29th Parliament · 1st Session
The PRESIDENT (Senator the Hon. Justin O’Byrne) took the chair at 10.30 a.m., and read prayers.
page 2619
– I present the following petition from 230 citizens of the Commonwealth:
To the Honourable the President and the members of the Senate in Parliament assembled: The humble petition of the undersigned citizens of the Commonwealth of Australia respectfully showeth:
That, we, the undersigned, are not opposed to the simplification of divorce proceedings, but have serious objections to the Family Law Bill 1974;
That, the concept of marriage contained in Section 26 subsection 2 is of marriage, as a transitory, and temporary union dissolvable by the simple passing of a period of twelve months separation;
That, such a concept of marriage will destroy the contractual nature of marriage, undermine the total commitment of two persons to each other and threaten the integrity of family life which is the basis of our society;
That a Bill with such serious implications deserves to be considered as a matter of public importance and be the object of the community debate which it warrants.
Your petitioners most humbly pray that the Senate in Parliament assembled should vote against the Bill in its present form, allow public consideration of amendments and then vote to so amend the Bill as to strengthen and support marriage and the family in a manner acceptable to the people of Australia.
And your petitioners as in duty bound will ever pray. Petition received and read.
– I present the following petition from 14 citizens of Australia:
The petition of the Undersigned respectfully showeth-
That whereas our constitutional parliamentary democracy was developed on the Rights of Magna Carta to preserve for all time to the Australian people their cherished right to live as free men and women, enjoying complete liberty of worship, assembly, speech, movement, the communication of knowledge and information.
And whereas the Australian Commonwealth has adhered to the United Nations’ Universal Declaration of Human Rights and to the International Covenant on Civil and Political Rights,
And whereas the present Australian Government, by recognition de jure of the Soviet Union ‘s aggression and occupation of the independent States of Estonia, Latvia and Lithuania, imposed on Australian Citizens of Estonian, Latvian and Lithuanian origin and on all their descendants a foreign citizenship of the aggressor country the USSR,
So therefore must this act be accorded the highest national concern and priority.
Your Petitioners most humbly pray that the Senate, in Parliament assembled, will take most urgent steps to ensure-
The abolition of this act forcing on the Australian Citizens a foreign citizenship,
The prevention of any attempt of similar action by all Consitutional and legal means.
And your petitioners as in duty bound will ever pray.
Petition received and read.
– I now call upon the Clerk to advise what other petitions have been lodged for presentation.
– The following petitions have been lodged for presentation:
To the Honourable the President and members of the Senate of Australia in Parliament assembled. The humble petition of the undersigned citizens of the Commonwealth respectfully showeth: 1 That we have examined the Family Law Bill and substantially support the provisions therein 2 That the Family Law Bill takes into account the changing roles of women in modern society 3 That the amendment to the Bill recommended by the Constitutional and Legal Affairs Committee will ensure that the rights of women who play the traditional role in society will be protected, as will the interests of the children
Your petitioners therefore humbly pray that the Family Law Bill be debated and passed as soon as possible.
And your petitioners as in duty bound will ever pray. by Senator Poyser and Senator Guilfoyle.
Petitions received.
To the Honourable the President and members of the Senate of Australia in Parliament assembled. The humble petition of the undersigned citizens of the Commonwealth respectfully showeth:
That we have read the petitions concerning the Family Law Bill and support the Bill as sufficiently protecting the legal and social rights of women and children in the family
Your petitioners therefore humbly pray that the Family Law Bill be debated and passed as soon as possible.
And your petitioners as in duty bound will ever pray. by Senator Guilfoyle.
Petition received.
To the Honourable the President and members of the Senate in Parliament assembled. We the undersigned citizens of the Commonwealth, by this our humble petition respectfully showeth:
And your petitioners as in duty bound will ever pray. by Senator Chaney, Senator Gietzelt and Senator Guilfoyle.
Petitions received.
To the Honourable the President and mambers of the Senate in Parliament assembled. The petition of the undersigned respectively shows:
Your petitioners therefore humbly pray that the Senate in Parliament assembled should not admit into the law of this land the Family Law Bill in its present form.
And your petitioners as in duty bound will ever pray. by Senator Lawrie.
Petition received.
To the Honourable the President and the members of the Senate in Parliament assembled. The humble petition of the undersigned citizens of the State of Victoria respectfully showeth:
That the Family Law Bill 1 974 is a matter of public importance;
That the subject matter of the clauses of the Bill will ultimately have the widest effects on the lives of the citizens of Australia;
That the proposals contained in this Bill are not adequately known to the citizens of Australia;
That the Bill as such has not been the object of the public scrutiny, dialogue and debate which it deserves;
That for these reasons grave concern is felt that the Bill may be passed before the community is aware of its long term consequences.
Your petitioners most humbly pray that the Senate in Parliament assembled should vote that the Family Law Bill 1974 be made the subject of further community study and that to facilitate this aim the debate on this Bill be adjourned until April 1975.
And your petitioners as in duty bound will ever pray. by Senator Greenwood, Senator Guilfoyle and Senator Poyser.
Petitions received.
To the Honourable the President and members of the Senate in Parliament assembled.
The humble petition of the undersigned citizens of the State of Victoria respectfully showeth that the Family Law Bill 1974 is a matter of public importance; that the subject matter of the clauses of the Bill will ultimately have the widest effects on the lives of the citizens of Australia; that the proposals contained in this Bill are not adequately known to the citizens of Australia: that the Bill, as such, has not been the object of public scrutiny, dialogue and debate which it deserves; that for these reasons grave concern is felt that the Bill may be passed before the community is aware of its long term consequences.
Your petitioners most humbly pray that the Senate in Parliament assembled should vote that the Family Law Bill 1974 be made the subject of further community study and that to facilitate this aim the debate on this Bill be adjourned until April 1975.
And your petitioners as in duty bound will ever pray. by Senator Poyser.
Petition received.
To the Honourable the President and the members of the Senate in Parliament assembled: The humble petition of the undersigned citizens of the Commonwealth of Australia respectfully showeth:
That, we, the undersigned, are not opposed to the simplification of divorce proceedings, but have serious objections to the Family Law Bill 1974;
That, the concept of marriage contained in section 26 subsection (2) is of marriage as a transitory, and temporary union dissolvable by the simple passing of a period of 12 months separation;
That, such a concept of marriage will destroy the contractual nature of marriage, undermine the total commitment of 2 persons to each other and threaten the integrity of family life which is the basis of our society;
That, a Bill with such serious implications deserves to be considered as a matter of public importance and be the object of the community debate which it warrants.
Your petitioners most humbly pray that the Senate in Parliament assembled should vote against the Bill in its present form, allow public consideration of amendments and then vote to so amend the Bill as to strengthen and support marriage and the family in a manner accept to the people of Australia.
And your petitioners as in duty bound will ever pray. by Senator Poyser (2 petitions) and Senator Primmer.
Petitions received.
To the Honourable, the President and members of the Senate or Australia in Parliament assembled: The humble petition of the undersigned citizens of Australia respectfully showeth:
That in modern society which accepts divorce, the law of divorce should be fair to both parties. However, we are very concerned about proposals to alter the law in the Family Law Bill 1974. 1. The Family Law Bill 1974 would fundamentally change the institution of marriage itself; that is all existing and future marriages. 2. The said Bill does not protect the legal and social rights of women and children in the family. 3. The said Bill does not provide for either the training of suitable counsellors who can assist in conciliation procedures or for suitable initiatives to be taken prior to the breakdown of marriage.
Your petitioners therefore humbly pray that this Bill be tabled for 6 months and that all sections of the community be consulted on marriage, the family and the long term effects of such a Bill upon our Australian society.
And your petitioners as in duty bound will ever pray. by Senator Lawrie.
Petition received.
To the Honourable the President and members of the Senate in Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully showeth:
That the reduction of the allowable deduction of education expenses under section 82J of the Income Tax assessment Act from $400 to $150 is £50.00 below the 1956-67 figure.
That this reduction will impose hardships on many parents who have children attending school, whether nongovernment or government; and particularly on parents with more than one child at school-
That this reduction will further restrict the freedom available to parents to make a choice of school for their children.
That some parents who have chosen to send their children to a non-government school will have to withdraw their children and send them to government schools already overcrowded and under-staffed.
That the parents to benefit most, relatively, from educational income tax deductions, in the past and even more in the future, are the parents of children in government schools and this has a divisive effect in the Australian community.
That parents should be encouraged by the Australian Government to exercise freedom of choice of the type of school they wish for their children. The proposed reduction means an additional financial penalty is imposed on parents who try to exercise this choice and discourages them from making an important financial contribution to Australian education over and above what they contribute through taxation.
That an alternative system, a tax rebate system, could be adopted as being more equitable for all parents with children at school.
To compensate for the losses that will follow from the proposed reduction and to help meet escalating educational costs faced by all families your petitioners most humbly pray that the Senate in Parliament assembled should take immediate steps to restore educational benefits to parents, at least at the 1973-74 level either by increasing taxation deductions or through taxation rebates.
And your petitioners as in duty bound will ever pray. by Senator Bonner (2 petitions) and Senator Guilfoyle.
Petitions received.
To the Honourable the President and members of the Senate in Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully showeth:
That whereas the Budget Paper No. 9 titled ‘Australia’s External Aid 1974-75 ‘allocated $150,000for’humanitarian assistance to National Liberation Movements in Africa’;
And whereas the humanitarian needs of these oppressed people require greater assistance from Australia than the above amount allocated in the Budget;
And whereas such assistance is in keeping with that provided by Norway, Sweden, Finland, Denmark. The Netherlands, Canada, the Federal Republic of Germany, and New Zealand, and United Nations Organisations such as UNICEF, UNDP, UNHCR, FAO and WHO, and such non-government organisations as the World Council of Churches, the Australian Freedom from Hunger Campaign. Community Aid Abroad, and some Roman Catholic Aid Agencies in Europe;
So therefore your petitioners most humbly pray that the Senate will take action to substantially increase the abovementioned humanitarian assistance.
And your petitioners as in duty bound will ever pray. by Senator Guilfoyle and Senator Donald Cameron.
Petitions received.
page 2621
Senator Sir MAGNUS CORMACK (Victoria) I give notice that on the next day of sitting I shall move:
That leave be given to bring in a Bill for an Act relating to remuneration determined by the Remuneration Tribunal.
I also give notice that contingent upon Remuneration Bill (No. 2) 1974 having been read a first time I shall move:
That so much of the Standing Orders be suspended as would prevent the Bill being passed through all its remaining stages without delay.
page 2621
page 2621
– My question is directed to the Minister for Foreign Affairs. I refer to the answer that the Prime Minister gave in the House of Representatives on Tuesday when he stated that the failure of an Australian Prime Minister to visit a number of European nations in recent years is resented by those nations. Can the Minister for Foreign Affairs list the European nations which have indicated, either officially or unofficially, their resentment that the Australian Prime Minister has failed to visit them?
– In the 2 years that I have been associated with the portfolio of Foreign Affairs, both as Minister for Foreign Affairs and as Minister assisting the Minister for Foreign Affairs, several people from Europe have spoken to me, urging that the Prime Minister should visit their countries.
– Who are they?
-There is quite a long list of Europeans whom I could mention. I could leave others out. Honourable senators opposite may giggle about this. They do not take it seriously. I might say that Mr Snedden is also making a European trip, and no Europeans have ever expressed a desire to me that Mr Snedden should visit them. Evidently the question was asked in a jocular manner but I am trying to answer it seriously. The point is that several diplomats have from time to time pressed me to get Mr Whitlam to visit their countries. When it has been mentioned that he will make the trip there has been quite a queue of them. Those are the facts as I know them. The matter has certainly been mentioned to me several times.
page 2622
– Can the PostmasterGeneral give any details of the New South Wales Government’s planned modifications to its rail services which could affect the operation of travelling post offices on rural railway lines in New South Wales?
– This matter was raised in the other place last night in the adjournment debate. On 19 September the Director of Operations in the New South Wales Public Transport Commission advised the Postmaster-General’s Department that it was the Commission’s intention to withdraw Travelling Post Office services from 1 February 1975. At no stage did the Post Office initiate the discontinuance of the service. The Post Office is happy with the Travelling Post Office system. The Director-General of Posts and Telegraphs spoke this week to the New South Wales Minister for Transport, Mr Morris. He pointed out that the Post Office did not favour discontinuance of the service. The DirectorGeneral told Mr Morris that if the New South Wales Government persisted with its move to abolish Travelling Post Office services, the Post Office would need an appropriate time to plan an alternative service. I have asked the DirectorGeneral to have further talks with the New South Wales Minister for Transport.
This proposal is not something which the Post Office wants. The service at present is a satisfactory one for country people. Its discontinuance will embarrass a lot of ordinary country residents and firms because the service is complementary and necessary for the carriage of mails and parcels. I can only tell the honourable senator that despite the propaganda that has been issued about this matter, the Post Office is trying to resist the discontinuance of the service and undertakes to endeavour to continue the service that is presently being provided by the New South Wales Department of Railways.
page 2622
-Mr President, I inform the Senate that Senator Douglas McClelland, Minister for the Media, will not be here today as he is in Sydney opening an international seminar on the media. I will receive the questions which are normally directed to him.
page 2622
-My question is addressed to the Minister for Agriculture. He will be aware that the Industries Assistance Commission’s report on the application by Western Australian new land farmers for a continuation of the superphosphate bounty is critical to the viability of many farms. As the bounty expires on 31 December, can the Minister give any indication when the report will be received by the Government? Can the Minister indicate whether he or the Government has made any request that this application be given some urgency?
-At the time of the reference of this matter by the Prime Minister to the IAC the Commission was requested to bring down a report as quickly as possible. My understanding is that it should be available by March but I have not received anything specific on that. It is not customary, as far as I know, for the Commission to advise the Government of the time at which it proposes to make a report to it. That is as much information as I can give the honourable senator. If it is possible to get something more specific I will advise him.
page 2622
– My question is directed to the Minister representing the Treasurer. Did Mr Snedden, the Leader of the Opposition, state last night that growth of the money supply should be closely regulated and controlled? When Mr Snedden was the Treasurer only 2 years ago at what rate was the money supply growing and did he make any attempt to control it?
-I understand that Mr Snedden did make a comment yesterday along the lines indicated in the question. As to the latter part of the question, in the last year of the previous Government there was the greatest increase in the flow of money in the Australian economy we had seen. In the 12 months prior to the change of government it was no less than 26 per cent which was an increase at a rate beyond all normal money flow increases and one with which this economy, of course, like any other economy would not be able to cope. Immediately on coming to office we, as a government, introduced various measures such as revaluation and the variable deposit ratio scheme to arrest that inflow of money. I believe we have been successful. Even now, in the present conditions, we are experiencing a very strong demand as a result of a very large amount of money being in circulation. To sum up the answer, I think if Mr Snedden had listened to his own advice 2 years ago we would not have the sort of monetary problems which in the past couple of years have afflicted not only this country but many other countries as well.
page 2623
– I direct a question to the Postmaster-General as the Minister representing the Ministers in charge of the Regional Employment Development scheme. What is the total amount of grants under the RED scheme already approved for the following Tasmanian municipalities: Circular Head, Wynyard, Waratah, Burnie, Penguin, Ulverstone and Devonport? Can the Minister give details of the number of applications in each of these municipalities which are being processed but which have not yet been approved? Can the Minister give details of the number of unemployed in each of these areas and the percentage unemployment they represent?
-Although Senator Bessell brought the question to my notice just before 10 a.m., because of the amount of information required, it was impossible for me to get what the honourable senator has sought. I will get it as soon as possible. The question calls for details not only about Regional Employment Development grants but also about unemployment percentages. I will see whether I can get it early next week.
page 2623
-Mr President, I have a supplementary question. I ask the PostmasterGeneral: How frequently does the Regional Employment Development ministerial committee meet? Is he satisfied that an adequate share of the total funds available is being allocated to projects in Tasmania? Has the Australian Government yet decided for how long, as a minimum, the scheme will be continued?
-Mr Clyde Cameron yesterday made a statement- which I noticed reached the Press- pointing out that the Regional Employment Development ministerial committee had met yesterday and that it is also to meet today. So I am aware that the Committee meets at least once or sometimes twice a week. Yesterday it approved 19 new projects which will cost nearly $2m. I understand that it prescribed new areas. There is now a new area for consideration by the meeting of Ministers. It includes local government areas. That is a new feature. The committee can meet once or twice a week. It is continuously considering applications. I am not sure of the total number of projects that have been approved or are under consideration. I will try to get the information. I understand that the scheme will be in operation until the present situation is overcome.
page 2623
-Will the Minister representing the Minister for Transport produce, for the information of the Senate, the cargo handling rate per man employed and per tonne hour at the Australian container terminals for the 12 months ended 30 June 1974?
-Obviously I cannot produce that information in answer to a question without notice. I thought it was published in an annual report. However, I will refer the question to the Minister for Transport to see whether I can get the information.
page 2623
– My question is directed to the Minister for Repatriation and Compensation. It concerns the independent inquiry into repatriation, the cost of which is reported to be $500,000. Have any of the major changes in the repatriation field in the last 2 years been the result of proposals put forward by the inquiry? Does the Minister consider that the expenditure on the inquiry has been justified?
-A number of changes have been introduced in the field of repatriation since the Labor Government has been in office, as honourable senators would be aware. They include the extension of hospital and medical services to prisoners of war and to veterans of the Boer War and the 1914-18 War, the requirement that tribunals give reasons for their decisions and a whole lot of other benefits with which honourable senators are familiar. This has been probably the greatest increase in repatriation benefits since the introduction of the system. But they have not resulted from the inquiry being undertaken by Mr Justice Toose because the findings of Mr Justice Toose are still as yet not available. I have asked Mr Justice Toose to let us have his report by the end of March next year. The inquiry by Mr Justice Toose was instituted by the previous Government, and the term of the inquiry has been extended by this Government.
The repatriation system has been in existence now for some 54 years and, as honourable senators would have noticed while we have been dealing with repatriation legislation during this sessional period, the system has become very complicated, with quite a multiplicity of Acts dealing with various aspects of the same repatriation system. I think it could fairly be said that in many respects the administration of the system and the legislation regulating the system are perhaps unnecessarily complicated, and it is on these matters that Mr Justice Toose is reporting.
To date the inquiry has cost about $513,000 and, although this no doubt seems to be a considerable sum of money, the services of a judge of the Supreme Court of New South Wales and of the expert staff which he has assisting him are of necessity expensive. This Government, as I think would have been the case with the previous Government which must have envisaged that costs of this order would be incurred, believes that the costs are properly incurred if the result of the inquiry, as I am sure will prove to be the case, means that the repatriation system can be more systematically organised and simplified. I hope that the report will be in our hands early next year. As soon as Mr Justice Toose has delivered his report to the Government I shall see that the Parliament is informed of what His Honour has recommended.
page 2624
– My question is addressed to the Minister representing the Minister for Manufacturing Industry. I refer to reports that the Federal Government is planning to buy a 5 per cent ownership of Chrysler Australia Ltd and that the move is designed to encourage Japanese manufacturers to take over unused space in the Chrysler, plant in Adelaide. I ask the Minister: Because of the serious situation in this industry and its effect upon South Australian employment circumstances, can the Minister indicate when these negotiations to which I have referred might occur, and when the utilisation of the unused capacity of the Chrysler plant will take place? I further ask the Minister: Is it expected that Japanese car manufacturers will also purchase a share of the Chrysler company? If so, has he any information on negotiations that might be pending?
-The only information that I have available at the moment is that the Secretary of the Department of Manufacturing Industry has been to Japan and I understand that he is returning to Japan for further negotiations. But that is obviously not sufficient information for the honourable senator. I shall refer the question to Mr Enderby and obtain a more detailed answer.
page 2624
– I direct my question to the Minister representing the Minister for Labor and Immigration. The Minister is no doubt aware of a meeting in Canberra to consider aid to municipal areas under the Regional Employment Development scheme- commonly called the RED scheme. Are there any new areas in South Australia that will be granted further benefit under the scheme?
– In making his report about yesterday’s meeting on the Regional Employment Development scheme, Mr Clyde Cameron pointed out that previously when areas had been declared eligible for participation in the scheme they have encompassed the entire employment office areas administered by the Department of Labor and Immigration. Today the new pockets added to the list of areas eligible for the scheme are individual local government areas. I am told that the new areas in South Australia now eligible are those of the Gawler Municipal Council, the Whyalla City Council and the Murray Bridge District Council.
page 2624
– I ask the Minister for Foreign Affairs whether he believes that the Department of Foreign Affairs is hampered in its dealings with nations because it has insufficient authority to co-ordinate all aspects of Australia’s relations with other nations. If so, in what way does he believe the authority and powers of the Department of Foreign Affairs should be expanded? Would an increase in the scope and operation-of the Department benefit this nation?
– This is a series of questions asking me for my opinion. Clearly it is out of order.
page 2625
– My question is directed to the Attorney-General. In view of the concern being expressed by some Australian refrigerator manufacturers and, in particular, those companies based in South Australia, at the possible effect that the proposed Refrigeration Compressors Bounty Bill 1974 may have on the industry, will the Minister say whether he has had discussions with industry representatives on this matter?
-Yes, I have had discussions with industry representatives who would be affected by the Refrigeration Compressors Bounty Bill. Also, there have been discussions between Ministers. A number of representations have been made by the honourable senator and others in my Party. Consideration has been given to those representations. I trust that the Senate will be informed of the results of that consideration fairly soon.
page 2625
– I ask the Leader of the Government in the Senate: Is the Government able to confirm the report given to the Assembly of the North Atlantic Treaty Organisation by that Organisation’s military committee that the Soviet Union now possesses 48 ballistic missile submarines with another 15 under construction and that it has recently introduced 3 new missile systems which, if fully developed, would give what is termed in the report a tremendous superiority in warheads and throw weight? Can the Government confirm that Soviet naval vessels in the Indian Ocean doubled in 1972, that they again doubled in 1973 and that 8 naval mooring and docking facilities are available to the Russian navy in and skirting the Indian Ocean? Is the Government prepared to give to the Australian people some assurance, which they want, in the light of those facts?
-The Deputy Leader of the Opposition asks me whether I can confirm something. He ends up by. asking what assurances I will give him in the light of those facts. He is answering the question himself. He is asserting that it is a fact. Of course, I am not in a position to confirm the information which he has given. I do not know. whether the Government would want to confirm matters in the military area. All I know is that for the first time for many years the Australian Government is in the happy position where the Australian people are concerned with domestic matters as are the people of other nations. Australia is not in the position where there is a threat of war. It is not interfering with other people’s affairs. Certainly, it is npt getting into the position of conducting immoral, unjust and illegal wars as the previous Government did in Vietnam.
page 2625
– I address a question to the Attorney-General. I refer to the rejection of the South Australian Government’s Privacy Bill and the proposals by the Opposition in that State to set up a commission to assess whether existing laws ought to be extended. Has the Government given any thought to the establishment of a national Press council along the lines of that in the United Kingdom? If not, will the Minister consider setting up a commission to inquire into its possibility and to lay down possible guidelines for the of States in this matter?
– This is an extremely complex area dealing with the privacy of individuals and freedom of the Press. I think I indicated some little time ago that there is no reason why we should not be able to evolve some resolution between the right to privacy of the individual, the right of the individual to have his reputation unsullied by unjustified attacks upon it, and the preservation of freedom of the Press and freedom of speech. I think this can be done. A great deal of attention has been given to this subject. It has come up at the Standing Committee of Attorneys-General. A report by Professor Morrison on some aspects of it has been tabled in various parliaments, including this Parliament. Attention has been given to the question in my own Department. I would not like to venture an opinion on whether a Press council is a desirable solution. Some people seem to think it is the panacea; others seem to think it is almost worthless in solving these problems. I think the Minister for the Media has said something in the last few weeks about a Press council and I will leave it to him to deal with it. I assure the honourable senator that consideration has been given by this Government, as it has by other governments in Australia, to try to get some clarity in what is a very difficult area.
page 2626
-Does the Minister representing the Minister for Labor and Immigration recall my asking him earlier this year whether he would compel people applying for unemployment assistance to produce a birth certificate for identification in order to overcome the problem of some people obtaining more than one unemployment benefit? What guidelines are given to departments on tests for eligibility for unemployment benefit and what proof of identity is required? Will the Minister make available any such guidelines?
– The previous question by Senator Young was sent to the Minister for Labor and Immigration and the Minister for Social Security. I know that both Ministers have met in connection with this matter and no doubt the honourable senator has seen Mr Cameron’s observations about the people he described as bludgers on the community. I will have to ask the 2 Ministers concerned for specific answers to the questions. I will get the information for the honourable senator.
page 2626
– I direct my question to the Minister for Foreign Affairs. I refer to the bitter condemnation levelled at the Australian Government by Alexander Solzhenitsyn for, in his words, ‘forgiving and forgetting the Russian occupation of Eastern Europe in the interests of a closer association with the Soviets’. Bearing in mind the revelations made by the Russian writer in his book ‘Gulag Archipelago’ of the inhuman oppression he experienced in his own country, will the Government now reassess its attitude towards the Union of Soviet Socialist Republics and reconsider its recent action with respect to the de jure recognition of the incorporation of Latvia, Estonia and Lithuania into the USSR?
– I have seen reports of the comments made by Mr Solzhenitsyn. I very much regret that some of the remarks he made obviously were based on misconceptions about the Government’s decision concerning the Baltic States. There has never been any question of forgiveness in regard to the Government’s recognition of the present position of the Baltic States. After the passage of so many years the Government’s decision simply represented the recognition of the realities of the situation. It is only fair to say that there has been a persistent campaign of misrepresentation of the Government’s decision on this matter.
– Rubbish!
-Can ‘t we pick where they come from? The real old com baiters come through.
– You have not the stomach to say the same about South Africa.
– That was an interjection from Senator Webster, the racist defender. It is only fair to say that there has been a persistent campaign of misrepresentation of the Government’s decision in this matter. It appears clear from Mr Solzhenitsyn ‘s remarks that he has been one of many people deceived by this campaign insofar as he has been led to believe that the Government’s decision implies attitudes such as forgiveness when it does no such thing. I hope that Hansard has been able to record my answer in spite of the organised interjections.
page 2626
– I wish to ask a supplementary question.
-Is it seeking elucidation of the answer to your previous question?
– Yes, it is. It is seeking an answer to the question I actually asked. Is reconsideration being given to the Government’s action in recognising the incorporation of the Baltic States into the Union of Soviet Socialist Republics? Will the Government re-assess its policies in respect of its attitude to the USSR?
-I am sorry that I did not answer that part of the question. Because 90 per cent of the question was propaganda I answered that section of it first. No, we are not reassessing our attitude.
page 2626
– My question is directed to the Attorney-General and it has particular application at the moment with the summer season coming on. The Attorney-General told the Senate earlier in the week that he intended to make a regulation under the Trade Practices Act to ensure that toys could not be passed off as buoyancy aids. Will he ensure that this regulation makes it clear that these toys could be dangerous if children are left with them unattended? When does he expect that the regulation will come into effect?
-The draft regulation has now been prepared . 1 have with me some notes on the matter. The words proposed to go on each of these toys will be: ‘Warning. Not a lifesaving device. Use only under adult supervision’. It has been insisted that the warning should be marked on the goods or package in indelible permanent ink or paint and that the warning be stitched into the material of the goods or be stuck onto the float in a reasonably permanent manner. There are some requirements about the size of the print and so on.
Since the matter was raised in the Senate officers of my Department have conferred with a major manufacturer and a major distributor of the floatation toys. Because of the difficulties facing the manufacturers and retailers there will be a phasing-in period before the standard becomes mandatory on 1 March next year. An interim standard will apply until that time warning of the danger of allowing children to use these toys without proper supervision. In the interim period warnings that the toys are not lifesaving devices and should be used only under adult supervision will be displayed in a prominent position where the toys are being sold. The major manufacturer has undertaken to include in all Press, radio and television advertising the warning to parents that will become compulsory after 1 March next year and I hope that other manufacturers will do the same.
No matter how prominent the warning is, it will be ineffective unless parents take heed of it and properly supervise their children. I stress that the safety of children is the responsibility of the whole community. The Government can do only so much by setting these product safety standards and information standards but the community can assist the Government by helping to see that the standards are actually observed in practice. Where goods do not comply with the standards this should be reported to my Department or to the Trade Practices Commission for investigation. In other words, what we are trying to do is to get the standard into operation as rapidly as possible and in the meantime to have an interim standard. For common sense reasons we cannot suddenly overnight have goods recalled and warnings stitched into them. But we are getting co-operation from the major manufacturer and distributors and I think that this is the most that we can do in the circumstances.
page 2627
– Is it a fact that the Attorney-General has ordered a special secret police investigation into the personal, social and political lives of the members of the jury which in October 1 974 found Mr Sydney Anderson, 2 1 years of age, of Papunya via Alice Springs, guilty of the murder of Mr Eric Erlensen? Anderson was duly sentenced to 15 years gaol with an 8-year non-parole period. Is the Legal Aid Service in any way connected with the request for this inquiry? If not, who is? Does the Minister consider that it is right that there should be such a breach of the privacy of citizens under the circumstances?
- Mr President, this is a curious question. The same question was apparently asked in the House of Representatives yesterday and late yesterday one of my staff asked me about it. So far as I can recall, at that stage I had not heard of the conviction, nor of the charge, nor of the murder. I have asked for inquiries to be made into the matter. 1 do not know anything about it. I suggested then that there may be some confusion. There was an article in one of the newspapers about the conviction of one, Fogarty, earlier this year on a more minor charge such as damaging a truck. The complaint was made that the man, who was an Aboriginal, had been convicted by an all-white jury in an area of the Northern Territory where a substantial part of the population is Aboriginal.
– But he was not an Aboriginal. It was found that he was not an Aboriginal.
– Whatever the situation may be, the question arose as to whether the juries were being drawn properly so as to be a sample of the community. I recall that I then asked for some inquiries to be made. I did mention this matter to some of the officers and some of the judicial persons in the Northern Territory. As I recall it, the information discloses that the selection of juries is not entirely satisfactory in that for major cases the area from which they are drawn is fairly closely confined and does exclude a substantial Aboriginal population. I will give details to the Senate about the matter, but it troubles me very much that this occurs. It may be that some exaggeration of a report of some inquiry into the selection of juries has given rise to some kind of rumour or gossip. I would agree with the honourable senator that if someone were to look into the background of juries and inquire into their private lives, this would be absolutely intolerable and I would be seeking to stamp it out. I cannot tell the Senate any more than that except to say that the particular matter, as far as I can recall, was not brought to my attention in any way whatever until the request was made yesterday.
page 2628
– I refer to the answer which the Postmaster-General gave yesterday to a question from Senator Poyser with regard to the proposed takeover of company coin telephones- Red Phone and Easiphone. I ask: When the services have been absorbed by the Postmaster-General’s Department what will be the cost of a local telephone call from these services?
-While the matter has not been finalised, the new tariff will be the tariff that has been settled by the Parliament. I have asked the Post Office to investigate the question of adjusting the instruments to provide access to the emergency lines and to see what it can do as soon as possible.
page 2628
– Is the Leader of the Government in the Senate aware that the former National Party Speaker in the Queensland Parliament, Mr W. Lonergan, in a statement yesterday repudiated the Premier of Queensland and his policies and stated that he now intended to support Liberal candidates only? As this attitude was no doubt brought about by the refusal of Mr Bjelke-Petersen to co-operate with the Australian Government, can the Minister inform the Parliament how many millions of dollars of Australian Government funds have been refused by the Premier of Queensland on behalf of the Queensland Government? Can he also inform the Parliament of the total amount, in millions of dollars, of funds received from the Australian Government which remains unspent?
-I am not aware of the circumstances to which the honourable senator refers, but the first part of the attitude taken by the gentleman concerned- to repudiate the policies of Mr Bjelke-Petersen- seems to me to be very sensible. It is a pity he did not go further in the second part of his attitude and see that the real answer was to support the policies of the Australian Labor Party. The non-co-operation of the Bjelke-Petersen Government with the Australian Government is very clear. I shall give an instance of it which struck home to me. I mentioned to the Senate a week or so ago that I attended the departure of the police contingent to Cyprus. I think the presence of Australian police in Cyprus is approved by all political parties here and by the Australian people generally. It is done in co-operation between the Australian Government and the State governments under the aegis of the United Nations and in the cause of humanity.
It is regrettable that the Queensland Government sees fit not even to co-operate with that project. All other governments are represented and we are able to get along well with them and do something which is worth while and in the interests of Australia. The Bjelke-Petersen Government refuses to co-operate. It is sad we should be brought to this stage. I shall endeavour to get a list of the moneys concerned and ascertain the ways in which the Queensland people have been adversely affected by this kind of obstruction by the Bjelke-Petersen Government.
page 2628
– I will make inquiries from the Department of Transport and also in any other areas from which I may be able to get some information. I will advise the honourable senator later.
page 2628
-Does the Minister representing the Minister for Labor and Immigration recall a statement by the Minister for Labor and Immigration on 18 August of this year that he thought most Government members would sooner resign than preside over unemployment of 250,000 people. I ask whether the Minister agrees with yesterday’s forecast by Mr Hawke that 300,000 people may be out of work in January? If the number of unemployed does exceed 250,000 people, will the Minister resign or will he be transferred to another portfolio?
– The senator, to ask such a question, must be kidding.
page 2628
– My question is directed to the Minister representing the Minister for
Labor and Immigration and it refers to the answer given by the Minister yesterday to my question as to what precise advice the Government would give to the 230,000 school and college leavers looking for a job in the face of predicted chronic unemployment of the order of 300,000 to 400,000 people for at least the next 7 months. I remind the Minister of his claim that 2 main avenues- the National Employment and Training Scheme and employment in the Commonwealth Public Service- would provide significant opportunities for the employment of such persons. Against that answer I ask: How many persons are receiving benefits under the NEAT scheme? Is it not a fact that the number is measured in hundreds and not tens of thousands? Will not the Government’s intention to absorb new people into the Public Service affect some 1,450 additional persons and not tens of thousands? If these are the facts I ask again: Is the dole the only prospect for a quarter of a million Australians? If not, and if unemployment is to rise as all Government Ministers say it will, what will happen to the unemployed in the many months ahead? Specifically, what will be their source of sustenance other than the dole?
– I will answer the last part of the honourable senator’s question first. Under a Labor Government people who are unemployed can be assured that they will receive reasonable payments. As Senator Wheeldon mentioned yesterday, before this Government came to office there had been no proper relationship between such payments and the minimum wage. This Government has made sure that anybody who is sick or unemployed will receive reasonable compensation. As I mentioned yesterday, as a result of the Government’s tariff cuts- which it freely admits were designed to stop inflation- various schemes were set up and are now operating. In addition, some adjustments are being made to those tariff cuts in accordance with the reaction to them.
Yesterday I did not say that the National Employment and Training scheme and the absorption of certain people into the Public Service were the main avenues of remedy for the unemployment situation. I said they were some of the measures which could be taken. The clear facts are that no government has made a quicker response to the situation than this Government has made. I mentioned structural adjustment payments and new location payments which have been made.
– And unemployment is still rising.
-I wish that the honourable senator would let me answer the question. Like Senator Webster, he is very good at continually interrupting people who want to answer his questions. If he is not satisfied with the answer he can try again. I repeat that the various schemes which the Minister for Labor and Immigration has proposed and which the Government has endorsed are structural adjustment payments, the new location payments which have now been approved, and the Regional Employment Development scheme which is now in operation and, as was mentioned this morning, Mr Clyde Cameron has announced that an additional 90 applications for projects have been approved. The Government has also set up the National Employment and Training Scheme and the career centres which I have mentioned. The Government has decided to take more apprentices into the the Public Service than the previous Government took. More people will be employed in Mr Clyde Cameron’s Department to cope with these new positions. The Government has also lifted the ceiling on the Public Service to provide opportunities for young people.
Let us look at the policies of the Opposition. On one hand it says ‘Give us more’ and on the other hand it says ‘Cut Government expenditure’. As I said yesterday, if as PostmasterGeneral I were to carry out the policies of the Leader of the Opposition, Mr Snedden, and cut the expenditure of the Post Office by 8 per cent I would have to sack about 1,000 people from the Post Office, and they would become unemployed. I replied yesterday to Senator Carrick in the same manner as Senator Murphy, Mr Whitlam and Dr J. F. Cairns have replied this morning. Unemployment is a characteristic of the sort of economy we have.
– You have created unemployment.
– Has the honourable senator forgotten the horror Budgets of his Government. In 1956 and 1960 did his Government care when it stopped manufacturing in all the States? Did it care when it stopped the spare parts industry? What he says is rubbish. He ought to know because he says that he is running a furniture factory. Here is a man who is running a joinery factory. He is sitting in the Parliament in a red seat and he says he is running that factory. He is complaining because the Labor Government and the unions gave his workers too much money. He says that is the fact. Of course it is. No government in Australia has taken more positive steps than this Government has taken, but it has the added circumstance of a general inflationary position which applies to Australia as well as to every country in the Western world. If the Government had more co-operation from the Opposition it would be able to cope with these problems better than it is doing today.
page 2630
- Mr President, I wish to ask a supplementary question. I specifically asked the Minister: How many people were being employed under the National Employment and Training scheme, how many people did the Government announce were to be employed by the Commonwealth Public Service, and was the number of the order of 1,450? May I have specific answers?
– I do not have the figures in my head but I undertake to obtain the information for the honourable senator.
page 2630
– My question is directed to the Minister representing the Prime Minister. It refers to the distribution of the $2m allocated to advance the United Nations proposal to make 1975 ‘International Women’s Year’. I refer to a submission by the Co-ordinating Women’s Group, a large politically unaligned group of women concerned to organise forums throughout Australia where women can meet and exchange views on basic social and economic matters. I ask that the Minister seek to hasten an allocation of the money sought by this significant and growing group of women in a worthy national cause. Indeed, he may even add the weight of his promotion to their objectives so that they may, the sooner, make their contributions to the aforementioned coming International Women’s Year and beyond.
-I will certainly pass that along to the Prime Minister for his consideration.
page 2630
– I ask a question of the Attorney-General. Is he aware that the International Air Transport Association has placed minimum productivity levels upon travel agents, demanding that they write a definite minimum amount of business each year? Is he aware that 3 large southern travel agents are being threatened by the International Air Transport Association with the loss of their International Air Transport Association agency accreditation because they have failed to reach their productivity levels? Does he consider that such productivity demands are an infringement of reasonable trade practices? Does this come within the jurisdiction of the Trade Practices Act? If not, will he consider amending the Act to cover such arbitrary demands by the overseas airlines organisation?
– The honourable senator raises a very vexed issue. I am aware from reading some of the publications over the years how much discontent there is about this aspect. There is the practice of requiring people to do agency business for some time without any reward at all, which seems to be a very extraordinary way of getting people in commerce. The requirement that so much business must be done also seems to me to be a very strange way to operate a business. I am not able now to inform the honourable senator whether this comes under the trades practices legislation but I will have the matter investigated and inform the Senate, if that is a desirable course, or if there is some infringement of the Trade Practices Act I can suggest that action should be taken.
page 2630
-My question to the Postmaster-General refers to his corrected answer to a question I asked yesterday about the attitudes of various unions, some of whose members are employed by the Overseas Telecommunications Commission. I remind him that he seems to maintain that the only association or union opposed to the merger is the Professional Officers Association which has 16 members in OTC. I ask him this question, as I did yesterday: It is not a fact that the Association of Professional Engineers, whose membership amongst OTC employees is 85, has been and still is opposed to the merger of OTC with the proposed Australian Telecommunications Commission?
– I have not recently checked the information. I answered an earlier question from Senator Mulvihill. I checked with the people concerned. I had meetings with them at a conference. I was in Melbourne when I met all the representatives. We were considering the changes that would be required. I understood that only one organisation was in fact opposed to the merger and that was the Professional Officers Association. The unions that I have mentioned, such as the Professional Radio Employees Institute of Australia, the Administrative and Clerical Officers Association, the Association of Professional Engineers, the Association of Architects, Engineers, Surveyors and Draughtsmen, the Australian Journalists Association and some other unions with small memberships like the Miscellaneous Workers Union, the Electrical
Trades Union, which has a few members and the Transport Workers Union of Australia with 2 members in OTC, are all taking part- except those with two or three members involved- in discussions at the present time with my officers to work out the framework and infrastructure of the new Commission. One union has resisted the merger and has said that there should not be a takeover and that the OTC should remain on its own. Some activity has been engendered by some people- not many people- to frustrate what the Commission and the Government have determined.
The realities are as I mentioned yesterday. Senator Durack met the rank and file committee and heard its petition. I think the real reason for members of that committee ventilating their feeling is that they are still concerned about their rights in the new enterprise. The honourable senator knows about the trade union group which is meeting the departmental representatives. There are regular discussions. The views of the committee are being taken into account. I have arranged for him to meet next Tuesday the Director-General and Mr Spratt who will be a member of the commission so he can get first hand the information which I have given. As far as I can see, there will be a number of questions about the takeover but there will be no general obstruction to the merger by the union movement or by staff members.
page 2631
– My question is directed to the Leader of the Government in the Senate. Has the Government decided that reference to imported inflation is not being accepted by the people and is, therefore, a useless piece of propaganda? In view of the claim of the Leader of the Government yesterday that Australia has a much higher rate of inflation than New Zealand because New Zealand does not have an upper House to obstruct legislation, I ask: Is it not a fact that the Government is so concerned for its survival that it uses any excuse to camouflage its inability to control the inflation it has caused?
– One Opposition senator, certainly on his own behalf and maybe on behalf of his Party, has said that the statement about inflation being imported is propaganda. The economists do not agree upon a great deal, but I would have thought that if they agreed upon one thing it was that inflation is world wide and that, without any doubt whatever, inflation is imported into Australia. The price of commodities all over the world is increasing. Let us assume that there is some component of domestic contribution, for the purposes of this argument. It is the height of foolishness for the Opposition to start to suggest that there is no world wide inflation and that inflation is not being imported into Australia. All the cargo that is coming into this country and all the commodities that are flowing into this country are bringing inflation with them. Anyone with any knowledge knows that inflation is reflected world wide and is affecting all countries, whether they have advanced economies or backward economies or whether they have high employment or high unemployment. This is a feature of the world today.
If we read the world news we see what is happening in Japan, with its enormous rate of inflation, and in the United States, but we have to come into the Senate to hear a senator actually say that it is all propaganda to claim that inflation is world wide and that inflation is being imported. That shows the level on which the Opposition is operating. It is the reason the Australian people will not accept it as an alternative Government. I repeat that while that kind of attitude is being manifested by honourable senators opposite, there is no hope for them. Before the people would ever trust them again they would need to change their constitution, their policies, their leaders and their name. It will be a long time before they get around to doing so.
page 2631
– My question is directed to the Minister for Aboriginal Affairs. Since the debate last Thursday, with the further time available since then, has the Minister any additional information he could give to the Senate as to whether the Department of Aboriginal Affairs paid for the air transport of persons who attended the recent Weipa conference? The matter was referred to during the debate last Thursday in the Senate. At that time the Minister said that the Department had not paid for anything other than through a VIP flight. I ask whether the Minister has any further information in relation to that matter for the Senate. I ask further: Have any steps been taken to stop further Aboriginal conferences arranged through the Department of Aboriginal Affairs?
– I do not know whether we are talking about the same conference. The conference at Weipa, which is the only one of which I am aware, was a meeting of Aboriginal people which I attended for the purpose of discussing a return to Old Mapoon. I travelled there in a VIP plane. No aircraft was chartered at all for the conference. Mr Joe McGuinness from the Department was up there for 2 days organising the meeting and discussing problems with the Aboriginal people. He told me that he was using a car from one of the organisations there. As the honourable senator thinks that there is something about chartering or paying for an aircraft that I do not know about, I will make inquiries from the Department. It is unlikely that that occurred.
We are holding a series of conferences- we have held a conference at Bourke and we are holding a conference at Ceduna, I believe, this week- for the purpose of liaising and having consultations concerning departmental and Government policy with the various Aboriginal groups. A series of conferences have been planned, and these will continue. At such conferences attendance fees are paid and any necessary transport costs, such as the hiring of buses to bring delegates from various locations to the conference, are met. This could include plane fares because sometimes a conference is held in an area to which the delegates have to travel hundreds of miles. At the Weipa conference- if that is the same conference to which Senator Rae is referring -
– Yes, it is.
– There were no charter flights. I will make further inquiries to see whether any correction of that statement is necessary.
page 2632
– I ask the Minister representing the Minister for Services and Property: Is he able to offer any reasonable excuse on behalf of the present Labor socialist Government as to why such utter failure has followed this Government and why the Australian Labor Party was unable to win even one seat in the fully elected Northern Territory Legislative Assembly for which elections were held some weeks ago? Has the Minister any reasonable excuse to offer on behalf of the Government?
-Generally in this place we ignore standing order 99 which places strictures on the type of questions asked. I really think that the language used by Senator Webster has gone over the fence and that the question does not warrant a reply.
page 2632
– Yesterday Senator Young asked me a question about Woodside Army Camp. The answer I have also answers questions by Senator Drury and Senator Laucke about related matters. I have confirmed that although the ultimate future of Woodside camp is still undecided, under current planning it is likely to be occupied by at least one or two major Regular Army units for some years. The transfer of the Third Battalion Royal Australian Regiment, the major unit at present in the area, is being planned. However, this transfer would be in the long term as it is dependent upon the availability of satisfactory accommodation in a new locality. In answer to that section of Senator Young’s question regarding the occupation of Army married quarters in the Woodside and surrounding areas, I point out that there are at present 1 1 5 Army married quarters, only nine of which are unoccupied. Of those nine, three are allocated and the remaining six are in the process of being allocated. There are 80 Army personnel on the waiting list. In addition, Senator Drury made representations to me about getting a swimming pool for the use of servicemen in the camp. I have put that request to the Minister for Defence and it is currently being considered.
page 2632
– In answer to a question asked by Senator Sir Magnus Cormack relating to the airlines dispute, I can inform him that the parties are presently in conference and they hope to make a further report after lunch. As soon as this information comes to hand I shall inform the Senate.
page 2632
Senator WHEELDON (Western AustraliaMinister for Repatriation and Compensation)Pursuant to section 44 of the Commonwealth Serum Laboratories Act 1961-70 I present the 13th annual report of the Commonwealth Serum Laboratories Commission for the year ended 30 June 1974, together with financial statements and the Auditor-General’s report on those statements.
page 2632
– I present a statement by the Treasurer entitled ‘ 1974 Annual Meetings of the International Monetary Fund and World Bank Group’.
page 2632
– I seek leave to make a statement regarding the placing of business. So that the Senate may understand, it is my desire -
-Is leave granted?
- Mr President, I seek to have the Local Government Grants Bill brought on so that it can have adequate debate and quick passage today. I seek leave to have that Bill brought on ahead of the Family Law Bill on the assurance that if that is done the Local Government Grants Bill will get a reasonably speedy passage by the Opposition. -
-Is leave granted?
– May I have leave to respond?
– First I must ask whether leave is given to Senator Carrick to make a statement. Is leave granted? There being no dissent, leave is granted.
Senator CARRICK (New South Wales)-The Grants Commission made its determinations in August this year. The Bill to enable the grants to be made was introduced in the other place on 23 October this year and into this place on Tuesday of this week. By way of questioning of the Ministers and of the Government I requested that urgency be given to the passing of this Bill so that the grants could get to local government. Although the Bill was introduced on Tuesday no urgency was given to the matter and the day was taken up by the Family Law Bill despite my request on behalf of the Opposition that urgency be given to the Local Government Grants Bill. Yesterday when the Senate was dealing with the placing of business the Government showed that it had no regard to the urgency of this Bill and put the Bill well down the list. It could, in response to the urgency of the Bill, have put it on top.
Today the Bill has been listed to follow the Committee stage of the Family Law Bill. I understand that there is some feeling that the Government might tonight seek to force this Bill through after a debate of an hour or an hour and a half. Frankly, that is not good enough. If the Government is willing to adjourn the Committee consideration of the Family Law Bill at 6 p.m. and will give the Opposition from 8 p.m. to 10.30 p.m. the Opposition undertakes to pass the Local Government Grants Bill tonight. Alternatively, if a 2-hour limit is put on the debate we will undertake to respect that time limit and give the Government the Bill. We seek an assurance that there will be no less than a 2-hour debate and a gurantee that preference will be given to this Bill.
– I seek leave to respond to the honourable senator.
-Is leave granted? There being no dissent, leave is granted.
Senator MURPHY (New South WalesLeader of the Government in the Senate)- It is the intention of the Government that the Local Government Grants Bill 1974 be passed, if the Senate concurs, today. Senator Carrick asks for an undertaking by the Government. I find this a rather curious procedure.
– What is curious about it?
-One of the things that is curious is that the honourable senator asks that the Family Law Bill be postponed until after consideration of these other measures. The Senate yesterday was subjected to a performance by Opposition senators which did not advance the progress of legislation and which I do not think advanced their standing in the eyes of the people of Australia. However, they chose to behave in that way. The Government’s decision is that the Family Law Bill should be dealt with and if the endeavours of some members of the Opposition to try to frustrate the progress of this measure are persevered with, at least the country will be told just what they are about.
I find this suggestion very curious after the Whip has assured me that he informed the Leader of the Opposition in the Senate (Senator Withers) that we would seek to bring on the Local Government Grants Bill at 9 p.m. this evening in order that it could be disposed of. That, as I understand it, was acceptable to the Leader of the Opposition.
– On the contrary.
– I am not speaking of what Senator Carrick may feel about the matter. He says that there ought to be 2 hours debate. The decision has been reached by the Government, and I think it is a proper decision in relation to the order of business, that we bring on the Local Government Grants Bill at 9 p.m. That will be the understanding. It will leave in the ordinary course of events an hour and a half of debate and if the Opposition or somebody else feels that there needs to be an extra half-hour at that stage the Senate could oppose the motion for the adjournment and continue the debate until 1 1 o’clock. It seems to me that this is a perfectly reasonable and proper ordering of the business of the Senate. I would ask those opposite not to persevere with some kind of endeavour to filibuster on other matters or protract the business of the Senate to prevent the Family Law Bill being dealt with. I suggest to honourable senators opposite that in this chamber we sometimes win and we sometimes lose. We have had the situation in regard to committees. When a decision has been carried to establish a committee, those who have fought against the system or the committee have co-operated in sitting on the committee.
If democracy is to work in here there must be a certain amount of co-operation and there must be an observance of the will of the Senate. The proposition was put not to deal with the Family Law Bill. That proposition was rejected by the Senate. I would ask those senators who did not agree with that decision nevertheless to observe the will of the Senate and not to engage in various forms of filibuster to prevent a measure being dealt with. My proposal is that it is understood that at 9 p.m. we would adjourn the Family Law Bill and deal with the Local Government Grants Bill. I hope for a speedy passage of that Bill through this chamber.
– May I have leave to make a comment?
- Senator Sir Kenneth Anderson seeks leave to make a comment. You can give reasons why you seek leave.
– If I give the reasons I would have said all I have to say.
-Is leave granted? There being no dissent, leave is granted.
– I regret the comments that the Leader of the Government has made. I could understand it if he had said, for reasons in which he believes, the Government proposed to use the guillotine. But this is a form of duress that is being put on the Senate, which the Senate just cannot abide. It is unprecedented to do it in this way. The AttorneyGeneral should come into the open and say: ‘I believe we must have this Bill tonight. We, the Government, want it to be debated in an hour and a half.’ He should take the front line and put down a motion accordingly. To try to get the Bill in this backhanded way, I find very distressing. He knows, as I have indicated to him previously, that I feel this is below the line. I think it is a very unfortunate way to do it. If he had done it in a more direct way it would have been the will of the Senate. I am sorry to have to say this, but it is the way that I feel about the matter.
page 2634
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Bishop) read a first time.
– I move:
I seek leave to incorporate a copy of my second reading speech in Hansard.
-Is leave granted? There being no dissent, leave is granted.
-I thank the House. (The document read as follows)-
The purpose of this Bill is to increase certain pension benefits payable under the Defence Forces Retirement Benefits Act 1948-1973 and the Defence Forces Retirement and Death Benefits Act 1973-1974. Honourable senators may recall that when I introduced the Defence Forces Retirement Benefits (Pension Increases) Bill in May of last year, in my capacity as Minister assisting the Minister for Defence, I explained that the increases, which applied in respect of servicemen who contributed to the Defence Forces Retirement Benefits Scheme, were an interim measure only. There were sound reasons for adopting that course. The Government’s aim is to ensure that in the matter of post-retirement pension adjustments, all its retired employees receive comparable treatment, irrespective of the differences that may exist in the benefit structures of the various schemes. The 1973 interim adjustments of DFRB pensions were based on proposals to increase superannuation pensions payable to retired public servants, which are now incorporated in the Superannuation Act, and complied with that aim. There were, however, some difficulties in the way of applying the same adjustment method to pensioners under the new Defence Force Retirement and Death Benefits Scheme, the legislation for which was introduced at the same time as the pension increases Bill. It was decided therefore to defer the question of a permanent method for adjusting servicemen’s pensions under both schemes until all relevant aspects had been thoroughly examined.
I would have hoped by this time that it would have been possible for details of the adjustment methods to apply in the future to be incorporated in the principal Acts. The Government, however, has properly recognised the need to examine various other proposals that have been put to it in recent months for the annual adjustment of benefits arising from a person’s retirement and, more importantly, any effects their possible introduction may have in the future on the pension updating arrangements currently in force. These inquiries are not yet complete. This Bill provides, therefore, for further interim increases this year, which will be payable with effect from and including the pension pay day of 4 July 1974.I am informed by my colleague the Minister for Defence (Mr Barnard) that legislation will be introduced next year to provide for future permanent methods of adjustment. He has already made it clear that if any pensioner does not receive from this and last year’s interim adjustments the full benefit of the increase which the future permanent method would have provided for him during the period concerned, his pension payments will be adjusted retrospectively to the pension pay day of 5 July 1 973.
The increases in both DFRB and DFRDB pensions as proposed by this Bill will be related to the 16.2 per cent increase in average weekly earnings during the 12 months ending 31 March 1974. In the case of DFRB pensioners, that is those who retired before 1 October 1972, the amount of the increase is determined by applying that percentage to a notional Consolidated Revenue share of the total pension payable, which comprises the amount of the pension adjusted last year plus the amount of last years pension increase. In practical terms, the 16.2 per cent will be applied, in the great majority of cases, to almost 80 per cent of the total pension currently payable.
For pensioners retired under the conditions of the new DFRDB scheme a notional Consolidated Revenue share of five-sevenths of the total pension payable is to be adjusted by 16.2 per cent except where retirement occurred within the 12 months preceding 1 July 1974, when the percentage will be proportionately reduced in relation to the number of months served during that year. Widows’ pensions and the ‘additional’ pension payable in respect of eligible children will be increased in proportion to the increase that would have applied to the deceased serviceman if he were still alive and drawing pension. I commend the Bill to the Senate.
Debate (on motion by Senator Maunsell) adjourned.
page 2635
In Committee
Consideration resumed from 19 November.
-Is it the wish of the Committee that this Bill be taken as a whole?
– I suggest that the Bill be dealt with in brackets of clauses. My office has worked out what seems to be convenient brackets of clauses. I shall indicate the brackets of clauses: Clause 1 to clause 8; clause 9 to clause 13; clause 14 to clause 17 and then -
– Before Senator Murphy concludes I say that I believe this Bill should be taken clause by clause. We do not know what the arrangements are. I think as we proceed opportunity will arise for some clauses to be taken together.
– All right.
Clause 1.
This Act may be cited as the Family Law Act 1974.
Senator Sir KENNETH ANDERSON (New South Wales) (12.1 )-I move:
This is not a clause which will take a great amount of time to dispose of one way or the other. I move this amendment because of my fundamental feelings and my views on this Bill. I think that to use the name ‘Family Law Act’ is humbug. This is not a Bill to preserve and aid the family within the framework of marriage. ‘Family Law Act’ seems to me to be a singularly inappropriate name. This Bill is intended to make the dissolution of marriage quick and easy. It is nonsense to have a Bill which enables the quick and easy dissolution of marriage tied to the family concept. 1 find the title unacceptable to my thinking. The amendment I have moved will give the Bill its true name. It is a divorce Bill. It is a marriage dissolution Bill so why not call it just that. If that were done the Bill would not be flying under any false colours at all and would be known for what it is. To link family life in the concept of a family law Bill with divorce seems to me to defame all that is good in marriage. In essence marriage is tied to the family. Marriage is an inheritance of love, loyalty and protection particularly for the offspring of the marriage and indeed for the other spouse who is a party to the contract. All this is basic to the happy home.
Family life is the greatest gift that God has given to mankind. I say that with all the force 1 have and all my belief in the use of the word God. Family life, of necessity, has a whole wide perimeter and the very least of it seems to me to be the easy and quick, almost by the press of a button, concept of the dissolution of marriage. I believe that this Bill which makes divorce so quick should be named for what it is, a dissolution of marriage Bill. The Bill only touches the fringe of family life. It is not right for the innocent to be able to look at the BUI and think that it deals with the whole concept of the family. Let me be frank; the name distresses me. There is reference to counselling, conciliation and maintenance, but they are only afterthoughts in the Bill. Senator Carrick, when speaking at the second reading stage of the Bill, said that all the various laws concerning the family are to be found almost entirely in State laws. I do not wish to persevere with my views, but I believe the amendment to be important. I believe that this Bill should not fly under any false colours to any person in this land or any other land. The Bill has as its purpose the dissolution of marriage and I believe my amendment should be accepted and the Bill adjusted accordingly.
– I rise to support the amendment of Senator Sir Kenneth Anderson. I do so without any emotional overtones at all. We are discussing what ought to be the correct description, in terms of the short title, of this Bill. Any analysis of this Bill shows that its predominant intention is to deal with a marriage that has suffered irretrievable breakdown and to deal with the consequences of that breakdown. The Bill provides one or two other subsidiary measures by way of attempts at guidance or conciliation. By looking at the Bill clause by clause one will see that the over whelming body of it is related to marriage dissolution. The Government has brought in this Bill seeking dissolution of marriage as the purpose of the Bill. The Government therefore should not find any difficulty in giving it an accurate description.
Senator Sir Kenneth Anderson repeated what I said at the second reading stage of the Bill. It is beyond doubt that the description of this Bill as a family law Bill is completely confusing to all because the great bulk of family law lies within the individual States, and will remain so. Therefore the simple thing to do is to give this Bill a title which describes its simple function. I therefore support the tide ‘Marriage Dissolution Act’, suggested by Senator Sir Kenneth Anderson.
– I could not be more opposed, to the expressions which have been made by the 2 previous speakers, Senator Sir Kenneth Anderson and Senator Carrick, on this amendment. I do not believe that the
Bill, in its initial form, would justify the title Marriage Dissolution Act’. I certainly do not agree that the amendments which I am sure we will make to this Bill will leave the slightest resemblance to that name. There is some confusion on the part of those who are supporting this amendment. If the Bill was called the ‘Family Life Bill’ they might have a point. The Bill certainly does not cover all aspects of family life; it deals with the aspects of law. The other night Senator Greenwood read the Liberal Party’s Platform proposals on this matter. The Platform makes the point that when marriages break down somewhere law must intervene.
I think honourable senators will find that it is what is known as ‘family law’ when studied in universities. It is true that a big part of that type of law course considers the various dissolution proceedings. But in no way is that the complete essence of this Bill or is it a fact that it is incorrect to call the Bill the Family Law Bill. Family law covers the areas where the law has to intervene. Anyone who reads the Bill and the report of the Committee will see that the intention is not the cynical intention which has been ascribed to this Bill but in fact it is an intention to buttress marriage and. where it has broken down, to deal with dissolution. To suggest that we in this Committee should not be looking primarily at strengthening the Bill and making it more of a buttressing Bill rather than just a dissolution Bill and thereby at the beginning giving it a name and confining it to mere dissolution, is a cynical suggestion and not one on the basis of which I will approach this Committee. I trust that this cynical amendment will be thrown out, because we need to look at this matter in a positive way. We have passed the second reading stage and we are now dealing with making it the best Bill possible. I oppose the amendment.
-Throughout the debate on this Bill- both the debate in the Senate and the public debate- I have been struck by the fact that most of the opponents of the Bill do not seem to have taken the trouble to read it. It has been quite clear in the spate of letters that have been received from the ‘Festival of Darkness’ and kindred organisations that very few people have bothered to read the Bill. I suggest that this applies also to Senator Carrick and Senator Sir Kenneth Anderson. I do not ask them to read the Bill in all its detail but merely to look through the table of provisions and they will see that the Bill contains clauses relating to marriage counselling organisations, reconciliation, welfare and custody of children, maintenance and property.
– After dissolution.
-Does Senator Carrick say that he has read the Bill? Has he read anything in the report of the Senate Standing Committee on Constitutional and Legal Affairs about counselling?
– Yes.
-About making the facilities of the family court available to people?
– Yes.
-Even when proceedings have not been initiated?
– Yes.
– Does this not constitute some improvement on the existing law? If honourable senators have closed their minds to everything that is in this Bill they should level with us right from the start. Their attitude towards this BUI is that they abhor everything about it. I can understand that, but they should not misstate what is in the Bill. The Bill contains a great deal designed to buttress marriage and to prevent divorce. If honourable senators would only read the Bill I suggest that they could not possibly maintain the attitude that they have taken on the threshold of this debate.
– I am sorry that Senator James McClelland used the phrase ‘Festival of Darkness’. I draw the attention of the Committee to the work which various organisations and communities do in the interests of the wellbeing and the stability of our society. Various members of the Committee may not agree totally with everything which the organisation known as the Festival of Light does, but at least it is an organisation of people who are concerned about our community standards and the general trends which are taking place. Its members are motivated by the highest motives for everything that is of the best positive outlook for our community. It is unfortunate that that note was introduced as we try to apply ourselves to this very complex Bill.
I turn now to Senator Sir Kenneth Anderson’s amendment relating to the tide of the Bill, in which he is asking the Committee to insert the phrase ‘Marriage Dissolution Act’. With great respect to Senator Sir Kenneth Anderson and acknowledging the points he has made, I feel that it would be unfortunate if we made this kind of alteration to the title of the Bill. As I said during the second reading debate, family law is the law which governs the relationships between men and women and parents and children, and particularly when those relationships are instituted by marriage. As the law provides for the establishment of marriage and as the law provides for families as established by marriage, so the law must provide for the difficulties that arise if, due to unfortunate circumstances, that particular marriage breaks down. I think that, as we embark upon the Bill and the many amendments to be debated, it should always be kept in mind that the ultimate aim of the Bill is the protection and preservation of the family according to law. Therefore, I think that the title ‘Family Law Bill’ meets the needs of the situation and I oppose the amendment.
– I suggest to the Committee that it is axiomatic that the short title of a Bill should be reasonably related to its long title. The long title of this Bill is A Bill for an Act relating to Marriage and to Divorce and Matrimonial Causes and, in Relation thereto Parental Rights and the Custody and Guardianship of Infants, and certain other Matters’. In other words, the long title simply recites the 2 constitutional heads of power pursuant to which this legislation is placed before the Parliament. To alter the short title, as suggested by Senator Sir Kenneth Anderson, would be to distort the true purpose of the Bill.
The second point I make- my contribution is directed strongly to supporting Senator Missen in his initial approach to this matter- is that the whole gravamen of this legislation relates to matrimonial causes as denned in clause 4 of the Bill. In other words, without a matrimonial cause as defined, there would be no Bill. Put another way, this Bill is about matrimonial causes. The definition of ‘matrimonial cause’ in clause 4 is extremely wide. It is divided into 5 parts, only half of the first part of which is related to dissolution of marriage.
Clause 4 states:
Matrimonial cause’ means-
proceedings between the parties to a marriage for a decree of-
dissolution of marriage; or
nullity of marriage;
I will not read the whole of the definition, but ( b) relates to certain declarations; (c) relates to maintenance of parties and custody, guardianship and maintenance of children; (d) relates to proceedings between the parties for approval by the court of a maintenance agreement; (e) relates to orders or injunctions arising out of a matrimonial relationship; and (0 relates to any other proceedings. So it is only a small part of the totality of what is embraced within the expression ‘matrimonial cause’ that relates to dissolution of marriage.
To give this Bill the title ‘Marriage Dissolution Act’ would be to distort the purposes of the Bill and to ignore many of the purposes of the Bill. Not only would it be cynical, as Senator Missen has suggested, but also it would be illogical and a masterpiece of distortion in which I suggest this Parliament should not engage.
– I do not intend to vote for the amendment proposed by Senator Sir Kenneth Anderson but I was brought into this debate by the words used by Senator James McClelland. I do not think there is anything to be gained today by introducing too much emotionalism into the debate or by becoming unduly provocative. The Festival of Light has concerned itself with the Bill. It has tried to become involved, to learn something about the Bill, to take an attitude and to contribute something, even if all honourable senators do not happen to agree with the point of view which the organisation expresses. I have had discussions with representatives of the Festival of Light and in those discussions I have found them most reasonable, most positive and most level headed. They started from a premise with which I did not necessarily agree. They reached conclusions with which I did not necessarily agree. But they were intellectually honest throughout. They were concerned with family life. They were concerned with a good divorce Bill. I think that it achieves nothing to refer to them as the ‘Festival of Darkness’. I found the words offensive and I found the description as applied to this organisation offensive. It will not help the debate if this unnecessary and pejorative language creeps in.
I heard some talk earlier about a filibuster. From my point of view I have an amendment which I want to move at a certain stage. It is my intention as far as possible to stay out of the Committee discussion up to that stage, at which time I intend to discuss as fully as I can that amendment, what it might mean and what the Committee might do. But I will find it easier to stay out of the discussion if a reasonable tone is adopted by those who take part in the debate.
Senator Sir KENNETH ANDERSON (New South Wales) (12.20)-! feel obliged to refer to some of the comments that have been made by Senator Missen and Senator James McClelland. There has been a suggestion that this amendment is based on a cynical attitude, to use Senator Missen ‘s words. I might say to him as a new senator in this place that if that is to be the pattern of his speeches he has a hell of a lot to learn before very long. In relation to Senator James McClelland ‘s attitude and his reference to the Festival of Light, this was a very poor exhibition by no less a person than the Chairman of the Senate Standing Committee on Constitutional and Legal Affairs. I point out to Senator James McClelland as the Chairman of that Committee that it purported to put its blessing upon this Bill. It took evidence from only 7 people on this Bill as printed, not as it may ultimately be if the amendments are accepted. We are dealing with clause 1, not the circulated amendments which may or may not be adopted. I regret to have to say this to the Chairman of the Constitutional and Legal Affairs Committee but I repeat that this Committee took evidence only in relation to this Bill.
– Not true.
– It had 3 meetings in relation to this.
– Not true.
– It is true. There were 7 witnesses amongst whom was the Attorney-General himself, a Mr Watson as a consultant and Mr Yuill from the AttorneyGeneral’s Department. If Senator Missen wants to set a pattern for this debate there are people here who will accommodate him. I have expressed a point of view. I am prepared to put it briefly and anything that I say will be brief. I suggest that we have a vote on this so we can dispose of the clause very quickly.
– I think the amendment ought not to be accepted. It is true that a good deal of the Bill deals with marriage dissolution but the constitutional power extends further than that. I would think that we would want to have a vehicle to enable us to include matters other than dissolution of marriage. There is nothing terribly wrong with the title Marriage Dissolution Act’. There is nothing wrong with that at all. But the endeavour on my part has been, and I think Senator Sir Kenneth Anderson should share in this, that in dealing in this area we should go much further than dissolution. The Bill incorporates measures dealing with custody, maintenance, declarations on property rights and various other matters which are not necessarily connected with or tied to dissolution including counselling, reconciliation and all sorts of things. The Bill has been discussed in public and it is known as the ‘Family Law Bill’. People know what they are talking about when they refer to it as the ‘Family Law Bill’. I think it would be very unfortunate to change the name. It lives as a name. I suppose it can be changed but if it were it would cause very great confusion and it would not properly describe the Bill because I think it is bound to end up covering matters which go further than dissolution of marriage. So I urge the Senate with respect not to accept this amendment. It would be a backward step if we were to interfere with the title of the Bill because we would all be wanting to put into the Bill various other matters which go well beyond dissolution of marriage.
– I must say that I find myself in a difficult position because I do not think the Bill is aptly described by the title ‘Family Law Bill’. Yet I concede the point which has been raised by speakers against Senator Sir Kenneth Anderson’s amendment that it does comprehend more than marriage dissolution. What Senator Everett said gets closer to the point. I regret that it has not been called the ‘Matrimonial Causes Act’ which was the language used in 1959 and which would be an appellation equally applicable to this legislation. Why I object to the expression Family Law Act’ is probably the reason that it was considered in the first place. That is, it gives it an attractive character, makes it more appealing in places where it might be regarded with some objection and resentment and expresses the hope that it will achieve some of the more laudable objectives which are ascribed to the measure. In those circumstances I imagine the description ‘Family Law Bill’ has been chosen. But on the other hand I think it has at the present time features which I regard as not exactly destructive of marriage and the family but certainly conducive to weakening the impact in society and the acceptance in our society of marriage and the family. I think it also can be misleading.
Senator Everett referred to the constitutional provisions. I think this Bill has some constitutional aspects which ought not to be overlooked. Section 5 1 of the Constitution states that the Parliament shall have power to make laws in this area with respect to marriage, divorce and matrimonial causes, and in relation thereto, parental rights, and the custody and guardianship of infants. There is no power to make laws with respect to the family. To that extent I think the name of the Bill goes beyond what could be regarded and ought properly to be regarded as constitutional power. I have circulated in this welter of amendments something which deals with the definition of matrimonial cause and it takes up the points which were relied upon by Senator Everett. I will have more to say when that amendment is considered.
I would wish that out of this some middle course could have been adopted but that does not seem to be a possible course. I would feel that if one were forced to a vote on this I would prefer to have the words ‘marriage dissolution’ in the hope that it would produce some change which would be more acceptable in the long run. But I do want to say right at the outset of this debate that the remarks of Senator James McClelland reflected an attitude to opponents of certain provisions of this Bill which is quite unwarranted. I voted for the second reading. I recognise there is a base upon which constructive work can be done. Yet I think one of the really welcome and useful additions to our society in recent times has been the emergence of the people who call themselves the Festival of Light, and far from their being a festival of darkness I think they are endeavouring to give some weight and stability to values which ought to be regarded as acceptable throughout our community. The attitude that Senator James McClelland adopts, I feel, only makes this Bill possibly a more acrimonious vehicle for discussion that it otherwise would be.
Amendment negatived.
Clause agreed to.
– May I have my vote in favour of the amendment recorded in Hansard?
-Yes, that is quite acceptable.
Clauses 2 and 3- by leave- taken together.
– I have had a query raised with me as to the effect of clause 3(2) (c). I have not moved an amendment to it because I am not sure whether the query is justified. I simply flag the problem for the Attorney-General (Senator Murphy). He may get his officers to look at it. The effect, as it has been put to me, is that a person who has already obtained a decree of nullity of marriage on the ground that it was voidable or a decree of judicial separation may not be able to enforce in future any ancillary orders which were made under that decree. There may be difficulty in doing so. They might have to make separate applications under the new Family Law Act- a de novo type of application- for maintenance or custody. I have not studied the Bill technically and in sufficient detail to be sure whether that query is right. I just flag it in case there is some substance in it. The Minister’s advisers might look at it.
– I have received some advice. That point has been considered. The conclusion is that there is no real fear and no substance in the point that was put to Senator Durack. That is the position. If he wishes, I will look further into it. It has been considered, and that determination has been reached. I will have a further look taken at it. If there were any problem, we could come back to it. My clear understanding is that it does not have the effect which has been suggested to the honourable senator.
Clauses agreed to.
Clause 4.
Australia’ includes Norfolk Island; court’, in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of this Act; court of summary jurisdiction’ includes a Family Court of a State or Territory, not being a court that may be constituted by a Judge of the Supreme Court of a State or Territory; decree’ means decree, judgment or order, and includes a decree nisi and an order dismissing an application or refusing to make a decree or order; financial matters’, in relation to the parties to a marriage, means matters with respect to-
proceedings between the parties to a marriage for a decree of-
the maintenance of one of those parties:
Registrar’, in relation to a court, means the Registrar, Master or other proper officer of that court; repealed Act’ means the Matrimonial Causes Act 1959 and includes that Act as amended by the Matrimonial Causes Act 1965 and by the Matrimonial Causes Act 1966; separation order’ means a decree, not being a decree of dissolution or nullity of marriage or for a judicial separation having the effect of relieving a party to a marriage from any obligation to cohabit with the other party to the marriage:
Superior Court ‘ means the Superior Court of Australia:
Territory’ does not include an external Territory other than Norfolk Island; welfare officer’ means-
Public Service or in the Public Service of a Territory;
a person appointed as a welfare officer in accordance with the regulations.
– I move:
I know that there are various considerations about the form of the court and so forth. This is only the definition clause. If there were objection to the Family Court we could come back to this clause. If the Committee took the view that it did not want a Family Court we could come back and delete the definition. I suggest that for a reasonable ordering of the business the simple definition should be passed. Then we will know what we are talking about.
– I suggest that on that basis consideration of the amendment should be deferred. The argument of the Attorney-General (Senator Murphy) is that, if the Committee decides that a federal court is not the appropriate court, the definition can be deleted. If he is right obviously it should not be inserted in the first place. I suggest that consideration of the amendment be deferred.
– We would need some kind of reasonable language when we are dealing with the matter, even for the purpose of debate. Nothing would be lost if Senator Carrick’s view prevailed. The definition would simply be left hanging. Common sense would be to delete it. It is better that the definition clause have some kind of basis of language so we know what we are doing. I suggest that it is much more convenient to insert the definition and not let the debate get tangled up.
– I regard the definition of the Family Court, as contemplated by Senator Murphy’s amendment, as, in my judgment, probably the most significant provision of all the provisions in this Bill. I think I indicated in the course of my contribution to the second reading debate that I am totally opposed not to the concept of family court but to the concept of a family court established under Commonwealth law, with judges appointed for life. I will oppose that concept right through. I had hoped that the AttorneyGeneral (Senator Murphy) would have acceded to Senator Carrick’s proposal. As he has not, I move:
I hope that that will be agreed to by the Attorney-General.
– Rather than have a lengthy debate about procedure, I will concede. I think that the other course would have been much more convenient. It is not worth wasting time over the matter. I will agree to the postponement.
-There are a number of amendments to the definition clause, some of which affect later provisions. There could be some problem if we postponed consideration of this definition. There are at least three or four substantial amendments to the definition clause which may or may not be necessary, depending on what happens later. I do not know whether the Attorney-General (Senator Murphy) is proposing that consideration of the whole of the definition clause be postponed.
– We were dealing only with the first amendment. 1 think the sensible course would probably be that which was suggested by Senator Missen. If we are to postpone consideration of one definition we might as well postpone the consideration of the whole of the definition clause.
Senator Sir KENNETH ANDERSON (New South Wales) ( 12.38)- I understand the points which the Leader of the Government in the Senate (Senator Murphy) has made. I have an amendment which relates to the definition of marriage. I would have thought that it was of the essence that it be put to the test. If it is defeated, it may have some bearing on what I do subsequently.
– I want peace at any price. If Senator Sir Kenneth Anderson wishes to deal with his amendment, I will not object. I move:
Those amendments relate to clause 4, the definition clause.
-The question before the Chair is the motion by Senator Greenwood that consideration of one amendment be postponed.
– I seek leave to withdraw my motion. Then Senator Murphy can move his motion.
– Is leave granted? There being no objection, leave is granted.
Motion- by leave- withdrawn.
– I thank the Committee. I say, by way of explanation, that I have an amendment to the definition of matrimonial cause. Senator Murphy also has an amendment to that definition. I would have thought that, as there is an issue of principle involved in my amendment, it ought to be resolved when the Committee is considering the definition clause. If the amendment were accepted by the Committee there would be consequential amendments. I think it is appropriate to have it dealt with at this stage. It may be that Senator Murphy’s amendment would also be dealt with at the same time. In the same spirit of a desire not to waste time on procedural matters, I suggest that he may feel that it would be better to deal with each matter point by point. If a matter is to be adjourned, it can be adjourned without debate. I leave it in his hands. I have withdrawn my motion that consideration of the amendment be postponed. I say to him that we will probably get along in the spirit he is wanting if we deal with the matters point by point.
-I have some questions with regard to adopted children. Are we to deal with the definitions at a later stage? Perhaps it would be more appropriate for me to raise my questions then. I seek clarification as to the procedure that will be adopted.
– I have moved that consideration of my proposed amendments be postponed. If Senator Sir Kenneth Anderson wishes to proceed with his matter, he can proceed with it and it will be dealt with. If Senator Greenwood wishes to proceed with a matter, let it be dealt with. Then we will postpone consideration of clause 4.
– And deal with mine at a later stage?
Ordered that consideration of the amendments circulated by the Attorney-General be postponed.
Senator Sir KENNETH ANDERSON (New South Wales) ( 12.41)- I move:
In sub-clause ( I ), insert the following new definition: marriage’, according to law in Australia, is the union of a man and a woman to the exclusion of all others voluntarily entered into for life:.
I think it is proper for me to say at the outset that this is a proposal that has been advocated by a group of people in the community. I find that it is acceptable to me and I believe that it should be incorporated in the interpretation clause of this Bill. In the Bill there is no definition of marriage as such, and I believe that there is no definition of marriage as such in the Matrimonial Causes Act either. In referring to the title of the Family Law Bill, I think that my Tasmanian colleague, Senator Everett, read out the long title which states:
A Bill for an Act Relating to Marriage and to Divorce and Matrimonial Causes and, in relation thereto Parental Rights and the Custody and Guardianship of Infants, and certain other Matters.
When one looks at the interpretation clause one sees reference to a marriage counsellor and to a matrimonial cause which refers to dissolution of marriage and nullity of marriage. Throughout the interpretation clause there are references to marriage. Then one sees reference to the definition of other matters, but there is no definition of marriage as such.
I am aware that there is a section of the Marriage Act a definition of marriage as such. We all recognise that in the Matrimonial Causes Act there is provision for the dissolution of marriage, as there is in a more dramatic way in this Bill. But that does not prejudice, in my mind, the view that the definition of marriage in the Marriage Act should be incorporated in this Bill. I feel bound to say that in putting forward that view 1 am in very good company, because I am sure that all honourable senators would have received an open letter addressed to all members of the Senate and of the House of Representatives. I hope that Senator James McClelland has read that open letter.
– Which one are you referring to?
– I am referring to the second one which was sent over the signature of various people. I will name them because they are very significant people in the community. They have advocated the inclusion of the definition of marriage in this Bill. They are:
Frieda Brown, M.A. (Oxon.), 30 William Street, Roseville, N.S.W.
Dr Thomas J. Connolly, St Patrick’s College, Manly, N.S.W.
James Cardinal Freeman, Catholic Archbishop of Sydney.
Kenneth Harrison, 15 Wallami Avenue, Caringbah, N.S.W.
Dr Clair Isbister, O.B.E., North Shore Medical Centre, St Leonards, N.S.W.
Rev. B. Judd, 188 Forbes Street, Darlinghusrt, N.S.W.
Most Rev. Edward Kelly, Auxiliary Bishop, St Mary’s Presbytery, Concord, N.S.W.
The Most Rev. M.L. Loane, Anglican Archbishop of Sydney.
Josephine Lonergan, LL.B., Gordon, N.S.W.
Rev. F. Nile, 379 Kent Street, Sydney.
The Hon. Athol Richardson, 296 Old Canterbury Road, Summer Hill, N.S.W.
Dean Lance Shilton, St. Andrew’s Cathedral, Sydney.
Margaret Slattery, 63 Billyard Avenue, Wahroonga, N.S.W.
Rev. Dr Gloster S. Udy, Chairman of the Parramatta District Methodist Church.
I have read out the names of those people in order to make the point that the view that the definition of marriage should be included in this Bill has been supported by a quite significant cross-section of eminent people in the community. Some of the people belong to the hierarchy of both the Roman Catholic and Anglican churches. There is also a Queen’s Counsel who is practising at the Bar in Sydney. There are other people of high repute who are involved in churches other than the Anglican and Roman Catholic churches. Indeed, there is a doctor of medicine.
My amendment seeks to include in the Bill the definition of marriage as I understand it appears in the Marriage Act. I believe that this does not prejudice the argument that this is a Bill to provide for divorce. If we are going to talk about marriage and as the Bill contains definitions of other things, I think it should contain the definition of marriage as between man and woman, because we are living in a world where we are reading that certain people are suggesting that marriage, should be allowable in relation to certain deviants as I think we generally and universally accept it.
-I rise to oppose this amendment. In doing so I should perhaps point out to Senator Sir Kenneth Anderson that I think Senator Everett referred to the long title of the Bill in the context of saying that that really reflected the use of the constitutional power. The definition proposed by Senator Sir Kenneth Anderson is the first attempt to insert in any legislation in Australia a definition of marriage. If one examines the State Marriage Acts I think one will find that there is no definition of marriage in any of those Acts- or there was not any definition of marriage in any of those Acts. There was no definition of marriage in the Commonwealth Marriage Act of 1 96 1 , either.
The definition which Senator Sir Kenneth Anderson would like to insert in the Bill is essentially an ecclesiastical definition of marriage. While one would not necessarily oppose it for that reason, it does not really seem to reflect the realities of our society in any way. For example, if one reads the definition clearly, it would seem implicit that for the first time in Australian legislation adultery would be contrary to law. That has never been the position.
– I am sorry, I was diverted and I was not with the honourable senator on that point.
-The point I make is that if one reads the definition-
– How can you have adultery to the exclusion of all others?
-Senator Carrick, if I could finish my point you might be able to follow it. The point I was trying to make is that by inserting what is essentially an ecclesiastical definition- of course, under ecclesiastical law adultery is an offence- you are effectively making adultery contrary to law in the definition of marriage in this Bill. The other point I make is that to have this definition of marriage in the legislation is not consistent with other provisions of the Bill. It is not even correct. For example, if one looks at clause 6 which deals with polygamous marriages it will be seen that it states:
For the purpose of proceedings under this Act, a union in the nature of marriage . . . polygamous . . . shall be deemed to be a marriage.
– But that is outside Australia, is it not?
– No. For the purpose of obtaining a dissolution of marriage under this Bill a polygamous marriage would be a marriage within the meaning of the Bill. That is contrary to the definition which Senator Sir Kenneth Anderson proposes. Of course, the fact of the matter is that under this legislation as under the matrimonial causes legislation currently in existence, dissolutions are made of marriages which do not fall within Senator Sir Kenneth Anderson’s definition. I follow the point which the honourable senator is trying to make by this amendment, but I say that it is really inappropriate having regard to the terminology and purpose of this Bill and of the existing matrimonial causes legislation. For that reason the definition should not be included. I oppose the amendment for those reasons.
– Could I throw a little light on the matter? The advice given to me is that we should not include this definition here. It is an inappropriate place in which to put it. The Marriage Act deals with marriages in Australia and I indicate to Senator Sir Kenneth Anderson that, in any event, amendments will be proposed to that Act. If the honourable senator wants to say anything about what marriages entered into in Australia should be, that is the place to do it. The difficulty here is that we are dealing with dissolution of marriages among other things. We are dealing with all sorts of family situations. We are dealing with marriages which are not all entered into in Australia. We are trying to provide a law which will apply to people in Australia who are married. We have to deal with people who are married not only in Australia. Some people, believe it or not, get married outside Australia. I did, 5 years and 2 days ago.
Senator Button pointed to clause 6 of the Bill and indicated that we deal with polygamous marriages as well. Senator Sir Kenneth Anderson will remember that his Government brought in this measure about 6 years ago. It was found that it was necessary to deal with those marriages because of injustice which would occur and which marriages were quite proper otherwise. In dissolution the then Government was really creatingSenator Sir Kenneth Anderson might ponder upon this- the danger of saying that it would not provide for the dissolution of a polygamous marriage but, when the matter was analysed, it was, if you like, putting a sanctity around polygamous marriages which it was not putting around monogamous marriages. The Government was saying: ‘All right, here is a law to dissolve a marriage which is even performed in church in Australia, but not a polygamous marriage. ‘
The definition proposed by the honourable senator may create unintended consequences because in some other country marriage might be entered into for a term. Who knows? Are we to say that they are not dissolvable and, for other purposes, they cannot be dealt with? I remind honourable senators that when this kind of law was brought in previously no such definition was included for the same kinds of considerations which I am expressing now. Honourable senators should not think that the matter would not have been considered previously in the Matrimonial Causes Act. At the moment marriage is not defined in the Marriage Act in such terms. I think, because of these very considerations, that the honourable senator’s definition may create some of these unintended consequences. Everybody knows that as the Bill stands the laws will apply to marriage as we know it. This definition is the kind of thing which is unnecessary and which may produce difficulties.
If Senator Sir Kenneth Anderson is worried about the fact that somehow by this Bill marriages may be able to be conducted between, say, persons of the same sex, I assure him that that is quite unreal. It does not fit within the legislative framework at all. By putting in definitions where they are not necessary we may create unintended consequences. The honourable senator has some feeling that if marriage is for life we should know that, unless it is sooner dissolved. I suggest, with respect, that we do not endeavour to define marriage here. If the honourable senator wants to express the feelings that marriages ought not to be dissolved, there are other means. It can be done in other ways. But the situation is fraught with difficulties if we start to put in a definition clause here where it is quite clearly not appropriate. As I say, this matter has been avoided by the legislature on every other occasion. I think Senator Button or Senator Everett indicated that even the State legislatures have carefully avoided doing such things. I suggest, with respect, that we should not insert the definition.
– I find myself in a rather embarrassing position in regard to this amendment because I entirely agree with the definition of marriage as proposed by Senator Sir Kenneth Anderson. But I recognise- I dealt with this matter when I spoke during the second reading debate- that if we look at marriage in legal terms it cannot in fact be defined in this way. It is just a contradiction in terms to say that marriage according to law in Australia is a union for life when, in fact, the Family Law Bill into which we now propose to insert this definition provides for dissolution of marriage. As I say, it would be a contradiction in terms to insert the definition as proposed by Senator Sir Kenneth Anderson. On the other hand I am rather disturbed by the fact that there is no real definition of marriage in Australian law except the old common law definition of Hyde and Hyde. If I remember correctly Hyde and Hyde was concerned with whether a divorce court or an ecclesiastic court had jurisdiction at all. The question was raised as to whether the court was dealing with a marriage. So the only definition of marriage which we have in our law has come in by a back door method such as that.
As the Attorney-General (Senator Murphy) said, there is no provision in the Marriage Act for the definition of marriage. It is true that sections 46 and 69 of that Act deal with words which are to preface a marriage service which, in one case, is being solemnised by a celebrant other than a minister of religion and, in the other case, a marriage being celebrated by a marriage officer overseas. The authorised celebrant is enjoined by the Act to inform the parties of the nature of marriage and, among other things, to tell them that marriage according to law is the union of a man and a woman to the exclusion of all others. But that is a funny way of providing for a legal concept of marriage. As the Attorney-General has pointed out, there is no definition of marriage. No section states what marriage is. In fact, the curiosity of it, as far as I can see, is that if a marriage is performed by a minister of religion he does not have to say that at all. We know that today there are some curious religions the officers of which are apparently prepared to conduct homosexual marriages.
– They are not lawful marriages in the sense of the Marriage Act.
– Anyway, the fact of the matter is that there is no clear cut definition of marriage.
Sitting suspended from 1 to 2.15 p.m.
– Before the sitting was suspended for lunch I was referring to the absence in Australian laws of any definition of marriage. I recognise that there is the old common law definition of marriage and I suppose it still has some effect. I think effect was given to it by an English judge in a case a few years ago involving a so-called marriage between an undoubted male and a female who had been the subject of a sex change operation. I believe a very strong case can be made out for having a clear definition of marriage, as proposed by Senator Sir Kenneth Anderson, but I do not believe we can accept the wording of his amendment which states ‘“marriage”, according to law in Australia’. Manifestly, law in Australia provides for divorce and it provides, as the AttorneyGeneral (Senator Murphy) has pointed out, for the dissolution of a polygamous marriage. I suggest to Senator Sir Kenneth Anderson and the Committee that instead of the words ‘according to law in Australia’ we have the words ‘subject to the provisions of this Act’ or, perhaps, subject to the provisions of this Act or any other Act’. We would then be preserving what I would regard as more of an ideal of marriage. Nevertheless, I think this is something that it is well worth making provision for because we now have different concepts of marriage being floated about- homosexual marriage, communal marriage, and so on. I think we ought to be prepared to affirm clearly in the society in which we live that our concept of marriage is what is proposed by Senator Sir Kenneth Anderson’s amendment.
-1 would like to make a short comment. The proposed amendment mentioned by Senator Durack in his closing remarks may well meet a situation which I think involves a great deal of difficulty. It is a very curious thing that in sections 46 and 69 of the Marriage Act there appear these statements in regard to what the celebrant says to people being married, namely, ‘marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others voluntarily entered into for life’. That is the exact wording of Senator Sir Kenneth Anderson’s amendment. Yet that definition is not really true because it is not the law in Australia that that is so. The law has provided for many years for dissolution. It might be said that people intend to enter into a union for life but we know that people divorce, and have done so for generations, and they have been divorced under the law in Australia.
I think there is a curiosity in the law and I do not think the same curiosity in the same form should be put into this Bill. The proper place for this is in the Marriage Act. There ought to be a definition in the Marriage Act. I think the Attorney-General (Senator Murphy) indicated that there would be amendments to the Marriage Act and I think they are well overdue in many respects. I think there should be some definition in the Marriage Act to cover even the situation of polygamous marriages or marriages celebrated under different circumstances in other countries. This would cover people who have come to Australia and want the jurisdiction of this Bill. There are statements throughout this Bill about children of a marriage, parties to a marriage and so forth. If we define marriage narrowly in this Bill- this is the point already made by Senator Durack and others- and if we define out of the Bill the people in that situation, it would be most unfortunate. There are some people who have become citizens in this country who would not be covered by the jurisdiction of the court.
All we hope to do is to bring together the various strands into one court. That idea would be partially broken because in this case the law would not be applicable to them. I am not saying as a definite fact that that will necessarily happen but that, on my reading of the Bill, is the effect that a narrow definition might have. I have reservations about including any definition but on the other hand, if one is to be included, the one just proposed by Senator Durack- subject to the provisions of this or any other Act, which no doubt would bring in polygamous marriages- is better than the original suggestion. With some doubts I would support that amendment.
-I strongly support the amendment moved by Senator Sir Kenneth Anderson for the inclusion of the definition of marriage which appears in the Marriage Act of 1 96 1 . 1 concede the legal expressions in regard to the possible need for including the words ‘subject to the provisions of this or any other Act’. It is fundamental, in my opinion, to retain that which by common law concept the Australian community has adopted throughout our history- that marriage is, as set out in this definition, ‘the union of a man and a woman to the exclusion of all others voluntarily entered into for life’. It has been accepted as being not inconsistent with the position of marriage that it may be terminated on certain specific grounds. If this definition is not clearly stated in this legislation marriage may well be defined as the union of one man with one wife until they have separated for 12 months and one has thereupon been divorced. Again I stress that in my view this is basic to the whole structure of society as we have known it in Australia. This definition should be brought into this Bill, subject, as I have said, to the legal requirements suggested by Senator Durack and Senator Missen. I trust that Senator Sir Kenneth Anderson will accede to the suggestion that those words be added to the amendment and the amendment will be included in this legislation.
Senator Sir KENNETH ANDERSON (New South Wales) (2.23)- I am perfectly willing to alter my amendment to insert the words ‘subject to the provisions of this or any other Act’ and to delete the words ‘ according to law in Australia ‘.
-The suggested amendment is not before the Chair. Would you repeat it?
-From my amendment delete the words ‘according to law in Australia’ and substitute the words ‘subject to the provisions of this or any other Act. ‘ The amendment will then go on to say that marriage ‘is the union of a man and woman to the exclusion of all others voluntarily entered into for life’.
– What Senator Sir Kenneth Anderson has just done requires that I make submissions to the Committee different from those I would have made a moment or so ago. It is quite clear that the original amendment proposed would have been a purposeless one which would have introduced into the Bill a completely mutually inconsistent position. I do not know how the courts would have dealt with the situation of dissolving marriages, which they have power to do, when those marriages are denned by the Act giving them that power as being indissoluble. Despite the intimation from Senator Sir Kenneth Anderson I state that again in my own words to indicate that it was misconceived that this definition should be in this Bill at all. In saying that I do not wish to be understood as being in any way critical of those who hold the view that this is an appropriate definition of marriage. I respect those views, acknowledging that others hold different views.
It seems to me that, even with the most recent amendment foreshadowed by Senator Sir Kenneth Anderson, it would create an ugly situation to put into a statute which deals not only with dissolution of marriage but also with many of the other consequences- custody, maintenance, etc.- a conditional definition, if I may use that expression. All it seeks to do is to put into the definition clauses of the Bill a definition which has acceptance outside the provisions of the Bill, and to try to make it look right by using the words subject to the provisions of this Act or any other Act’. We cannot have a definition of this type in a vacuum. It has to be for the purposes of the Act and once we qualify the ecclesiastical definition, if I may use that term, by the words ‘subject to the provisions of this Act or any other Act’ we destroy that definition. It has no meaning from a practical point of view in the context of this legislation. I would agree with others that the proper place for the expression of this viewpoint, if it was the Senate’s will, would be in the Marriage Act or possibly in a later provision of this Bill which sets out some of the duties of the court. I suggest to those who adhere to the viewpoint expressed in the definition that it would not be inappropriate to endeavour to set this concept out in the matters which the court is required to take into account. They are dealt with in a subsequent proposed amendment. Ideally I would have thought that this concept, if acceptable to the Senate, ought to be in the Act which deals specifically, and to the exclusion of other matters, with marriages. For that reason I oppose even the latest amendment indicated by Senator Sir Kenneth Anderson.
– This amendment causes great difficulty. I assure Senator Sir Kenneth Anderson that I would like nothing better than to meet his evident wish. We are clear on certain things. We are clear that in respect of marriages made in Australia the law is that they are made under the Marriage Act, that they are indissoluble except according to the provisions of divorce laws. So in that sense those marriages are for life unless sooner dissolved in accordance with the law. There is no doubt about all that. But to do what is now proposed raises some strange problems. I suggest that the honourable senator’s original amendment- and I do not know that it is cured by what he has since proposed by way of an amendment to thatwould do the very opposite of what he wanted it to do. By his original amendment he is saying that marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others voluntarily entered into for life. He says nothing there about the marriage taking place in a church or in a registry office or before one of the marriage celebrants. What would be the position where 2 young people said: ‘We have joined together and pledged each other to stay together for life’? Say there was no ceremony in a registry office or elsewhere. Is it the honourable senator’s intent that in some way it should be the legislative intent to declare that a marriage.
– Under the Marriage Act?
– No, at common law for the purposes of this Bill. Is it Senator Sir Kenneth Anderson’s intent that that union be declared a marriage for the purposes of this Bill? I suggest that in endeavouring to assert that maybe divorce is not a desirable thing he is complicating the Bill. Only the most careful thought should be given to any endeavour to define marriage and the appropriate place for such a definition is in the Marriage Act. There are amendments which need to be made to the Marriage Act, anyway. I assure Senator Sir Kenneth Anderson that when that Act comes up for consideration the kind of amendment he has moved in respect of such a definition could be made to that Act if it is thought fit after proper consideration. But his amendment is right out of place here. He is proposing to do something across the board here, without the proper consideration being given to it, in an inappropriate enactment and I ask the honourable senator not to proceed with it in this way. Nothing has been lost by leaving out this definition. To insert it would be to put in an uncertainty and there will be all sorts of problems if this is done. I ask that the amendment be not persevered with.
– Does Senator Sir Kenneth Anderson wish to amend his amendment?
– I seek leave to amend my amendment by deleting the words ‘according to law in Australia’ and inserting the words ‘subject to the provisions of this Act or any other Act ‘.
– Is leave granted? There being no objection, leave is granted.
Question put:
That the words proposed to be inserted (Senator Sir Kenneth Anderson’s amendment) he inserted.
The Committee divided. (The Chairman- Senator J. J. Webster)
AYES: 23
NOES: 31
Majority……. 8
AYES
NOES
Question so resolved in the negative.
– I move:
I feel that this amendment ought to be proposed at this stage because it appears to me to concern a question of fundamental importance, on which other clauses must depend. The definition which is contained in the Bill states: matrimonial cause’ means-
proceedings between the parties to a marriage for a decree of-
the maintenance of one of the parties;
I have stated that at some length from the text of the Bill because it gives some impression of the width of the new definition. It is a new definition because it is infinitely wider than any attempt that has been made in the past to say what is the content of the phrase ‘matrimonial causes’. I do not need to elaborate that. If one goes back to the English legislation at the turn of the century when our Constitution came into force, it will be seen that ‘matrimonial cause’ was given a very narrow interpretation. The words ‘matrimonial cause’ went into our Constitution at that time and in the 1959 legislation it was given a very limited interpretation. The purpose of my amendment is to suggest that the proper course, albeit the cautious course, is to give an equally limited interpretation to the definition of ‘matrimonial cause’. My suggested amendment states: matrimonial cause’ means
proceedings between the parties to a marriage for a decree of-
That accords with what is contained in the first sub-paragraph of the present definition in the Bill. My proposed amendment further states:
That is what is presently suggested. The next part of my proposed amendment is a new provision. It states:
The following are the words of relevance- in relation to concurrent, pending or completed proceedings of a kind referred to in either of the last two preceding paragraphs, including proceedings of such a kind pending at, or completed before, the commencement of this Act.
That provision would have the effect of ensuring that the matrimonial causes are those matters arising out of proceedings for divorce, for nullity or for a declaration as to validity. That is the core of a matrimonial cause and anything relating to that- relating to property, maintenance or children- represents a matrimonial cause. What is the difference between the 2 concepts. The concept as outlined in the Bill is to open up the whole field of marriage and marriage effects and to make that an area of Commonwealth legislative power. I believe that the power which the Commonwealth Constitution gives to the Commonwealth Parliament to make laws is not as extensive as the Bill assumes that power to be. I say that with full acknowledgement that there has been a limited interpretation, and I think too narrow an interpretation, generally accepted as the interpretation of matrimonial cause.
I feel that the Bill has gone too wide in the width of definition it has given to the words matrimonial cause’. It is assuming a power which, if the Commonwealth does not have it, will cause distress, hardship and misery to people who may obtain orders based upon the width of this power and subsequently find that those orders or awards cannot be sustained by law. I remind the Senate that this situation arose with respect to the earlier Matrimonial Causes Act. Legislation in respect of this Act was introduced in October of 1971 in an endeavour to overcome the effects of 2 High Court decisions. For those who have any familiarity with this section of law or can remember the legislation, the High Court decisions were Knight v. Knight and Kotis v. Kotis. I shall quote from what was said at the time the Bill was introduced. The report at page 1 38 1 of Hansard of 14 October states:
The 2 decisions I have mentioned have made it clear that many other similar orders are or questionable validity, and it is most desirable that the doubts that at present exist in relation to the rights of persons affected by such orders be removed. These rights are of vital importance to the individuals affected. They include, for example, the right of a wife to receive weekly payments of maintenance moneys, the right of a father to visit his children in the custody of their mother and the right of a wife to a portion of the property held by her husband. The enforceability of such important rights as these plainly cannot be left in doubt. The present Bill will remove the doubts that have arisen by providing that the rights of such persons are to be the same as they would have been if the orders had been validly made- that is, made by a judge of the Supreme Court
The essential core of the difficulty in the 2 decisions of Knight v. Knight and Kotsis v. Kotsis was that decisions had been made by a commissioner of the court or a registrar of the court and the High Court had held that those 2 officers did not have the power to make the decrees. I recall that for a period of some months there was great uncertainty because a number of the orders and the awards made by commissioners and registrars could have been disregarded with impunity by persons who were bound by them. The legislation which was passed was designed to overcome that problem. I think the general legal advice available to the Commonwealth was that the procedure was satisfactory. I mention those decisions and that problem because they illustrate the anxiety and the hardships which can arise if power or jurisdiction is assumed where validly it ought not to be assumed.
I simply say that in this area there is a grave risk. I suppose in the Senate chamber where we are not concerned fundamentally with where constitutional power ultimately lies one cannot speak in terms other than the risk of what is being done. I do not believe that the Commonwealth has the power to say that orders can be made with regard to any matters arising out of marriage. I shall illustrate very shortly one or two matters that could arise. ‘Matrimonial cause’ is defined as including proceedings for an order or injunction in circumstances arising out of the marital relationship. It seems to me that we could have, for example, what is called a testator’s family maintenance application- the question of whether or not a proper will has been made under which the surviving spouse or a child has an appropriate order. A situation could arise under which parties to a will could be contesting even though they are husband and wife. The fact is that it is a marital relationship which gives rise to the question which has to be determined between them. There could be property applications which call for determinations of what are restrictive covenant applications and a whole range of matters which ingenuity could explore and delve into. They have nothing to do with a matrimonial cause. Where are those matters really to be argued? Under the Federal law of this Bill they are subject to the provisions of this legislation. Maybe all will go well until at some late stage a person will rely upon a constitutional point and the edifice will come tumbling down. Indeed the longer the issue is left with an air of uncertainty the more danger might arise from it.
I would say that the Constitutional provision is quite clear. It has been adverted to by the High Court. What the High Court has said in these areas ought not to be ignored. I referred in an earlier discussion to section 51 of the Constitution sub-clause (xxi.) and sub-clause (xxii.) which state that the power of the Commonwealth is to make laws with respect to marriage, divorce and matrimonial causes and in relation thereto, parental right, and the custody and guardianship of infants. The High Court, within the last 15 years, has had occasion- I think this was the only occasion the High Court has looked at these powers- to decide, to determine or to say something as to what is the ambit of those powers.
I think it ought to be recalled that in one of those cases, the State of Victoria v. the Commonwealth, as to the meaning of the Commonwealth’s power to make laws with respect to marriage, the High Court divided four to three on, I think, two or three of the fundamental questions. Those questions were resolved in favour of the Commonwealth. They were resolved in favour of the Commonwealth on the relatively narrow issue of whether or not provisions for legitimation in the Marriage Act on marriage could be regarded as laws with respect to marriage. I only ask the Senate to bear in mind that if 7 judges of the High Court would divide in that proportion on that issue we have some idea of the niceties of interpretation which are involved and the limit which must be imposed upon the Commonwealth power as to marriage. In the other case with regard to divorce and matrimonial causes the only judge of the Court still remaining with it, Mr Justice Menzies, made it quite clear that the matrimonial causes jurisdiction does not have the width of meaning and interpretation given to it by this legislation. One does not know what the remaining 6 judges will say, but if lawyers are to approach this matter in terms of what the power might contain they obviously would look to what Mr Justice Menzies said. I hope honourable senators will bear with me, if they consider themselves judicial, and listen to what Mr Justice Menzies said in the case of Lansell v. Lansell. He said:
A proceeding by a wife against a husband for a settlement of his property upon herself and the children of the marriage might be regarded as a matrimonial cause in a wide sense but in s. 51 (xxii.) the words ‘ matrimonial causes ‘are used in conjunction with the word ‘divorce’ and can hardly cover all proceedings between spouses. Still less could proceedings by a child against a parent seeking a settlement be regarded as a matrimonial cause.
These words are words of caution and if we are to embark, as this legislation proposes, upon giving to the Commonwealth a wide power and to give to all the instrumentalities to be established by this Bill power to make decrees and orders on applications of that character and subsequently they should be found to be invalid as beyond constitutional power, it is fair to say that people will be denied what they believed they had received and were entitled to. There will be distress and hardship in a lot of places. It is cautious legislation in a federation such as ours not to assume- particularly in the matter of family relationshipstoo much power where there is doubt as to whether that power exists.
-The amendment which Senator Greenwood has moved goes to the very heart of this Bill and certainly to the very heart of the report of the Senate Standing Committee on Constitutional and Legal Affairs because, if it succeeds and if these amendments are made to the definition of matrimonial cause’, we may be sure that practically all that is sought of substance in the Bill will be defeated. For some considerable time it has been thought by some people that ‘matrimonial cause ‘ probably means ‘what is encompassed in the existing Matrimonial Causes Act’. But because we chose in 1959 to call an Act the ‘Matrimonial Causes Act’ it does nothing to define or limit the powers which the Constitution gave to the Commonwealth- namely, the powers over marriage, divorce and matrimonial causes and in relation thereto parental rights and the custody and guardianship of infants. Because of the caution and fears of members in 1959- even Sir Garfield Barwick writing a couple of years later said that they may well have gone further and taken the step of including other matters but they did not and they stopped there- that limitation should not limit this Parliament now in endeavouring to make a law which is comprehensive.
– The Constitution should be the limitation and that is all.
– The Constitution is, of course, the limitation as defined, as found by the judges, and if that is not satisfactory to the people of Australia, then it can be amended by the people of Australia. I hope that the latter will never be needed. Let me mention the case which has been referred to- the State of Victoria v. the Commonwealth- and the statements made, that all proceedings between spouses could not be necessarily within the powers. I agree with that. A matter of assault between a husband and wife may not be within the terms of this Act nor do we endeavour necessarily to include it.
– Why is it excluded?
- Senator Greenwood has had his opportunity and I will have mine now. The fact is that the definition that has been put into this Bill is a comprehensive one because what is designed is to include not only the things Senator Greenwood has left in his amendment but also other forces. As he admitted, the important words in his definition are:
In other words it has to be a divorce proceeding, a nullity proceeding or a declaration as to the validity of a marriage before one can institute proceedings under this Act.
Under his definition, what would be excluded from the Bill? He mentioned the injunction provision in the Bill’s definition of ‘Matrimonial Cause’. That is certainly new in this Bill. It is not contained in a present Act. If that were to go, what would also go would be clause 90 which provides extremely valuable remedies for people to obtain an injunction to protect a party to the marriage or a child, to protect the marital relationship or the property of a party to the marriage. If the amendment of Senator Greenwood is passed then it also removes the words ‘or relating to the use or occupancy of the matrimonial home’, which the Attorney-General seeks to add. It would remove what is desirable, namely the power for persons to be able to approach the court- let us hope that it is a family courtwithout having to start matrimonial proceedings for divorce. In other words, they should not be forced to go to the court for a divorce before they could go to the court for a remedy to protect themselves, their home or other matters. I think that this is one of the highly desirable innovations of this Bill and, if Senator Greenwood ‘s definition is accepted, it must go.
In addition, what must also go is the attempt to take over the maintenance jurisdiction which at the moment is dealt with in many courts of summary jurisdiction. Honourable senators have seen what the Committee has written about this and what was said in the second reading debate. Anyone with experience knows that it is a highly tawdry and undesirable practice that we should continue to have the maintenance jurisdiction dealt with in a State separate jurisdiction by magistrates and along with all the criminal and other matters that are dealt with during the day. The attempt to take maintenance out of that jurisdiction and to put it into, I hope, a family court- I hope that there will be both Federal and State involvement- would be lost if this amendment were carried. Also included in that jurisdiction is the power to enforce proceedings, maintenance orders and things of that sort. At least in relation to maintenance orders they would not be covered by this new court.
The whole proposal, which is summed up in the amendments which have been accepted by the Attorney-General and which is in the Billnamely, that these things are better united and dealt with by experienced persons such as judges of standing who have had training, knowledge and interest- must go if Senator Greenwood ‘s definition is agreed to.
The threat is posed: What if we are wrong? What if the powers which the Attorney-General and his advisers consider the Commonwealth has- I certainly consider it has them- turn out to be wrong? The answer is that there will certainly need to be speedy amendment to the law. I think that the people in this country have indicated at every poll that has been conducted that they want these matters dealt with in the manner which is proposed. I suggest that there is very little reason for thinking that these powers will be denied by application to the High Court, and we should not fear to tread in the directions in which this Bill is pointed and in which common family law should prevail. I therefore suggest that it is absolutely of the essence of this Bill that this amendment be defeated.
– I know that the Committee will not want a dissertation on the law. The point raised by Senator Greenwood is a significant point and it has been given careful consideration. I remind honourable senators that there has been much discussion on this topic over the years. A very valuable work on this precise subject- the constitutional power of the Commonwealth to regulate family relations- by Professor Sackville, who is known to all honourable senators, and by Professor Howard, who is the General Counsel to the Attorney-General, is reported in the 1974 Federal Law Review at page 30. It is referred to in the text of ‘Family Law in Australia’ by Finlay, Bishop and Johnson. As honourable senators would expect, very much attention has been paid and most serious consideration has been given to what has been said by the court, including what was said by Justice Menzies in his dissenting judgment in the case to which Senator Greenwood referred.
One thing is clear: lt is not suggested that this approach ought not to be taken if it can constitutionally be taken. I think that there is virtually a consensus throughout the country that if the matters can be attended to in this way under the Constitution they should be attended to. As I understand it, no argument is raised against the desirability of the definition, if that can be done constitutionally. All I can say to the Committee, without going through all the bother of reading out arguments and so forth, is that of course the utmost attention has been paid and the utmost care has been given to this aspect of the subject, taking into account all that has been said as to what would need to be done if there happened to be some error. Senator Greenwood pointed out that in a previous enactment an error was made, according to the High Court. Action was taken to correct it. But here is a move which is clearly in the interests of the community. I would ask the Senate not to alter the definition because to do so would really take away the features of this legislation which I think have been generally applauded as very great advances and if they are constitutional they are eminently in the public interest. I would ask the Senate not to accept the amendment.
-I think it ought to be emphasised to the Senate, because this proposed amendment is of extreme importance, that its effect would be that except in very rare cases there could never be a proceeding under this proposed Act unless there were also proceedings for dissolution of marriage. That is the effect of the amendment. The limited exceptions are those which involve cases in relation to nullity of marriage, which are extremely rare, and cases in respect of proceedings for a declaration as to the validity of a marriage or the validity of the dissolution or annulment of a marriage by decree or otherwise. So it is clear that except in less than 1 per cent of cases there could never be a proceeding under this legislation unless there were also proceedings for dissolution of marriage. That, surely, is counter to the whole spirit of the legislation.
Senator Missen has given one illustration of the extent to which the provisions of the Bill would be stultified if this amendment were agreed to and he referred to clause 90. 1 do not elaborate on what he said. Another example is clause 57 in respect of declaration of interests in property. A third example, of course, is the ordinary- what I will call the State Maintenance Act, as at present- proceeding in respect of maintenance for children. The broad and bold concept of this legislation is that at the appropriate time all such proceedings would come under the jurisdiction of the Family Court or any variant of the Family Court as it is at present conceived. Senator Greenwood’s amendment means that concept would be destroyed and that persons would be driven to institute proceedings for dissolution of marriage simply to be able to bring themselves within the ancillary- I will use that expression- provisions of the law. That would be, I suggest, a foolish thing for this Senate to do at the outset of its consideration in Committee of the provisions of this Bill, and I oppose it.
– I am not persuaded at all by what has been said and I become the more concerned because, with respect to all who have spoken, I think there is an inadequacy in the explanation which has been given. I accept what Senator Missen says- that the Constitution is the ambit of the power. I think Sir Garfield Barwick and the Parliament in 1959 looked at the constitutional power and they sought, consistently with earlier definitions, to limit the operation of the Act to that constitutional power. I know that there is a view to which a lot of credence has been given by writers and other people with experience in this field, that there ought to be a wider interpretation and a wider field of operation for matrimonial causes law than is contained in the present Act. I think implicit in all that Senator Missen said is the same acknowledgement. But if the acknowledgement is made, that is not to say that because something ought to be or it would be desirable if it were so, therefore the power is there- and that is what I thought Senator Missen was saying.
– Not at all.
-He says ‘Not at all ‘. I wish he would explain what it is he is saying is. the limit of the power because he said, I think, by way of dismissing one aspect of the argument I had raised that an assault between a husband and a wife was excluded. I would have thought it would be very difficult to sustain that proposition. A matrimonial cause is a proceeding ibr an order or injunction in circumstances arising out of the marital relationship. If a wife takes her husband to court in regard to an assault which occurs in the matrimonial home I find it very hard to say that is not a matrimonial cause in the way in which this Bill contemplates it.
– Come off it.
-Senator Button says ‘Come off it’. I would be grateful if he would say where the argument is wrong and why an assault in those circumstances is not within the definition of a matrimonial cause. Ingenuity before practical cases can devise many instances which might or might not fall within this concept of matrimonial cause. But I would have thought that if an order were sought in the way in which occasionally orders are sought in our courts to determine who is the owner of property as between husband and wife, which is instituted by a third party, or where you have a question arising as to whether an agency relationship has been established at the suit of some creditor who is suing, then the issue as between the husband and wife is an issue arising out of the marital relationship. It is all very well for this Parliament to have views as to how far this concept of a matrimonial cause will extend and it is all very well for people to believe that it is limited in a certain way. When you have legislation and it is the operative legislation then the ingenuity of parties who want to take advantage of statutory provisions knows no bounds and a resourceful counsel or a solicitor who is able and desirous of doing the best he or she can for a client will take advantage of any power which is available. If it is felt that under a family court set-up there can be greater benefit for the party for whom the solicitor or counsel is appearing, undoubtedly these provisions will be availed of. One might say: What harm is there in that?
I suspect that there is in both what Senator Murphy and Senator Everett have said that attitude but I say- and this has not been adverted to; I do not think sufficient weight is given to it- that if subsequently the power is found not to be existing, how is redress to be effected? Senator Murphy said that if it ever arises consideration can be given to legislation to correct the position. But I invite him to consider that if in this area constitutional power is lacking legislation will not rectify the position because there is no Commonwealth power to rectify it. That was not the situation, of course, in those earlier decisions in Kotsis v. Kotsis and Knight v. Knight to which I referred where the defect was in the constitution of the members of the State court and whether or not there had been Federal jurisdiction vested in the registrars or commissioners who had made the decisions which were subsequently declared to be invalid. These are problems which I think have to be considered. I would welcome some further explanation by Senator Murphy as to how this matter is to be looked at. I do not know how the Standing Committee on Constitutional and Legal Affairs adverted to these matters. I made inquiries and the view was expressed that the members of the Committee amongst themselves believed that the Commonwealth had the power. But I do not know what legal opinions they had, how they overcame the problems which are quite apparent in the decisions of the High Court and on what assumptions they proceeded.
Senator Missen, I remember, said in his reply to me that to accept my amendment would remove from the scope of the Bill the power to grant injunctions. I am a little surprised that he put it that way because reflection would recall to his mind that the power to issue injunctions has always been contained in the Matrimonial Causes Act. My amendment is not directed to that aspect at all. As far as State courts are concerned, it has still to be decided how a family court set up by the Commonwealth can live with State family courts. I rather think the concept is inconsistent. I know that Senator Missen has an amendment to the effect that there shall be State family courts. If there are to be State family courts, surely they would be able to handle matters which arise out of the marital relationship, whether they are matrimonial causes or not. That is the advantage of having State family courts instead of a Commonwealth family court. The problem of division of power would not arise in those circumstances. There is a lot that may be said.
Senator Murphy referred to the paper by Professor Sackville and Professor Howard in the Federal Law Review. I do not think it is an adequate treatment of what Mr Justice Menzies said simply to dismiss it as lacking any real substance. I do not think it does credit to the authors to dismiss it in those terms, without giving a more considered recognition of the views he held. Mr Justice Kitto expressed the view this aspect was adverted to by the authors- that many of the powers which were given under the 1959 Act could well be regarded as powers with regard to property, not with regard to marriage. Far more extensive powers are being given under this legislation, and they could be categorised in the same way. I believe that once that categorisation is made the legislation could well be beyond power.
I have not referred in detail to the judgments of Sir Owen Dixon and others in the case the State of Victoria v. the Commonwealth about the extent of a marriage power because it seems it is rather the matrimonial causes power and not the marriage power with which we are vitally concerned now. Those judgments also indicated a limit to what is now popularly and easily regarded as the width of the marriage power. There is a difference between a power to make laws with respect to marriage and a power to make laws with respect to the effects or consequences of marriage. If there is an error in the assumption of power by the Commonwealth, I can only say in advance there is not much consolation if one is proved right in the long run for the problems will be immense.
-Senator Greenwood suggested that several matters should be explained further. I wish to correct 2 things. One is that I do not advocate this because of some hope or desire alone that this is within constitutional power. It certainly has to be within the power it will apply. I have confidence that it will be so found if it comes to the test. It seems to me that the words which Senator Greenwood used in discussing ‘matrimonial cause’- all those matters arising out of marital relationship- must be looked at and interpreted these days as being very wide. There is very little- I think there is nothing- in this Bill which seems to me to be other than arising out of a marital relationship. Should it matter that the dispute which calls for the court’s intervention has led to an application for a divorce or is merely a problem between the parties which is causing dissension?
The second thing which Senator Greenwood misinterpreted was what I said about injunctions. I know that there are injunction powers under the present legislation. They are the ones related to divorce and ancillary proceedings. I was referring to the removal from the definition of ‘matrimonial cause ‘ sub-clause (e) which states: proceedings for an order or injunction in circumstances arising out of the marital relationship.
I am saying that, if it is removed, the power which clause 90 of the Bill gives is also removed. That is a very wide power and one which is much wider than the existing one. It allows action to be taken before and without divorce proceedings to protect a person’s position in a home, to protect a person from assault and so forth.
My use of assault as an example was probably unfortunate. Matters of assault perhaps would not come very often within the ambit of a matrimonial cause. If a wife were to sue for damages for assault, matters which were matters of the normal law- the law of tort- would not be connected necessarily with the marital relationship. A better example would be if a wife sued a husband because he ran over her in the car or because he caused injury to her through the use of a car. It could be done. Clearly that is a case in which husband and wife litigation would have no relationship to the marital relationship, I agree, unless perhaps we were imaginative and found some deliberate act involved. There would be many examples in which we could find relationships between them which do not arise out of the marital relationship. I think this Bill comes well within the ambit of power.
Senator Greenwood referred to the cases Knight v. Knight and Kotsis v. Kotsis. I did not mention them previously, but essentially they were decisions based upon the attempt to place in the hands of registrars and commissioners the power to make decisions and to make orders. As I understand the result of those cases, it was on the basis that there was no power to put that judicial power in the hands of someone who was not a judge. That does not happen under this legislation. I think that the fears in those cases, which were cured by legislation, should not lead to any fear among members of this Committee because those cases dealt with the way in which the Commonwealth power will be exercised. I agree that the complete absence of a power under this Act would not be curable in the way that it was in those cases but would be curable only by referendum or by reference from a State. There is no suggestion in this Bill that it would be exercised other than within the Constitution.
Senator Greenwood said: ‘Put the powers into the State courts and let them decide’. If this wide definition which covers maintenance cases now heard by State courts is not included there is no guarantee that the States will put such powers into the State family courts. They may be left in the same deplorable situation in which they are now. The cases are dealt with by magistrates all over the place, in association with a lot of other litigation. Therefore I suggest that all these powers should be put within the ambit of matrimonial cause and should be transferred, in my opinion and the opinion of some members of the Senate Standing Committee on Constitutional and Legal Affairs, in many cases to the State courts, which are to be known as family courts. The powers should be consolidated, and there should not be a continuation of the Rafferty’s rules type jurisdiction which splits matrimonial causes between Commonwealth courts, State courts, Supreme Courts and Petty Sessions courts. It leads to great expense and no justice to the parties involved. I oppose the amendment.
– I do not want to enter into a discussion on the various judgments, opinions and so forth which have been given. That is not really the way in which the Committee should approach the matter. This is not the proper forum to try to analyse the width of the constitutional power. I will endeavour to avoid that. I refer to a passage from the text which I mentioned earlier, ‘Family Law in Australia’ by Finley, Bissert and Johnson. At page 19 it states: lt has been strongly urged that the Commonwealth should boldly step into this field . . .
That is family law- on the ground that laws on marriage and divorce and allied matters are of national rather than merely regional importance. Certainly the view that the Commonwealth has not exhausted its constitutional power in this area finds support from the High Court.
It also states -
– I think you should read that, because it was on a very limited basis.
-I shall. It states:
In the Marriage Act case in which the High Court considered questions involving the extent of the marriage power Justice Taylor was inclined to give a wide interpretation to the term “marriage’, as was Justice Menzies who said: ‘The power must extend to the mutual rights and the obligations of spouses unless it be that State laws could deprive that marriage, according to Commonwealth law, of any legal significance except for Commonwealth purposes.
The authors deal with this aspect in the following pages. Clearly one is dealing with the mutual rights and obligations arising out of marriage and proceedings for enforcement. After careful attention, careful consideration and careful draftsmanship, it is considered that this fits within the constitutional power. The desirability of what we are proposing is, I understand, not contested. I am satisfied that we should proceed and not be deterred by what is suggested by Senator Greenwood about possible lack of constitutional power.
Question put:
That the words proposed to be left out (Senator Greenwood’s amendment) be left out.
The Committee divided. (The Chairman- Senator Webster)
AYES: 12
NOES: 43
Majority……. 31
AYES
NOES
Question so resolved in the negative.
Motion (by Senator Murphy) agreed to:
That further consideration of clause 4 be postponed.
Clauses 5 to 8- by leave- taken together.
– I ask a question of the Attorney-General. Under clause 8 it seems to me that there is the exclusive provision which was a matter of concern to me in the previous debate. Is it intended that there shall be forms which will give effect to this exclusive power? In short, will it be a threshold question as to whether or not a matter is a matrimonial cause so that you could have as that threshold question whether or not you are in the right court?
– Do I understand the honourable senator to be asking whether there is some way in which the question could arise -
– I will pose the question by way of an example which will assist the Attorney-General to give me the answer that I am seeking. In the earlier debate there was some discussion about the case, for example, of an assault complaint laid by a wife against a husband, or some other proceeding in which a husband and wife are parties. The issue involved may be a property issue or a civil damages claim or some such claim. The question is whether or not the particular issue is a matrimonial cause. In the ordinary course a matter of that character would come before the ordinary State courts, be it the lowest level court of the Supreme Court of the State. Paragraph (a) of clause 8 (1) of the Bill states: proceedings by way of a matrimonial cause shall not be instituted except under this Act.
What I am getting at is this: Is it intended by some form that there will be a threshold question, which may have to be answered in a host of cases in which husband and wife are involved, namely, are they in the proper Federal court or should they be in the State court.
– It seems to me the answer to the question is that if someone contended that such a proceeding were covered by this Bill and could not be dealt with otherwise than under this Bill that matter could be raised and determined. Perhaps I should clear up some of the difficulties which Senator Greenwood has raised. He asked whether this was a threshold question. I suppose it does not matter whether it is a threshold question. If it is a question of jurisdiction it could be dealt with and, if necessary, taken to a High Court if in some of these marginal areas about which he speaks some difficulties arise. The honourable senator raises this issue but it should be well understood by the Senate that such an issue could be raised in respect of a host of other matters which have nothing to do with this enactment.
It is true that the honourable senator does not complain about the matter. It cannot be a cause of complaint that someone may raise the issue of whether matters are to be dealt with in a family court or elsewhere. Here we are taking the bold step of moving family matters- matrimonial causes- into the family court. If someone says: ‘I contend that this is a family court matter, ‘ I suppose it is the same as in any other area, such as in relation to industrial matters which would be taken in the industrial court and not elsewhere. But some question could arise and it would be decided and perhaps thereby an end would be put to some of the contentions which have been raised. I see, as the honourable senator puts it, that someone could raise a question. Of course he could. But it could then be decided.
– I ask again whether it is a reasonable assumption that an assault complaint or information lodged by a wife against a husband is a matrimonial cause within the meaning of the definition of matrimonial cause’ in clause 4? What will be the court in which proceedings are to be taken for such a matrimonial cause if, for example, the parties reside in a country centre where there is no available supreme court, where there is not likely to be a Commonwealth family court and where a State family court may not be constituted. Where is the action to be instituted?
– I am sorry, I was a little distracted. Could the honourable senator repeat his final sentence?
– I have the apprehension that this Bill sets up a court. It was the argument on the last provision that there will be a court, be it a Commonwealth family court or a State family court, which will contain within its scope the means of dealing with all these matrimonial causes. If an assault matter is a matrimonial cause as denned and if it occurs in a country area away from the centres of population where one can appear fairly readily before a court, where would such a cause be heard? How would an aggrieved party get access before a court? Would the fact that this is now a matrimonial cause preclude access to the ordinary courts?
- Senator Greenwood raises a theoretical kind of proposition. He asks: If someone contends that an assault on a wife is a matrimonial cause could a question be raised? Of course it could. As I see the situation it would be disposed of very quickly and the answer would be no.
– 1 am asking where it could be disposed of- before what sort of a court?
– The honourable senator is asking whether a question can be raised so that an answer can be given. Of course it can. The honourable senator is putting to me a theoretical possibility as to whether a matter can be raised. If it is raised the answer will clearly be given that it is not a matrimonial cause. If one looks back to the definition one sees a reference to marital relationship. The Bill states: 4 (e) proceedings for an order or injunction in circumstances arising out of the marital relationship.
I think the answer is that in theory anyone can raise a question anywhere. To take a ludicrous example someone could say that a contract for the sale of goods was a matrimonial cause. But the answer would be that it was not and the court would get on to the next business. Simply, what Senator Greenwood is asking is whether people can take points in a court of law and ask for a decision as to the ambit of the matrimonial causes functions. My answer is that of course they can. I suppose they will take points. Somebody will try to take absurd points and somebody will take sensible points. We will get decisions and resolutions. If the honourable senator can suggest to me a way by which we can draw any Act of Parliament in this area to remove the possibility that somebody may be able to take some point to get a decision I will be pleased to know. He will have made a significant contribution to legislation. But the plain fact is that this cannot be done. We will have marginal matters where people will raise questions and want decisions. That is the ordinary incident of legislation. It seems to me the matter is as simple as that.
- Senator Greenwood seems to be concerned as to the forum that would be resorted to by people who would be minded to argue that an assault by a husband on a wife or vice versa was a matrimonial cause. I understand that to be his principal concern.
– Say people are 1,000 miles from nowhere. What do they do?
-They simply take some good legal advice, look at clause 18 (2) of the Bill and go to the nearest court of summary jurisdiction. What is so amazing about that? They trundle up their argument. They are told to go their thousand miles home and that is it. If such a matter were a matrimonial cause it would be within the jurisdiction of a court of summary i ur.isdiction to determine under clause 18 (2) of the
Bill. I do not understand the concern about this matter. But I want it to be clearly understood that in saying that I do not concede that a matter of the sort we have been discussing would be a matrimonial cause as defined in the Bill.
– I add to what Senator Everett said. As I understood Senator Greenwood’s question, I do not think the Attorney-General (Senator Murphy) answered all of it. Summary jurisdiction will continue. I suppose that in some places it may continue for some considerable time because of distance and the need for access to a court. There will be a necessity to retain magistrates who, I hope, will have the facilities of other courts to assist them. But I think that for some time these matters will be determined in distant parts in magistrates courts. That is not the ideal but I imagine that any new court cannot be set up immediately but by steps, particularly in distant parts of States. As time goes on one hopes that the family court, or whatever it may be, will be the one which will have jurisdiction in those areas. Probably that is an eventuality but not an immediate possibility.
Senator Greenwood was asking what would happen in distant places where there was no family court. To which court would people be able to take their troubles? Of course all the lawyers have been talking but would they just tell us whether people can take such a matter to another court or do they have to travel a few hundred miles to find a family court? To me that is a simple issue. I would like a simple reply, yes or no.
– I think I can provide an answer. Yes, these people can go to the court that Senator Everett indicated. A person can go to the local court with anything that is less than an application for dissolution of marriage.
-I accept the explanation offered by Senator Everett and I thank both him and Senator Durack. The question asked by Senator Wood revealed the point I was getting at. This is part of the problem one finds in dealing with this Bill. I speak purely for myself, not having had a full opportunity to look at all of its clauses. What is the relevance or justification of a case which has been urged by so many people today- that to have the Family Court structure and to have the ability to go to these Family Courts is going to open up something new in this area if what people have to do is to go to the ordinary courts as they always have done?
– Once again I urge Senator Greenwood to study the document which emerged from the deliberations of the Senate Constitutional and Legal Affairs Committee.
– If you gave us time to consider this we would all be much better informed.
– If the honourable senator would let me have a few moments to speak I could point out to him that there he will find that the Committee, whilst expressing the wish that all matters involving matrimonial causes should be heard in a Family Court, faced the fact that for reasons of geography and manpower this desirable state will not emerge overnight. In the meantime federal jurisdiction will be conferred on courts of summary jurisdiction as it is at the present time. In the case cited by Senator Wood, an aggrieved wife in Bourke would go to the Court of Petty Sessions in Bourke for the time being. We hope, when this scheme gets off the ground, that magistrates will be excluded from matters concerning the family, that we will have a two-tiered judicial system and that the court will be a circuit court. Surely it is not beyond the resources of this country to bring justice in matrimonial affairs to remote parts of the continent. That is what we hope will happen. In the meantime, citizens in the situation cited by Senator Wood will be in the same position they are in today and will have to go to their local court.
– Is that sufficient answer to Senator Greenwood? In other words, say it is an ordinary criminal matter, as suggested by Senator Wood. The matter would go to the ordinary criminal court. If it is a simple maintenance matter in an isolated spot such as he spoke about, it can go to the magistrates court. If some kind of order is sought against repeated assaults within the scope of this legislation it would go into the magistrates court. I am referring to a case in an isolated area such as that to which the honourable senator referred. The intention is that those courts be replaced by a family court which will be phased in even to isolated spots.
Clauses agreed to.
Clause 9- Transitional.
– The Attorney-General (Senator Murphy) has an amendment to move to this clause but I ask him to postpone it because it is tied up with major amendments to clause 26.
– I think that is a sound suggestion. I move:
Question resolved in the affirmative.
Clause 10.
Senator MURPHY (New South Wales-
Attomey-General) (3.49)- I move:
Amendment agreed to.
– I again raise a question with regard to the first part of clause 10 which states:
1 ) Subject to sub-section (3), a court shall not make an order under Part VI or Part VII for the maintenance, custody or guardianship of-
Why are such children- I gather there has been some increase, as I understand it, in the number of children who fall within these categoriesexcluded from the purview of a court which may wish to make an order under these provisions?
– I suppose the real answer might be so as to avoid friction with the States. My inclination is the same as that of Senator Greenwood. What we have done is to provide that the court may make an order if satisfied that there are special circumstances that justify the making of the order. These children, after all, are, under the law of the State, wards of the State. Frankly, the honourable senator would not have to press me very hard to say that they should be treated much the same as any others. I am giving the honourable senator the reason why the power has been put cautiously. It has been done so as not to cause friction. That is the only reason. It is clear that the court ought to have the power to do this but because these children are under the care and control of Ministers of State and so on it is said that there are special circumstances.
Clause, as amended, agreed to.
Clauses 11 to 13- by leave- taken together.
– I want to refer to this Part of the Bill because it relates to marriage counselling organisations. I note that in clause 1 1 there is provision for moneys to be appropriated by Parliament, through the Attorney-General. In clause 12 the voluntary organisations which may apply to the Attorney-General for approval as marriage counselling organisations are set out. I would like some indication from the Attorney-General (Senator Murphy) as to what personnel he envisages being involved in the marriage counselling organisations referred to. Does he envisage professional social workers, members of the clergy and specialists in various social sciences being approved? Could we have some indication of whether he thinks there will be an extension of financial assistance available for marriage counselling in the future? I have the impression from many of the marriage counselling organisations in existence now that they, in common with a lot of voluntary organisations, are facing financial difficulties. It seems to me that this is an appropriate time for the Government to consider an extension of financial assistance to them.
I draw attention to the fact, for instance, that the Catholic Family Welfare Bureau would like to start a training course in marriage counselling. If they had access to funds which would enable them to set up a course it could strengthen the work that they do in the community.
That type of organisation is finding that it needs to provide emergency accommodation for children whose parents are temporarily unable to cope for them and because they incur costs in minding these children they are in financial difficulties and as the work that it does prevents the children from becoming wards of the State the Bureau is ineligible for Government help. It seems to me that is an opportune time for the Attorney-General and the Government to give consideration to the type of marriage counselling that would be undertaken in the future with Government help. Perhaps we could get a little clarification from the Attorney-General of the type of personnel he envisages should be involved in any marriage counselling organisation to give assistance.
– This clause is in the same form as in the existing Act and deals only with voluntary organisations. It does not deal with welfare officers or counsellors who would be attached to the Court. They are mentioned in clause 17. So the question of who should do the counselling is a matter for the voluntary organisations. The amount of money made available to them has increased this year to $ 1.227m. There was criticism earlier in the year from some honourable senators of the amount of money which was provided last year. I have increased the amount very much. I dealt with this matter when the Senate was considering the Estimates and I can put the figures before honourable senators if they would like them but I assure the Senate that there has been a considerable increase. The marriage guidance bodies have expressed their gratitude for it.
In fairness, and not in any way to stir up controversy but because I think I ought to tell the Senate, one of the complaints made to me by those who were associated with churches is that despite the expressed concern of a number of churches about the necessity to preserve the family it has been very difficult for their marriage guidance organisations to get any real financial assistance from the churches. In this field the great bulk of the money is being provided out of Commonwealth funds. I say that not intending to raise any controversy but perhaps what I have said will assist the guidance organisations, or some of them at least, in dealing with their parent bodies. If the debate can help to make those who have funds pay out a little of those funds in accordance with what they see as the necessity of preserving the family it may be of benefit. Does that answer your question, Senator?
– I would like to amplify one point which may have been misunderstood by the Attorney-General. I referred to funds which may be made available in the future to establish a training course for counsellors who would work with the organisations to which we have been referring. This may be one area of assistance which would be a constructive and progressive step in the work which is undertaken.
– I will consider that point. I think it is a sensible suggestion. After all, a lot of public money is being expended here and some attention ought to be paid to its being expended wisely and to ensuring that the people who are receiving counselling are getting good counselling. I have approved of money being expended on an evaluation of the existing courses. There is some money appropriated for a preliminary evaluation. There should be a full scale evaluation, in everybody’s interest, of the work that is being done to determine whether it is being done in the proper way and also whether the training is satisfactory. Honourable senators will notice that I have suggested- perhaps it is in line with Senator Carrick ‘s proposal, if I may be permitted to refer to it, and with other suggestionsan institute of family studies. It may well be that through such an institute some attention can be given to these topics, in addition to family counselling. I assure Senator Guilfoyle that I will give full consideration to what she proposes.
– I seek further clarification from the Attorney-General of the statement he made a few minutes ago about counselling organisations sponsored by churches. I appreciate that he is speaking in a helpful way, but did I understand him to say that there is an area in which some correction would be desirable? If so, could he assist me with a little more detail because I have an interest in this?
– I do not want to name organisations but there is no doubt that mose who were in organisations connected with churches have not been getting financial backing from -
– Their own people.
– They have not been getting from their own people- the church- what they should have been getting in this area. I am not intending to do anything more than perhaps air what was said in the hope that this may produce a desirable result.
– I seek advice from the Attorney-General. Referring to clause 12 (2) (b), which provides that the Attorney-General may approve any such organisation where he is satisfied that marriage counselling constitutes or will constitute the whole or the major part of its activities, I understand that this provision is carried over from the old Act. I also understand that it has required many organisations to create a separate counselling service within their structure. For example, I am aware that the Family Welfare Bureau went out of business in Sydney recently and many of its assets were taken over by the Smith Family. It is to be hoped that the counselling activities will continue and that they will get the approval of the Attorney-General. But will it be necessary for such a body to have a separate organisation created and registered, as it were, with counselling as its major function? I merely ask the Attorney-General: Is it necessary to have this sub-clause providing, as this does, that counselling shall constitute the whole or the major part of the activities of an organisation? The Smith Family has many diverse activities, only one of which is counselling, and I am sure that it is deserving of support.
– It will create problems if we take out that provision. This was the view previously taken and, while there are problems in its operation, I think it is necessary to keep it. If we do not have that provision it means that money will be given to bodies which are engaging in all sorts of activities. It would be very hard to ensure that the money was devoted to marriage guidance proper. The next consideration is that we may run into difficulties with churches. There is a no establishment clause in our ConstitutionI think it is section 1 16- and we would certainly be in contravention of the Constitution if we started to hand over money generally to the churches. Already there are some problems occurring in various areas as a result of the application of section 1 16. There is also the problem f»f trying to rationalise these bodies. There has been some duplication and overlapping and I have had them get together and discuss this problem. They are now endeavouring to avoid duplication. It is not easy because they have a tendency to want to expand. There needs to be some kind of rationalisation in the provision of funds. I am afraid that if we get away from bodies which are proper marriage guidance bodies this will multiply the problems. I am well aware of the Smith Family case and the difficulties there.
The collapse of the Family Welfare Bureau, which was mentioned by the honourable senator, is an illustration of what I referred to a little earlier. A lot has been said in the community over the last 12 months or so about the family. Yet the Family Welfare Bureau, which was a well respected institution, gave plenty of notice that it was in grave financial difficulties and was allowed to collapse. I do not wish to provoke any trouble in this chamber. I am endeavouring to avoid it. But some senators might ask organisations which are writing to them and which are in positions of great influence and in command of enormous financial resources how they allowed this to happen. Just what are they doing in some of these areas, apart from talking about their fondness and concern for the family? I do not wish to challenge their sincerity. I am not speaking of anyone in this chamber at all. I am talking about institutions outside. It is very regrettable. I have digressed a little. I think the answer is that this provision ought not to be removed. I am willing to consider any modification of it that might meet the problem because it does cause some difficulties in practice. I think simply to take it out would cause even greater difficulties. I will undertake to look at the problem to see if we can find something that will avoid the difficulties.
– 1 would like to ask the Attorney-General a little more about the funds that will be provided in this year’s Budget for marriage guidance counselling. First of all, has there been a general acceptance that this is sufficient? Is there any indication that there is likely to be a proliferation of such marriage guidance organisations, church or otherwise? Does the Attorney-General see the need in the immediate future for some contribution by way of regulation? He indicated that he felt there was not nearly enough of a contribution by the churches for their own marriage guidance organisations and all the funds should not come from the Commonwealth. I think I would tend to agree with that. Could the AttorneyGeneral answer those questions for me?
– I think there will probably be a need for more marriage guidance counselling. Some of this, of course, will be done around the court and, if the proposals are accepted by the Committee, it will be done not only when a marriage has reached the point of dissolution but prior to that. I think the provision made in this year’s Appropriation Bill is a common sense one. I indicated that there had been a very considerable increase over the last couple of years- much more than would be accounted for by inflation. I have increased the amounts pretty substantially. I can obtain figures for the honourable senator but, speaking off the top of my head, the appropriation has gone up from approximately $500,000 to approximately $800,000 and now to $1,227,000. There is a limit to the way in which these bodies can expand sensibly. As Senator Guilfoyle pointed out, there is a dearth of capable people in this field. The situation is not met simply by providing money. We need to train people, and there is competition from other areas for social welfare workers and people who would be capable of operating in this field.
– Do you think there may be a need for some type of regulatory program with regard to a contribution by these organisations from their own resources?
– It may well be that the grant should be conditional on a contribution by the bodies. The approval of an organisation can be subject to conditions. Under clause 1 1 there may be the means of doing what the senator suggests. Clause 1 1 states:
The Attorney-General may, from time to time, out of moneys appropriated by the Parliament for the purposes of this Part, grant to an approved marriage counselling organisation, upon such conditions as he thinks fit, such sums by way of financial assistance as he determines.
It may be that without any further regulation the condition might be made in a sensible and common sense way that moneys be contributed or the organisation raise so much money as a percentage so that it can start to obtain funds. In some cases clearly more moneys could be made available to them. I will look into the matter.
– I wish to ask a further brief question of the Attorney-General in relation to clause 12 (2) (a) and (b) which refer to organisations engaged in marriage counselling. I would assume that this refers to counselling for young people or for people who are contemplating marriage. I refer to some remarks that I made at the second reading stage of this Bill concerning education programs for people of secondary school age. Would an organisation such as those referred to in clause 12 (2) (a) and (b) be one that may engage in certain education programs, retreats, camps or whatever they have for people of secondary school age? Would that be included in the submissions that the organisations make and would it draw a response from the AttorneyGeneral in relation to funds that might be available to help in this way?
– A number of applications are made and some of these must be rejected because they are not taken as being within the concept of marriage counselling. It all depends on what is being done. I think the simplest way is for the organisations to submit applications which would be examined. The intent of this would not be to move into areas in which the Minister for Tourism and Recreation (Mr Stewart), the Minister for Education (Mr Beazley) and other Ministers are handing out funds in various ways. It is intended to ensure that the moneys reach the proper marriage counselling organisations, as we would understand them. In dealing with this sort of classical marriage counselling there is no over abundance of funds.
– It means what it says?
-Yes. It would not be a light extension away to areas which are only marginally concerned with marriage counselling.
Clauses agreed to.
Part Ill-Reconciliation.
– I move:
Question resolved in the affirmative.
Heading, as amended, agreed to.
Clause 14.
If, in such proceedings, it appears at any time to the Judge or magistrate from the evidence in the proceedings or the attitude of the parties, or of either of them, or of a legal practitioner representing a party, that there is a reasonable possibility of such a reconciliation, the Judge or magistrate may-
– I move:
The amendment was recommended by the Senate Standing Committee. It is referred to in paragraph 29 of the Committee’s report. It excludes the attitude of the legal practitioner of a party as a relevant consideration when the judge is considering the possibility of a reconciliation of the parties. That is briefly the basis of it. The amendment comes from the Committee. A number of these amendments come from the Committee. I shall endeavour to indicate which they are. It seemed wise and convenient for me to move the amendments although they were initiated by the Committee.
– Do you propose to give some explanation of the Committee’s proposals other than stating what it is or does it require a member of the Committee so to do?
-I suppose the judge or magistrate is really referred to the parties themselves. There may have been a tendency for the judge or the magistrate to look to the representatives of the parties. One may say that is good enough for the judge or magistrate to do, but this provision rather indicates that he needs to look to the parties themselves rather than to their legal practitioners. In regard to this matter the Senate Standing Committee on Constitutional and Legal Affairs recommended:
The Committee recommends that in clause 14 (2) of the Bill, the words ‘or of a legal practitioner representing a party’ be deleted from the Bill, as it is felt that their inclusion may lead to their improper use as a legal manoeuvre, rather than to serve their proper purpose. It is in fact the attitude of the parties or either of them’ which should be the court’s concern not the attitude of the legal practitioner appearing in the case.
I put it this way: The tendency will be even more for the judge to say that he must be concerned to know the attitude of the party. If he can say that he takes account of what is said by the party rather than by the legal practitioner it may well be not so much a legal manoeuvre but he will have a tendency to accept that he ought to be getting through to ascertain the attitude of the party. That is the important thing that seems to me to operate in it. Logically one could say the party or the legal practitioner or either of them and so forth, but I think probably the better course, as the Committee recommended, is to ensure that the judge or magistrate will concern himself with what the party’s attitude is.
-I agree with all the Attorney-General (Senator Murphy) has said on this point. I should say that the Committee while discussing this matter was less diplomatic than he has been. Senator Sir Kenneth Anderson who asked a question on this matter should look further down the section and see what the judge might do in these circumstances. One of the things he might do is to adjourn the proceedings to afford the parties an opportunity to consider a reconciliation. It was felt, in addition to the matters which the Attorney-General has mentioned, that for some reason of his own a legal practitioner might have an interest in obtaining an adjournment of the proceedings. As the Attorney-General said, it is felt that the proper consideration in that matter should be the views of the parties and not the interposed view, as it were, of a legal practitioner who might for some reason unrelated to the welfare of his client in the particular circumstances seek an adjournment. That is another consideration which the Committee took into account and which it regarded as important.
Senator Sir KENNETH ANDERSON (New South Wales) (4.21)- Strange as it may seem, I have some concern about the removal of the words by the amendment which the AttorneyGeneral (Senator Murphy) has moved. I have some experience of people and problems of reconciliation and associated matters. I have gained some experience, as I think many others have, from the work I have done in a voluntary capacity. Frequently parties to a problem have not got the ability to capture, to express or to bring out the very point that they want to make. Senator Button said there may be circumstances in which a legal practitioner has regard to his own convenience rather than the convenience of his client. I hope I did not misinterpret the honourable senator.
– Not at all.
– There may be circumstances like that. I have seen adjournments taken in lower courts to suit the convenience of legal practitioners on both sides and the parties to the action have to go away and come again another day with much inconvenience to themselves. I put that aside for the moment. I do not wish to waste too much time on this. I think that on balance a legal practitioner becomes absorbed in the problems of his client; not that the contrary should be the position. By becoming completely absorbed or objective, perhaps, a legal practitioner can put his client’s case more adequately. In the same way a medical practitioner or a member of any other profession becomes completely absorbed in the case of his client. In that way he can give his best know-how and judgment. The lower echelon of educated people, in particular, do not have the ability to express a point. A legal practitioner can bring the points out loud and clear before any legal body, judge or any form of judiciary. Against the risk that there may be embarrassment sometimes when the practitioner is thinking of his own convenience rather than that of his client, on balance I prefer to have the clause as it is.
– I speak to the point raised by Senator Sir Kenneth Anderson. I agree that by and large parties get their message across to a tribunal better through lawyers than they do if they have to do it themselves. I join issue with some people who are associated with divorce law reform and who want completely to eliminate the lawyer from the process. I agree that in an ideal society we would not have lawyers, but we are very far from having reached that ideal society. There is no doubt in my mind that justice is frequently not done when parties cannot afford to have a lawyer.
One of the things we also had in mind, in addition to the point raised by Senator Button on this matter, was that this family court should be set up as an institution which will be different from traditional courts in which matters of this kind are heard. It will be a much more informal court. For instance, we presume that there will be no robing and none of the formidable trappings of judicial office which I know from my own experience many litigants find rather off-putting and in some instances rather terrifying. We envisage a court in which the presiding judge will make more effort than in the past to establish direct contact with the parties and to be sure that he understands the wishes of the parties. We want to take the soullessness out of the procedures which are associated with proceedings where lawyers are involved. I think that I will be able to elaborate on that point in moving another amendment to this clause a little later.
Senator Button made the point that unfortunately there are lawyers who consult their own convenience rather than the convenience of their clients as to when matters come on for hearing. It is a very familiar occurrence, in my observation, that lawyers do not always put their clients first in the matter of time. A busy practitioner might have something to do in another court on the day when the client’s matter comes on and he manages to persuade himself with a bit of rationalisation that it is in the interests of the client that the matter should be postponed. We want to be sure that it was the party and not the lawyer whose convenience was being met in this case. The further point I make is that we believe that, if the sort of court we have in mind comes to fruition, the parties will not feel loath to represent themselves before a judge in matters of this kind.
– There may be some misunderstanding about the effect of this amendment because if these words are removed lawyers for the parties will not be prevented from making representations to the court on behalf of their clients. In other words, the lawyers will still be able to make submissions relating to the attitude of their clients towards reconciliation. So I think that the primary fear that Senator Sir Kenneth Anderson voiced will not really arise if the amendment is carried. The real deficiency in leaving the words in the Bill is that it suggests that the attitude of the lawyer himself is relevant- this is the point which the Committee was picking up. It is not the attitude of the lawyer but the attitude of the parties which counts and which the court ought to be taking into account. But the parties do not lose their rights and they do not lose the facility which the lawyer provides for them to put the point of view forward. I think that the primary fear really does not arise.
Senator Sir KENNETH ANDERSON (New South Wales) (4.29)- I am not clear, and Senator Chaney who has just spoken has perhaps confused me a little more. What is the situation in relation to one party wanting to be represented by a legal practitioner and the other not wanting to be represented? I seem to remember reading something about having a fool for a client when you represent yourself.
– That is when lawyers appear for themselves.
-Yes. I have said some hard words about lawyers in my time. I want to be satisfied that one of the parties is not being disadvantaged and that, in a situation dealing with 2 parties to reconciliation and counselling, ignorant persons are protected. Some of us who are involved in charitable work are confronted all the time with broken marriages and problems and we find very often that people are unable to express themselves and put across the message of their problem and the troubles in the home. I want to be certain- this has been canvassed by the Committee- that no party seeking a reconciliation will be prejudiced because of his or her inability to express feelings, emotion and concern, which an advocate with his heart in his work and doing a good job for his client could express far more adequately, thus ensuring a better chance of ultimate reconciliation.
– There is no problem if the person tells the advocate that he or she wants a reconciliation or anything at all which might appear to the judge or magistrate to mean that there is a reasonable possibility of a reconciliation. The advocate would simply mention this to the judge on behalf of the person, and that would be enough. The problem would be solved. I think that Senator Sir Kenneth Anderson is worrying about something that does not exist. There is nothing in the Bill which says that an advocate should not mention to a judge that his client would like to explore the possibility of reconciliation or does not really want the marriage to be dissolved.
Imagine an occasion when somebody went along, was in the course of some proceedings and then, half way through, said: ‘I really do not want to carry on with it. It has come this far because I wanted to bring him to his senses. Now I really do not want to continue.’ If she has an advocate, in the situation which Senator Sir Kenneth Anderson mentioned she simply tells her advocate, he puts it to the judge and the process then begins whereby the judge may adjourn the proceedings to afford the parties an opportunity to seek counselling. He may nominate a marriage counsellor or some other person if he thinks that that is desirable, and reconciliation procedures will be invoked. I do not think that there is really much problem. Frankly, it would not make a great deal of difference whether we left it one way or the other. I think that that would be a fair assessment. If we left it either way it really would not make any great difference. There may be a difference from a drafting point of view but I do not think that it matters much.
Question resolved in the affirmative.
– Most of the amendments proposed by the Senate Select Committee on Constitutional and Legal Affairs were adopted by the Attorney-General (Senator Murphy) and that is why he has been moving them. There are about half a dozen amendments which the Attorney-General has not seen fit to adopt, and the Committee still wishes to have these amendments made to the Bill. I move:
The thinking behind this amendment is that it provides a further facility in the reconciliation process- There is something rather like this in the Act as it stands at the present time. But the view seems to have been taken by the draftsman that to leave a function for the judge in divorce proceedings to act as a conciliator is in some way inappropriate. That seems to be the reason why this was dropped. But the Committee took the view that in a case in which there appeared to be a possibility of reconcilation the judge should not be excluded from the reconciliation process and that he could be endowed with the function which is expressed in this amendment. That is, at any stage in the proceedings when he thought a reconciliation possible the judge himself could step down from the bench and invite the parties or one of them to come into his chambers- he might decide it would be better not to have the lawyers around on such an occasion- and talk to them about the possibility of patching up the marriage.
This, I think, also shows how seriously the Committee viewed the reconciliation process in this Bill and shows that it was quite serious in regarding the Bill not just as a measure for dissolving marriages but also as a measure for saving marriages wherever possible.
– Did you advert to this aspect in your report?
-No, this is not mentioned in the report. This is something which arose later. In fact after the Committee had completed its deliberations I think Senator Missen was approached by an organisation in Melbourne.
– Members of the Law Council.
-He was persuaded of the worth of this amendment. The Committee met again. He suggested this to us and we all found it appealing, and that is how it finds its place here today.
-This was a suggestion made by various counsel practising in Melbourne who suggested that the proposal was undesirable because of their experience in some cases, although not many, where this process had been used and where the facility for a judge to break through an impasse could be valuable in solving problems. It could be particularly valuable if the Family Law Court is established with a different method of operating in a more informal way because in the existing Act 3 things can happen. The judge, when he sees there is a possibility of reconciliation can adjourn the case or secondly, with the consent of the parties do what is proposed in the amendment or, thirdly, nominate an approved marriage guidance institution. It is true that the existing Act goes further and I think in an unnecessary elaborate way to say that judges shall not sit if negotiations break down and parties do not reach agreement. I would think that within the discretion of the judge, if he realises he is in a position where some other judge ought to continue the proceedings, he would arrange it.
– How important is it to have the consent of the parties? Surely a judge could have the power if he thinks it is proper to use it to require them to attend before him.
-No. I think that in fact if the parties are litigating some matter in the court whether it is the Family Court or the existing court and they want that decision then to force them unwillingly to enter into a discussion with the judge is hardly a likely way to effect a reconciliation. It seems to me that any forced methods like this are unlikely to work. The fact is that we thought so far as this amendment is concerned that because of the representations made by people who are practising in the field and who had found this method valuable, it was sufficiently important to put it up to the Senate as the basis of an amendment, and that is the reason it is here today.
-I want to add one thing to what Senator Missen said about this amendment. The Committee did hear evidence from Judge Burnett of the Family Court of South Australia. In the course of evidence he dealt with this point and he told the Committee that it was in fact a practice which the judges of that Court found useful in reconciliation proceedings- to be able to take a party aside in a situation where there was a particular problem which might be resolved by talking to one party and then to the other. He said they had found that a valuable and worthwhile method of bringing about reconciliation in certain cases. I think the Senate should be aware of that practical experience in South Australia.
– I do not agree with the proposed amendment. This method may be used in South Australia but my understanding is that it is not being used very much elsewhere and certainly it has not been availed of in New South Wales. The reason for our disagreement- again this is not a world shattering point; there are a lot of these minor matters- is that it is hoped that the counselling procedures will be effective. There will be a body of persons around the court who will be able to give advice and counsel the parties. They will be regarded as someone to whom people can turn for assistance and to whom they can pour out all their troubles. If the matter cannot be resolved and if there is to be a contest and issues of fact have to be decided, they will be decided by someone who is quite dispassionate and who has nothing to do with the parties. I agree that there is room for a division of view on this but that is why I do not accept the suggestion.
We think that although the judge will be steeped in the family atmosphere he is really there as a judge to decide the things that cannot be resolved. It will be up to the other people to do the counselling. The judge ought not to be getting caught up in counselling the very people whom he may have to assess, evaluate and sit in judgment upon. These 2 functions ought to be separated and that is why we reject the amendment. As I say, there is no great dispute over this. It is not something on which we should be at great holts. I do not share the Standing Committee’s view. I vote against the proposal.
Amendment agreed to.
– I move:
The purpose of this amendment is to extend the area in which the parties can be directed or advised- whatever might come afterwards- to attend upon a marriage counsellor. There have been some alterations to clause 90. This amendment seeks to remove the words which have some limiting effect upon the cases in which the court may direct or advise the parties to attend upon a marriage counsellor.
- Mr Chairman, I think the Attorney has skipped one amendment. I think amendment No. 17 precedes the one to which he has just adverted.
– No.
-We are dealing with line 24 and line 25.
– Is that the amendment to leave out the words ‘which has the effect, either directly or indirectly, of requiring the parties to a marriage to live separately and apart?
– I have moved that those words be deleted. To put it simply, they are words which limit the area in which this direction or advice- which we will come to in a momentcan be given. It means there will be a larger area in which the direction or advice to attend upon a marriage counsellor can be given. That is simply it.
-I am intrigued by the use of the word ‘advise’ rather than the word ‘direct’.
– That is the next amendment. That will deal with whether the word shall be ‘direct’ or ‘advise’. This amendment is to enlarge somewhat the area in which either of those words can be applied.
-I am concerned about this matter because I fail to apprehend the purpose which the AttorneyGeneral (Senator Murphy) has in mind. It seemed to me that as the sub-clause stood originally, when an order was made under clause 90 and that order required the parties to separate because it was, in the judgment of the court, proper that that be done, if the court felt that it was in the interests of the parties or of the children it could say: ‘You must go before a marriage counsellor’. I can see purpose in that. I know it has an element of compulsion, I have sensed that in these areas the Attorney-General desires to avoid any compulsion.
– That is the next amendment.
– I appreciate that it is the next amendment, but it seems to me that this one can be considered only in the light of what is to follow. I may be putting it too strongly, but it is certainly relevant to consider what is to follow when making an assessment of what is to be deleted. If the words are deleted, what is left is that where the court makes an order or grants an injunction under section 90 the court shall do certain things. Certainly the court’s power is widened. For my part, I feel less concerned about this amendment than I do about the use of the word ‘direct’ because I feel that in the circumstances where the court takes the quite strong step of requiring people to live apart it ought at least to have the discretion to compel people to go before a counsellor.
– This is really the next amendment.
– I sense that. It was really to clarify my thinking about the amendment that I spoke. I am happy to have the Attorney-General ‘s confirmation.
Amendment agreed to.
– I move:
In sub-clause (4) leave out ‘direct’, insert ‘advise’.
This amendment is moved because it is not con-‘ sidered that any advantage could be obtained by compelling the parties to attend upon a marriage counsellor. Counselling, reconciliation and similar matters depend upon an atmosphere of persuasion, not of compulsion. ‘Direct’, after a mature consideration of the sub-clause, is the kind of thing that gets people’s backs up. If the court wishes to persuade people to get together it ought to say: ‘We think you should see a counsellor. You are advised to do so’. That is one thing. Sensible judges who are steeped in the family atmosphere will suggest that. We must accept that the 2 parties are going through a break-down of marriage and want to get away from one another. The court should be able to say to them: ‘This is our advice. See a marriage counsellor’. I think that the best way to do this is in an atmosphere of persuasion. If the court orders, or directs in that sense, people to get advice, help and so forth, it will not work. The court should not try to force people. If an unwilling person is forced to see a counsellor, what will be achieved? If the court advises and persuades, there is some hope of reconciliation or of a change in attitude. It is as simple as that. Do we introduce an element of compulsion into an area in which we are really trying to persuade people that their partner is not so bad after all, that they might be at fault and so on? It may not amount to very much in the long run.
On the other hand, people in that situation resent the direction to them. The situation would be worse if the court added that if they did not see a counsellor they would be in contempt of court or they would be subject to some penalty. If they went because they felt it was necessary to go, no good would come out of the exercise, they would get their backs up. They would go, but they would not be co-operative. That is the reason for the amendment. Some people may think that such persons should be compelled, directed and so forth. I do not think, in trying to heal a marriage that is breaking or has broken down, the element of compulsion which is involved in the use of the word ‘direct’ ought to be brought into it. That is why I have moved the amendment to alter the word ‘direct’ to ‘advise’. After a good deal of reflection, I think ‘direct’ should be deleted. I know that a lot of others think it would help to have this compulsion to direct or to force people to undergo this kind of counselling. With great respect to them, I do not share that view.
– I take a contrary view. I am opposed to this amendment. The marriage guidance provisions in the earlier Act remained, I think, basically unchanged for years. They were criticised because they had no teeth. They were criticised because they were simply a formality which was occasionally not even observed. They may not have been observed more than occasionally. They were regarded as not being of any great value. If the plea that more teeth should be put into the provisions has any weight at all- I think it certainly is arguable that they should have some stronger backing to them- I think this is the area in which it can be done. There is another area to which I will refer later. I think there is one aspect of what the Attorney-General (Senator Murphy) said about the reason the word ‘direct’ should not be included which he overlooked or to which he did not give adequate weight. The point I have in mind is that there is a discretion on the part of the court as to whether it will direct. As I understand the provision, the court shall, if it is of opinion that it is in the interests of the parties or of the children of the marriage to do so, direct either or both of the parties to attend upon a marriage counsellor. The court will exercise that discretion only if it believes that it is in the interests of the parties or of the children of the marriage to do so. The court can make up its mind.
The suggestion was made to me in discussionI do not knew whether it appeals to the Attorney-General but I offer it to him- if the words ‘direct or advise’ appeared they would emphasise the character of the discretion which exists. The fact that the word ‘advise’ is included indicates that that is one of the alternatives which the court can have in mind. I urge that point upon the Attorney-General. Clause 90 has tremendous strength. When one considers that a court may grant an injunction which has the effect of separating the parties and of putting one of them outside the matrimonial home in which that person has lived and to which he or she has contributed, one realises that is a power of enormous significance. My understanding of clause 90(2) is that it contains a power to grant an injunction in circumstances in which it is not for the protection of a party, and an injunction under clause 90(2) is one which is relevant in relation to the powers which are exercised under clause 14. The width of the power of the injunction is enormous, and something ought to be done to persuade the Attorney-General, I would hope, to adhere to his original concept, which was to give that power of direction.
I notice that some representations which have been made strongly urge that a greater power than that already in the Bill should be granted in this area because, after all, if a case is adjourned and it is expected that the parties will go before a marriage counsellor or some person who has been nominated or some organisation and a party chooses not to do so, there is no compulsion upon that party to do so. That party can then ask, without any time limit as appears in the present legislation, the judge to resume the hearing, and the judge must do so. That is not really taking the present counselling provisions any further.
– May I indicate why there has been a change of mind on this matter. The advice that has come to me, and what I understand to be the view of the marriage guidance bodies, is that the change should be made, that the element of compulsion should be taken out of legislation. I am advised that this compulsory kind of power existed in Denmark and that the situation was- this is the word that was mentioned to me- catastrophic. I am advised that in the United States these compulsory powers in regard to counselling have been done away with because experience has proved that it is not the way to go about this matter. That is the view-, point of people who are experts in the field. Where is the sort of counter-advice which suggests that we should have the direction? We all are trying to handle this matter in the best way we can. The advice that I have been given comes from people who are experts in the field, and I am talking about people engaged in marriage counselling; I am not talking about people who may have political or other views on the question. I am talking about the people who are experts in the field. That is what was communicated to me.
– But that was not your initial view, and you say you were prevailed upon.
-That is right. I suppose that I was approaching the matter in the same way as Senator Greenwood is. This proposal in this Bill was put forward, and from the point of view of the lawyers and so forth it seemed to have some merit. But an approach was made from the area that I have mentioned. The advice that has been communicated through to me by those who have been working on this matter is that this is the view of the experts. Do we pay attention to that view or not? If we were to provide some direction there we would have to restore the words ‘but failure to comply with such a direction does not constitute a contempt of the court’; otherwise we would get into the absurd position where we are trying to heal something but we have somebody who gets into collision not only with the other spouse but also with the court. How on earth are you going to get anywhere if people are to be given a direction which they will disobey? All you will be doing is multiplying the bitterness, the hostility and so forth. That is the basis upon which I approach the matter.
If somebody has anything in the nature of evidence or something other than just acting, I suppose, in the way in which I originally approached this matter, to convince me that this amendment should not be proceeded with, I will consider it. But this seems to me to be a sound enough approach. In this area we should rely upon persuasion. The Family Courts are there to help with good sense. If ever there is an area in which the element of compulsion ought be removed, it seems to be this area, and that is the advice which has been given by those who ought to know because they are dealing with people and they know the effects that this question has upon them.
- Mr Chairman, surely the only realistic way to look at the question of marriage counselling is to face the fact that there is absolutely no chance of marriage counselling being effective unless there is some willing cooperation on the part of the parties involved. You can direct them as much as you like with as many and as severe penalties as you like, but unless they go along to the marriage counsellor willingly the whole exercise is fruitless. What this amendment does is to face that reality. After all, let us look at the context in which the word advise’ is being used instead of the word ‘direct’. It is in the context of proceedings for an injunction under proposed section 90 which, as Senator Greenwood correctly says, contains very heavy and serious powers. In this situation surely it cannot be seriously suggested that marriage counselling will have any effect on the state of the parties merely because they are directed to see a marriage counsellor rather than advised to see a marriage counsellor.
– But it is not only the parties; it is the children as well, and it is within the discretion of the court.
-Nothing in that deters me from holding to my view that it is totally unrealistic to view marriage counselling as having any chance of success where the parties are unwilling and are going along merely because they are compelled to go along.
-I wish briefly to say that under this clause there is a strong element of discretion in the court. If the amendment were accepted the clause would read: the court shall, if it is of opinion that it is in the interests of the parties or of the children of the marriage to do so, advise . . .
But the discretion is contained in the words ‘of opinion’. May I suggest that the use of the words direct’ or ‘advise’ is an extension or a widening out of the discretion which is already inherent in the clause.
– I raise a couple of matters. I notice- I think I am correct in saying this-that the Senate Standing Committee on Constitutional and Legal Affairs did not make any recommendation with regard to this question. That in itself, I think, is a countervailing consideration of some weight to the arguments which have prevailed with the
Attorney-General. Amongst the people whom the members of the Committee saw was someone from the court in South Australia. I would have thought that some view might have been expressed if the members of the Committee had felt that a change was desirable here. But they have not recommended any change and they knew that the provision relating to direction was contained in this clause.
I think that we are looking at this question wrongly if we are regarding it as being at the core of marriage counselling. It is not at the core. Therefore, to respond to Senator James McClelland ‘s broad arguments that marriage counselling does not get anywhere if there is an element of compulsion, with that broad proposition I concur, but that is not to find the complete and simple answer to this question that we are now considering, because we are dealing with a particular type of situation. We are dealing with the situation where a party has gone to the court and secured an injunction. In those circumstances you have developed a feeling which can be resolved only by the court coming in with a strong hand, and that strong hand is to say: Well, there is only one alternative: You have to separate, and the court will now order’. Surely it is proper at that time for the court to say: ‘Well, bitterness now exists between the parties and I feel that you have got to do something to look after, for example, the children’. It may be that nothing can be said or done which will help the parties. But if something can be done to look after the interests of the children I think it should be done. The court may say: ‘I direct you to go before a marriage counsellor. If you do not it will be a contempt of court.’ That is a different type of situation. It is exceptional. To follow up Senator Laucke ‘s point, if the discretion is in the court to make that order then I do not think any harm will be done and, indeed, benefit might derive.
– Having listened to the debate I am confident that the advice which is given to me is right. There is opportunity for some flexibility in this area. In the operation of the legislation the courts would choose to advise rather than to direct. May I suggest that it might be satisfactory if the proposal ‘direct or advise’ were adopted. I will do that but, if we are to return that far- to what we were doing in the beginning- I do not think that this kind of failure to comply with such a direction or advice ought to be a contempt of court. Really, this would get away from the atmosphere which one would expect. I indicate that I would want to restore the provision to what it was- ‘but failure to comply with such direction or advice’. I do not think anyone would suggest that there could be a failure to comply with advice. Perhaps to take away any possible argument that there could be a failure I should seek leave to re-phrase the amendments, that is this one and the next one.
-Is leave granted? There being no objection, leave is granted.
-I move:
Clause 14 (4) will read:
We should take out the word ‘a’, but the Chairman has the capacity to do that. direction or advice does not constitute a contempt of the court.
– The question is:
That the words proposed to be added (Senator Murphy’s amendment) be added.
– I welcome the approach of the Attorney-General (Senator Murphy) in regard to amendment No. 17. 1 say nothing further on that. But as I understand it there are 2 separate amendments. Amendment No. 1 8 which deals with a reference to a contempt of the court has not yet been formally moved.
– No, amendment No. 18 has not been moved.
– I would simply move the first one which inserts the words ‘or advise ‘.
– The question is: ‘That the words proposed to be inserted by Senator Murphy’s amended amendment be inserted’. Those of that opinion say aye, to the contrary no, I think the ayes have it.
Amendment agreed to.
– What Senator Greenwood was putting to me was that I should deal with this latter matter.
– That is the amendment you are now to move.
-We have included the words ‘or advise’.
– In 2 instances that has been included.
- Mr Chairman, I point out that what you have said does not exactly express what the Attorney-General (Senator Murphy) has done. In the first instance the words were ‘or advise’, the verb, and in the second instance the words were ‘or advice ‘.
– There may be some disadvantage to Senator Greenwood in the way the matter has proceeded. What has happened is that the Committee has added the words ‘or advise’ and the words ‘or advice’. I would be content to leave the matter as it is. I was proposing to remove all words after ‘but failure’ because they were irrelevant if we used only the word ‘advise’. But now the words ‘direct’ and direction’ are in the clause I think the convenient course would be for Senator Greenwoodif he wants there to be a contempt of court if the parties do not accept the advice- to move the amendment himself. I am satisfied with the clause as it stands.
-Might I suggest a further small refinement? I suggest that the end of the clause should now read: but failure to comply with a direction does not constitute a contempt of court.
This is in place of the words ‘such a direction’. This draws a distinction between a direction and advice.
– Yes, I accept that suggestion. Perhaps the honourable senator would like to move that amendment.
– I move:
– The amendment is to remove the word ‘ such ‘?
-Yes, just the word ‘such’. I have moved that the word such’ be omitted.
– The earlier point raised by Senator James McClelland is correct. There may have been a mispronunciation by myself. Does the Committee accept that the first words are ‘or advise’ and on the second occasion the words are ‘or advice *?
– Could I put it like this? In the first instance the words are or advise’ which is the verb. In the second instance the words are ‘or advice’. This does not now arise because the contempt of the court is confined to the failure to obey a direction. Does that express the wish of all parties? That is what I understand to be satisfactory to Senator Greenwood and to the Attorney-General (Senator Murphy). We now have the situation where the court can direct or advise as it sees fit. In the case of disobedience of a direction only the contempt of court arises.
– It does not arise?
– Yes, it does not arise.
– The relevant parts of the clause will now read: the court shall, if it is of opinion that it is in the interests of the parties or of the children of the marriage to do so, direct or advise either or both of the parties to attend upon a marriage counsellor, but failure to comply with such direction or advice does not constitute a contempt of the court.
It is true, as has been suggested by Senator James McClelland, that normally failure to comply with any advice does not constitute any contempt at all. But grammatically, unless one phrases the clause in this way, someone may argue that because we have specified that failure to comply with a direction does not constitute a contempt of court, that that means, as a matter of grammar, that the other may. As a matter of clarity for ordinary people who may read the Bill it will become quite clear that non-compliance does not involve a contempt of court. That is the way I would like to see the clause left. In other words, there can be a direction or advice, but if it is not observed it does not constitute a contempt of court. I am content with it as it is.
-The question before the Committee is that Senator Murphy’s amendment, as amended, be agreed to.
– I recognise the step which the Attorney-General (Senator Murphy) has taken in the earlier amendment which adds the words ‘or advise’ after the word ‘direct’. That adds to the discretion of the court. But to proceed now to say that failure to comply with a direction or with advice is not to constitute a contempt of the court is, I think, to make meaningless the power of direction which a court can exercise.
I want to emphasise that this is an area in which the court is faced with, to use the AttorneyGeneral’s earlier expression, bitterness developing between the parties. In the circumstances the judge has made an order, granted an injunction, requiring the parties to separate, telling, for example, the husband that he has to keep away from his wife. That may well have been done in a situation in which there is a great deal of contention. If that step is taken the judge is going to direct that the parties attend before a marriage counsellor only if he is of the opinion that it is in the interests of the parties themselves, or of the children, that they should do so, or that either of them should do so. If he directs and there is no sanction for failing to comply with the direction, what is the purpose of the direction?
Surely the alternative of a direction or advice is to give to the judge, to the court, the opportunity of deciding whether there is to be a mandatory requirement or whether there is to be simple advice. If advice is given, then just because of the nature of the word and the character of what is conveyed, there is no obligation upon a party to accept the advice and to attend before a counsellor. All that he or she has been given is a suggestion from the judge that it would be advisable for him or her to do so, and it is for that person then to decide whether he or she will accept. The judge will make his decision on his assessment of the likelihood of success or what are the interests of the parties. But if he feels it is a case for a direction- and there may well be few cases in which that power of direction would be sought to be exercised- I think it is a weakening of the authority of the court not to ensure that there is means by which the direction can be enforced.
I therefore oppose this amendment. It would simply be left in the hands of the court. If there is a failure to obey a direction, it is up to one or other of the parties to institute proceedings or for the judge to take the necessary steps- that would be what would normally happen- to ensure that his directions are obeyed. I think it is failing to appreciate the circumstances in which this power of direction or advice may be availed of not to recognise the need to enable the court to be able to assert its powers. After all, when we look at clause 90, the clause upon which this whole power in clause 14 hinges, we find that there are immense powers given to the court in the issuing of the injunction. On the injunction the judge may require persons additionally to pay a fine, to enter into a recognisance, to deliver up documents and to submit to such other orders as the court makes. It is expressly said that the power of a court to punish persons for contempt of court is not excluded.
If that be the type of injunction which the legislation will empower a judge to make, I believe that if the judge, in the exercise of that same discretion, compels persons, in the interests of the children, to go before a marriage guidance counsellor, the person to whom that direction is given ought to obey the direction. It may be in the interests of that person’s wife that he be separated from her; it may be in the interests of the children that he have some consultations to see what is in their best interests. I think it is consonant with all that is sought to be achieved in giving greater strength to these counselling provisions at least to leave this particular power which a court has to be availed of as occasion requires. Once we have given the discretion and the court can make a direction or offer advice as it pleases we can safely leave all the consequences in the hands of a judge.
– I want to reply briefly to Senator Greenwood by suggesting that if his proposition were accepted the authority of the court would not be enhanced but would be weakened for the simple reason that the clause is expressed to authorise a direction to attend upon a marriage counsellor. I emphasise the words ‘to attend’. It is clear that that simply involves a physical appearance. It does not involve any question of co-operation with the counsellor. The person concerned could simply say: ‘All right, the judge has directed me to attend upon a marriage counsellor and if I do not do so I could be in contempt of court. I will go but nothing will make me open my mouth and nothing will make me alter my present attitude to the other party.’ If the person concerned does that he is not in contempt of court but he might just as well stay outside the door if that is the attitude he is going to take.
I seriously suggest to Senator Greenwood that the authority of the court would be weakened by the proposition he advances and that the court would be put in an untenable position. It could be proved later, in proceedings for contempt of court, that he was not in contempt of court if he went to the marriage counsellor’s room, gave the marriage counsellor a piece of his mind and told him what he thought of the judge for having made an order against him under clause 90. That would not be contempt of court. Over centuries the law as to contempt of court has been developed along common sense lines. In 1974 we ought not introduce a Gilbertian note into the doctrine of contempt of court.
-There is a somewhat curious situation in regard to this amendment. I have been talking to the Chairman of the Senate Constitutional and Legal Affairs Committee and he and I both have a distinct recollection that when this matter was discussed by that Committee the feeling was that the whole of the words proposed in the AttorneyGeneral ‘s original amendment No. 18 should be deleted; namely the words ‘but failure to comply with such a direction does not constitute a contempt of the court’. Somehow it has not made the report and we have overlooked it, but that is my recollection. In fact the accompanying notes from the Attorney-General (Senator Murphy) on amendment No. 17, the previous amendment that this alteration is made because it is not considered that any advantage could be obtained by compelling the parties to attend upon a marriage counsellor. It makes amendment No. 18 consequential upon amendment No. 1 7. So it appears that the Attorney-General has different views, we have views, and these do not appear in the amendments before the Committee.
I take the view, quite apart from that, that these words ought not to appear at all in the clause. It is a weakening of the clause and there is no need to say at the end of it that failure to comply with such a direction does not constitute a contempt of the court. I think it does weaken the whole clause to finish it up with that invitation to people to ignore the direction or advice which they are given. I am not sure now whether the Attorney-General has moved amendment No. 18 which stands in his name but in my opinion those words should be excluded. It is my view on the evidence received by the Committee, although the Committee did not recommend finally anything on this aspect for some reason now unknown to me, that the Committee was of the opinion that these words were an unnecessary weakening and writing down of the clause. I hope that when the Attorney-General’s amendment is before the Chair we will have the opportunity of voting for it and then removing the words from the end of this clause.
– On my understanding we had reached the stage where we had the clause amended to the point where I was content if it stood as I read it out a little while ago. Whatever the Standing Orders might say, I would not object if someone wanted to move a deletion of those words if it were thought that they should come out notwithstanding that they were added in the amendment; but I suggest the convenient course is to enable to be moved a motion to delete whatever honourable senators think ought to be deleted. I draw the attention of the Committee to clause 41 of the Bill which deals with the children and which contains provisions relating to conferences where the interests of the children are concerned, where there is a child under eighteen and where divorce proceedings or proceedings for custody or guardianship have been instituted. The clause provides that the court may, at any stage of the proceedings, of its own motion or upon the requests of a party to the proceedings, make an order directing the parties to the proceedings to attend a conference with the welfare officer to discuss the welfare of the child and, if there are any differences between the parties as to matters affecting the welfare of the child, to endeavour to resolve those differences.
Then there are provisions as to how the conference will take place. Sub-clause (3 ) states:
If a party fails to attend a conference in respect of which an order has been made under sub-section ( 1 ), it is the duty of the welfare officer to report the failure to the court.
There was also a provision that the failure does not constitute a contempt of the court but the proposal was to remove those words from there where the interests of the children were involved. This meets substantially the points which Senator Greenwood has raised. Where children are involved and something is affecting the interests of the children the court may, if it sees lit, direct the parties. We would remove the reference to the failure not constituting a contempt of the court, but then again one would hope that the court would not be involving itself in any kind of use of the contempt powers for the reasons I indicated before. How on earth are we to get matters resolved reasonably if weapons such as contempt are invoked? I would hope that the court which will operate under these provisions will not be concerned with such matters and that the problems were resolved in other ways. I suggest that if we leave the clause as amended it would be better than endeavouring to bring in this aspect of compulsion because where children are concerned there seems to be quite ample provision.
-The situation at present is that we have before the Chair an amended amendment from Senator Murphy. If, by leave, Senator Murphy wishes to amend his amendment further it could be done; otherwise the amendment we are speaking to is the one that inserted the words ‘or advise’ and or advice’.
– I suggest that we carry that amendment so that we have the plain text of the clause before us, without any prejudice to the right of an honourable senator to seek to delete the words under discussion; otherwise it will be difficult to get the text of the clause. I think this is the convenient way. I suggest that we deal with that amendment without any prejudice to the right of any senator to seek to delete any words subsequently.
– Do I take it from what Senator Missen said that there would be an amendment seeking to delete certain words?
– Seeking to delete the words shown in amendment No. 18.
– I suggest that it would be more convenient if Senator Murphy’s amendment were amended by inserting the words ‘or advise’. The other words can be deleted in accordance with amendment No. 1 8.
-If what I have moved is carried I shall be content. I suggest that the clause as it is amended be carried without prejudice to the right of any senator to move sub.sequently for a deletion of words. If such a subsequent amendment is carried, then it is carried, but if it is not the clause would stand in the form in which I am happy for it to remain. I do not want to move any further amendments. I would be content if it were put as it is amended and any senator can move an amendment to it later.
– Would it not be simpler to leave the clause as it originally appeared and then move a motion to add the words ‘or advise’. It was my understanding that the words in italics- ‘but failure to comply with such direction does not constitute a contempt of the court’- were to come out of the clause. Is it not easier to adhere to the original clause adding only the words ‘or advise’? Then we have not weakened the clause to a degree which in my opinion makes it meaningless.
– The amendment is for Senator Murphy to amend further. I propose to put the question that the amendment as amended by Senator Murphy be agreed to. Is the Committee familiar with the amendment?
– No.
– I shall read the clause as amended. It reads:
Where the court makes an order or grants an injunction under section 90 . . . the court shall, if it is of opinion that it is in the interests of the parties or of the children of the marriage to do so, direct or advise either or both of the parties to attend upon a marriage counsellor, but failure to comply with such direction or advice does not constitute a contempt of the court.
If that is carried I am accepting that it is without prejudice to the right of Senator Missen or anyone else then to move to take off the latter words. I would be content. That is why I do not want to further amend- because I am content with that.
Amendment agreed to.
-I move:
I realise that when I was speaking previously I was thinking of the amendment where the words appear, I think, in clause 43 and we obviously did not pick up the same matter. So it was not a committee omission at all. The same words appear and I think we should be consistent in both places. I think it is weakening to have those words in at all and it would be better to have them deleted.
Senator Sir KENNETH ANDERSON (New South Wales) (5.37)- Once we have put the matter of directing or advising into the discretion of the court one is in a situation in which the court, realising the discretion that the court has, would only make a direction, I suggest, in the absolute extreme circumstance because of the very arguments for the insertion of the word ‘ advise ‘ in the first place. In an absolute extreme circumstance in the judgment of the court, the court may say: ‘I will not advise, agreeing with all the advantages of reconciliation, but direct’. I would suggest that the court would only make that decision in the absolute extreme circumstance. But once the court makes that decision, then to weaken the value of the direction in my judgment in the final analysis would be wrong. The court would take all the matters of which we have spoken this afternoon into account before it would even presume to make a direction because of the risk to reconciliation. But if by some good judgment the court decides to make a direction, and does make a direction, I think it must have all the weight and force of a court direction.
I agree with the point that Senator Everett made, that the court may appear to do one thing and then do certain other things afterwards. But the court would have that in its mind. The court having made a decision for a direction I think it must have all the weight of the court as a direction.
– Just to attend a marriage counsellor?
– It would not happen often.
– I will oppose Senator Missen’s amendment because I do not believe that any directions, even in this field, are of any value at all. I was surprised that the Attorney-General even agreed to amend his own amendment and to have the words inserted. I suppose he thought in the interests of getting some agreement that it might be a wise thing to do. It seems to me to be quite incredible that a court would contemplate the consequences of proceedings for contempt of court against a party who had refused to comply with what would perhaps be even a direction to attend a marriage guidance counsellor. I do not think it is even a suitable field in which a court can make a direction. But in certain circumstancesextreme circumstances, as Senator Sir Kenneth Anderson said- the court may feel that there should be some greater weight to its recommendation or advice; and it may decide to direct. I believe that the majority of people to whom that direction would be given would carry out the direction because they were impressed with the weight of the court’s authority and that sort of factors. I cannot conceive that there might be a power under which a court, which had given a direction with which the party did not comply, may then haul this party before it. That party might be the sort of person that would be sent to gaol. We are looking at nothing short of that. The person would be hauled before a judge and sent to gaol because he had refused to go before a marriage guidance counsellor. What possible hope would there be for any reconciliation? What use would there be in going before a marriage guidance counsellor in that atmosphere? I believe it is quite an absurd proposition.
– It seems to me that the lawyers are getting themselves enmeshed in a web of legalism. I thought this Bill, despite its title which came in for some criticism earlier in the day, was directed to buttressing marriage and, in this particular aspect of it, to effecting reconciliations. The effect of Senator Missen’s amendment is to construct a boxing ring in the middle of it. After all, the procedure that he contemplates, that there should be contempt of court proceedings, commences with a fairly strong blow to the kidneys in the making of an order or the granting of an injunction under clause 90. That is not the sort of thing that is accepted with equanimity by most persons. Then the court, as if to add a little salt to the wounds, decides to give a direction or a piece of advice to go before a marriage counsellor. To a lot of persons that would not be the most acceptable piece of advice or direction to receive after an order against one. Then to make it worse there is the threat at the end of it that if one does not go one will end up in those proceedings that are aimed at preserving the dignity of the court.
– Only if it is a direction and not advice.
– Yes- I know. One must add to that boxing ring atmosphere the fact that the only obligation is on the person to attend, that is as I would see it, to present himself at the appropriate place at the appropriate time. He can open the door and say: ‘Good morning, sir. I have been directed to attend you. Goodbye. ‘ The whole thing is becoming completely Gilbertian. Cannot the lawyers cut this web and leave the matter as the Attorney-General has agreed to it and get on with the business of passing this Bill? I think we are just going round in circles and getting nowhere.
-I seem to have picked up the Attorney-General’s amendment and it appears to be something of a slippery serpent. I do not think for one moment that there will be many proceedings for contempt. What I am suggesting is to take out the words that say that refusal to obey a direction shall not be a contempt. In other words, the present wording would seem to be a feeble finish to this important clause. It is up to the Committee to decide whether it wishes to take out the words. I thought it was desirable to be consistent in the way in which the Committee recommended to the Senate. In respect of another clause the Committee recommended to take these words out, which was accepted by the Attorney-General. I thought it was desirable to be consistent in this clause and take them out also. I am not convinced that it should be otherwise. I continue to support my own amendment.
Amendment negatived.
– I move:
– May I suggest to the Attorney-General that he postpone his clause because it again seems to me to be bound up- I am sorry, it is the next sub-clause.
– This amendment was recommended by the Standing Committee and is covered by paragraphs 28 to 31 of the Committee’s report. It enables the court to advise the parties to attend upon a marriage counsellor if it thinks that such counselling may assist the parties to improve their relationship to each other and to any child of the marriage. It is part of the fabric of endeavouring to use the counsellors. I hope no one will suggest that what is intended as a further indication to and guidelines for the court and for those associated with it should be transmuted into another kind of compulsion. The Committee made the recommendation. It seems a sensible one and I ask the Senate to accept it.
-One part of this amendment has not been mentioned by the Attorney-General (Senator Murphy). The amendment includes new sub-clause 5, which he mentioned, and also new sub-clause 6 which we regard as of considerable importance. The present Act contains the provision that in many circumstances- there are exclusions- 3 years of marriage must proceed before a divorce can take place. That provision, of course, is not in the Bill. Even that provision was a rather spotted one because it did not apply to adultery and a number of other grounds. Therefore it was not very logically based.
It is provided in new sub-clause 6 which has been moved by way of amendment by the AttorneyGeneral that where it appears from an application for dissolution which is lodged with the court that the marriage has not lasted longer than 2 years before the date of filing of the application certain things have to happen. The court will not hear the proceedings until it is satisfied that the parties have had an opportunity to consider a reconciliation with the assistance of an approved marriage counselling organisation or some other suitable person or organisation or where there are special circumstances by reason of which the hearing should proceed.
The amendment is designed to cover the situation of young marriages where there may be prospects of reconciliation and where advice may be needed. The court will then direct the parties that they should have some advice before the action can even proceed. The Committee places great stress on the fact that this will be more practical than the provision which appears in the present Act. That provision did nothing, of course, to help reconciliation in young marriages. It just meant the parties had to wait for 3 years or, if they happened to have a ground of adultery, they could proceed immediately and the marriage could be broken up without any opportunity of any advice. I think this amendment could be said to be one of the more significant matters on which the Committee relies for improving the reconciliation provision of the Act.
– I thank Senator Missen. I dealt only with the inclusion of proposed new sub-clause 5 and not new sub-clause 6. Senator Missen spelt out the provisions of subclause 6. This is an area about which people have been very troubled. It relates to whether marriages should be able to be terminated within a certain period after marriage. The proposal is one that seems wise. It is not unduly oppressive to the parties, as were some of the other onerous provisions. I commend new sub-clause 6 to the Senate. There is a certain amount of experimentation in all these fields, but here is the utilisation of the reconciliation aspects. I think it is realised how much of this has been introduced into the Bill. I hope that some of those who have been critical of this idea, even after the Committee’s proposal has been substantially accepted, would revise their opinion.
– I realise I was correct when I spoke a moment ago. In fact these 2 additional subclauses, sub-clause 5 and sub-clause 6, are being moved together. I thought they were being moved separately. New sub-clause 6 provides that where it appears from an application for dissolution that the parties have been married for less than 2 years proceedings shall not proceed except in certain circumstances. I suggest to the Attorney-General (Senator Murphy) that the period of 2 years is really conditional on clause 26, as he has proposed it, being agreed to by the Committee. If the period of separation is 2 years or 3 years and if there is no additional ground added by the various amendments that have been proposed it would be meaningless to have the period of 2 years in this sub-clause because the parties would not be able to get a dissolution at all. They would not be able to proceed at all for a dissolution unless they had been married for more than 2 years. I am suggesting that it might be reasonable to postpone this amendment until we actually come to our final decision in relation to clause 26.
– Although I hear some murmurs of disagreement I think Senator Durack is really right in what he is putting. He was intending to move to have a 2-year period instead of 12 months.
– The suggestion was for 3 years.
-Certainly, it could be 3 years. For this clause to have any intelligent operation really means that something less than 2 years would be the period of separation. I think that is right. I assume that there would be no great objection to the sub-clause after we had dealt with clause 26. Perhaps Senator Durack would like to come back to this clause later and revise it.
– I am easy on it. I do not want it to get away under my guard.
– I would be prepared to agree that we come back and look at the subclause again if the proposal about 26 is carried. There seems to be no objection to the substance of this sub-clause.
– I do not refer to the point that Senator Durack just raised with the Attorney-General. I express my concern and feeling that these 2 sub-clauses are really not of any great value. I would welcome along with everybody else effective use of marriage counselling procedures, but I think these words are just playing with the problem and, I think, improving the language of the existing Act, but really not achieving what even the Committee was seeking in the way it expressed its report. When I refer to the report I recall the words of a gentleman who expressed his views in the Press. I do not know that he ever put anything to the Committee. I refer to the Rev. Alan Walker, who has had a wide experience in this area from my recollection of his many activities. I shall quote his words because I think they are words of some weight. He said:
The requirement of counselling assistance must be written far more firmly into the Act. At present while there is provision for the judge to suggest counselling his desires can be nullified. Clause 14 sub-section 3 says that if after adjournment has taken place for counselling and either of the parties requests that the hearing be resumed the judge is obliged to do so.
Unless this clause is strengthened to require a report to come to the judge showing that counselling has actually occurred, it has little practical significance.
– That statement was made before these amendments were public.
– I am interested to know that. It seems to me that advantage has not really been taken of the point he made. If I felt that there was any support for it I would move an amendment to clause 14(2) to require that not only may the judge adjourn proceedings, not only may he consult with the parties, as the Committee has suggested in its amendment, not only may he nominate a counsellor, but he shall also direct that the people attend before the counsellor. If that were put in I imagine that Senator Everett, consistent with what he has already said, would say: ‘What is the point of directing or even advising people to attend because if they do not want to attend you are not going to get anywhere?’ The logic of that is inescapable and I do not resile from accepting the consequences of the logic. But it is what we are doing right throughout these provisions. It is what we have done in the existing legislation. But we believe that there is some point in doing it and so we do it. I do not really think that these 2 clauses we are now considering even suggest that, because in the first place, if one looks at the proposed sub-clause (5), one sees that what the court may do is to advise the parties to attend before a marriage counsellor or an organisation and, if it thinks it desirable to do so, adjourn any proceedings. The purpose of sub-clause (5) is to enable advice to be given to the parties to attend. What hope is there that the parties, if they are advised, will attend?
Clause 14 (6) says that where the parties have been married for less than a certain period the court shall not hear the proceedings unless the court is satisfied that the parties have had an opportunity to consider a reconciliation with the assistance of a counsellor, an organisation or some other person. What is really comprehended by the words ‘the parties have had an opportunity to consider a reconciliation with the assistance of a marriage counsellor’?
– What are we to do? Send along the Usher of the Black Rod?
– I see that my point has struck home. After all, what is an opportunity? If they know that such counsellors are available it may be argued that that is an opportunity, particularly if someone has written to them and particularly if they have had a visit from somebody- not the Usher of the Black Rod.
-Why not?
-Maybe. If they have had a visit from somebody they may not choose to take advantage of any discussions with him. It appears to me that it does not take the position very far and it is far short of what the Committee itself recommended. I am surprised that the Committee is content with the amendment, because unless there is another paragraph of the report other than paragraph 1 1 at which I am looking -
– Paragraph 3 1 .
– I will come to paragraph 31 because I did not know that it dealt with the matter. Paragraph 11 seems to deal expressely with this area. It says:
The Committee recommends the insertion into Part III of the Bill of a provision to the effect that where an application for principal relief discloses that the parties to the marriage have been married for less than 2 years, the Registrar or other proper officer of the court must refer the application to a Judge of the Family Court. The Judge then may direct that the application is not to be heard until one or both of the parties to the marriage has been interviewed by a marriage counsellor or some other person as the Judge may direct.
– That is paragraph 31.
– I am sorry, I thought it was paragraph 1 1. That is the one to which I was referring. It seems to me that the way in which the Committee looked at this matter was to rely on an interview and a consideration of the issues. Why has that language not been brought into this provision? Why has the Committee not made some protestations to have the language changed? I say to all the lawyers of the Committee- they would readily appreciate it- that there is a world of difference between an opportunity being given and an actual interview occurring. If the matter is to be stood over, as the Attorney-General suggests, maybe there is point in looking at this again because we would all like to see the counselling provisions given more meat and substance. I do not think that they have been given any more substance than is given in the existing Act, except that there have been improvements in language and style.
-Senator Greenwood will be pleased to hear that, as a member of the Senate Standing Committee on Constitutional and Legal Affairs, I agree with the observations he makes with respect to clause 14 (6) (a) regarding the words ‘an opportunity to consider’. I do not know whether this matter may be considered at a later stage. I would certainly support an amendment to improve that terminology.
– May it be stood over? I think that the Attorney-General indicated to Senator Durack that he would be happy to stand it over, and I think that that would be the best course.
Sitting suspended from 6 to 8 p.m.
– I indicate to the Senate that if later on when we are discussing other clauses of this Bill there is an amendment which is inconsistent with the operation of the proposed new sub-clauses (5) and (6) of clause 14 and in particular the one referred to by Senator Durack, it will be agreeable to come back and look at this without any prejudice, if this is acceptable to the Committee.
– I would hope that it might be said by the Attorney that we could come back to the clause because I understand there was a proposition. I raised a point before the suspension of the sitting of which there seemed to be some acceptance in some quarters. I would like to give further consideration to it.
Motion (by Senator Murphy) agreed to:
That further consideration of Clause 14 as amended and proposed new sub-clauses ( S ) and ( 6) be postponed.
– I move:
It is proposed to insert new clause 14a which would enable a party to a marriage to file a notice that the marriage had broken down. Where such a notice is filed the counselling procedures would be invoked. The Director of Counselling and Welfare of the Family Court may arrange for the parties to the marriage to be interviewed by a marriage counsellor for the purpose of assisting the parties with a view to a reconciliation or the improvement of their relationship to each other or to the children of the marriage.
Originally in this Bill I had proposed that a proceeding could be commenced even before 12 months separation had occurred, the intention being that where there had been a breakdown of the marriage one of the parties could institute a proceeding and then the parties would become involved in reconcilation procedures, the counselling services would be available and so forth. There was some objection to this because it was said that it might enable people who had a tiff over the weekend to file divorce proceedings on the Monday. May I say that to a lot of people that seemed to be a strange kind of possibility until it was pointed out that when the parties to a marriage had reached the stage where one of them felt like applying for divorce, the sooner the reconciliation procedures were invoked the better. In that very extreme instance you might be able to save the marriage if before there was a lengthy separation the parties were brought into an atmosphere where people would be saying: Look, you had better go and see a marriage counsellor. Why do you not wake Up to yourself? Is there not a chance of saving the marriage?’
I think that was probably a very good idea and that it still is a good idea. People stand on the sidelines and complain about things and say: You are wrecking marriage’ without analysing the reasons behind the proposal. May I say that the reason behind this appealed to a great number of people who thought that the way this was framed was probably a good idea but who nevertheless thought that we could achieve the same kind of objective by a notice of a breakdown of the marriage being filed without the institution of divorce proceedings. That is to say, when one party files the notice the Director of Counselling and Welfare would become involved and he may arrange for the parties to be interviewed by a marriage counsellor. On the whole I think this proposed new clause will achieve the same purpose and there will not be the kind of complaints from the various institutions that are concerned about this Bill. I hope the Senate will accept this proposed new clause. May I say that this is one of the recommendations of the Standing Committee on Constitutional and Legal Affairs. I do not think it came about entirely at the initiative of the Committee but nevertheless it is one of the recommendations and I hope that the Senate will accept it.
– I seek your advice, Mr Chairman, on how you wish to proceed in this matter. On behalf of the Standing Committee on Constitutional and Legal Affairs I propose to move an amendment to sub-clause ( 1 ) of proposed new clause 14a by completely substituting other words. It would seem to me in accordance with what was done earlier that the most convenient means of achieving this would be if the Attorney-General’s proposed new clause were voted on on the basis that it was without prejudice to the right immediately to move an amendment to it.
– I think that probably the refined version which is proposed by the Committee is acceptable. I should have indicated that earlier. I would not oppose the proposal which is made by the Committee.
-In reply to your query, Senator Everett, you may put your amendment now to Senator Murphy’s amendment and we will deal with your amendment first.
– I move:
I simply wish to make these brief observations. Firstly, as the Attorney-General (Senator Murphy) has said, the amendment is in accordance with the general view of the Standing Committee that the counselling services of the Family Court should be available at as early a stage as possible and- this is most important- without necessarily invoking the jurisdiction of the court in respect of any particular proceeding. I think the amendment therefore speaks for itself. It says that a party to a marriage may file in the Family Court a notice stating that he or she intends to seek the assistance of the counselling facilities of the Family Court.
The second point I make is that the Committee considered that amendment was desirable in order to increase the constitutional strength of the power contained in the proposed new clause 14a- in other words, that the availability of the counselling facilities should be pursuant to a formal filing of a document invoking those facilities in the Family Court. Since the amendment will be accepted, I do not think it is necessary to labour the point any further.
– There is a similar provision in proposed clause 14B (2).
– Proposed clause 14b is a separate clause because it deals with the advertising of facilities. It concerns another and useful point. One other argument prevailed strongly on the Senate Standing Committee on Constitutional and Legal Affairs when making its recommendation to change ‘notice of marriage breakdown’ to notice’ so that a person can seek the counselling facilities of the court. It may be highly undesirable for someone to have to go to a court, shortly after a breakdown, and sign and file a document saying that their marriage had broken down. If they go to a court and say that they are seeking the counselling facilities of the court the episode is not as traumatic as it might otherwise be.
-I want to add only one point to what Senator Missen said. I think it goes a little further than he went. It is desirable that anybody who seeks the assistance of the counselling facilities of the court should be able to do so without being involved in the concept of matrimonial breakdown. I think that the Senate Standing Committee on Constitutional and Legal Affairs took the matter as far as that in its considerations. The only other observation I want to make is that until I saw the clause which we seek to amend I never suspected the Attorney-General (Senator Murphy) of inelegance of phraseology in anything he did or said. Having seen the clause, I commend the amendment because its terminology is much more elegant than that in the original clause.
– I have not lived with this measure in the way that everybody else who has spoken tonight has lived with it in the past few months. I have not been able to give to it the time that other speakers have been able to give to it. I sense that this debate is being carried on between people who have lived with the proposal for a long time. I do not think anyone has explained what is sought to be achieved by this provision. I acknowledge what the Attorney-General (Senator Murphy) said at the outset of this discussion. What purpose is to be served if a notice is to be filed when a party believes that a marriage has broken down or if a notice is to be given that the counselling facilities are to be availed of? The consequent step as it seems to me is that the Director of Counselling and Welfare, who in the eyes of the people concerned would be an officer of the Marriage Guidance Bureau or the Department, may arrange for an interview to take place. To me, the whole concept seems ill-defined and certainly undeveloped. If a person wants to use the facilities of the Family Court or of the Marriage Guidance Bureau he can do so under a subsequent proposed new clause which suggests that the Director of Counselling and Welfare is to advise where facilities may be obtained.
I think this is one of the basic problems under the existing legislation. I guess it will be a problem under this legislation. How do we make people aware of the availability of these facilities? How can we assure people that they will be received sympathetically and that they can get help if they are prepared to trust in the advice which can be given? I wonder whether the formality of filing a notice and then depending on someone to arrange an interview will be helpful. This concept of filing a notice seems to me to be one of the legalisms which this legislation is designed to avoid. Why is this proposed clause being inserted? I would be grateful if a member of the Standing Committee would explain why.
– May I try to explain? It is very difficult for people whose marriage may be breaking down. They do not know where to turn or what to do. It is all very well to say: ‘Go to a marriage guidance counsellor’. Unless there is something written into the law which sort of steers people in the right direction the procedures will not be used. Senator Greenwood may be right in saying, as a lawyer would say, that there is nothing operative about the proposed clause.
We are not saying that a person must do something or else, or that such and such a consequence will follow if a person does not do something. This is a different kind of approach. We are trying to build guidelines into an important social area and to indicate how people can go about things. This is not directed simply to a court; this is a public office. The Director of Counselling and Welfare will be attached to the court and will not be part of some Public Service establishment. There will be all sorts of other people in the social welfare field and other fields who will understand that a legislative intent has been expressed. This is a different area. We must get used to it. There will be guidelines in legislation, indications of what ought to take place, and invitations to the various people who are operating in a certain way under the Act.
I accept the gentle strictures of Senator Button. The amendment is a nicer way of doing it. Instead of filing a notice of breakdown, the party will file a notice. This can be done. It is a step that involves some kind of recognition. This may not be a good analogy, but it appeals to me a little. It is something like what one reads about Alcoholics Anonymous. One of the things that organisation says to people is that they must recognise that they have a problem. In this case the court says to people that they must file a notice. The marriage is in trouble, and one of the parties is trying to save it. When they have filed that notice they may be beyond the point at which advice can help. They have actually filed a notice saying that they are in trouble. They have gone to this helpful court and have said to the rest of society, particularly the Director and the court, that they want some help. That notice must be filed. Senator Greenwood asked: What does the proposed clause do? Where are the operative words? He said that there are no penalties and no consequences as one would expect in other areas of the law. But this is a different area of the law. We are trying to get a different kind of approach. The court says to these people that if they take some of these steps they can get some assistance. One would expect the Director of Counselling and Welfare to give that assistance.
– One of the points in which I am interested is this: Why not simply say that a person can apply to the Director for the Director to arrange an interview? Why maintain the idea of filing a notice in the Family Court? It may not be in existence for a long time. These are the points which I think ought to be covered.
-We do that in another way, as you will see a little later in clause 14b. There is a provision for an application to be made. Will it do any damage if there are various ways in which a person can invoke the system in order that counselling might be made available to him or her? I do not think it will. If we really want to tackle this problem, if we want to make counselling available and if we want to get these reconciliation procedures operating we must do a lot more than has been done previously. That is the intent behind this provision.
Senator Greenwood said that people have applied their minds to it. They have. He asked what it achieves. It is a very small price to pay to have these counselling facilities available, to have the Director there, compared with the preservation of those marriages which can be preserved and with giving assistance to people. The Committee has in its refinement, which I accept, said that it thinks this is a helpful way to go about it. Advisers have looked at what has happened overseas. Senator Greenwood might suggest something better. But we think that what we have proposed will be helpful and that we ought to try it. It will cost really a trifling amount of money. Can Senator Greenwood see any harm in a person being able, if he wishes, to file such a notice and then get the Director of Counselling and Welfare in a position where he can provide assistance?
– But why file a notice?
-For the reason that I have stated- this is the signal going up. The parties are not compelled to file a notice. The filing of a notice that they intend to seek assistance is a positive step. It is better than their going to somebody, such as the kind of person whom Senator Sir Kenneth Anderson mentioned, who might not really be able in many ways to express himself; but we have made provision for that also. The parties can get help even without filing a notice. But if they want to put in a distress signal, the filing of a notice is the way in which assistance can be brought to them.
Also one would think that the court would probably be looking at these matters. People would be wondering what has happened in relation to the cases where people have filed a notice. They will expect attention to be paid to the cases. After this Act has been in operation for a while you will find that people will be starting to ask what has happened in those cases where people have filed a notice. They will ask: ‘What did you do about it? What kind of assistance did you really give? I think that there is benefit in this legislative scheme allowing people to put in an application for assistance- a distress signal.
– It seems to me that the precise form of proposed new clause 14 a(1) is not terribly material. The important point in addressing myself to the question that was raised by Senator Greenwood is that under proposed new clause 14 a (2) it is envisaged that the Director of Counselling and Welfare will be permitted to take positive steps to arrange for counselling. It is only permissible under this clause. The clause provides that the Director of Counselling and Welfare may arrange for the parties to the marriage to be interviewed by a marriage counsellor. I think it is quite reasonable that before you call on an officer of the court, in the person of the Director of Counselling and Welfare, to take some positive step he should have some form of application in hand, some formal request from a party to the marriage that that sort of action should be taken on the parties’ behalf.
– The use of the expression ‘ file a notice ‘ is legalistic.
-Yes, but I think the fact that it is legalistic is totally irrelevant. The fact of the matter is that the person seeking assistance will go to the court and he will be given some form which he will have to complete and lodge. That will be an authorisation for the officer of the court to get out and do his job. It is quite different from proposed clause 14 B where facilities are merly being made available. Proposed clause 14 a suggests that the Director of Counselling and Welfare will actually take positive steps at the request of one of the parties.
-There is one further reason, too. If members of the Committee look at the list of amendments which have been circulated by 6 senators they will see that amendment No. 6 seeks to add the words ‘or a party has filed in the court a notice’ to clause 58 (3). That should now read, if this proposed clause is amended, ‘under section 14a of this Act’. The situation is that clause 58 deals with the making of settlements of property. As it is presently phrased it requires the parties to have instituted proceedings for divorce before they can come before a court for settlement of property.
It is desired by the members of the Senate Standing Committee on Constitutional and Legal Affairs to extend that so that people do not necessarily have to institute divorce proceedings to secure a settlement of property. In the view of the Senate Standing Committee, one of the incidental benefits of having proposed new clause 14a ( 1) in the Bill is that there will be taken a legal step which will bring matters before the jurisdiction of the Family Court. So it will probably have greater constitutional validity than if the proposed clause were not there. In other words, a step is taken and a person is before the court, and then a settlement of property can be applied for without the person having to take divorce proceedings. That is another possible benefit derived from including clause 14a.
– In looking at proposed clause 14a (2) J. notice that the wording indicates the purposes for which people may be interviewed by a marriage counsellor, and these include assisting the parties with a view to a reconciliation or the improvement of their relationship to each other and to the children of the marriage. I rise only to ask the Attorney-General whether he would concede that there is another major purpose of counselling in this situation, and that is to offer therapy to people. There is the actual therapeutic role of counselling in what is a very disturbed situation. If we are to spell out what the purposes of counselling are, should we include a few extra words to take in the meaning, say, ‘or for purposes of offering personal counselling which may be necessary to cope with the problems resulting from a disturbed family relationship’? It is a slightly different thrust to what the services can be used for.
– Does not the improvement of the relationship to each other involve that?
– No.
– I appreciate what Senator Baume is putting, but the ever present concern is that which was mentioned earlier this evening, that is, the question of constitutionality. Many of these amendments are framed with an eye to that. What Senator Baume is putting is probably inevitably going to happen. If you are going to counsel people for the purpose of assisting them it is with a view to reconciliation or the improvement of their relationship to each other and to the children of the marriage. I think that in that you really embrace what Senator Baume wants to do. But it may create some problems if you lift it out as a separate thing. If you give assistance to a person as a person you might be getting into something that is not quite as related to marriage or to the other constitutional heads of power. Maybe it would not do much harm here. I do not suppose that anybody will greatly challenge it, but some attention has been paid to the available heads of constitutional power even in that. I think that what Senator Baume is suggesting would probably be covered. In practice it will be covered. If a marriage counsellor acts as directed under this clause he will probably incidentally tend to achieve the purposes which Senator Baume is concerned to achieve.
-I do not want to waste the time of the Committee. I regret the phraseology of the clause. I think that it is legalistic. I think that it gives to anyone who wants to avail himself of this particular facility the impression that he must go to a court, fill in a form and await the convenience of a public officer. This to me seems inconsistent with the whole concept of advice which the supposed Director of Counselling and Welfare can give. Secondly, I believe that it must be a long time in actual development because we are told that the Family Court may be some time in actually being established. I think that there will be people in remoter areas, removed from a Family Court, who will not have the facilities which are offered by this clause readily available to them.
Thirdly, whilst I fully appreciate and can see the points which the Attorney-General makes about the need to have regard to the head of constitutional power, this is a facilitatory area in which one would not believe that constitutional questions are likely to cause concern. I would have thought, without harking back to an earlier debate, that there is more problem about heads of constitutional power in other areas than in this area.
– The question is: That the amendment moved by Senator Everett be agreed to.
Question resolved in the affirmative.
Proposed new clause, as amended, agreed to.
Proposed new clause 14b.
– I move:
Insert the following new clause. 14 b ( 1 ) The Director of Counselling and Welfare of the
Family Court may advertise the existence and availability of the counselling and welfare facilities of the Family Court and of other courts having jurisdiction under this Act.
That is in line with what we have been discussing.
Proposed new clause agreed to.
- Mr Chairman, may I ask a question? When we have completed our consideration of the Bill would it be possible for the whole Bill to be re-numbered so that we do not have clause 14A and clause 14B. Could the clauses follow a normal sequence? Would that be in conflict with what has been decided here?
– No. I would suggest that before the Bill leaves the Senate we could do that. Obviously we will not finish tonight so during the course of the debate I will arrange to get the staff to go through the Bill and re-number all the clauses before the Bill leaves this chamber.
-I am informed by the Clerk that that will be done automatically.
Clause 15
The regulations may provide for the furnishing to persons proposing to institute proceedings under this Act, and to their spouses, of documents-
– I move:
Leave out clause 1 5 and insert the following clause:
The amendment makes it mandatory under the regulations for parties to be furnished with documents. The documents are to contain the information specified. This is based on the recommendation contained in paragraph 30 of the report of the Senate Standing Committee on Constitutional and Legal Affairs.
Question resolved in the affirmative.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 16
1 ) This section applies to-
Evidence of anything said or of any admission made at a conference that takes place in pursuance of this Part with a person to whom this section applies is not admissible in any court (whether exercising federal jurisdiction or not) or in proceedings before a person authorized by a law of Australia or of a State or Territory, or by consent of parties, to hear evidence.
– I move:
This clause spells out in greater detail than the present Matrimonial Causes Act the classes of persons to whom privilege is accorded in relation to admissions and other communications made by parties to the marriage in the course of marriage counselling or other efforts at reconciliation. The clause states:
1 ) This section applies to-
The new provision will state:
-I wonder at the width of this provision. I know there is a provision in the existing Matrimonial Causes Act which is in different language. In that Act section 16 states:
Evidence of anything said or of any admission made in the course of an endeavour to effect a reconciliation under this Part is not admissible in any court (whether exercising federal jurisdiction or not) or in proceedings before a person authorised by a law of the Commonwealth or of a State or Territory of the Commonwealth, or by consent of parties, to hear, receive and examine evidence.
I suspect that the purpose behind a provision of that character was to enable the marriage guidance conciliators to utilise their powers of reconciliation to the utmost without any inhibition on the part of those seeking their advice who might think that some time in the future what they have said might be used against them. But I emphasise that the crucial words are:
Evidence of anything said or of any admission made in the course of an endeavour to effect a reconciliation under this Part . . .
The new provision states:
Evidence of anything said or of any admission made at a conference with a person to whom this section applies acting in the capacity referred to in sub-section ( 1 ) . . .
Proposed new sub-section ( 1 ) applies to a marriage counsellor. Presumably, it must apply to a person acting in the capacity of a marriage counsellor. Sub-clauses (b) and (c) of proposed new sub-section (.1) relate likewise to persons nominated or to a person to whom a party has been referred by a marriage counsellor for medical or other professional consultation. The exoneration applies to anything said to a person who is acting in a particular capacity. It seems to me that that provision is far wider than the provision in section 16 of the existing Act. I wonder whether it is a proper step to provide this privilege against incrimination on the wide basis which is contemplated. I think that in other legislation the tendency is to cut down this privilege against incrimination. It has long been established to exist in certain professional relationships but in other areas it seems to be expressly excluded. Here, in a relationship which is created entirely by statute, the privilege is extended. I doubt very much the public policy behind such a provision. I wonder whether the Attorney-General (Senator Murphy) has given consideration to that aspect. Why ought it to be justified on a basis which I sense is wider than it was previously?
– Again this is an endeavour to make the reconciliation and counselling provisions work. It is said by counsellors that this is absolute bedrock. It is essential that if they are to talk to people, to try to understand them and to get them back together again they have to be able to talk on a basis of confidentiality. If this provision is not in the Bill persons who go to counsellors will know that what they say may be used against them. If the Committee casts its mind back to several hours ago it will remember that the honourable senator was suggesting that there be a contempt of court if people did not go to counsellors.
– That is incorrect and the Attorney-General knows it.
– There was a possibility that they would be liable to contempt of court proceedings.
– That was if they refused to obey a direction.
-That is right-if they disobeyed a direction to attend upon a counsellor. Now the honourable senator is saying that if they accept the direction or the advice of a court and go to a counsellor and really try to solve their problem by telling the counsellor, what they say is not private or confidential and it can be used against them as some admission. How on earth does the honourable senator expect the counselling provisions to work if people cannot go and open their hearts to the counsellor and tell him what they have done?
– It is not counselling if it gets beyond that.
– We may get some very difficult cases. Maybe things happen where there may be breaches of the law. Somebody may say they have done something. I shall pick a case. Honourable senators can imagine worse ones. Suppose a husband says that he went to bed with some girl in New South Wales who was under the age of 16 years. That is a breach of the law. Is that statement to be used against him? The counsellor may have a duty to go straight to a police officer and tell him that he has evidence of the commission of a crime. Is the counsellor to inform against the person concerned? One can imagine other cases. It is absurd.
If we are to make this kind of endeavour to help marriages, to help families, should we introduce concepts that will prevent people who are trying to pull marriages together, to understand what is breaking them up, from talking to parties on the basis of complete confidentiality? I could think of circumstances where some problem may arise and there may be some difficulty. Let us wait and face them. Let us see if problems arise and then decide what we can do about them. I think it is worth taking these chances and letting the counsellors operate on the basis of strict confidentiality. They claim that strict confidentiality is absolutely essential. If we eat into that concept I cannot see how we could expect people to talk to counsellors, particularly the reluctant and difficult people that we would want to go to them. There probably will not be too much difficulty with other people who are only too willingly persuaded. Cases involving very difficult areas, shockingly difficult problems, might involve some kind of breach of the law. It is in those cases where it is necessary that the people concerned be able to talk to someone, to open up their hearts to someone, knowing they are safe in doing so.
Amendment agreed to.
Clause 16, as amended, agreed to.
Clause 17- Oath or affirmation of secrecy.
-I wish to ask a question purely for the purpose of gaining information. I notice that clause 17 requires that a person, before entering upon the purpose of his functions as a counsellor, shall make an oath or affirmation. Does the Commonwealth Oaths Act operate if there is a breach?
– We do not have an Oaths Act as there is in the States. Senator Greenwood might ask me what happens if a judge breaks his oath. There are all sorts of oaths of allegiance. What happens under the Public Service Act if somebody breaks an oath? I suppose there are penalties. I have no doubt that if we looked into the matter we probably would find some kind of common law offence that would be applicable.
– I think that would be the case with judges.
– I am sure it would. I have no doubt that anybody who broke the oath of secrecy would be in a great deal of trouble. For a start I imagine they would be liable civilly for breach of this relationship of confidence. I would think that an injunction certainly could be available. It would be an interesting point. If the honourable senator wants me to pursue the matter I will find out what criminal remedies, if any, are available. I am sure someone would find that some kind of penalty is available. After all, it is an oath.
– And it is in aid of clause 16. That is why I asked the question. One can visualise difficult situations arising for counsellors.
-Clause 16 really says that the evidence is not admissable. The honourable senator asks what would happen if someone breaks an oath of secrecy. I refer to something which does not happen in court. For instance, what if a person goes to the local golf club and starts to tell all the latest juicy information obtained during the course of marriage counselling? There may be civil remedies. There may be some criminal remedy. I will look into the situation for the honourable senator.
Clause agreed to.
Proposed new heading ‘Part IIIa- The Family Court of Australia ‘.
– I move:
Insert the following new heading:
PartIIIa- The Family Court of Australia ‘.
– This is a very difficult matter. I want to indicate at the outset that I am opposed to the concept of a Family Court of Australia. I will oppose any insertion in the Bill relating to a Family Court of Australia and that would mean I object to this heading. I equally oppose the provisions. Naturally, if the concept is accepted by the Committee the issue becomes whether or not the provisions to give effect to the Family Court are provisions which are appropriate. I want to say a number of things about this matter. Perhaps the appropriate place to speak on this issue of the Family Court is when we are dealing with this particular question. I do not know whether the Attorney-General (Senator Murphy) has any other views as to where the debate on the issue might properly take place.
– This is fair enough. I agree with that course.
– I thank the Attorney-General. This is one area where there is a great deal of confusion, inconsistency and duplication appearing in what is contained in the Bill, what is contemplated by amendments suggested by those people who have indicated their support for this concept, and in the way in which the proposed legislation would operate. There is a great deal of confusion as to what will be the really operative provisions. When the Bill was originally introduced- the August Bill- the jurisdiction which was to be exercised was to be vested either in the State supreme courts or in the Superior Court of Australia. The Senate Standing Committee on Constitutional and Legal Affairs recommended that there should be a Family Court of Australia which was to be a superior court of record, and that the jurisdiction ought to be vested in it. As I understand it the Attorney-General has accepted the Committee’s recommendation and has sought to give effect to it by the provisions we are now considering.
– Only partly.
– I accept that what Senator Missen says is correct. I do not know because I have not clearly checked out what the Attorney-General has done with regard to the Committee’s suggestions. I then notice that 3 members of that Committee who have subscribed to the concept of the Commonwealth Family Court also are putting up amendments which will facilitate the creation by the States, in co-operation with the Commonwealth, of State family courts. As I understand the situation, there also is provision under their amendments whereby the jurisdiction may be vested in those State family courts. I understand that their view is that the Family Court will exist alongside the State family courts.
– They may exist, if agreements are reached.
-They may exist. Taking up Senator Everett’s point, if agreements are not reached between the Commonwealth and the States, obviously there will not be State family courts but there will be a Commonwealth Family Court. Of course, agreement with the States depends not only on the States being willing but also on the Commonwealth being willing. My fear is that there will not be State Family Courts under this concept because this Commonwealth Government would not be interested in establishing State Family Courts. I would have thought that was a retrograde step and not as efficacious as State Family Courts would be, constitutionally and practically, in giving effect to the purposes of the Committee’s report.
I referred yesterday to some aspects of the Committee’s report which I felt indicated that there was, if not a misconception, a view which I did not think was constitutionally sound and that was the view that in some way you may have judges of a Family Court constituted by the Commonwealth who were not appointed for life. I am endeavouring, unsuccessfully at the moment, to find the particular reference, but the statement which was referred to was that in general judges of a Commonwealth court are appointed for life. I said then, and I think it is indisputable, that judges of a Commonwealth court, be it a Superior Court, be it the High Court, be it the Industrial Court or be it a Family Court, are appointed for life.
– Not Territory courts.
-Certainly not Territory courts. We are not dealing here with a Territory court; we are dealing with a Federal court of record according to the Committee ‘s recommendation. That means that there will be judges who have been inelegantly described as judges with a geriatric potential. The idea of geriatric judges being judges of a Family Court I think is totally inconsistent with the objectives which are sought in this legislation.
– Are there any State Supreme Courts which do not have age limits now?
– I cannot be positive but my strong impression is that every one of the States now has a provision for a retiring age for judges. As I remember it, most of the States have a retiring age of 70 but my own State of Victoria has a retiring age of 72.
– Is a judge geriatric at 70?
– Well, is a politician too old at 65?
- Mr Wentworth says no.
– I am interested that Senator Everett posed the question because it is obviously not capable of a definitive answer. Some judges may well have exhausted themselves and their ability to do an efficient job of work at that age; others may not have exhausted themselves. My experience is that it is a sensible thing to have a retiring age because, whilst we may lose some judges who are still very active and able at a particular age at which they have to retire, they may thereafter, as demonstrated by conduct, if they cease to be on the bench go downhill. I am not going to respond to attractive suggestions put by way of interjection by Senator Devitt but if Senator Devitt wants to ask me afterwards about them we can always have a private discussion, not only about judges but about politicians.
The CHAIRMAN (Senator WebsterOrder! Is the Committee discussing the establishment of a Family Court or is it widening that discussion much further than I would have anticipated?
– We are discussing the Family Court but part of the problems which one can get involved in when one discusses this concept of a Family Court is the ability of the equipment of the judges who comprise the court, because there is a fear to which expression is given in the report about the age of judges and how desirable it is to avoid that situation developing. Yet I think that to establish a Family Court is to create that situation and whilst various other means by other legislation may provide inducements by which judges might be persuaded not to continue their judicial role beyond a certain age, there is no guarantee whatever that judges will accept such inducements. I would have thought that the experience we have in Australia at present is that in federal courts judges find satisfaction in continuing their judicial role beyond the retiring age of State judges. We have a number of judges who, I think with general acceptance, perform their duties even though they are in their late seventies and some are in their eighties, but this is a concept which in the Family Court area is not desired.
– But what about an amendment to the Constitution supported by both parties?
– I think that Senator Everett knows my general view on this because I have expressed it. It would be a most desirable concept and I would certainly support it.
– Is this after you have appointed the judges?
– No. At the next election we could put an amendment to the Constitution. You will support it and it will go through like wildfire and we will have no problem.
– I am attracted to what Senator Everett says but I am not sufficiently persuaded to feel that I can drop my objections to this clause because of that proposition.
– After the appointment of a judge can you cut back his term from life to 70 years of age?
– If the people wish to I am sure that they could. That is one aspect of this consideration. A second aspect which I think is important is that a Commonwealth Family Court would in essence be another name for a Commonwealth Superior Court with all the arguments against a Superior Court being able to be argued against a Family Court. Such a court would require additional judges, additional staff forjudges and the concomitant expense. It would require extra court buildings and extra accommodation right around the countryside and in capital cities. It would require a separate type of Family Court circuit which would provide services as readily available to people in country areas as would be provided by existing Supreme Court circuits. Whilst I am sure that, if the expenditure of money and the recruitment of judges and staff were unlimited, with that objective in mind those services could be provided, I do not think anyone would hesitate to claim that it would be an immensely expensive and uneconomic exercise. Australia is not the sort of country in which we can have this duality of court systems. We ought to have one court system and in that one court system have judges, even though they operate in divisions of that one court system, who are able to carry through the various specialist functions which may be ascribed to them.
Progress reported.
page 2685
Debate resumed from 19 November, on motion by Senator Willesee:
That the Bill be now read a second time.
– The Senate is now debating the Local Government Grants Bill 1974. This Bill seeks to allocate a total sum of approximately $56.3m through the States to local government bodies, the municipal and shire councils, throughout Australia. The grants themselves apply to approximately 800 of the more than 900 local government bodies. It is a considerable pity that the Government which had absolute charge of the ordering of business both in the other place and in the Senate should have waited since the announcement of these grants in August until now to have the second reading debate in the Senate. On 17 October I asked a question in the Senate urging the Government to bring in this Bill because of the clamant need of the councils for money even to stay viable. The Government assured me that it would do so. Nevertheless the Bill came into the other place on 23 October, was not passed there until 14 November, was brought in here some 3 days ago and, by the deliberate placing of it by the Government in an inferior place each day on the business paper, has been delayed until now. It is also a reflection on the Government that it should in terms of its priorities consider that one hour and a half is the full time that the Government in the Senate is willing to devote to a very important piece of legislation. It is important that the Government is willing to spend day after day on the Family Law Bill but will graciously allow about 90 minutes on this Bill.
Having recorded that very strong protest, the comments that have been made by the Government, both on this Bill and on its policies on local government, strongly remind me of a statement which was made by Francis Bacon about 400 years ago. He said: ‘The fly sat on the axle tree of the chariot wheel and said: “What a dust do I make”.’ I wish to look at that phrase in terms of the Labor Government when, sitting on the axle trees of the chariot wheel, it says: ‘What a dust do I make’, because it is important to put in perspective this $56m in terms of the overall commitments of approximately $ 1,300m of the municipal and shire councils of Australia. I wish to raise 4 main points of perspective so that we can see the dust that they do make.
Firstly, in the current year the inflationary policies of the Government have forced up the administrative costs of all municipal and shire councils by approximately 30 per cent to 35 per cent. That means that the ratepayers of Australia, as the direct result of Labor Party policies, have been milked of an extra $350m. In that perspective we look at $56m. The $350m of extra ratings is because of inflation. Every council in Australia is faced with putting up its rates by 30 per cent to 35 percent. The ratepayers, therefore, are paying this Government. Of course 2 semigovernmental authorities, water and sewerage authorities, will have had to put up their rates by the equivalent of $100m. So that the real taxation upon the public in terms of semigovernment and local government rates is very high indeed- approximately $400m.
The second point that I wish to make is that construction costs at the local level of government are up by approximately 40 per cent due directly to the inflationary policies of this Government. The third point is that because of the credit squeeze and because of the alteration in the borrowing and lending ratios of savings banks in this country, it will be quite impossible for local government bodies in the coming year to raise their normal borrowing programs. The trading banks simply face illiquidity and cannot come to the party in any real way. The trading banks now are not compelled to put 60 per cent into general lending but must of course put 50 per cent into housing. Savings bank deposits are down because of this Government’s policies and the amount available for lending to local government bodies is severely down. Everywhere throughout Australia municipal and shire councils are facing a cut back of their works programs in a major way- some of them by as much as $ 1 m- because of the credit policies and the lending policies of this Government. So works programs will be cut back by $ 100m. This is the picture against which we measure this so-called topping up.
My fourth point is that almost every municipal and shire council in Australia has been forced already to reduce staff. Almost every one of them reports that in the coming weeks, because of the foreshadowed failure of their borrowing programs, they will reduce staff very substantially. They have approached the Federal Government and pointed this out. They have asked for extra funds. They have asked for an underwriting of their programs. They have been told to go away. They have asked for money to continue to employ people in their works programs but they have been assured that when they sack them and they go into the Commonwealth Employment Office, provided there is 3 per cent employment in that district, money may well be available under Government schemes for some kind of reemployment. Step by step throughout Australia the story in virtually every municipal and shire council is that they are restricting their administrative and works programs, they are sacking people and their costs are going up by about 30 per cent to 40 per cent. To compensate for this a $56m grant has been made, representing in terms of the overall spending of the municipal and shire councils in Australia approximately 4 per cent. That is in perspective. Running costs are up 30 per cent to 40 per cent because of Government policies and the Government is crowing because it provides 4 per cent. That is the broad picture that has arisen.
Some time ago when the Grants Commission Bill 1973 was debated in the Senate the Opposition drew attention to the quite dangerous provisions of that Bill. We said then that the aim of the Commonwealth Government was to carry cut the policy enunciated many times by Mr Whitiam. That policy was to destroy the States, to by-pass the States, to amalgamate forcibly the municipal and shire councils into regions and then to deal with 40 to 60 regions. Lest the Government challenges this, I refresh the minds of senators by reading the definitive statement by Mr Whitlam in his printed book entitled ‘Labor and the Constitution’. He stated:
Much can be achieved by Labor members of the State parliaments in effectuating Labor’s aims of more effective powers for the national parliament and for local government. Their role is to bring about their own dissolution.
There Mr Whitiam is saying that the way to strengthen the national Parliament and local government is for the Labor members of the State parliaments to dissolve the State parliaments. Mr Whitlam went on to point out- Senator Wheeldon acknowledges that it is Labor Party policy and will no doubt acknowledge also the statement by the Prime Minister- that approximately 932 municipal and shire councils in Australia were too many, that that number should be reduced and that all we should need to govern Australia is one House of Representatives, no Senate, no State parliaments, about 12 city groupings for the major cities and about twenty-five regional groups. That, acknowledged by Senator Wheeldon, the Minister in the chamber, is the stated policy of the Labor Party.
The ACTING DEPUTY PRESIDENT (Senator Milliner)- Senator I draw your attention to the title of the Bill. Please confine your remarks to the Bill, and do not address yourself to Senator Wheeldon.
- Mr Acting Deputy President, Hansard will show that I said to you, Sir, that Senator Wheeldon has acknowledged this fact. I am addressing my remarks pertinently. I hold the report of the Grants Commission in my hand. If honourable senators read pages 18 to 20 they will note that they are devoted to the discussion of whether regions should be the areas that should be adopted and that the instruction of the Government to the Grants Commission was to use regions. So, I said to you, Sir, that Senator Wheeldon had nodded his head. I addressed my remarks to you. The Grants Commission in its report, at pages 1 8 to 20, states that it had been instructed by the Government, through the Treasury, to work through regions. This, of course, was in implementation of the Whitlam Government’s instruction to force the amalgamation of local councils into regions so that the Government would by-pass the State Governments and deal only with some 50 or 60 regions. It is well to recall that the Grants Commission, with eminent good sense, said that could not be done. It pointed out that the Government could not deal with regions because it would be averaging a region and overlooking the important point that each municipal and shire council has a particular local and fundamental problem both in expenditure and revenue.
If the Grants Commission report does nothing else it draws to the attention of the people of Australia and to the Government the fact that the idea of averaging through regions and forcing the dialogue through regions is impracticable, is wrong-headed and should not be used. The Grants Commission said:
After considering the views put to it, the Commission decided that in relation to applications made in 1973-74 it would base its recommendations on an assessment of the relative fiscal needs of individual local governing bodies. This should ensure that account is taken of disparities within regions while the summation of the grants for individual local governing bodies gives a measure of the differences in fiscal need between regions.
I remind the Senate of the major attempt made by the Labor Party to destroy State governments and to destroy individual councils and of the good sense of the Grants Commission in going to the fundamental bodies of local government, the municipal and shire councils. What is the aim of the grants recommended by the Grants Commission? The Grants Commission says that its objective is what it calls fiscal equalisation- that is, to look at each of the municipalities and shires and to see what funds should be given to them to provide some equality of opportunity, whether in revenue raising or in particular aspects of expenditure. So, the Grants Commission has come out with this report.
I make no reflection whatsoever on the Grants Commission. One could not help but acknowledge that one of the greatest Australians of our time was the Chairman of the Grants Commission, Sir Leslie Melville. Tribute should be paid to him. One should remind the Senate that the Commission is doing the work set for it by the Whitlam Government. In doing that work it has disclosed fundamental flaws in the intended policies of that Government. Any municipal or shire council in Australia today will expound its problems of higher administration costs, rates being put up by 30 per cent, inability to borrow money and the need to sack people. They would then say: ‘We have been deluged with paperwork in an attempt even to keep some kind of level of our staff; we have sought through every device that the Federal Government says is available to us to get funds; we have filled in form after form; we have answered questions; we have written letters; we have been interviewed; and with almost no exception we have got nothing. We have sought the National Employment and Training scheme, the Regional Employment Development scheme, the area improvement scheme, the Australian assistance program, the recreation and sports programs and others. We have tried and tried for months and we virtually got nothing ‘.
– Cheer up.
– The message of Senator Wheeldon to them is ‘Cheer up’. That might be some consolation. I can tell the honourable senator of one main municipality in Western Australia, the State from which the honourable senator comes, that proposes in the next 7 weeks to sack 100 members of its 140 working staff. I visited the council the other day. It is in bleak despair, having been to this Government seeking funds. Faced with the prospect of the sacking of 100 people, Senator Wheeldon grins. That, of course, is the solution.
The Senate will be delighted to know also that the same people are being visited at this moment by Grants Commission members solemnly taking information for the year 1975-76. Grants Commission members are solemnly going round now trying to predict what the needs and the requirements of municipalities and shires will be in nine to ten months’ time. When the programs of the Federal Government change every day, when no one can predict the rate of unemployment, the destruction of works programs and the kind of inflation we will have, the Grants Commission members are solemnly going round at this moment filling in forms.
Let us have a look at what this Grants Commission situation means. We said last year when the Bill came before us that the right thing to do was for each of the States to have grants commissions. If money is to be allocated for local government it should be allocated by the Loan Council to the States and through the States to local grants commissions. Everywhere we go we hear the story that no matter how it tries the Grants Commission could not hope to comprehend the real needs of people. It is interesting to see the test applied by the Grants Commission. The Grants Commission says, of course, that these grants are being made without strings. Of course this emphatically is not so because in the investigation by the Grants Commission, in the desideratum laid down to reach conclusions and in its considerations the Grants Commission in fact puts on a coercion. I shall now demonstrate that to honourable senators. The Grants Commission says that it is seeking information from each municipal or shire council to show whether that municipality or shire is under-rating. If it is under-rating in the opinion of the Grants Commission it gets nothing. The Grants Commission has become the rating authority for Australia and for municipal and shire councils. Let that not be in any way disputed.
– It is desideratum.
– Right. I am always grateful for the intellectual outbursts from my left. They are so infrequent one should applaud them. The Grants Commission has decided to be the rating authority for Australia. It wants to be able to say to a council that it is under-rating. I would have thought that in a democracy the people who should tell the councils of Australia whether they are under-rating or over-rating are the ratepayers of Australia and nobody else. The only people the local government bodies should be answerable to are the ratepayers of their municipalities. As soon as the Grants Commission applies the test that money will not be provided if in its view there is under-rating, the Grants Commission becomes the tail wagging the dog. Does it go along and say: ‘Tell me your problems. What do you want? Do you want something extra for this?’ Not on your life! What it says is: ‘Tell me the whole of your programs. Tell me the whole of your expenditure for administration and works. Let me look at the whole lot of it. If you are good I will give you a marginal extra.’ Anybody knows that the one who financially controls that marginal extra controls the whole program and, by section 96, imposes his will on the whole of the works and administrative programs of municipalities and shires in Australia.
What has happened, therefore, is this: Some 2 years ago the Whitlam Government was elected on a fraud. It said to the municipalities and shires of Australia: ‘We will give you direct access to the Grants Commission’. Senator Wheeldon is very helpful. He acknowledges that that was contained in the policy speech. There is no direct access for municipalities and shires. They must first form themselves into regions of Mr Uren’s choosing. They must then put up their submission on a regional level and, if Mr Uren says it is a good idea, they can then apply it. Here was a broken promise. Senator Button smiles. He ought to now because it would be hard to recollect a promise made and a promise kept. What in fact happened was that they were forced into regions. They were forced to make submissions through regions. That in itself, with all these schemes, has become a tragic failure. If an attempt is made to average out local government bodies over a region then the fundamental nature of the local government body is destroyed. The vital characteristic of a local government body is that it should be local, that it should represent a particular community or communities, that it should have the right to be different and that it ought not to be compromised into averaging over a whole region. The local government bodies are now realising to their horror that they were seduced into something that will destroy them.
Let anybody go now to a municipal or shire council and tell it about the Commonwealth aid roads grants. About $56m is to be handed out in grants. What about producing a document showing the money for road grants that was taken away from them forcibly by the Commonwealth Government? What about telling the people of Australia about all the people now being sacked by local government bodies because of the withdrawal of funds by the Commonwealth Government from the municipalities and shires? If this matter is to be put into perspective, first of all one must realise that what the Opposition said in the Grants Commission Bill debate last year has come true- that an attempt was made to bypass the States, to create regions and to destroy local government. What must be said is that the Grants Commission itself has faced up to the Government and has said that the concept of regions is wrong; there must be an approach to the local government body.
In the light of the huge expenditure forced on councils by inflation, in the light of the underborrowing, in the light of the unemployment, it must be said that what has been given is as nothing compared with the robbery that has gone on elsewhere- the robbery by inflation, the robbery by the credit squeeze and the robbery by the withholding of road grants. What ought to be understood by the Senate is that this Government is pursuing a deliberate policy of centralising power in the House of Representatives. That policy has taken a further step forward. It is trying to force local government bodies to conform with Canberra. It is creating a whole host of bureaucrats who are racing around demanding that forms shall be filled in and that questionnaires shall be answered. The Government is failing to respond to letters and it is failing to respond to any approaches. Let me remind the Senate that at this moment literally hundreds of councils are attempting to approach this Government to obtain funds. They are told: ‘No. Go away and borrow it yourself. But when the staff becomes unemployed we will help them through the dole.’ Senator Bishop kindly assured us today that the 300,000 people to be unemployed will be on the dole but it will be a better dole than last time. That is what he said That is the comfort offered by the Government. The Opposition has pressed upon the Government the need for a speedy passage of this $56m so that it can go into local government areas and be spent in the hope at least of maintaining some of the staff and some of the works programs. Therefore, the Opposition will neither oppose nor delay the Bill.
– You have taken half an hour.
– Some honourable senator is bewailing the fact that I have taken some 26 minutes so far to talk on this important subject. That is the Government’s perspective of the collapse of councils, of unemployment and of people on the dole. The Government is trying to deny the right of the Opposition and the people of Australia to see this problem and to expose it. Is this what the Government has said? It is true, of course, that the Government is in absolute disarray in its economy policies which come so thick and fast that it does not even know which one of its Ministers holds which portfolio at any one time. It hides behind alibis to change its Ministers. Against that background let me say that the Opposition when in government will work upon the basis that local government shall work in conjunction with the States as units, that local government will be maintained in its individual areas as authentic community bodies, and that a Liberal-Country Party government will encourage the formation of grants commissions in each State.
– Will you give an undertaking -
– It was the Askin Government that established the first local government grants commission in New South Wales- a pacesetter for Australia. The Commonwealth Government simply took the idea and sought to create centralisation. If Government supporters cannot answer by logic of argument at least Senator Mulvihill cannot be criticised for the lack of volume in his shouting. I give him the prize for inarticulate volume of shouting in this Parliament. If he wants it, we will award him that prize.
I conclude by saying that not only would a government of the Liberal-Country Parties set up grants commissions in each State similar to that in New South Wales, but it would also restore proper sovereignty to local government. It would not attempt to bypass the States. It would not attempt to emasculate councils by forcing them into the compromise of a region. It would restore them to their true sovereignty as the third tier of government.
– I rise to make a few remarks in this debate on this Bill to grant financial assistance to local governing bodies. Whilst I and my Party, in common with the rest of the Opposition, support the measures in this Bill I want to indicate as briefly and as clearly as I can why we support it. At the same time I would hope to analyse it in some depth and to indicate those areas of it which I believe it will be necessary to change as time goes by. Basically we support this Bill because of the urgency of need that exists today throughout local government areas and indeed State government areas for that matter in Australia. There is an extreme urgency of need and this Bill confers some $56. 3m on local governing bodies without strings attached so far as the expenditure of that money is concerned but, of course, there are the indirect and damaging strings relating to the capacity and in fact the right of local government bodies to decide on their levels of rating. This is a significant and important string. But having granted the money, there is no string to its actual expenditure.
I wonder why the need for extra moneys in this form is so urgent today. The need comes from many directions. Obviously the first cause of the need for larger amounts of moneys in local government areas is the snowballing, the spiralling inflation that has been occuring in this country for the past 23 months. I want to make the point that contrary to the somewhat commonly heralded remarks, the inflation which is besetting local government, as it is every other individual, industry and commerce in this country, is not an imported situation. The inflation that is creating the urgency of this need is an inflation which has in fact grown from 4 per cent to something in the vicinity of 25 per cent or 30 per cent in 23 months and it has been literally nurtured within this land. It is an inflation that has largely come about by a constantly spiralling situation in the wage and salary field. It has been added to by an extremely high rate of industrial unrest, causing at this crucial time a falling away of goods and services and indeed it has been aided and abetted by the attempted transfer of funds from the private to the public sector in this economy- a transfer which fortunately in this circumstance has been recognised as unfortunate, as probably the wrong economic measure, and has been at least in some degree arrested.
So much for the inflationary situation as marking the urgency of the need for this additional money in local government areas. It is a situation which has brought to these bodies a great increase in the cost of new equipment, a great increase in the cost of wages and salaries within their provinces and indeed in the maintenance and development of their plant wherever they may operate. Beyond this, it is abundantly clear that local government needs increasing funds because in the unfortunate circumstances of unemployment it is in these areas that we normally find a real capacity to absorb usefully and constructively a significant number of unemployed workers and because of this circumstance there is an even greater need for increased funds in the local government area at this point.
There are other causes accentuating the urgency of this need and they are causes outside the province of government but they nevertheless do determine the necessity for increased funds in this area. I refer to such things as the incredibly wet and stormy periods that have occurred in such a large area of Australia in the last 6 to 8 months. They have done immeasurable damage to road and to communication systems in the country and consequently have placed on local government an even greater urgency. The problems have been added to unquestionably by the loads that traverse these roadways and bridges- loads which increase not only in weight but also in frequency. If you add to these needs the urgency of need in this circumstance for local government, if you add to this the realisation that the ratepayers themselves have been stretched virtually to breaking point in an attempt to match the ever increasing costs and the ever increasing demands that are laid upon local government, you can certainly realise the extreme need for funds such as those referred to in this Bill which provides on recommendations from the Grants Commission some $56m even though that may be a relatively thin amount when stretched over some 802 councils in Australia.
The fact that these funds are not tied moneys so far as their expenditure is concerned is a matter on which the Government should, I believe, be complimented. I believe it is tremendously important as time goes by that more and more moneys made available to local government and to State governments should in fact not have strings attached to them, for only in this way are we really going to involve the judgment and capacity of the people on the spot. This is the purpose of State and local government and the more money that is available to them without a tight measure of control the better they are able to accept the priorities of their areas, the better they are able to perform the tasks for there is an involvement and a judgment of the people on the spot. This has been a significant characteristic of Australian development over the years.
Very briefly let met say that in this legislation the Grants Commission has set out, as I understand it, to iron out the inequalities that it may find from one area to another. These inequalities stem, I believe, from revenue raising capacity and expenditure disabilities. These are a proper measure of the problem. They are a proper measure that must be taken into account when trying to establish some form of rating, some form of justification for a specific payment. The ideology of this sort of legislation is the ideology relating to equalisation. The method of it is in some way to use the expenditure and revenue differentials and, by relating those to the needs of like areas, come up with some measuring stick to apply to a sum of money and to come out with a grant that is to be applicable to each of the various local governing bodies in this country. To this point it is extremely good. I issue a serious word of warning. When we equalise something we must be tremendously careful, I suggest, not to equalise downwards and not to disregard the standards at the top and ultimately come to an average which is probably well below the average which may have formerly existed. This is the great problem with equalisation. There is always a tendency that equalisation will provide ultimately a movement to equalise downwards.
I refer to the fact that almost one council in ten in Australia received no grant and that significant numbers of councils received very small grants. In this sort of legislation we must not penalise performance. I am certain that this is one of the bad elements of the working of the
Commission through this Bill. I refer to the statement of the Minister for Foreign Affairs (Senator Willesee) in his second reading speech:
Councils are taking a new look at their immediate neighbours and at councils in other parts of the country to assess and compare the standard of their own municipal services with those of other councils. This wider view will benefit and strengthen local government.
I sincerely hope that the Minister is right. I fear that when a local government area looks just across its boundary and finds that it has received nothing and its neighbour has received $ 100,000 it will say to itself! Why has this occurred? In many cases it becomes obvious that it has received nothing and its neighbour has received $100,000 basically because it has been more efficient in its attitude, in its expenditure, in its representation and in its use of ratepayers’ money, which is the real province of local government.
I make the point that there is a real possibility that this sort of looking across the fence at what happened to the council next door will not tend to raise the standards in local government development and maintenance but will tend to lower them in the hope, perhaps, that the council which received nothing will in the relatively near future receive grants. The yardstick by which we measure these things must not be related totally to the capacity to raise revenue. We must find a way in which that yardstick can be related to efficiency. If this sort of legislation and this sort of financial assistance to local government bodies is such that it will tend to put a penalty on performance and it will not be related to efficiency, it will not in the long term or even in the short term prove totally successful.
In this area the Commission is a relatively new event. It has expressed the view:
The short time span available for the formulation of grants for 1974-75 resulted in many shortcuts being taken. However, many lessons have been learned and these will be taken into account in the future. The operations of the Commission in this field are regarded as evolutionary, and the first attempt was very much a trial.
We shall certainly be watching for effective evolution. We certainly hope that an effective form of evolution will occur. Let me draw attention once again to the fact that it is a good thing that this money is available and that its expenditure as such is not tied. In most Government grants to States and other bodies at the moment there are ever increasing ties. I am reminded of the field of education, where ties have applied to something like 50 per cent of the money that is made available at this time. There is a great urgency of need for this sort of extra money in the local government area. I believe that we must be extremely careful lest we allow to develop a situation which may well tend to destroy efficiency and to put a penalty on the efficiency on which the future of effective State and local government depends. We support the Bill.
– I speak in the debate despite the fact that Opposition senators have said that they will support the legislation. I wish to answer some of the queries which have been raised and which show, to my mind, a complete misunderstanding and lack of clear appreciation of the intentions of the Government in respect of this magnificent contribution towards the funding of local government generally throughout Australia. I think that the contribution by Senator Scott was a much more thoughtful and interesting contribution to the debate than was the hysterical outburst by Senator Carrick. These outbursts have become characteristic of him. He never seems to want to give credit to the Government for anything it may do. If we introduce new pensions in our social services budget he says we ought to be doing more. If we give $56m to 800 out of 950 councils he says there is some motivation on the part of the Government or some sinister hidden reasoning behind the Government’s new proposals. There is always something to be criticised. No credit is given for the innovation and the additional approach with which this Government has been associated in its endeavours to bring about an equalisation of municipal services throughout Australia.
I found it somewhat interesting to hear Senator Scott refer in the last part of his speech to the need for the Grants Commission to recognise that local government should have grants given to it regardless of its requirements and that efficiency should be the keynote on which the Commission should operate. I suggest that he should have conveyed those opinions to the Leader of his Party in New South Wales, Sir Charles Cutler, when he was Minister for Local Government. Together with the preceding Minister for Local Government he was responsible for embodying the principles of this BUI in the New South Wales Local Government Grants Commission when it was established. I paid tribute in this chamber a year or two ago to the New South Wales Liberal Government for introducing a Grants Commission in New South Wales. It was one of the first in Australia. Regard was had to the efficiency of the council. That is the principle on which the legislation operates in New South Wales.
A member of the Country Party, while paying tribute to the efforts of the Australian Government as revealed in this legislation, saw fit to suggest that we were acting incorrectly in applying the same principles that the New South Wales Government applied. I can understand what Senator Scott has said because I myself raised this very question when we were discussing this matter in the Party room. I say to Senator Scott and to Senator Carrick that if we concern ourselves with efficiency in respect of the grants that are to be given to local government bodies, if we have an indifferent or an inefficient council and we take that too much into consideration, the only people who will suffer will be not the council but the ratepayers who live in that area. This negates the very principles upon which the Government is providing these local government grants.
The Government is providing the local government grants in order to bring about an equalisation of municipal services throughout Australia. There is abundant evidence on this question. In fact, I urge honourable senators who have levelled so much criticism to read one of the latest reports of the urban research unit of the Austraiian National University. It shows that in the areas which require the greatest assistance-, the areas that are developing, the depressed areas, the areas in the outer suburbs of the great cities of our Commonwealth- the rates are the highest and the services are the lowest. In fact, the report shows that in the more salubrious areas where the rates are the lowest, the services, for a variety of reasons which I have not time to canvass this evening, are better than those provided in areas where the rates are the highest. The councils in those high rating areas are grappling with the neglect- and I say to Senator Carrick that there is no other word to describe it- of 23 years of government in which his Party held responsibility. That government refused to give any consideration to providing funds to local government to enable it to carry out its responsibilities. It forced the 900 councils throughout Australia to rely entirely and solely upon rate revenues in order to finance the services which they provided for the ratepayers within their boundaries.
Only in recent years were some progressive steps taken by one or two State governments to give very small sums of money to local government bodies. Because more time is not available to me I will give but one example of the amount of money which a State government gave to a council with which I have been associated over the years. The State government gave that council $30,000. Out of the allocation of the $56m which is the subject of the legislation that we are considering, that same, council will receive more than $400,000, because the allocation is based on need, on the equalisation program and on the philosophy of the Australian Government to create a more equal society. I just cannot understand the negative thinking which has become so characteristic of Senator Carrick in recent times. He gives no credit to the Government, whatever it may do. Whilst we appreciate that the Opposition parties have no recourse other than to support the Bill, I wish that they would do it in a much more pleasant way, in a way which would indicate that they give credit where credit should be given.
– I rise to make one or two comments on the Bill that is before the House. It is a Bill for an Act to provide financial assistance in relation to local governing bodies. I do not think that I appreciated the comments that were made by Senator Gietzelt about my colleague Senator Carrick who, I believe, laid down in very clear terms the feelings of Opposition senators. We believe that this Bill provides the opportunity for the Government to do something about the unemployment situation in Australia. I have been travelling around South Australia, as is my habit, and I have discussed the problems with local government authorities. The feeling in South Australia was that the Bill that is before us would provide local government authorities with additional funds to compensate them in some way for their lack of finance to fulfil their obligations in the local government area, particularly in respect of main and district roads in an area where the Government has deprived them of funds.
One particular council with which I discussed the problem was a council on Eyre Peninsula. The district clerk said: ‘Look, I thought this grant was going to compensate for the loss of funds that we have experienced due to the Commonwealth aid roads grants’. This council is down no less than $8,000 in this respect, in spite of the money that the Government is providing under this Bill. Of course the Government in providing money under the Commonwealth aid roads grants scheme for roads, particularly in rural areas, over the next 3 years, paid no regard to the fact that the cost of constructing roads had escalated at a rate of about 10 per cent up to the time that the new Commonwealth aid roads grants scheme was contemplated. The Government forgot that since that time the costs of road construction have escalated way and above what was contemplated under the scheme. So these people have been deluded by the Government into believing that the Bill which is before us will compensate them for that fact.
I have before me figures which show that out of 85 district councils in South Australia, 62 of them were down and only 23 of them happened to be marginally up on the road grants that were provided in 1973-74. So it is quite phoney for the Government to come forward and say that it is being generous with this Bill. It has certainly left local government bodies in South Australia in particular with a question mark in their minds as to the integrity of the Federal Government. I support the point of view put forward by Senator Carrick when he said that the Canberra-based Grants Commission has become, in effect, the rating authority of local government throughout Australia.
- Senator, what is the source of your information on those figures?
– My source of information happens to be the Local Government Association in South Australia.
– In that case may I invite you to table the figures that you have?
-I will give Senator Wriedt the figures that I have, certainly. He can have them.
– I do not want them. I want the Senate to have them.
-Or they can be tabled. There is no question about the integrity of my remarks. I am suggesting that the figures that I have here are authentic and demonstrate that many councils will be disadvantaged in the future as a result of this Bill.
– Disadvantaged? This is money in addition to their rating money. How can they be disadvantaged?
- Senator Gietzelt interjects very aggressively with a guilty conscience because he knows very well that his Government has deprived local government authorities in Australia as a result of the Commonwealth aid roads agreement. I can understand his agitation. We believe that providing money in the local government area is one way in which the Government can provide job opportunities for the unemployed in Australia. I go back to 1972 when the Australian Labor Party, in its policy statement, said that Labor’s first priority would be to restore genuine full employment without qualification and without hedging. I think it is interesting to remind Government senators of some of the remarks that have been made by their spokesmen. I recall a statement made by Mr Hawke. He said that the unemployment figures confirmed the restoration of confidence in the economy and the implementation by the Government of its promises of full employment. I remind the Government that in the 1974 policy speech the Australian people were asked to think again. They were asked to remember the situation that obtained when they elected the Government in 1972. The Government claimed that unemployment was then at its worst for 10 years but said that full employment had been restored. What a phony statement. Senator Gietzelt dares to suggest that the Australian people ought to have confidence in the Government. I remind the Senate that in Hansard the new Treasurer, Dr J. F. Cairns, -
– Have they sacked Crean?
– They have sacked Crean. Cairns has, in effect, sacked Crean. In July this year in Hansard Dr Cairns is reported to have said that it would be the purpose of the Government to prevent unemployment occurring and to ensure that there were alternative jobs. Perhaps a little more ought to be said about what Dr Cairns has stated. The ‘Australian’ of 18 July 1974 reported him as saying:
These figures indicate that up to the end of June unemployment was insignificant and carefully under control.
It might even excite supporters of the Government to recall what the Minister for Labor and Immigration (Mr Clyde Cameron) said. He said he would sooner resign than preside over an unemployment figure of 250,000 people in Australia. Only today I read in the ‘Australian’ where Mr Hawke, the President of the Austraiian Labor Party and President of the Australian Council of Trade Unions, forecast that there could be 300,000 people out of work in Australia by January. Perhaps this may herald the resignation of Mr Cameron as Minister for Labor and Immigration.
– He and Jones could swap portfolios, I reckon.
-I believe that Senator Marriott’s comment is quite valid. I endorse what he said.
– What did he say?
-Would the honourable senator like to repeat it just for the benefit of Senator Milliner?
- Mr Cameron and Mr Jones could swap portfolios.
– Thank you, senator. This merely illustrates our concern, on this side of the
House, with respect to this Bill. We believe that this is an area where the Government has an opportunity to provide more finance so that people who have been unemployed as a result of the Government’s mismanagement of the economy can be assisted. We find it quite strange that the Government has not recognised what it has done to local government. It must recognise the fact that virtually all municipal councils, shire councils and semi-government authorities are facing serious financial difficulties arising from the credit squeeze which this Government inflicted upon them. Of course many councils have been forced to reduce their staffs. They will have to reduce their staffs because, we believe, the Government has been ungenerous in its recommendations in this Bill.
– I ask the honourable senator to tell us some of the local government authorities which have reduced their staff.
-Would you like to hear them?
– Yes.
-Well, there are several councils.
– Order! There are too many interjections. Senator Jessop, will you address the Chair?
- Mr Temporary Chairman, I beg your pardon. I bow to your ruling. I cannot help but be provoked from the Government benches by my friend Senator Milliner. I know he does it deliberately and I excuse him for that. He also has a guilty conscience because I am sure he feels some compassion for councils which are contemplating dismissing employees. A council in Western Australia, about which I know on good authority, is contemplating dismissing 100 employees in about 8 weeks time if it does not realise its borrowings. The Government has created this problem for local government. All we are suggesting is that the Government should wake up to itself and do something about the economy. It should forget the hoo haa that honourable senators have been talking with respect to imported inflation. We suggest that the Government continue its policy of adopting what Mr Snedden has been proposing for the last 22 months. We are glad that the Government has done this but we do not believe that it has gone far enough.
Although we endorse the measures which the Government has put forward in this Bill we suggest that they are insufficient. We recognise that local government authorities have been forced to increase their rates by between 30 per cent and 35 per cent. Some councils in South Australia have had to raise their rates in excess of that percentage. In South Australia we are worried about the fact that water rates will rise by up to 300 per cent due to the incompetence of the Federal Government. As far as we on this side of the chamber are concerned, we endorse the substance of this Bill. But we reprimand the Government for its inadequacy and its incompetence in controlling the economy of Australia.
– Debates on areas where the Opposition is in fact voting for Bills seem to get more heated than debates in this chamber where we are voting against legislation. There is a mystery in that which I have not been here long enough to fathom. But I think it ought to be clear enough now from the speeches which have been made by the Opposition that while we support the fact that grants are being made to local government we are deeply concerned and we have misgivings about what the Government has been doing in the field of local government and about the attempts of the Government to achieve what might be, in theory, quite admirable aims. I suggest to the Senate that the Local Government Grants Bill is one of a series of Bills in which the bright promises of 1972 are being shown up as being rather hollow. I think the hollowness in this case has been amply demonstrated by the figures which were put before the Senate by Senator Carrick. Those figures show that the position of local government has, in fact, substantially worsened over the last few years for reasons which relate to the general economic situation.
It is in that context that the promise which the Government held out to local government is not being fulfilled. I think it is clear from the Bill and from the statements which have come from the Government that what was intended was that local government should be lifted up and that there should be a meeting of the generally accepted proposition that local government was in need of additional sources of finance to enable it to better meet its existing commitments and to break into new fields. But the fact of the matter is that local government around Australia, and certainly in my State of Western Australia, is finding that it is- to use a colloquial expression- so strapped for cash that it just cannot do anything about extending the range of facilities which it is offering ratepayers. It is finding that even to maintain a standard of service it has to greatly increase the rates which it imposes on ratepayers. An average increase of somewhere in the vicinity of 30 per cent to 40 per cent is common. Yet the services which local government is providing under the budgets which imposed these increased rates are no better than the services it was providing before.
I suggest that the Government faces this problem not only in the field of aid to local government but also in the fields of education, housing and roads where great amounts of money are being made available and yet the end result represents no improvement. In this chamber we have recently debated Bills relating to housing. Some pretty terrible statistics have been put forward showing the drop in the rate of home building notwithstanding the promise of this Government in that field. So the Government has broken new ground in an area where I think the community generally wanted it to break new ground. But unfortunately the Government is unlikely to achieve the objectives which it has set out to achieve. I think that the faults which have been thrown up by the Government’s approach to this area are quite clear. Firstly there is the problem I have mentioned- the fact that the grants that are meant to top up, to add to the services provided by local government, in fact will do little more than alleviate some of the immediate strains of local government. I refer to local authorities in Western Australia such as the City of Stirling and the Shire of Wanneroo which, because of deficiencies in their loan programs, are facing the immediate prospect of cutting back on their works programs and of sacking large numbers of people. They are caught in the peculiar situation where they cannot get aid from the Government to enable them to avoid sacking large numbers of their outside staff until those people have been sacked and have registered for unemployment with the Commonwealth employment office. Then the councils might be able to employ them using Regional Employment and Development scheme money. That is an obvious problem which the Government faces and which it shows no signs of meeting.
There is the problem of excessive paper work. What this Government is doing is imposing great administrative strains on local authorities. Local authorities are required to provide all sorts of information to the Federal Government- to the Australian Government, as I believe it is now called- and they have to add to their staffs or utilise their existing staffs simply to meet the administrative requirements of the Australian Government. So a paper war has been started and this is doing nothing to reduce the problems of local government. In fact it is exacerbating those problems.
I want to refer to the use of the Grants Commission to hand out the money. I suggest to the Senate that that quite clearly is a use of the Grants Commission which is doomed to failure. I think everybody in both Houses of this Parliament would support the concept of the Grants Commission, as it has been used over the years, to equalise services available within the various States. That has been a noble concept which has distinguished our Federation and it is something of which the governments of this country can be quite proud. But to transform that Grants Commission from a body which can survey the needs of 6 States and endeavour to provide equalisation grants into a body which can survey the needs of some 902 local government authorities around Australia is quite ludicrous. I think it is quite clear to anybody who has been involved in any sort of administration that that is imposing on the Grants Commission a task which it simply cannot meet with any efficiency.
If it does meet the task it has been set, I think my next criticism of the Government is one which will become very apparent. What the Government is doing will impose tighter and tighter controls over local government by the central government. It is quite clear that although these grants at the moment purport to be made without strings, requirements are being imposed on councils with respect to the rates they levy. They are being imposed in a clumsy way, as is evidenced in the documents tabled in the other place. For example, a council that has high valuations and hence a lower rate than an adjoining municipality is penalised. What more clumsy assessment of a situation could you have than that. We are going to get that sort of control. But additionally in future years as the Grants Commission continues its work we are going to get the requirement that councils make an equal effort, as in the past there has been a requirement that States make an equal effort to benefit their own citizens. What we are seeing is a pattern by which local government becomes more and more an administrative tool of the central government, and that, of course, will destroy the whole concept of local responsibility and local government.
In the few minutes remaining to me- it is the common view of all honourable senators here tonight that this Bill should be passed so that the money can be made available to local governmentI would like to refer to the Liberal approach to this area. It is often said that it is all very well to criticise what the Government is doing but what would we do. I refer to our acknowledgement of the need to assist local government. We join with the Government, and in fact with most people in Australia, in acknowledging that the needs of local authorities cannot be met by simply leaving them to rely on rates alone. We say that the additional funds which need to be made available to local government cannot be made available through a central authority. That cannot be done, both for theoretical reasons and for reasons of administrative practicality. We recommend a series of State Grants Commissions. There is some precedent for that because 2 States, including my own State of Western Australia, already have set up bodies of that type which perform the same sort of function as the Grants Commission tried to perform in this case but over the more limited area of the State. As some officers of one of the major municipalities in Western Australia that I visited with Senator Carrick just a few weeks ago said, it is all very well to try to deal with these people in Canberra but if you have a problem you cannot just go across the road and solve it. He said that he, and other officers, wanted to deal with the people in Western Australia who are available to them and are known to them. We say that the Government should restore to the States the job of providing funds for the local authorities. Of course, to do that the Commonwealth will have the responsibility of ensuring that the States have adequate finance to perform that function.
In this area, as in so many others, we would also have to say that the problems of local government will not be solved simply by making large financial grants. The approach of providing assistance to all these areas of need that the Government has developed is quite ridiculous because of the unstable economic situation that the Government has produced. We say that all these programs of assistance will make sense only in a stable economic climate in which the additional funds being made available can be used to provide additional services, not merely to meet the strains which have been imposed by rampant inflation.
– in reply- I thank the Opposition for supporting the Bill. There have been some very exaggerated comments about it. Senator Carrick took the line that it was not providing enough money for what was required by local government. That is interesting because if the Opposition parties were in government there would have been nothing for local government. This is the scheme that we said before we came to government would come into being. It was criticised by the Government of the day which is now the Opposition. Senator Carrick went on to talk about destroying the States and destroying local governments. He used that exaggerated type of language. I do not think he was really serious in what he said. I think he thought he was out on a platform and had to use that type of language.
This Bill is illustrative of a part of the history of politics in this country. Whenever a Labor Government introduces something new, a new initiative, it is condemned by the Liberal and Country Parties, as was the case in the old days of the Nationalist governments. Those initiatives were criticised up hill and down dale but finally accepted. That is what the Opposition has done tonight. Members of the Opposition accepted a new scheme but at the same time made a sideswipe at it. Of course, members of the Opposition opposed the scheme completely before we became the Government.
Senator Carrick said he would not criticise the Grants Commission. I have said over the years that if ever a student wanted to read a government report which was so near to excellence that it did not matter he should read all the Grants Commission reports, even when it dealt with the States. The honourable senator said that he would not criticise the Grants Commission but then set out to do just that. He said the people on the Grants Commission were becoming the dictators who were going around telling local governments how to rate. They are not doing that at all. The Grants Commission does not stop any local government from applying the rates it wants. What the Grants Commission set out to do has been made quite clear. The Commonwealth Grants Commission was asked to do for local government what it had been doing for the States for many decades- and what an excellent job it did- and that was to get some sort of equalisation between people living in the various States. We adopted the modern approach and said that not only should the people living in different States be brought as near as possible to the same standard of living but also the people living within the States.
There was some criticism of the fact that the Grants Commission was dealing with groups. As was pointed out in the second reading speech, there are about 900 local councils. Surely, in the name of common sense, that number makes it quite obvious that there was no possibility of any body of people or any single individual dealing with those local councils individually. Senator Scott said that because of the inflation which this Government deliberately created- again this exaggerated language- we had to introduce this type of legislation and this type of payment. The fact is that we foreshadowed this when in Opposition in the days when the present Opposition, then in government, claimed that there was no inflation. So we are not putting this before the Parliament because of inflation. It was talked about and the concept was created by the Labor Party when in Opposition. Senator Carrick said that the amount of money provided in this Bill is only 4 per cent of total local government expenditure but my advisers tell me that his figures are a little out because in 1972-73 the total expenditure of local government was $7 1 3m of which we are going to provide over $56m, which is much closer to 8 per cent than 4 per cent of the total.
This is not a matter of a dictatorship going around telling local governments at what level they should rate. As everybody knows, this legislation is merely trying to bring to what has been a very successful operation over many years some sort of equalisation between the States so that they are treated as equally as human hands can possibly do. It is all right to say that we ought to be handing money down to local government through the States as we have done since 1900. The fact is that we are living in a new era and local governments today are taking on responsibilities we never dreamed of a decade ago. The Government recognises this. The mere fact that the Opposition is supporting this Bill shows that it at least recognises that this initiative is one that ought to be taken and is here to stay. I do not take a lot of notice of some of the exaggerated language but some of the other remarks will be noted by the Grants Commission in time to come. I thank the Opposition for its support of the Bill.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
page 2697
Motion (by Senator Willesee) proposed:
That the Senate do now adjourn.
– I rise on the adjournment just to advise honourable senators of the transport arrangements, which have not yet been completed. I regret to say this because I have been endeavouring to get information since prior to the dinner recess in relation to the flights that all honourable senators will be taking out of Canberra in the morning. The latest information I received just a few minutes ago is that Mr Wally Lee, the Transport Officer, has the list downstairs and will be bringing it to my office in a few moments. I was advised at 8. 1 5 p.m. that
I would have the list within 15 minutes time. I suggest that no honourable senator should leave Parliament House until such time as we have this list and all honourable senators are aware of their flight arrangements for tomorrow morning. I will get the list circulated as soon as possible. The Opposition Whip, the Australian Country Party Whip and I will be given copies of these arrangements as soon as I and Senator Young are able to run off copies. I ask for the indulgence of honourable senators in this matter.
– We thank Senator Poyser for his courtesy and compliment him on his efficiency.
Question resolved in the affirmative.
Senate adjourned at 10.26 p.m.
page 2699
The following answers to questions were circulated
asked the Minister representing the Minister for Minerals and Energy, upon notice:
I ) What are the number of oil wells at present being drilled in Australia.
– The Minister for Minerals and Energy has provided the following answer to the honourable senator’s question:
asked the Minister representing the Minister for Social Security, upon notice:
– The Minister for Social Security has provided the following answer to the honourable senator’s question.
I am not opposed in principle to the suggestion that the report show the amount of the reserves recommended by the Nimmo Committee’s recommendation in a column segregated from the ‘Balance of the Fund’ column. Such a disclosure would serve to emphasise the excessive reserves held by many of the registered organisations. However, incorporation of this added information would involve the registered organisations and the Department of Social Security in considerable extra work and because of this I am reluctant to impose it as a requirement, at least for the present.
asked the Minister representing the Minister for Social Security, upon notice:
– The Minister for Social Security has provided the following answer to the honourable senator’s question:
asked the Minister representing the Minister for Health, upon notice:
– The Minister for Health has provided the following answer to the honourable senator’s question:
asked the Minister for Manufacturing Industry, upon notice:
– The Minister for Manufacturing Industry has provided the following answer to the honourable senator’s question:
asked the Minister representing the Minister for Minerals and Energy, upon notice:
– The Minister for Minerals and Energy has provided the following answer to the honourable senator’s question:
asked the Minister for Agriculture, upon notice:
– The answer to the honourable senator’s question is as follows: 1 draw the honourable senator’s attention to the answer provided by the Prime Minister to Question No. 302 in the Senate on 3 1 October 1 974.
asked the Minister representing the Minister for Northern Development, upon notice:
– The Minister for Northern Development has provided the following answer to the honourable senator’s question:
asked the Minister representing the Prime Minister, upon notice:
– The Prime Minister has provided the following information for answer to the honourable senator’s question:
I did say in my speech that the River Murray Commission should have the responsibility for control of water quality in the River Murray. Further, 1 believe that the River Murray Commission should have certain responsibilities in relation to all aspects of the use and management of the waters of the River Murray and its related lands.
I had expressed this view on previous occasions, notably on 30 March 1969, during a National Seminar on Water Development held in Coleambally. I said then: ‘The River Murray Commission lacks the resources to do the job it should be carrying out. If we are to effectively develop the Murray basin, we need an authority which has the resources to carry out a positive program. The time has come to look seriously at the establishment of a Murray-Darling Authority, which would plan and carry out the development of the regional water resources, just as the Snowy Mountains Authority was able to harness the wasted waters of the Australian Alps. ‘
I did say that, because the River runs through three States, an interstate agency such as an expanded River Murray Commission is clearly required.’ I also said: ‘the Australian Government would see such a body principally playing a coordinating role, much of its function being of an advisory or deliberative nature only. The organisation might need some strong ‘last resort’ powers to ensure its effectiveness. However, experience in the United States indicates that these are rarely used, if at all.’
Whether the Commission itself is expanded must bc u matter for decision by the Australian government and the three States which were signatories to the River Murray Waters Agreement in 1914.
Yes. I said: ‘I am sure that one of the reasons for lack of interest in this broader approach to the use and management of the River Murray is a fear that some of the State powers may be forfeited to the Federal Government. While State Governments could lose some of their right to individual action, I emphasise that these rights would be vested in an interstate body acting in the best interests of all concerned. ‘
On 2 March 1973 I convened a meeting with the Premiers of New South Wales, Victoria and South Australia to discuss the River Murray and the powers of the River Murray Commission.
It was probably the first time the four heads of government had met since the River Murray Waters Agreement was signed 60 years ago.
At last year’s historic meeting we established a steering committee of ministers of the four governments to which a working party of officials would report.
In my speech on 22 October 1 974 I expressed my concern at the disappointing progress of that working party 18 months after it was set up. I said: ‘If in March 1975- which will be two years after my meeting with the three Premiersprogress has been unsatisfactory, then 1 shall call for u further meeting with the Premiers in order to obtain agreement on an accelerated program for completion ofthe working party ‘s investigations. ‘
asked the Minister representing the Minister for the Environment and Conservation, upon notice:
What progress has been made to initiate and develop a national survey of wetlands.
– The Acting Minister for the Environment and Conservation has provided the following answer to the honourable senator’s question:
The Australian Government has provided the sum of $100,000 in 1974-75 to institute the first stage of the National Wetlands Survey. It is expected that initial work will commence early in 1975.
asked the Minister for Customs and Excise, upon notice:
– The answer to the honourable senator’s question is as follows:
Committee of Inquiry into effects of Inflation on Taxation Payments (Question No. 361)
asked the Minister representing the Prime Minister, upon notice:
Did the Prime Minister undertake to commission an inquiry into the effect of inflation on personal and company income taxes; if so, will the Government shelve its proposals to introduce unearned income and capital gains taxes until the inquiry’s report is received.
– The Prime Minister has provided the following information for answer to the honourable senator’s question:
Yes; no.
Brisbane Flood Mitigation
– On 24 October 1974 Senator Martin asked me, as Minister representing thePrime Minister, a question without notice concerning financial assistance for flood mitigation works in Brisbane. The Prime Minister has now supplied the following information for answer to the honourable senator’s question:
On 23 March 1973, at a civic reception in Brisbane, 1 stated:
Brisbane has a special problem with the flooding caused by cyclonic rains on the Breakfast, Enoggera, Oxley and Norman Creeks and Kedron Brook and urban development in the flood plains of these waterways. This has been a matter of concern for the Brisbane City Council and the State Government.
Sir Gordon Chalk, while Acting Premier, wrote to me in December and asked, among other matters, about assistance for the City Council for a flood mitigation scheme. He said the proposed scheme was under expert investigation and that when plans were completed it was intended to ask for Commonwealth financial assistance. I understand that the report arising from this investigation was completed in the last week or so.
The Australian Government has not previously taken part in schemes of precisely this kind. We shall consider the implications of it carefully. Previous flood mitigation schemes have related to rural rather than urban areas. For the future it may be more economical for problems such as this to be avoided rather than cured- in other words, if urban administrations were to give greater attention to the zoning of land in relation to its liability to flooding.
Nevertheless, we shall look into the question of financial assistance. To do so, however, the Australian Government will need all relevant information, including the physical and economic facts, before a decision can be taken.
My Government is therefore prepared to lend its expertise and resources to assist in a study of this matter. We shall be willing to participate at the official level in a joint working party with officials of the State and Brisbane City Council to examine the problem as a whole- the engineering, urban planning, environment as well as financial implications and taking into account the report already completed- with a view to obtaining the information which will be necessary for the Australian Government to come to a decision’.
On 16 November 1973 the Premier of Queensland requested the Australian Government to participate in the whole flood mitigation scheme for Brisbane on the basis that the Australian Government should contribute 40 per cent of the cost, the Queensland Government 40 per cent and the Brisbane City Council 20 percent. On 9 September 1974 he suggested that the Australian Government should meet the whole cost of the flood mitigation component of the proposed Wivenhoe Dam.
The Premier’s requests for assistance have been the subject of close consideration by officials of this Government but they have been prevented from making any recommendations by the lack of information on the works for which assistance is or will be sought. Such information as the type of works, their timing, costs and likely benefits are essential to any financial decision by the Australian Government. In view of the Australian Government ‘s own very great concern that there should be no recurrence of the disastrous flooding which has affected Brisbane in the past two summers we have made repeated requests at official level to the Queensland Government to furnish firm works proposals on which we could base decisions. On 4 July 1 974 the Department of Urban and Regional Development put to Queensland officials a timetable which envisaged firm proposals being put to the Australian Government in October. A number of proposals have been received in the past few weeks but they constitute firm proposals in respect of Enoggera/Breakfast Creek only.
I share the concern which I feel sure is felt by many members and senators at this long delay before mitigation works can be undertaken and the risk of flooding lessened. I am anxious that the Australian Government’s desire for urgent action is evidenced in a positive manner. As long ago as 23 March 1973 I emphasised that the provision of detailed information was essential to our decision. That information has still not been provided by the Queensland Government. As soon as explicit proposals are submitted by the Queensland Government the Australian Government will be in a position to take prompt decisions on a case by case basis.
Devaluation of Australian Dollar
-On 26 September 1974 Senator Maunsell asked me, as the Minister representing the Minister for Overseas Trade, the following question without notice:
I direct my question to the Minister representing the Minister for Overseas Trade. How significant is devaluation in terms of the conditions laid down by the trade unions for wage restraint agreement? Are the unions sceptical despite yesterday’s statement by the Minister for Overseas Trade that devaluation would meet the unions’ demands and further protection for industry would not be necessary?
The Minister for Overseas Trade has provided the following information in answer to the honourable senator’s question: l stand by my statement of 25 September referred to by the honourable senator.
In that statement I said that the devaluation of the Australian dollar will have the effect of protecting industries that are under pressure from imports.
The devaluation therefore clearly meets a matter of major concern to the trade union movement in the current economic circumstances.
In some specific cases other action to relieve the pressure of imports might be necessary. The Government has already taken, and will continue to take, such action where it is warranted.
Cite as: Australia, Senate, Debates, 21 November 1974, viewed 22 October 2017, <http://historichansard.net/senate/1974/19741121_senate_29_s62/>.