moved by Senator McManus. As I said before, there is a great need for the appointment of a select committee of this Senate - let us make the Senate worth while - to discuss this bill and to bring in, with the aid of the religious leaders of our community, a bill that will be satisfactory, at least for those people who desire to preserve the bonds of matrimony.
Senator LAUGHT (South Australia) [9.251. - I support the bill. I disagree emphatically with Senator Cole and the approach he has made. I submit to the Senate that this matter requires a secular judgment. A secular judgment is the proper judgment for the Senate to give on the bill. I am conscious of the momentous issues involved, and after due thought and consideration of the speeches that have gone before, including the speech of Senator Cole, I emphatically support the bill.
I think it is as well for somebody to say something about the bill. We have heard a lot of talk that was not about the bill, and I deplore it. What does the bill mean? It is claimed that it will increase the grounds for divorce. Figures were cited showing that the grounds would increase by so many in this State and that State, but no consideration was given to the quality of the grounds. In other words, we cannot judge this matter by the numerical increase in grounds, if there is such an increase.
Let us be calm about this business. For 100 years the colonies and States of this continent have, in widely varying ways, provided for dissolution of marriage and for ancillary matters, such as the maintenance of wives, the maintenance of children, and the custody of children. I understand that over the last ten years in Australia the rate of divorce per 10,000 people has been falling.
– What will happen after this bill becomes law?
– I submit that after the passing of this bill and the settling down of the whole position, the rate of divorce will not increase. There has been a good deal of controversy on the Western Australian ground now incorporated as clause 28 (m). The statistics that I have seen show that immediately after the enactment of that provision in Western Australia the number of divorces increased for a year or so because that ground was availed of, but that thereafter there was a steady decrease. I understand, too, that the rate of divorce has decreased faster in Western Australia than in any other State of the Commonwealth over the past five or six years.
After 59 years, we are to-day grasping the nettle in this Parliament, and I think the Attorney-General (Sir Garfield Barwick) was courageous in presenting the bill. There is a great responsibility on us, in giving our judgment this evening, to act justly and diligently. I submit to the Senate that the national interest is best served and family life is best nurtured when marriage is truly life-long. I divert for a minute to refer to the late Jack Davey, the radio commentator. What more beautiful programme was there on Saturday evenings a few months ago when he had before the microphone a young couple just married and, later, an elderly couple who had been married for 50 or 60 years? I submit that in Australia a life-long marriage is one of our priceless possessions. I do not share the fears of a number of senators who have spoken against this bill. We have to face up to the frailties of human character. We realize that quite often marriages take place in the period of the youth of the parties. Partners often choose each other in haste and when they are to a certain degree immature. Then circumstances occur which cause the marriages to go on the rocks. That is a problem due to the frailty of human nature or due maybe to some economic circumstances, relatives, in-laws and so on.
I submit that honorable senators cannot agree with Senator Cole who said that the civil courts of this country have no right to grant divorce. Divorce has been granted in this country for more than one hundred years and I feel that it is now established law with which the courts should have the right to deal. There are unfortunately circumstances that occur that cause such rights to be claimed by the litigants who come before the courts. Of course, parties who are divorced have the right by law to make a second marriage during the lifetime of their former spouses.
– It is better than living in sin.
– All honorable senators obviously do not accept that view, but we have to face the fact that in this country that view has been accepted for more than one hundred years. It has been accepted as the basis of the law of the States, and if this bill is passed it will now be accepted on a national basis.
I have practised law in South Australia and I strongly support a national divorce law. I practised law in the country just near the Victorian border and it seemed to me to be most incongruous that there was one set of laws governing marital conduct a few miles from the office where I practised and another set governing marital conduct in the surrounding districts, lt would appear to me that the importance of marriage demands that the laws of conduct of married people should be uniform throughout Australia if we are to present a national front on this matter. I think that should be the aim of every honorable senator whether he opposes or supports the bill and because of that I do not think any good can be served by traversing the point relating to the essentialness of uniform divorce.
I think it is well to remind the Senate that this bill is a matrimonial causes bill by name and in reality. It is not a bill which deals solely with divorce although Senator Cole may have claimed that it is. I should like to invite the attention of the Senate to some features of the bill that have not been mentioned in the debate for some considerable number of hours. The first point I make is that the bill approves, and gives financial support to, marriage guidance organizations. It pays particular attention to the appropriate secrecy with which marriage guidance work should be carried out and it protects the evidentiary side of marriage guidance work from embarrassment. I remind the Senate that in the recent Budget the Treasurer (Mr. Harold Holt) foreshadowed legislation to provide that tax deductions be available in respect of donations made to marriage guidance organizations. Therefore the Government is right behind, in a national way, the principle of marriage guidance. I submit that with the increase of marriage guidance organizations, and the proper setting up and functioning of them a very important phase in our national life will be ushered in. Marriage guidance is one of the important features of this bill.
Another of the most attractive features of the bill is that a limitation is to be placed on the commencement of divorce, or dissolution proceedings, during the first three years of marriage. The only exception to that provision is in the case where Che matrimonial offence is of a particularly brutal or heinous nature or where the interests of the children should be preserved. People who have been married for less than three years will not, in normal circumstances, be able to apply to a court for a dissolution of their marriage.
– That is an improvement.
– It is a great improvement to the existing law in every State of the Commonwealth. It is a very sad thing for young people to seek divorce so soon after marriage, and the proposed provision is a step in the right direction.
I point out, too, that the publication of only the bare particulars of divorce proceedings will be permitted throughout Australia if this bill i9 passed. I claim with some pride that that has been the law in South Australia for many years, but now it is to be the law throughout Australia. Only the bare particulars of divorce proceedings will be published and not all the harrowing evidence! Then, Sir, there is written into this bill that a party living apart who may wish to resume married life can take a certain action. If the other party holds out against that action that party does so at his or her peril. So, an effort is being made in this bill to bring parties together again even though they have started on a course of living apart.
What is most important of all, as I see it, is that a court will not make a decree absolute - that is, give the final severance to the marriage - unless it is satisfied that the welfare of the children has been secured. In other words, in addition to the welfare of the respondent the welfare of the children must be provided for before a decree is made absolute. In making that provision the Attorney-General has made a fervent and brilliant attempt to maintain and protect marriage, and he is doing it on a national basis. He is cutting out interstate border hopping that has been going on over the years. We have heard about this Western Australian ground. It has been easy for people living in the eastern States to take advantage of the ground in Western Australia by going over and setting up in that State. My point is that instead of the subterfuges that have been used in the past, in future there will be one law for the whole of Australia.
– Those who went to Western Australia had to establish a domicile there in reality.
– They had to establish a domicile, but if they were engaged in business there that was sufficient.
– Was that a subterfuge that the court would accept?
– I understand that it was reasonably easy to establish a domicile in Western Australia if one wanted to take advantage of the provision that has been in operation there for fifteen years.
We are dealing with a matter that involves approximately 7,000 dissolutions of marriage each year. I believe that the machinery provided by this legislation, if it is passed, will in all probability reduce the number of divorces in Australia. The number will be reduced because of the great activity, as I predict, of marriage guidance organizations and also because of the salutary effect that decisions of the courts will have on those who desire divorce but are not prepared to accept the responsibility for the maintenance of their wives and children after divorce.
While I am dealing with maintenance, I invite the attention of the Senate to a new concept that has not been mentioned very much in this debate so far. I refer to the garnisheeing of wages. I do not profess to know the law in other States, but I know that in South Australia garnisheeing is not permitted. If a woman in South Australia obtains a maintenance order against her husband there is no power to enable her to serve an order on the husband’s employer for him to remit at intervals the amount stated in the maintenance order. A great deal of trouble arises when a husband defaults on a maintenance order and continues in defaut. In those circumstances, the wife has to take out court orders from time to time, because each court order covers only the arrears that have accrued up to that time. If the husband is sent to jail for disobedience of a court order, obviously he cannot earn anything, so he gets further behind with his payments. I predict that the garnishee provisions will be of great help to women in those circumstances. 1 believe that the carefully drafted provisions of this legislation will constitute a new charter for women who have been deserted by their husbands, who have taken divorce proceedings against them and who have the task of maintaining themselves and the children of the marriages.
Senator Benn disappointed me this afternoon. He said that he proposed to vote against the bill, and he gave as one of the reasons for his decision the fact that the costs of an innocent wife were not guaranteed by the bill. I remind Senator Benn, with all humility, that if a woman is involved in a divorce action, whether as petitioner or respondent, she can quickly and safely apply to the court for her costs to be guaranteed. She can do that irrespective of whether she is the originator of the action or the respondent, irrespective of whether she is the guilty party or the innocent party.
– Is that the position in every State?
– The position will be covered by the rules of the courts.
– That is not in the bill.
– It is not in the bill, but that is the practice now and, as I understand, it will be the practice in the future.
– Where is the provision?
– The practice of every divorce court in Australia is to guarantee the costs of a wife.
– Unless she has means of her own.
– Senator Benn referred to a woman without means. He gave as one of the reasons for his decision to vote against the bill the fact that provision for guaranteeing a wife’s costs was not made in the bill. When I heard the honorable senator say that, I made inquiries into the matter, and I can now assure him that provision for guaranteeing the costs of a wife, whether she is a petitioner or a respondent, will be contained in the rules of the courts relating to matrimonial actions brought under this legislation.
– I do not accept your statement.
– That is very kind of you! You must get your knowledge elsewhere. I believe that this bill represents a charter for one-quarter of the women of Australia. I refer to the married women who live in Victoria. For the life of me, I cannot see how anybody could conscientiously vote against the bill. It may be that he could conscientiously vote against certain clauses, but I do not see how anybody with a sense of responsibility could vote against the bill as a whole. Under the law as it stands at present, a married woman living in Victoria can sue for a divorce from her husband on the ground of his adultery, but she has to prove more than one act of adultery or other matrimonial offences. On the other hand, if a husband sues his wife for divorce, he does not have to prove more than one act of adultery. Therefore, there is at present in Victoria a double standard in relation to what can be regarded as the most serious matrimonial offence. This bill will remedy that position, so it has great merit in that respect.
Let us look into the future, assuming that the bill is passed in its entirety. The success of the legislation will depend upon the activities of the marriage guidance organizations, on the operation of the conciliation proceedings for which provision is made, on the contributions that the lawyers will make to the smooth working of the legislation, on the contributions that the masters of the courts will make, and on the superb contributions which I know the judges will make. There will be many questions of interpretation to be decided. My friend, Senator Wright, referred to that matter last night when he was dealing with clause 28 (m). The courts will have to decide whether there is any reasonable likelihood of cohabitation being resumed. A judge may refuse to grant a decree in an action brought on the ground of separation if it would be harsh and oppressive to the respondent to do so. The meaning of the term “ harsh and oppressive “ will have to be decided, as will the term “ contrary to the public interest”. So, Sir, I put the matter this way: lt is most important that there shall be co-ordination in relation to these matters by the various courts of Australia. 1 am encouraged to put the suggestion to the Senate that a report should be submitted to the Parliament every year on the workings of this measure. Section 108 of the Conciliation and Arbitration Act that was in force a few years ago provided -
The Chief Judge and the Chief Conciliation Commissioner shall, once in each year, each furnish to the Attorney-General, for presentation to the Parliament, a report on the working of this Act and, in particular, the extent to which the objects of this Act have been achieved. 1 feel, Sir, that it would be of great importance to this Parliament if each year a report could be submitted - I would like to see this requirement written in to the statute - by the Attorney-General based on information gathered from each State. I suggest that the Deputy Registrar of the High Court of Australia or of the commission could collect statistics relating to grounds used by litigants in matrimonial cases, the ages of the parties, the results of the cases, rulings given by the judges of the Supreme Court, maintenance orders and garnishee orders made, the occupations of the parties, the ages of the children involved and the efforts at conciliation. I think that it would be of enormous importance to this Parliament to have before it once a year the result of the work-out of the act. I would hope that the Attorney-General would hold conferences of their honours, the principal judges, so that some uniformity in procedure and rulings could be arrived at.
I have great faith in the way in which the Attorney-General has handled this matter. Some have sneered at the fact that he introduced between 50 and 60 amendments. I point out that all but four of them were odd words here and there and clarified meanings. I think that the Attorney-General showed great courage in introducing the amendments during the passage of the bill, which was introduced in the other House in May of this year and was passed by that House last week. 1 feel, Sir, that it would be of value to us if the Attorney-General were to lay on the table of the House each year, after receipt of the reports from the various judges, a statement clarifying the various judgments that have been given in the courts including a summary of them, and a summary of judgments on any cases that have gone to appeal. The Attorney-General would doubtless gain great knowledge from the information furnished to him; and I predict that if it were shown that hardship was resulting from the working of the act he would take a very warm Christian interest in the matter. I feel that if this were done, in the next decade, at any rate, we would have in this country a system of marriage and divorce of great national importance and of which this Parliament could be proud.
– I feel that to-night this Parliament is being called upon to discuss one of the most serious problems that has ever confronted it. We have been told that we are entitled to vote upon the measure now before us according to our consciencethat we are to have a free vote - but I should like to say that in all the years that 1 have been a member of this Parliament, with the exception of the time when the banking legislation was before the Senate, I have never before experienced such pressures as some people have attempted to apply to me in regard to my participation in this debate. I have reached a decision on this matter only after giving it very long and careful study.
The subject of this bill is not a new problem. We, as a Parliament, are not being called upon to introduce divorce legislation into the Commonwealth of Australia; unfortunately, it has been a feature of the legislation of the States for over 100 years. What we are being called upon to do is to vote upon a measure called the Matrimonial Causes Bill.
To begin with, I think that a great disservice has been done to the bill itself due to the fact that it has been called, popularly, the “ divorce bill “. As I proceeded with my investigation of the measure I found that I approved several of its provisions. I may say that I have advocated these provisions for many years. However, I believe that the crux of the whole bill lies in its divorce provisions. I feel that we are being asked to take a sugar-coated pill, which will not be very palatable once the sugar has dissolved.
Some years ago - it will be fifteen years to the day on 29th November - I raised in this chamber the subject of uniform divorce laws. That was during the war years, when many Australian girls married servicemen from overseas. Within a very short period of time, no fewer than 600 cases of deserted wives in this category had been placed before me. I experienced the greatest difficulty in trying to get justice for the deserted wives due to variations between the different State laws concerning matrimonial causes. Eventually, the government of the day introduced legislation into the Federal Parliament to provide uniformity in relation to domicile and so on, so that those special wartime cases could be handled on a national basis.
On the occasion to which I have referred I asked a series of questions on the matter. The third question was -
What steps, if any, are contemplated to matte uniform divorce legislation throughout Australia?
I was told in reply that the matter of uniform divorce law throughout the Commonwealth of Australia had been discussed earlier that year at a Premiers’ Conference and that in view of the inability of the State Premiers to agree on the matter, the Commonwealth consented to consider the subject generally with special attention to the case of war brides that was exercising the attention of both the Commonwealth and the State Parliaments. At the time, I was very broadly criticized throughout Australia by many people who thought that my main objective was to make divorce easier. I had to issue a public statement to show that that was not my intention, and that I did not think that if there were divorce laws in Australia any woman should be penalized merely because of geographical situation. That is my attitude to a uniform divorce law. But I should also like to say this: While this bill does give us uniformity I feel that the price that can be paid for uniformity can be too high!
I have listened with great attention to this debate. I have read and studied the speeches that have been made. T have read literature on various aspects of the subject, and I have dealt with numerous cases over the last sixteen and a half years, mainly concerning women who have been penalized in one way or another because of some breach of the marriage contract into which they entered, so blithely in many cases, perhaps a few short years before. As honorable senators know, there are aspects of this bill for which I have fought unceasingly over the years. On many occasions I have seen a look of tired resignation on faces in this chamber when I have raised the matter of deserted wives. There are in the Commonwealth between 10,000 and 13,000 deserted wives who have been left without maintenance for themselves and their children. They are in a hapless position. They are not wives, according to the State, and they are not widows in the true sense of the term. They may have happy memories. The law gives them a pittance on which to live.
As the responsible Minister told me in this place only a few short weeks ago, the Government has no power to recover from defaulting husbands the maintenance that is necessary to provide for their wives and children a decent standard of living, and for that reason the Government has made available a deserted wife’s pension. 1 am pleased to see in the bill the clause that relates to the garnisheeing of wages, because that is something for which I have fought for many years in this Parliament. I do not think that a woman should be penalized through her husband defaulting on the payment of maintenance, nor do I think that a deserted wife should be left solely to the vagaries of a defaulting husband so far as maintenance is concerned. The Government should pay her the maintenance, and if the Government cannot recover the amount from the husband, then 1 say that the Government can better afford to lose it than can the deserted wife.
I was interested to hear the remarks ot Senator Laught with regard to legal aid available for wives who seek some redress of their marital wrongs. I have sought in vain for assistance in this regard for many women who have come to me with their problems. I have been told that legal aid for indigent persons, and provision of that kind, does not apply to matrimonial cases; at least, it does not apply in my State. The woman concerned is very often forced to let the divorce go by default. That will be particularly so under this iniquitous clause 28 (m), because a woman will not be able to afford the money for legal advice.
– Does the honorable senator say, from her experience in Western Australia, that such a provision is iniquitous?
– Yes, it is iniquitous. I have heard the great law leaders of Australia talk on this matter. I do not know anything about the law; I am speaking about this clause from the point of view of the women of Australia, particularly those of Western Australia. The reason that I do so is that during the years since this law was foisted on the public of Western Australia, in such a way that very few people even knew that it existed, day after day and week after week women have been coming to my office with their tales of heartbreak, injustice and misery. In nine cases out of ten it is the woman who suffers from this provision. The man can put on his hat and go out. He is much more mobile than is his wife. If a wife is worthy of the name of woman, she will not just put on her hat and leave her children. If she is that type of woman, we need not bother about her. She can look after herself. But in nine cases out of ten it is the women, in Western Australia, who suffer under this provision.
Where have all the big-wigs, who have spoken of the way in which this law reacts on the Western Australian community, obtained their information? Perhaps they got it from fellow lawyers who are making a good thing out of it, instead of getting it from the people who are most affected by it. I could give you example after example, Mr. Acting Deputy President, of women who have borne children, who have helped their husbands in their businesses or other enterprises and have grown old in the doing of it, and who have found, when success has been attained, that they have been dumped for some bright young thing. Such a woman may see the bright young thing passing by in her Jaguar, while she is waiting for a bus to town to collect her deserted wife’s pension.
I am not a feminist, nor am I anti-men. I know that there are a few isolated cases in which the woman has been the guilty party in such matters, but it makes me sick to hear lawyers say that they do not know who is the innocent or the guilty party in divorce. That is a lot of poppycock. I do not know much about the law at all. I am speaking from the common-sense angle, and I am referring to those people in the community who are willing and anxious to live up to their responsibilities. Somebody said to me: “ But you cannot talk about this matter. You have never been afflicted with a husband.” I can think of a few worse afflictions. I feel competent to deal with this subject, because so many people have come to me w:t!i their problems, as I am certain they go to other women senators. During a time when so many marriages were going on the rocks because of war-time conditions, I was the only woman in this chamber. I have had experience of this Western Australian act, right from its inception. I have seen its effect on homes in my own State. I should be a traitor, not only to my deep religious convictions in this matter, but also to the people who have sent me to this Parliament, if I were to remain silent and vote for this bill as it is.
There are other clauses in this bill, Mr. Acting Deputy President, with which I heartily disagree. One such clause is that which relates to insanity as a ground for divorce. In these days of modern medicine, modern drugs and scientific advances, we do not know whether insanity will be permanent or not. We know that nowadays people are being discharged cured from mental hospitals. Although I have not myself been through the wedding ceremony, I have attended many such ceremonies, and I know that the words of the ceremony are to the effect that the man and the woman concerned take each other for better, for worse, in sickness and in health. They do not say, “ except mental health “ or “ except epilepsy “. Over the years, we have been trying to remove the stigma that is attached to mental illness, but this bill will help to perpetuate it. While our mental hospitals may be overflowing at the present time, perhaps there are almost as many people outside who should be inside. On the other hand, no doubt there are some inside who should be outside. I do not think we should run the risk of perpetuating such an injustice in national legislation.
Then we come to the good old clause from New South Wales. This is a bill which, it is said, is not going to make divorce easier. It seems to me that the bill is rather like the curries or stews that I make on Thursday nights when I get rid of everything in the refrigerator. I put everything in and make a curry or a stew out of it. It seems that everything in the way of divorce law has been put into this bill. The Government has taken the various provisions and put them all in together, so that nobody will be hurt or offended by his favorite provision being left out. And so we come to this New South Wales provision relating to restitution of conjugal rights. The original provision was a bit tough anyhow, so it has been watered down a little. The New South Wales term of 21 days has been lengthened to a year. However, that is the only ground for divorce that the Attorney-General has seen fit to water down even a little. Perhaps it was thought that although people might swallow the Western Australian provision in relation to separation as a ground for divorce, because so much that is good has come out of the West, it might be a bit difficult to get them to swallow the New South Wales restitution provision, which has become a byword throughout Australia. I was surprised this afternoon when I heard Senator Vincent discussing the Western Australian provision. He said that this provision makes divorce cleaner. It makes divorce cleaner by pushing all the dirt just out of sight! I submit that the Western Australian ground makes it far more hypocritical, far more illegal, something entirely foreign to any legal contract. I leave the spiritual side of the matter for the moment.
In any civil contract, the contracting parties agree to a certain line of conduct. If one of them defaults, the other may take action to have the contract fulfilled. This bill is a negation of the ordinary law. It penalizes the innocent party. Of course, some lawyers say there are no innocent parties in divorce. That is a new one to me, but I am not a lawyer; I am merely an ordinary citizen of the community, and 1 am looking at the question from that point of view.
This provision is a unique feature. In it we have a law which may be invoked when no matrimonial fault exists. Formerly, there had to be some defection on the part of one of the parties so serious as to undermine the marriage. This proposal cuts security and trust from the marriage contract. I emphasize that if the Government is seeking to perpetuate such a principle in its first attempt at a Commonwealthwide matrimonial causes act, I will not be a party to it.
As I said at the outset, we in this Parliament are not being called upon to introduce the first law ever to be enacted in Australia in connexion with divorce. We must be realists and appreciate that State legislation relating to divorce has existed for over 100 years. If the Commonwealth is to come in to the field of matrimonial causes legislation now, it should do so on the highest possible plane.
Fifteen years ago, I raised my voice on this matter in the Senate. I said then that if there were to be a uniform divorce law for Australia we should take the highest, not the lowest common factor. This bill is taking the lowest common factor; it seeks to make divorce much easier. Those w”ho say it is not going to be much easier to study the figures to realize they are wrong. It is obvious that if we provide more excuses for divorce more people will avail themselves of them. In last Sunday’s press, the lawyers of New South Wales were suggesting that there will be a big rush tor divorces after Christmas. Just imagine that - a big rush for divorces! The lawyers are waiting, willing and anxious to help the seekers after divorce. That happened in Western Australia in 1947 just after the new legislation became law there. The position gradually levelled out, but even to-day one divorce in four in Western Australia is based upon the ground about which I complain, a ground which I submit, Mr. Deputy President, is not a true ground for divorce at all. In nine cases out of ten, it is only a cover-up for something much more sinister; it is a method of preventing people from washing their dirty linen in public. That may be good or bad; certainly it gives every advantage to those who take their marriage vows lightly, and who do not realize that marriage is something more than a civil contract. Of course, this Parliament can concern itself only with civil requirements. As members of Parliament, we are not competent to deal with the deeply religious and spiritual side of the matter. Only the leaders of our Churches can deal with that side, but, at the same time, we have a very grave responsibility to not only the present community but also to thousands of Australians as yet unborn to see that we do not perpetuate in our statutes the mistakes, sins and stains which have become part of the pattern of the divorce legislation operating in Western Australia over the last fifteen years.
I shall wait with interest to hear the remainder of the debate on this bill. Senator McManus has proposed that a Senate select committee be set up to deal with this problem. I see nothing wrong with that because already we have a Senate select committee going from State to State investigating why people are killed on our roads. We know they are being killed because of defective motor cars, alcoholism and many other human factors. Surely to goodness, when the lives and happiness of human beings are at stake; surely, when the whole of our Christian way of life is being affected, surely when the way in which we tackle this immense human prob lem can make all the difference to Australia’s survival as a Christian nation, the slight delay involved in setting up a Senate committee to conduct a detailed examination of what this divorce legislation really entails should not be too great a price to pay! Surely it is not too great a price for giving the Australian people the very best we can in order to keep sacred all that we have in our home life, for once the sanctity of home life is broken the rest of our national wellbeing goes by the board.
Senator McKELLAR (New South Wales) [10.161. - I rise to speak on this bill not as one possessing any legal knowledge but as an ordinary citizen filled with a deep sense of responsibility for the legislation before us to-night. Four or five of our legal colleagues have taken part in the debate already and I do not propose to discuss the measure in the detail with which they have done so.
I should like to say first that, in common with most honorable senators, I have a great regard for marriage. I think marriage is the most important institution in our way of life. If we are happily married, we have something very fine indeed, something which has kept the British nation in the position it has occupied for so long and which I trust it will continue to occupy for very many years to come.
It has always caused me very deep personal regret to learn that the marriage of any people with whom I am acquainted has gone on the rocks. In such cases something very fine must have gone out of their lives with no prospect of returning. Married life is of the utmost importance to our society. One of the greatest gifts man can have on earth is the love and companionship of a wife and, later, if he and his wife are blessed with children, the completion of the cycle of life. If two happily married people are blessed with a family they are certainly laying a foundation of a powerful nation of extremely good citizens. Further, as I have suggested in the chamber before, the cause of much of the juvenile delinquency to-day is an unhappy home life. I am confident that, given a happy home life, juvenile delinquency will be reduced to the absolute minimum.
As we have discussed the divorce laws and marriage laws of New Zealand and get a divorce under this bill have only to other countries, it might be of interest to honorable senators to know that, during the recent visit to Australia of delegates to the Commonwealth Parliamentary Association, one Canadian senator told me that in his country the only ground for divorce is adultery. I understand, furthermore, that divorces in Canada are granted by the Senate. The set-up is very different from that which we have here. One of the senators, a legal man, told me that in his opinion over 90 per cent, of the divorces in Canada were obtained by collusion.
In spite of all that has been said about the bill, I believe that it does set out very definitely to preserve marriage. 1 know that the contrary has been suggested, but that is not in accordance with my view. It is proposed that both financial and moral encouragement be given to marriage counsellors to continue their valuable work in the hope that more marriages will be prevented from going on the rocks. It has been said by some that clause 28 (m) will be kept in mind by couples who are about to marry. That statement was given prominence in one of our newspapers but I cannot think that it was made after any consideration at all. I ask any honorable senator here to try to remember any young couple entering into marriage with the idea that if they did not make a go of it they could separate. I think it is too ridiculous for words to suggest that a young couple would enter marriage with that end in view. The argument is not in the least tenable. It may happen that two people who are on in years and contemplate marriage may approach it with that idea in mind. But a couple who approach matrimony in that frame of mind, whether they are young or middle aged, will from the start have very little chance of making a success of the marriage. After all, what is the purpose of marriage? It is for two people to live together permanently, not to live together for just a few months and then separate. The suggestion is too ridiculous for words, and it does not do justice to those who make it.
It has been said also that this bill will make divorce easier. That is not my view, although I do not know that my view is the correct view. Certainly, there will be new grounds for divorce but we must remember that divorce is not new to Australia. It has been availed of for some years, whether or not we like it. I think we all regret the need for divorce. We should all be much happier to see the causes of divorce eliminated, but we must be realistic. Human beings being what they are, and the need for divorce existing, surely the only thing we can do is to ensure that our divorce laws are framed in such a way as to give justice to the great majority of people, even if we cannot frame them in such a way as to give justice to all. In relation to clause 28 (m), much is being made of the fact that the guilty party may obtain a divorce. It is true that the so-called guilty party may petition for divorce.
– No. It is true that the guilty party can obtain a divorce.
– It is true that the so-called guilty party can petition for a divorce. 1 remind the honorable senator who is interjecting that clause 36 provides that the behaviour of the so-called guilty petitioner, guilty petitioner, or whatever one likes to call him or her, will be taken into consideration before a divorce is granted. The court has discretion. Another factor is that before the divorce is granted or refused, the welfare of the other partner to the marriage, and the children, if any, will be taken into consideration. So we shall have that safeguard. People may say that it is wrong A man may desert his wife, live with a de facto wife, and at the end of five years petition for a divorce. The court will then have to decide whether a divorce will be granted. It may seem wrong to many of us that such a man could get a divorce in such circumstances. We are told that if a divorce were granted the lives of his wife and family would be broken. Would they not already be broken, he having deserted them? Another factor is that if he ls living with some one else there may ‘ be issue of that cohabitation. Is it better, perhaps, to avoid adding a little more sorrow to the wife and possibly three families concerned? That is a matter at which we must also look.
Much has been said about uniformity. It seems to me to be most desirable that we should have uniformity in our divorce laws. Objections have been taken to some of the clauses. Some people say: “This provision applies in Victoria and that one in New South Wales. We prefer ours and do not like yours.” The only thing to do is to give the bill a trial. It must be remembered that if the bill is not amended before we pass it - I do not expect that it will be - after it has been given a trial and it is thought that it is not operating in the best interests of the community it may be amended or revised. There is nothing to say that we are putting this on to the people for the next twenty years or so. That is another factor that we must keep in mind.
It has been said that there is a lot of merit in the suggestion that a Senate select committee examine the bill. I remind the people who take that view that we were first told of this bill in May of this year. It must be said in fairness to Sir Garfield Barwick that he has addressed gatherings of people of all types, including Church representatives, at least in various parts of New South Wales. I do not know whether he has done so to any extent in other States.
– Not in other States.
– It cannot be said that the people of New South Wales, at least, have not had an opportunity to look at the provisions of the bill. Those people who have mentioned the bill to me have been almost 100 per cent, in favour of it. Some of our prominent churchmen have been quite vocal on this subject, as they have a right to be - I do not suggest otherwise. They have been quite vocal in their opposition to it. Many of the same churchmen are in favour of it.
I do think that we should congratulate Sir Garfield Barwick on the excellent job he has performed in bringing down this bill, in getting it through another place, in answering criticisms, and generally in bringing it to fruition. I think the bill will do a great deal for the future life and happiness of the people of Australia. There has been no haste with the bill.
I do think that our Legislature also should be congratulated for the way it has approached the measure. We have had very little party politics in the debate at all, although I did feel that party politics were creeping in a little at one stage to-night. I regret that that happened; it is most unfortunate. However, I think that, in the main, the members in another place and honorable senators in this chamber have approached this bill with one idea in mind. They have desired to examine it according to their consciences and vote accordingly. That is where I stand to-night. I have no hesitation in making up my mind on that score, and I shall support the bill in its entirety.
– I consider that Mr. Joske, an honorable member in another place, should be complimented on his forthrightness, and the service he has rendered to the nation by bringing forward a private member’s bill in the early part of this year. That brings me to the amendment moved by Senator McManus which, if carried, would have the effect of referring the bill to a select committee. His amendment is in effect a means for forestalling the passage of the bill. Let us consider who was responsible for bringing this measure forward and in doing so bringing Australia nearer to the nationhood which it should have. The gentleman who was the instigator of this measure is one of the outstanding lawyers in Australia on divorce. He has virtually made a life study of the subject. His textbook “ Joske on Divorce “ is used very extensively in the universities of Australia by students studying that branch of the law.
Some honorable senators deem it necessary to have an investigation made into the subject matter of this bill. But the fact is that the originator of the bill has probably made a greater investigation into it than has any other man in Australia. I suppose too that the Attorney-General (Sir Garfield Barwick), another most eminent lawyer in many spheres has also not been dormant in the field of divorce. Those two gentlemen have had the opportunity fo make investigations and there is no need to stall the passage of this bill by carrying the amendment.
I should also like to remind honorable , senators that the bill has been before the Parliament since early this year and they have had time to make their own investigations in any way in which they wished. I do not doubt, after hearing the speeches that have been made, that honorable senators have made many investigations. We have learned from the speeches that the results of the investigations by honorable senators and honorable members in another place have been varied. I have spent many hours since I arrived here yesterday - the early and late hours of this morning - reading every word that has been spoken in this and another place by the legal fraternity, I listened to the speech of Senator Hannan, and I took the trouble to read the report of it to make sure that I had heard correctly. After making that close study I had the opportunity to sit back and listen to the speeches of honorable senators, and I eventually heard the speech of Senator Laught. I have now heard all of the legal men in this chamber and have arrived at a balanced conclusion after studying the points for and against the bill that these legal men have raised. I have come to the conclusion that the legal men in favour of the bill have won the legal argument.
I know that legal arguments can be put up because I have heard them put up time and time again. I have had contrary advice given to me by two lawyers on exactly the same subject. That illustrates how legal arguments can be put up. Some lawyers put up a legal argument merely for the purpose of opposing another prominent legal gentleman. It is a lawyer’s nature, in some cases, to oppose an argument if he sees the slightest loophole that will allow him to do so. He particularly likes to oppose another prominent legal man of equal status. It is the love of the game which they cannot resist, and I do not think they ever will be able to resist. In this debate I think that some of the arguments put up by lawyers against the bill have been put up purely from an argumentative point of view and not because of any sincerity.
I now come to other points that have been emphasized during the debate, namely, the Church’s view and the religious view. Those two points have been emphasized very much by many speakers. I give honorable senators the credit that in putting forward the Church’s view and the religious view they have professed to put forward the Christian view. I wish to deal with the Christian point of view because I am more concerned about that than I am about any other point of view. After all. this nation has been built on happy family life. Without that, it could be destroyed. We are very fortunate indeed that the huge majority of marriages have ended in happy family life. However, there will always be marriages that will end in disaster. They will not be happy and will always end in divorce. We have six sovereign States with six different divorce laws in one country - a country which is fast achieving nationhood. I am surprised that there is any opposition to uniformity on a Commonwealth basis. By bringing about uniformity we would let the world see that we are one nation and not six separate nations as is evidenced by our divorce laws, our transport laws, and many other laws which I could enumerate if I had the time.
I think we all owe a great debt to Mr. Joske for bringing the divorce measure forward in the first place. If the measure under consideration is passed, we will have a uniform law and a person who steps over the border from one State will not find himself a foreigner in another State. Some of our laws vary so much from State to State that when you move from one State to another you feel like a foreigner going into another country. That should not be the case in a country like Australia.
Let me now come back to the Christian view which I give some honorable senators credit for expressing. I think that the really Christian viewpoint in this matter is different from the viewpoint adopted by Senator McManus, Senator Cole and Senator Tangney. Much has been said about clause 28 (m). Let me briefly express my view of that provision. Suppose that a marriage has been in existence for some time and that then, for some reason or other, one of the parties to the marriage makes life for the other party so bad that it could be described only as a hell upon earth, and thus forces him to leave the home. Let us suppose also that the partner to the marriage who remains in the home is, because of the selfishness that is bred in some individuals, determined that the other shall never have a divorce, although he has been forced to leave the home through no fault of his own. Under the present law, the person who has left the other has no hope of ever becoming free and of being able to make a fresh start in life. The great majority of men and women do not like to live alone, lt is natural that they should wish to live with somebody of the other sex. Should the person to whom I have referred, if he meets somebody else to whom he becomes very much attached, live in sin - in adultery - and have children born out of wedlock, merely because a spiteful person will not agree to a divorce, or because the laws of the country do not allow him to secure a divorce? At present, we say to him, “ You must live in adultery and your children must be born out of wedlock “. Would it be a Christian act to hold that person to his first marriage, although he is living apart from his wife and there is no hope of them ever coming together again? Or would it be a more Christian act to allow him to be freed from his first marriage, so that any children of another union that he formed could be brought into the world in wedlock, as they should be? I believe that the second course would be the more Christian course, and I am sure that many Churches would agree that that was so. Therefore, I do not believe that clause 28 (m) is as dangerous as some of our friends have said.
I do not wish to misquote Senator Cole, but I have a note that he said that this bill would make for the destruction of family life and would destroy the sanctity of marriage, or would destroy something that was sacred in marriage.
– That is correct.
– If that is what the honorable senator believes, why has he been silent on the matter of divorce during the years that he has been in the Senate? Why has he never raised a protest against the present divorce laws, which, from his point of view, are worse than those proposed in the bill? What about the divorce laws in Tasmania, Western Australia and other States?
– I am a member of the Senate of the Federal Parliament.
– The honorable senator is a member of the Federal Parliament, but he could have taken the initiative, as Mr. Joske did, and brought in a private member’s bill to deal with divorce. He claims that divorce laws are destructive of family life. He has had an opportunity while he has been a member of the Senate to do something about the matter.
– Why should I bring in a bill providing for divorce laws?
– If the honorable senator was so concerned about the matter, and if he had had the necessary initiative and courage, he could have brought in a bill to wipe out all divorce laws in this country. If a man deserts his wife, the wife may be left destitute and may have to depend upon social service payments for the maintenance of herself and her children, or on charity. A person wronged in that way should have a chance to obtain a divorce. Then, if she met somebody who was better than the man who had walked out on her, she could marry him and find happiness with him. Some honorable senators would debar her from that opportunity. Everybody in public life comes across cases of people making very happy second marriages.
– You will agree that there are many very unhappy second marriages, will you not?
– I do not know whether the honorable senator is speaking from experience of that matter. I cannot do so, because I have enjoyed 39 years of very happy married life, and I hope to enjoy another 39 years.
One of the criticisms made of the bill has been that no provision is made for the children.
– Who said that?
– You did not say it, but you implied it.
– You did not listen to me.
– Yes, I did. I did not leave the chamber while you were speaking. You said also that there was nothing in the bill to prevent the destruction of marriages or to hold marriages together. I refer the honorable senator to clauses 14, 15 and 70. Any reference to those clauses has been conveniently omitted from the speeches made by those who are opposed to the legislation. In those clauses there are provisions for attempts at reconciliation which are not contained in any of the present State laws. To say, as I think Senator Dittmer said, that the provisions of clauses 14 and 15 would be temporary only, would be to cast a slur on the members of the judiciary acting in these cases. Clause 70 provides that where there are children of a marriage, a decree nisi shall not be made absolute unless the court is satisfied that proper arrangements have been made for the care and education of the children. To say that that would be only a temporary position would be, to use the mildest term, a slur upon the judges hearing these cases. I think that I have knocked out one argument advanced against the bill. The provisions to which I have referred are not contained in the present divorce laws. They would not be necessary if Senator Cole had his way, because he would have no provision at all for divorce. This bill does not incorporate all the bad features of the States’ divorce laws and exclude the good in those laws. In my view, this measure incorporates the good features of the divorce laws of the States, excludes the bad features of those laws, and also includes further good features to protect innocent parties about whom the opponents of the measure seem to be so concerned.
If one were to go round Parliament House and ask the ladies in this building what they are most concerned about in a divorce law he would be told that they regard the protection of children to be the most important matter. We do not need to go far to test public opinion on the matter. The women are concerned more about the welfare of the children than provisions concerning men and women who are parties to divorce action. Although this bill has been criticized, its critics have ignored the fact that adequate provision for children is not made under the divorce laws of the States. I have in mind the criticism that was made by one of my own colleagues, Senator Dittmer, who said that this bill will cause blood to run from tired mothers and tears to flow from sorrowing children.
– Who said that?
– That is what Senator Dittmer said; I wrote down his words at the time. If Senator Wright cares to read Senator Dittmer’s speech in “ Hansard “ tomorrow, he will see that I am not misquoting him. After Senator Dittmer made that statement, I listened most intently to his following remarks, but he did not say one word in support of that statement, despite the fact that he spoke at length. I point out that the position is the reverse of what Senator Dittmer said. At the present time, under the State laws, mothers are in distress and probably shedding blood and children are shedding tears of sorrow. The measure now before us will correct that state of affairs entirely. When honorable senators make statements such as the statement by Senator Dittmer to which I have referred, I wonder whether they have actually read the bill.
– Can the honorable senator indicate any provision of the bill under which people will get money?
– I am surprised to hear such an interjection from one of the legal fraternity who has had the audacity to challenge other members of that fraternity. Senator Hannan knows perfectly well that what I have said about the absence in the State laws of provisions for children is true. Under this bill, a judge will not be carrying out his duty unless he sees that the children are properly provided for. Why has the honorable senator asked such a stupid question? I would like to say, Mr. President, that Senator Hannan’s interjection was as much out of tune as were the references he made to Sir Garfield Barwick in his speech. This bill will make divorce much cleaner in the future than it has been in the past and it will make conditions much healthier for innocent parties. The measure will provide uniformity in relation to the divorce law for the first time in the country - a principle that should be applied to transport and to many other aspects of our national life. It brings together, in effect, the individual sections of the people as a nation, as distinct from a collection of States or, perhaps, colonies. Finally, I should like to say a word or two about the remark that was made by an honorable member who supported Senator McManus’s argument. He said that there is no provision in this bill for a woman who probably has not the money to defend a divorce petition.
– Who said that?
– It was said by an honorable senator who opposes the bill as does Senator McManus.
– Did you tell your colleagues that you were going to attack them?
– It is evident to me that there are others as stupid as Senator
Hannan. Nobody should know better than Senator Hannan does that the male party to a divorce action has to lodge an amount of money to cover the probable costs of the female party to the action before the matter can proceed. That is the case whether or not it is alleged that the woman is the guilty party. Furthermore, if a wife petitions for a divorce, the respondent husband has to defray her legal expenses if the court so rules.
– Where is that provision in the bill?
– There is no need for it to be in the bill. That is the practice that has obtained in the courts where this bill will be administered, and it will not be changed. Under this bill, the existing practice will be continued.
– There is no proof of that.
– Bush lawyer tactics will not prevail when we get down to tintacks. If the honorable senator had taken the trouble, as I have done, to read all that the lawyers have said for and against this measure, he would not make such stupid interjections. I conclude on this note: This bill will introduce uniformity and justice into the divorce law of this country. In addition, it makes provision for justice to be given to children, for whom such provision is not made under the State laws.
– I understand that I shall probably be the last speaker in this long and interesting debate. The first thing 1 want to say is that, by and large, I agree with the principle of uniformity - unlike many who have spoken before me in the debate - in relation to far more matters than merely the law on divorce or, to quote the short title of this measure, the Matrimonial Causes Bill. It is a strange thing that many members of this Parliament who favour uniformity in relation to divorce are averse to the introduction of uniformity in relation to many other Australian laws. Unwaveringly, over many years, I have expressed the opinion that we shall never become a great nation until we have uniform laws in relation to far more things than the intimate field of divorce. I have gone down in glorious defeat every time there has been a referendum on whether additional power should be given to the Commonwealth - irrespective of the government that was in office.
I feel particularly ill-equipped to discuss this very important question. During the ten years that I have been a member of this Parliament I have usually been able to speak on a subject before the chamber in the light of my personal experiences in life or in the knowledge I have gained by studying the work of former illustrious members of this Parliament and of other parliaments in the British Commonwealth of nations. I do not doubt that all legislation is important, but I think that a parliamentarian takes his feet off the ground when he thinks that a matter that is important to him is important to everybody else, or that things that are not important to him are also unimportant to others. Later this evening we shall have before us a bill dealing with the fruit canning industry. I know that many people will pass it lightly by on the ground that it is of little importance, but I regard such legislation as of colossal importance, particularly to those who are making their living from the fruit canning industry and who are building their hopes and aspirations on it.
Debate interrupted.
page 1843
The PRESIDENT (Senator the Hon. Sir Alister McMullin). - Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Senate do now adjourn.
Question resolved in the negative.
page 1843
Debate resumed.
– Never before have we been asked to approach legislation with so little experience of the subject with which it deals. In fact, we have never had before us a bill of this kind, because it has taken 59 years for this legislation to arrive in the Federal Parliament. Never before have we been asked to deal with a bill which brings in third parties, as the third parties to marriage - the children - are brought into consideration in the bill before us.
Many people have approached this matter as though divorce law were the same as simple contract law, but as I understand contract law, one of the features of it is that you cannot bind third parties. The bill that we are discussing proposes to bind third parties. As a matter of fact, the bill seeks to elevate the third parties to the status of principals in the contract. As I shall be saying again within the next few days, in relation to legislation that came before another place in the last few hours, I cannot help but deplore the fact that, after 59 long years, legislation of this kind should have come before us almost in the dying hours of the Parliament. The measure has been described as a lawyer’s bill. I should describe it as a committee bill. Surely there would be nothing wrong with the Senate spending two weeks or even three weeks in trying to hammer out, for the first time in the history of the Commonwealth, legislation which would endure, particularly since it will affect so intimately the lives of many people. At this early stage of my remarks, I complain about the Government trying to force the bill through the Parliament in the dying days of the session.
It has been said that there is to be an open vote on this measure. Both major political parties have declared that that should be so, but I could not help but notice that the honorable member for Mitchell (Mr. Wheeler) asked, very early in the debate in another place, whether there was to be a true open vote or a pressurized vote. I suggest, Mr. President, not to the people of Australia who are listening in this evening, but to the hard-headed politicians in this Parliament, that they know perfectly well that pressure has been applied. We know the attitude that the newspapers have adopted in this matter. The only way in which a member of the Parliament may earn kudos from the newspapers in regard to this matter is to support the bill whole-heartedly. If a member of the Parliament does not do that, he is a scoundrel. According to a newspaper that I read the other day, the honorable member for Grayndler (Mr. Daly), is a terrible fellow. Why? Not because he opposed the bill, but because he criticized the Attorney-General (Sir Garfield Barwick). I say that pressure has been applied psychologically, through the press and, I might even suggest, in other ways. I have been long enough in this Parliament to know how that is done.
As Senator McKenna so ably asked in his opening remarks, where does the Cabinet stand in this matter? The bill is the result of a Cabinet decision. There are 21 members of the Parliament who are bound by Cabinet solidarity to vote for the bill, lock, stock and barrel. The only member of the Cabinet who appeared to stand apart was the Minister for the Army (Mr. Cramer), who abstained from voting on clause 27 (m), which is now clause 28 (m). He did not vote against it. That suggests to me that before it was ever stated that there should be an open vote, there was a bloc vote of 21 people in support of the bill.
The Attorney-General, in the early stages of the debate in another place, said that he wanted a free and full discussion of the matter. In that regard, he has an advantage over all of us. As I said at the outset of my remarks, I feel ill-equipped to deal with the intimate lives of the people of Australia. In common, I think, with everybody in this Parliament - even the legal people who have been brought into contact with this matter through appearing for parties to divorce suits - I lack experience. The Attorney-General asked for people to go to see him and to give him their opinions. I suggest, Mr. President, that he has received copious notes from two sets of people in Australia; first, from the legal profession, and secondly, from people representing the Catholic Church and the Church of England. I suggest, further, that he has adopted the views of the lawyers and entirely rejected the view of those who have spoken for the great religions of Australia. In fact, he has almost scorned them.
At page 2858 of “Hansard” of 19th November, 1959, the Attorney-General is reported in the following terms: -
I think I indicated last evening that when you have provided for personal justice to be done, when you have ensured that no harsh and oppressive results can flow, when you have seen that financial justice is done, that the public interest is not prejudiced, and there has been no adultery that is significant, there are not very many grounds left upon which a respondent could say, “ I will stand out “. He cannot say, “ I stand out because I do not want to be the divorced party “, because he can bring his own suit there and then and have priority. He may say, “ I have some religious or sentimental reason for not wanting to be divorced “. In speaking on this matter last night my proposition was that the interests of the community in ensuring that the other party to the marriage did not form an illicit union and was able to form a sound union would overbear those sentimental or religious scruples on the part of the respondent.
I ask any one in this community: What is the basis of marriage if it is not sentiment? ls not sentiment the basis of love? After all, the nations that have got away from what the Attorney-General terms religious scruples are those that earn our scorn to-day. If there is no sentiment there is no love, and surely that is the basis of most marriages. So, I say that the AttorneyGeneral has listened to the legal case that has been put to him and has turned a deaf ear to the religious case.
I charge the Attorney-General with complete intolerance towards all those views that have not coincided with his views. In reading the report of the debates in another place, T noticed that Mr. Wentworth, a member of the party to which the Attorney-General belongs, was chided for his impertinence. I suggest, Mr. President, that when a Minister reaches the stage of chiding a duly elected member of this Parliament for what he considers impertinence, there is something fundamentally wrong with that Minister’s administration.
– Just for putting forward a proposition.
– As Senator Wright says, Mr. Wentworth was chided merely for putting forward a proposition. After all. the Attorney-General asked for opinions on this matter. When Mr. Wentworth made a suggestion that a certain provision should be incorporated in the bill, the Attorney-General said that it was impertinent even to suggest such a thine. Tt will be remembered that the AttorneyGeneral said that he had asked that people should consult him, and that they had done “so. He went on to say that Mr. Galvin and Mr. Daly, who had appeared to criticize his bill, were notable by their absence. Tt appears that unless you go and nay homage at the feet of the Attorney-General, von have no right to come into this Parliament and comment on what he is doing. T am afraid that, like many other great lawyers who have come to this Parliament after having pontificated in the courts of the land, the honorable gentleman has yet to learn the common touch which is necessary before any one can become a great statesman. Obviously the Attorney-General lacks statesmanship, and obviously he lacks the tolerance he has asked others to show.
This legislation, of course, involves questions of morals, and the great churches have, over the years, laid down rules and regulations covering morals. When the Churches, speaking for a big proportion of the population, the Church of England alone representing 42 per cent, of our population, expressed their opinion on this legislation, one would have thought, to listen to the remarks of the AttorneyGeneral, that they were interfering in a matter which was no concern of theirs. I know that a delicate situation always develops when religious bodies have their say in politics, but surely if ever there was a political question dealing with the morals of the people, in which the Churches had a right to express their view, then this was it.
– Did they not have their say?
– Yes, they had their say, and it was completely rejected. It was treated with contempt by Sir Garfield Barwick. I do not deny anybody the right to have a say in a matter of this nature.
As I said earlier, the Attorney-General asked for opinions on this subject. He said he delayed the presentation of the measure so that he could obtain all sorts of opinions on it. I have already mentioned the fact that the Church of England represents 42 per cent, of our population, and, as suggested by Senator Courtice, the Churches had their say, but in a most conservative and quiet way, and I would suggest that the savagery of the newspapers that retaliated by attacking the Churches was in direct contrast to the attitude of the religious bodies. I repeat that the opinions of the Churches were completely ignored by the AttorneyGeneral.
There has been a good deal of talk about uniformity. I said at the outset that I am in favour of uniformity, and I wish my friends of the Liberal and Country Parties would adhere to the principle of uniformity in other fields, because if they did I believe we would be a greater nation. I am not prepared, however, to advocate uniformity at any price. For 58 years no one had dared to introduce uniform divorce legislation in this country until Mr. Joske, a man of ability and stature, introduced his original bill in this Parliament. The question had been side-stepped for 58 years. I would have voted for the Joske divorce bill lock, stock and barrel, because the honorable gentleman summed up the temperament of the Australian people when drafting his legislation. There is no greater lawyer in the divorce jurisdiction in Australia. He had the advantage of being a member of the only committee of inquiry on this subject that has ever been appointed in Australia.
– The only Commonwealth committee.
– Well, the only Commonwealth committee. He approached his subject in a cautious and sound manner. What he did was to take the known principles of divorce that had been tried and tested in the field of British jurisprudence and accepted by the Australian people, and to say, “ Let us start off cautiously by making a jurisdiction and a domicile for the whole of Australia “. I think that al! of us, no matter what our scruples or convictions, would have adopted the Joske approach to the question.
What has happened now? We have heard many speakers citing as one of the main answers to our divorce problems, a particular ground for divorce that exists under the Western Australian law, the genesis of which I hope to deal with if time permits me. Mr. Joske’s attitude was thai his bill, which contained no such provision, should be given a trial for a year or two and then if it was found to be inadequate there was nothing in the wide world to prevent an amendment of the law being introduced. However, what Sir Garfield Barwick did was to scrape the bottom of the barrel in all Australian divorce legislation. He took everything he could possibly lay his hands on. In the field of literature he would have been accused of plagiarism. In the Public Service he would have been called a clerk, because he took everything he could lay his hands on, collated it and presented it to this Parliament, and it is useless to say that he has not made divorce easier. Of course he has made divorce easier.
– Nothing of the sort.
– The honorable senator says “ Nothing of the sort “. 1 was hoping that it would not be necessary for me to cite these figures, but evidently I must do so. I am amazed that even the most rabid supporters of this legislation should suggest that it will not make divorce easier. In New South Wales there will be five new grounds and five extended grounds. In Victoria there will be five new and six extended grounds.
– Take Queensland.
– In Queensland, which is Senator Dittmer’s State, there will be nine new grounds and two extended grounds. In South Australia there will be one new and six extended grounds. In Western Australia, the great leader in divorce matters, the new grounds will be two in number and the extended grounds four. In Tasmania there will be five new grounds and five extended grounds. Let me add, in reply to the interjector, that the only ground that has been restricted in any way is that which refers to restitution of conjugal rights. In that case the period has been extended to one year.
How can any one say that this legislation will not make divorce easier? It is impossible for any fair-minded person to make such a suggestion. This being a non-party bill, I had at least hoped against hope that honorable senators would have dealt fairly with it.
I want to deal briefly with the matter of time as supplied to grounds for divorce Senator Gorton said in his second-reading speech -
In explaining the nature and purpose of the change introduced by this bill, I mention next that, whereas at present in Australia the period of desertion which forms a ground of divorce is almost universially three years - and I want to underline the difference between the desertion ground and the ground of five years separation - the bill fixes two years. This was the period recommended by the Law Council of Australia.
This bears out my earlier suggestion that the Law Council was listened to while every other body was ignored. The honorable senator continued -
The Government’s thought is that, bearing in mind the period of maladjustment which inevitably precedes an actual desertion, and the length of time that court processes would take after the statutory period of desertion has run, the period of two years is just and sufficient.
Throughout the British Commonwealth, Mr. President, the period of desertion has been accepted as three years. I do not know whether it should be three years or 30 years or three months, but I merely suggest that in divorce jurisdictions throughout the British Commonwealth experience has shown that three years is the correct period. But now Sir Garfield Barwick and - 1 was going to say Sir John Gorton, but I would probably be a bit premature-
– Admiral Gorton!
– Whatever the title, Senator Gorton agrees with Sir Garfield Barwick that the period should now be two years. If this Parliament agrees to the change from three years to two, then inevitably the way is open for a future Parliament to say, “ Because of the speeding up of communications, the efficiency of lawyers and of clerical techniques and equipment, we believe the period should now be one year, or even six months “. Immediately you begin arguing about the time, you forget the principle.
Similar remarks apply to the ground of five years’ separation, contained in paragraph (m) of clause 28. The original bill in the Western Australian Parliament contained a provision for ten years’ separation. This was amended to provide for five years, and it is said now that five years is just right. Who are we, with our lack of experience, to sit here and pontificate? Who are we to say that people should be separated for five years before they can step into the divorce court? Inevitably, others will follow the supporters of the bill in this Parliament. Do not make any mistake, in the political game, many people can follow us very quickly! Those who follow might easily say that three years’ or even two years’ separation will be sufficient. I repeat that the minute you start to deal with time you are ignoring principle. Eventually we shall get back to those dismal parts of the Moslem law under which no time is required, and all that is necessary is to say, “ I divorce thee “, and that is the end of the marriage.
I turn now to clause 28 (m) and I do so with bitter experience of the Western Australian provision. If honorable senators want some excellent examples of demagoguery I invite them to read the secondreading speech of Sir Garfield Barwick. Great lawyer that he was, he threw away his legal career to become a politician, not a statesman, in order to engage in demagoguery and avoid every issue put to him in connexion with clause 28 (m). I do not care on which side a man is; all I ask is that he be honest about it. If one argues that clause 28 (m), which provides for the breakdown of marriage, should be accepted, if a man says that men and women who do not want to live together and who want to leave one another should be able to do so immediately, I respect his point of view. All I ask is that he be honest enough to stand up in this Parliament and say yo instead of hiding behind the provisions of what is called a Matrimonial Causes Bill, or whatever the cursed thing is.
It has been suggested that what is contained in clause 28 (m) has been a great success in Western Australia. Nothing could be further from the truth. I always thought that lawyers relied on evidence, but I am appalled at the evidence they bring to their aid in defending this bill. I wonder whether honorable senators realize that this Western Australian law was never introduced by the Western Australian Government? Its genesis is sticky and sordid. And this provision is supported in this Parliament by great lawyers who have appeared before the Privy Council!
– As a national example.
– The Western Australian provision has been held up to us as a national example. The fact is that in Western Australia at the time of the introduction of this measure there was a Labour government led by that great Premier, Frank Wise. I was puzzled, when I started to conduct some research into the history of this Western Australian provision, to find that it was introduced into the Legislative Council of Western Australia, a body elected on a most restricted franchise. What is more, it was introduced by a party in opposition to the government. The person who introduced it is no longer in the Parliament. If honorable senators want to read a most illogical, jumbled speech, I invite them to peruse the “ Hansard “ of the Western Australian Upper House for that year.
Why was that measure introduced into the Upper House of Western Australia by a private member instead of by the Western Australian Government? I leave it to honorable senators to answer that question. It was introduced into the Upper House because the anti-Labour parties had the majority there. This provision was no legislative enactment of a Labour government. And the original proposal introduced into the Upper House was ten years, not five years as every one seems to think. The argument advanced then was that if a couple had parted, if the marriage had broken down - have you heard Sir Garfield Barwick use that expression over the last few weeks? - they should be given relief after ten long, weary years.
The proposal eventually went to the Lower House and there it was amended, the ten years’ period being reduced to five years. It was common knowledge also that the proposal was introduced not for the purpose of improving the law but in order to help a few wealthy, financial people in Western Australia, some of whom were connected with politics.
– Why was it accepted in the Lower House?
– For the same reason that you are accepting it here. It was a so-called non-party bill. The government of the day did not introduce the bill because it would not touch the proposal with a barge pole. I do not include the Minister for the Navy in the slur that he is a lawyer; that is one thing 1 can say for him. But I do say that if the Western Australian provision is all the evidence that the lawyers on the Government side can put forward to support clause 28 (m), they are starting off on a very shaky basis indeed. There is no doubt whatever that some of those who were keenly interested in the Western Australian proposal had a vital personal interest in seeing the period reduced to five years.
– Why did not the Labour Government repeal it?
– The Labour Government was in office at the time. Why did not the Liberal Government repeal it? Why was it ever introduced? If ever there was an argument for unification it was the circumstances under which that Western Australian provision was introduced. Certainly, in the Federal Parliament it is not easy to have the desires of an individual written permanently and almost irrevocably into the law. All I can say is that I expect the lawyers in this Parliament to support their proposals with evidence that can be corroborated, evidence that cannot be refuted or challenged.
It has been suggested that the Western Australian provision has been successful. To support that contention, a graph has been submitted to us. I have studied that graph and am still at a loss to understand what it seeks to prove. The fact is that this law has not been successful in Western Australia. Despite what the statistics might indicate, the fact is that the Western Australian law has brought hardship and degradation to the wives and children of that State in particular.
If the lawyers in this Parliament had come to me and said, “We are going to reverse a principle of law; we are going to say that every man is guilty until he is proved innocent instead of being innocent until he is proved guilty “, I should immediately prop and wonder what it is all about. Yet they reverse a principle of law in connexion with divorce and there is no question about it. Look at it how you will, the fact is that the five-year proposal reverses a principle of law on divorce. As I understand the Joske bill, it enshrined the principle that if one party to a marriage committed a matrimonial offence the other party could sue for divorce. So far as I know, the provision in the current bill makes it the first time in the history of British jurisprudence in divorce that one party to a marriage can desert or commit a matrimonial offence and still seek relief from the court. I submit that, like the principles of life, the principles of legislation are not to be lightly abandoned. This proposal is the only one that I can recall - I do claim not to be a lawyer but merely a common layman - under which a guilty person may have equal rights with an innocent person in the court.
I heard some one behind me say that there are safeguards. Let me deal with those alleged safeguards because I have had some experience of them in Western Australia. Let me say at the outset that in actual practice the alleged safeguards are completely worthless. Senator Brown, who is interjecting, is a practical man. I do not expect him to fall for the blandishments of the lawyers. If the Western Australian law was desirable, if it was all that many honorable senators on the Government side are claiming for it, why was it introduced only in Western Australia and not in any other part of the British Commonwealth of Nations? Why was there not a demand from New South Wales, Victoria, Queensland and the other States for a similar provision? Why was there not a demand for it in the United States of America, New Zealand and other places? Why was it left to the small State of Western Australia, with fewer than 1,000,000 people, to provide this ground? Suddenly that ground is hoisted from the law of that small State and it is proposed that it be imposed on the whole of Australia. Many people have been terrifically confused. They say that this provision will enable divorce by consent. Might I say at this stage that if divorce by consent is desired, it may be obtained on the ground of any of the matrimonial offences. This provision will not provide divorce by consent. In circumstances of desertion by one, the other partner being completely innocent, this provision will enable the deserter to obtain a divorce. Divorce by consent may be obtained for desertion, cruelty, adultery, or on any of the other well-known grounds. Being a politician, I just cannot get away from political considerations. If a Labour government were introducing this bill, honorable senators opposite would have been pointing to the Communist countries and saying, “ You want not only the people’s money, but also the people’s wives “. We would have been belted by the press and the Liberal Party from one end of the country to the other. Because we have been offered a so-called non-party vote, the Government has been getting away with the story that everything is all right. The approach of Sir Garfield Barwick has been that when a marriage has broken down divorce should be possible. He said that laws did not make divorces. I come now to reply to my friend Senator Brown, who said that in the five years’ provision we have a safeguard.
– Sir Garfield and all the Christian people on the other side told us we would have safeguards.
– I shall tell you about the safeguards. Strange as it may seem, I happen to have the floor for a few minutes.
– Senator Wright on the other side did not say that there were safeguards.
– That is right. If for any reason at all a man deserts his wife for a period - to be fixed for the present at five years - he may be given relief. That is one step towards saying that a person should be granted relief when he no longer wants a marriage to continue. Once this step is taken, there is no other course to follow. The period of separation at present proposed is five years. In the original bill it was ten years. Who are we to say that future federal parliaments may not fix a different period? The moment the principle is established that when somebody, for some reason or another, does not want to live with his lawful partner, he may obtain a divorce after a separation of five years. We cannot get away from the prospect that some different period may be fixed in the future.
– Is not ten years the time that has now been fixed?
– I am afraid that, as usual, the Minister who interjects has not studied his bills. The bill as originally introduced prescribed a period of ten years. Now the period proposed is five years. Therefore, in another couple of years, why could it not be reduced to two years?
– Or why could we not make it ten years?
– Make it ten, five or two. It may be made anything once a time has been fixed. Time can never govern principle. If a principle were valid 2,000 years ago, it would bind people and legislation to-day. Why does this bill propose that a man may obtain a divorce after five years’ separation? He may have left for some reason that only he knows. Why can he not say to the court, “ My wife’s face is so repugnant to me that I have a violent desire to bash her every time I see her”? Why can he not say, “I do not want to live with my wife any more, because I have committed adultery with a little blonde down the street”? Why is it proposed that divorce will be possible after a mere separation of five years? Why should a man be permitted to say, “ This woman has not committed any matrimonial offence and these children have not given any trouble, but I have lived apart from them for five years and I do not want to live with them any longer “?
– He could not get a divorce in those circumstances.
– The fact is that men are getting divorces every day in those circumstances. The Senate has been told that there are safeguards. Honorable senators would fall for the three-card trick if they fell for those safeguards. Let us look at the safeguards. First, the conduct of the petitioner must be considered, and the court will not grant a decree if it would be harsh and oppressive or contrary to the public interest to do so. Take the case of a husband who walks out of the home, leaving a wife and three or four children. At the end of five years he says, “ I want a divorce “. Is that not harsh and oppressive conduct towards innocent parties? Then there is the question of public interest. It seems that Sir Garfield is always leaning to the view that it is more in the public interest to look after the paramour and the illegitimate children than it is to look after the lawful wife and the legitimate children. I ask you, Mr. Deputy President: What is the public interest in this regard? There has never been a definition of public interest.
– Yes, there has been.
– No, there has not. I should hate to be up on a murder charge and have Senator Vincent defend me.
– There has been a definition of public interest but it is along the lines that you are expounding.
– The public interest would be to look after the lawful wife and the legitimate children. The illicit union seems to be all that Sir Garfield Barwick has been worried about. Then there is the safeguard about financial arrangements. That is a very high-sound ing provision. That was the basis of the Western Australian law when it was introduced. The people who were interested in it were able to make financial arrangements. I ask you, Mr. Deputy President, to put yourself in the position of any judge who had to consider the case of a man on the basic wage or on a margin of 30s. or £2 - receiving, say, £15 or £16 a week - who had deserted his wife and children to live with another woman. What would the judge do? The man could not afford to keep two women on that pay, as well as any children he might have. In present circumstances of inflation, he may not be able to support one woman.
– The fact that he cannot keep two is a good safeguard.
– It is easily seen that Senator Maher is a wool-grower and could afford to keep both. The next matter relates to adultery. Even that has been removed from the Western Australian law. If a person suing has committed adultery before or after the desertion, the judge may, if he thinks fit, take that into consideration. How could a deserted wife afford to pay a “ private eye “ to obtain proof that her husband had committed adultery? Under this bill the judge does not even have to take the commission of adultery into consideration.
I submit that the moment we introduce time into a question of principle we are on shaky ground. I have examined the matter and I agree with many of the provisions of the bill. I pay Mr. Joske great credit for bringing this matter before the Parliament. The Government has built on his bill. I am sorry that the superstructure is not worthy of the foundation that was laid. What is my attitude? I said at the outset that I felt inadequate because I was inexperienced in these matters. Therefore, I would welcome assistance, because I am completely open to conviction. I have not dealt with the question of insanity or several other questions in the bill. After ten years in politics, and some experience before that, I shudder to see men or legislatures moving away from questions of principle as is being done in relation to this bill. I am not a lawyer and I have not had a chance of listening to divorce cases over the years. If any one can convince me that something is wrong and needing attention, I shall be the first in the world to listen, but undue haste in this matter after 59 years is completely wrong. What do I do when the vote on the motion for the second reading is taken? Originally I intended to vote for the second reading so that we could discuss the bill in committee. That was my original thought, but because 1 see the whip being cracked not only through the newspapers, but also through the subtleties of this Parliament, I feel impelled to vote against the bill. When clause 28 (m) is taken from the legislation of a small State like Western Australia and introduced into this bill the effect is to reverse the principles of divorce, and I cannot under any circumstances vote for the measure. If as a result of the subtleties of this Parliament the bill reaches the thirdreading stage, then my only recourse will be to vote against the measure.
– 1 wish to put my views as one who is not connected with any religious organization. I think 1 have a perfect right to express my point of view even though I am not a member of the Catholic Church, the Church of England or the Primitive Methodists, of which I was a member once. I do not want to bring any religious organizations into this debate, but I do not say that they have no right to express their views. They have a right to be heard. I was listening to Dean Babbage the other night, who, with three or four other parsons of the Church of England, appeared on a television programme. They spoke very strongly and were particularly and completely opposed to divorce and to any one who was divorced being re-married in their Church. The Catholic Church adopts the same attitude. In making those remarks I do not want to introduce any religious argument.
It has been very pleasant during this debate in this chamber and in another place to find that every one has spoken without bitterness. Some honorable senators have given their testimony, notably Senator Hannan. He came to the penitent’s stool and gave his testimony. Others, like Senator Cole and Senator McManus, spoke from the point of view of their Church. I admire any man who speaks on behalf of his
Church. However, this is a secular measure. I agree that the Churches have the right, just as they have in other matters, to make their point of view known, but I would hate to see the day when we were dominated by a theocracy.
I want to pay a tribute to Sir Garfield Barwick. I was in the other place on several occasions, when the bill was under consideration, and although I am opposed to him politically, I must admire him for the cool, calm and judicial way in which he piloted this splendid measure through the House of Representatives. Sir Garfield Barwick, whose stocks had fallen somewhat low politically, has undoubtedly gone up in the admiration of, shall we say, the thinking people of Australia.
The way in which this debate has been conducted is a splendid tribute to our political temperament. Here we are, men of various political persuasions, men who hold differing religious views, men who hold no religious views at all in the ordinary acceptance of the term - that is if you separate religion from morality and morality from religion - yet we have been able to debate this measure in both chambers with very little bitterness at all. 1 think that is remarkable. I suppose a century or two ago some of us might have been shot for expressing our views on this subject. We know the history of humanity in regard to many of these matters. Men murdered or tortured others who disagreed with them. To-day we are on a higher plane morally. In respect of divorce and our marital relations, 1 believe we are on a far higher plane than people were many years ago. The lord of the manor, because of his property rights, had a wife in order to have an heir to his estates, but he also had his concubines. A book which I was reading the other day mentioned that some of our kings had their concubines. To-day morality is on a higher plane.
Possibly there has been no bitterness or acrimony in this debate because no vested interests have been attacked. That makes a big difference. In my 27 years in this chamber, I have noticed that when any vested interests have been attacked bitterness and hatred have manifested themselves. Of course, it is quite understandable. But in the matter of matrimonial
– Some individuals whose marriages have broken down have an economic vested interest.
– Let us look at this matter properly without heat or prejudice, if we can let us slough off our prejudice. 1 have not very many prejudices. Let us, if we can, have a look at this from a reasonable point of view. For instance, I do not hold with Bishop Fox who is very prejudiced. The other day he said that we are not Christians if we support this bill.
– No, he did not.
– Did he not say that?
– No.
– Well, I withdraw that remark. There are people who go so far in their prejudices as to say we are not Christians if we support a measure that introduces a new principle into our divorce laws. Is that not so?
– That is not correct.
– My bosses have just told me I had better finish.
– You are making a fool of yourself. You ought to sit down.
– Mr. President, I am trying to put up a case in support of this bill. I think that the honorable senator has made a most unfair remark. I might put my case with a bit of humour occasionally, but I think the honorable senator is entirely wrong when he says I am making a fool of myself.
– You are just behaving naturally.
– Well, naturally I have a sense of humour, and I do make bold to say that during the last 27 years when I have been in this Parliament, I have rattled the dry bones of a lot of you prose) fellows. I will not say any more. I ask Senator Marriott to withdraw the remark that I was making a fool of myself.
– -Order! If you wanted to take exception to the remark, you should have done so immediately it was made. You have taken the point a considerable time later.
Matrimonial Causes Bill.
– I would advise you to direct your speech to me. If you do so, you will not get into the trouble that you are obviously getting into now.
– It does not worry me in the slightest. I think you are perfectly right, Mr. President. I made a mistake. I should have taken exception to the remark straight away. Senator Marriott and I are jolly good friends, and I do not think he really meant what he said. One of these days I will be as stodgy in a speech as Senator Marriott is, and then, possibly, I will be regarded as a most intelligent and profound politician. Having said that, I ask for leave to continue my remarks.
Leave granted; debate adjourned.
page 1852
Debate resumed from 20th November (vide page 1728), on motion by Senator Gorton -
That the bill be now read a second time.
– This bill, the Canned Fruit (Sales Promotion) Bill, the Canned Fruit Export Control Bill and the Canning-Fruit Charge (Administration) Bill all relate to the same subject. I suggest that the four bills be discussed together at this stage.
The purpose of the Canning-Fruit Charge (Administration) Bill is to provide the machinery for the collection of a levy imposed on canning fruit, the moneys so collected to be payable to the Commissioner of Taxation and to be used to finance a scheme to promote the sale of Australian canned fruits both overseas and in Australia. The purpose of the Canning-Fruit Charge Bill is to impose a levy of 10s. a ton on canning fruit delivered and accepted for canning at a cannery. I point out that, for the purposes of these bills “ canned fruit “ is defined as meaning only canned apricots, canned peaches and canned pears. The Canned Fruit (Sales Promotion) Bill proposes the establishment of the Australian
[SENATE.]
Clause 6 (1.) of that bill states -
The Committee shall consist of -
six members to represent the Australian Canning Fruit-growers Association;
two members to represent the Australian Canned Fruits Board;
two members to represent the Australian Canners’ Association; and
one member to represent the Common wealth.
There will be eleven members of the committee in all, representing four sections of the community. The Canned Fruit Export Control Bill provides for the appointment to the Australian Canned Fruits Board of an additional member - a representative of the growers of canning apricots, peaches and pears. At present the board consists of a representative of the Commonwealth Government, a representative of co-operative canneries, a representative of proprietary canneries, and a representative of pineapple canneries. It will be noticed that there is no representative on the board of the pineapple-growers. I understand that the reason for that omission is that, under the legislation in Queensland - where, of course, most of the Australian pineapples are grown - the marketing of pineapples comes under the Queensland Director of Orderly Marketing.
I have given a brief outline of the purposes of the bills, and I do not think that there is much more to say about them. It is not necessary now to go into the reasons why the Australian canned fruits industry is in difficulties. The housewives have noticed that Australian canned fruits are cheaper than they were in the Australian food markets, which indicates that prices have dropped overseas. There are many reasons for that drop, and I think that my friends of the Australian Country Party know more about the subject than I do. To allay any fears in their minds, perhaps I should emphasize that the growers will have a majority on the sales promotion committee and so will be able to control it. The Labour Party has no objection to that.
We say that in the case of two of the bills the Government has not gone far enough. We feel that not only should the growers, the canners and the public be represented on the board and the committee, but also the trade unions concerned.
We believe that the people who are earning a living by working in the industry should be represented on those bodies, and we intend to move accordingly at a later stage. It is hardly necessary to say that the interests of the trade union representative would embrace far more than the narrow field of wages and working conditions, because the men employed in the industry have an interest in its prosperity and in the promotion of the sale of its products.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without requests or debate.
page 1853
Consideration resumed from 20th November (vide page 1729), on motion by Senator Gorton -
That the bill be now read a second time.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Thursday, 26 November 1959
page 1853
Debate resumed from 20th November (vide page 1729), on motion by Senator Gorton -
That the bill be now read a second time.
Question resolved in the affirmative.
Bill read a second time.
In committee:
The bill.
– I refer to clause 6, which reads, in part - (1.) The Committee shall consist of -
I move -
At the end of sub-clause (1.), add the following word and paragraph - “ ; and (e) one member to represent the Food Preservers Union of Australia “.
You will remember, Mr. Chairman, that I made a brief reference to this bill during our consideration of an earlier measure. This clause deals with the constitution of the Australian Canned Fruits Sales Promotion Committee. The amendment seeks to provide for appointment to the committee of a representative of the Food Preservers Union of Australia, which is well known in the industrial sphere in this country. We feel that nothing but good could result from acceptance of the amendment. As I have already pointed out, the clause provides the representation on the committee of four sections of the Australian community. We feel that the committee would be strengthened by the inclusion of a representative of the employees who could bring lo bear the benefit of his practical daytoday experience in the industry. We applaud the efforts of the Government to lift the industry from the doldrums into which it has fallen, and we believe that the adoption of our suggestion would assist those efforts.
– The amendment that has been moved by Senator Willesee has as its objective the appointment of a representative of the Food Preservers Union of Australia to the Australian Canned Fruit Sales Promotion Committee. I point out that this is not a commodity board; it is a special committee charged with the promotion of sales of canned fruit. The committee is being set up pursuant to a decision of the fruit-growers and it will be financed by the fruit-growers themselves. The Government will have a member on the committee because the Government will be called upon from time to time to make legislation affecting this body. It is therefore proper that the Government should have representation on the committee. Sir, I see no justification for the appointment of a representative of the employees to the committee. The Government is unable, therefore, to accept the amendment.
Senator SHEEHAN (Victoria) TI 2.4 a.m.]. - I hold a very different view from that which has been expressed by the Minister for Customs and Excise (Senator Henty). I hoped earnestly that, following the debate on this measure in another place, the attitude that has been adopted by the Minister would be altered and the suggestion made by the Opposition for the appointment of a member of the Food Preservers Union of Australia would be adopted.
As the Minister has said, the object of this bill is to assist the promotion of the sale of canned fruit both overseas and in Australia. I can think of no better way of assisting the promotion of sales than by having as a member of the Australian Canned Fruit Sales Promotion Committee a representative of the employees engaged in the industry. I believe that the employees themselves should be made fully aware of the difficulties that are being experienced in marketing our canned fruit. Whether the employees are engaged picking fruit in the orchards or canning it in the factories, the fact should be brought home to them that, in addition to placing a nice little wrapper on the container they have an important part to play in seeing that the fruit is gathered and canned in the most efficient manner.
I point out that sales promotion does not depend only on the activities of smart travellers and the fact that a nice label is placed on the package. What counts most is the quality of the product. I should be surprised to hear that any of the proposed members of the committee have ever taken part in the gathering of fruit or preparing it for sale.
I myself patronize our canned fruit. Only within the last week or so I have partaken of canned Queensland pineapple, and I noticed that one brand stands out against another, due to the manner in which it is prepared. I shall not, of course, mention the particular brands - the good and the not so good. It is imperative to ensure that the people who are engaged in this industry prepare the fruit in the most efficient manner. In the long run, they are the people who count. If we are to engage in sales promotion, then let us ensure that the people engaged in the industry are represented on the committee so that a good article will be placed on the market.
It is interesting to recall what this Parliament did in relation to the wool industry when, after World War II., it was thought that there would be a drop in the price of wool. Fortunately, we did not have to undertake sales promotion in relation to wool, because the demand continued and, in fact, the price of wool rose. In the measure that was introduced, provision was made in relation to all phases of the industry. We went right through the whole gamut, from teaching shearers how to shear sheep more efficiently, to providing instruction for the employees in the woollen mills and the textile factories, with the object of enabling this commodity to compete successfully in the markets of the world. All this was done in the measure that was passed by this Parliament at the end of the last war. Yet, in connexion with the proposed promotion of the sale of canned fruit, we are denying representation on the committee to one of the principal agents who could help to make a success of the campaign.
Senator McKELLAR (New South Wales) 112.9 a.m.]. - I cannot endorse the argument that has been advanced by Senator Willesee and Senator Sheehan with regard to the necessity for appointing a representative of the Food Preservers Union of Australia to the Australian Canned Fruit Sales Promotion Committee. I think that Senator Sheehan’s opinion that none of the proposed members of the committee has any idea about what is entailed in picking fruit is too silly for words. Clause 6 provides that the committee shall consist of members of the Australian Canning Fruit-growers Association, the Australian Canned Fruits Board, the Australian Canners Association and the Commonwealth. 1 suggest that any further representation on the committee would be redundant, and I therefore oppose the amendment.
– I do not want to delay the Senate, but I think that if Senator McKellar had had a little more experience of the fruit canning industry he would not speak as he has. I suggest that if the union representative told the men not to go out and pick the fruit, the honorable senator would be looking for the representative very quickly. We have heard again to-night the story that we have heard on other occasions when it has been suggested that employees engaged in an industry should be represented on bodies concerned with that industry. I suggest to the Go vernment that the employee in an industry is the man that the Government should have on such bodies.
So far as the fruit canning industry of Victoria is concerned, particularly that of the Shepparton district, the relations between employees and employers are most amicable. Harmonious arrangements exist. The people in the industry understand one another and co-operate. I do not know whether that is also true of Senator McKellar’s State, but in any event, I think he would be wise to take a different attitude in this respect in the future.
– I support the amendment. Everybody knows that there is a representative of the employees in the dairying industry on the dairying board. He has been a member of the board for years and is regarded as a valuable member who contributes a lot of knowledge from the employees’ side. For the life of me, I cannot see why this proposition should not be accepted. If there is one thing that is being more and more recognized these days it is the value of the expert knowledge that trade union organizations have in matters of this kind. I know that the Government has made up its mind not to accept the amendment and not to appoint to the board a representative of the trade union. I suggest to the Government that if it has a look at the practice in Great Britain to-day, it will find that British governments of both political complexions invariably try to give trade unions representation on boards associated with industries. If this Government were to adopt the same attitude it would find that, instead of the union member being an obstructionist, he would be of very considerable assistance in planning the future of the industry concerned.
Amendment negatived.
Bill agreed to.
Bill reported without amendment; report adopted.
Bill read a third time.
page 1855
Debate resumed from 20th November (vide page 1730) on motion by Senator Henty -
That the bill be now read a second time.
Question resolved in the affirmative.
Bill read a second time.
In committee:
The bill.
– Clause 3 provides -
Section four of the Principal Act is amended -
by adding at the end of sub-section (2.) the following word and paragraph: - and (e) one member appointed by the Governor-General, on the nomination of the Australian Canning Fruitgrowers Association, to represent the growers of apricots, peaches and pears used in the production of canned fruit.”; and
I move -
Leave out paragraph (b), insert the following paragraph: - “ (b) by adding at the end of sub-section (2.) the following paragraphs: -
one member appointed by the Governor-General, on the nomination of the Australian Canning Fruitgrowers Association, to represent the growers of apricots, peaches and pears used in the production of canned fruit; and
one member elected by the federal conference of the Food Preservers Union of Australia to represent employees of proprietary and co-operative canneries.’; and “.
The effect of the amendment, which may appear somewhat cumbersome, is to seek the appointment to the board of a representative of the employees. I do not wish to repeat what I said in relation to the bill with which the Senate has just dealt. I merely say that I think a great deal of good would result from such an appointment and that the Government would be helped in its endeavours to assist the industry.
– The Australian Canned Fruits Board is an organizing authority. It organizes the export, and the distribution after export, of peaches, pears, apricots, pineapples and pineapple juice. Its activities are financed by means of a levy on growers. The Government is unable to accept the amendment.
Amendment negatived.
Bill agreed to.
Bill reported without amendment; report adopted.
Bill read a third time.
page 1856
Motion (by Senator Paltridge) put -
That so much of Standing Order No. 134 be suspended as would prevent the moving of a motion, at once, for the recission of the Orders made by the Senate this day in connexion with the date fixed for the resumption of the debate on the second reading of the following bills: -
The PRESIDENT (Senator the Hon. Sir Alister McMullin). - There being present an absolute majority of the whole number of senators, and no dissentient voice, I declare the question resolved in the affirmative.
Motion (by Senator Paltridge) put -
That the Orders of the Senate made this day fixing the resumption of the debate on the following bills as Orders of the Day for the next day of sitting, be rescinded, and that the resumption of the debate be Orders of the Day for a later hour this day: -
– There being at least one-half of the whole number of members of the Senate voting in favour of the motion, I declare the question resolved in the affirmative.
page 1856
Debate resumed (vide page 1794), on motion by Senator Paltridge -
That the bill be now read a second time.
– This is the first of a series of four measures which all relate to the one matter. They are interconnected. With the concurrence of the Senate, I shall treat my speech on the motion for the second reading of this bill as my speech on the motion for the second reading of the other three bills.
This bill has three purposes. It is the assessment bill of the series and provides for the inclusion, for income tax purposes, of earnings from seasonal notes, the issuing of which we authorized recently when we passed a bill in relation to that matter. The earnings will be taxed and will be subject to the usual taxation rebate of 2s. in the £1. The special bonds, with which we also dealt fairly recently, have two elements, namely, premium on redemption, and interest. The premium only will be exempt from taxation, except that, in the hands of a trader in bonds, the interest will become taxable.
The third element in this bill is to provide for a withholding tax on dividends payable to investors overseas, instead of awaiting an assessment, an income tax return, and the rest.
The second bill, that relating to nonresident dividends, fixes a tax rate of 6s. in the £1 in the case of residents in countries which have no double taxation agreement with Australia. The other two bills, the Income Tax and Social Services Contribution Assessment Bill (No. 2) 1959 and the Income Tax (International Agreements) Bill 1959 are consequential upon the two bills I have already mentioned. Amongst other things, they seek to give effect to the recent 5 per cent, reduction in income tax proposed by the Budget. The Opposition has no objection to any one of the four measures.
Question resolved in the affirmative.
Bill read a second time.
In committee:
The bill.
– Will the Minister explain to me on what principle the premium on the redemption of special bonds and seasonal bonds is exempt from tax?
– The earnings on seasonal notes are taxed.
– Are the earnings in the nature of a premium?
– The earnings that arise are the difference between the redemption and issue price.
– That is when they are bought at a discount?
– Yes.
– Is the increment taxable?
– Yes. The premium on the redemption of the special bonds is exempt, but the interest is taxable.
– Why is the premium exempt?
– The interest is the taxable element. That is the usual practice. The premium is not taxed.
– I take it that is an inducement to investors to subscribe, and it is put in the category of a capital profit.
– That is so. It is an inducement to investors.
Bill agreed to.
Bill reported without amendment; report adopted.
Bill read a third time.
page 1857
Consideration resumed (vide page 1795), on motion by Senator Paltridge -
That the bill be now read a second time.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without requests or debate.
page 1857
Consideration resumed (vide page 1795), on motion by Senator Paltridge -
That the bill be now read a second time.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without requests or debate.
page 1858
Consideration resumed (vide page 1795), on motion by Senator Paltridge -
That the bill be now read a second time.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
page 1858
Motion (by Senator Spooner) proposed -
That the Senate do now adjourn.
– Mr. President, there is one matter that I desire to bring to your notice. I do not know what is going to happen at a later hour this day, but I point out that the staff attached to the Senate has been on duty continuously since we began this sitting yesterday afternoon. I do not know how long another place proposes to sit this morning but its sitting was suspended for half an hour and supper was provided for the staff. We members of the Senate can leave the chamber during a sitting to have a cup of tea if we want it, but the “Hansard “ staff and other members of the staff attached to the Senate must remain on duty. I hope that if there are to be late sittings attention will be given to the position of the staff here. I do not know why the conditions here should be any different from those obtaining in another place. I think that they should be the same in both places.
This is not the first time we have had occasion to bring to the notice of the Senate the conditions under which the staff is employed here and I hope that in future some consideration will be given to the matter if the Senate proposes sitting late.
– I am sure it is not necessary for me to remind the honorable senator that I have nothing to do with arranging the sittings of the Senate.
– I hasten to assure you, Mr. President, that my remarks are not directed at you. I am now speaking to the Minister in charge of the proceedings. We had this argument on a former occasion and I know that the matter does not come within the jurisdiction of the President.
Question resolved in the affirmative.
Senate adjourned at 12.29 a.m. (Thursday).
Cite as: Australia, Senate, Debates, 25 November 1959, viewed 22 October 2017, <http://historichansard.net/senate/1959/19591125_senate_23_s16/>.