Senate
27 November 1974

29th Parliament · 1st Session

  1. Senate
  2. 29th Parliament
  3. 1974

The PRESIDENT (Senator the Hon. Justin O’Byrne) took the chair at 2.15 p.m., and read prayers.

page 2819

PETITIONS

Family Law Bill

Senator GREENWOOD:
VICTORIA

– I present the following petition from 278 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 accept to the people of Australia.

And your petitioners as in duty bound will ever pray.

Petition received and read.

Family Law Bill

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

That in modern society which accepts divorce, the Law of Divorce should bc fair to both parties. However we are very concerned about proposals to alter the law in the Family Law Bill 1 974.

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

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

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

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

And your petitioners as in duty bound will ever pray.

Petition received and read.

Taxation: Education Expenses

Senator BUTTON:
VICTORIA

– I present the following petition from 86 citizens of Australia:

The Petition ofthe undersigned citizens of Australia respectfully shows:

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 1956-57 figure.

That this reduction will impose hardships on many parents who have children attending school, whether nongovernment or government; and particularly on parents wilh 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 bc 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 penally 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 wilh 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 humbly pray that the House of Representatives 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.

Petition received.

Taxation: Education Expenses

Senator BAUME:
NEW SOUTH WALES

– I present the following petition from 145 citizens ofthe Commonwealth:

To the Honourable the President and Members ofthe Parliament assembled. The humble petition of the undersigned citizens ofthe Commonwealth respectfully showeth:

Whereas the Treasurer ofthe Australian Government has proposed that the concessional deduction for education expenses be reduced from $400 to $ 1 50.

We, the undersigned, humbly petition the Senate to return any legislation which could give effect to such a proposal to the House of Representatives and request that the concessional deduction for education expenses be restored to $400 for each child attending an approved school or college.

And your petitioners as in duty bound will ever pray.

Petition received and read.

Baltic States

Senator GREENWOOD:

-I present the following petition from 16 citizens of the Commonwealth:

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

Whereas the governments of the United Kingdom, United States of America. Canada and many European countries have not recognised the unlawful annexation of the Baltic Stales- Lithuania. Latvia and Estonia- by the Soviet Union, the Prime Minister of Australia has authorised the de jure recognition of this annexation.

According to the Charter of the United Nations, the Baltic States are entitled to independence and their people to selfdetermination.

We beg that such de jure recognition be disallowed.

And your petitioners as in duty bound will ever pray.

Petition received and read.

Baltic States

Senator GREENWOOD:

-I present the following petition from 46 citizens of Australia:

To the Honourable the President and Members ofthe Senate in Parliament assembled. The petition of the undersigned respectfully showeth:

That whereas our constitutional parliamentary democracy was developed on the Rights ofthe Magna Carta to preserve for all time to the Australian people their cherished right to live as free nien and women, enjoying complete liberty of worship, assembly, speech, movement, the communication of knowledge and information.

And whereas the Australian Commonwealth has adhered 10 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 ofthe 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 ofthe aggressor country the U.S.S.R.

So therefore must this act bc 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.

B) The prevention of any attempt of similar action by all Constitutional and legal means.

And your petitioners as in duty bound will ever pray.

Petition received.

The Clerk:

– The following petitions have been lodged for presentation.

Family Law Bill

To the Honourable the President and Members ofthe Senate in Parliament assembled. We. the undersigned Citizens of the Commonwealth, by this our humble Petition respectfully showeth:

  1. That the inclusion in Sub-section 54 (2) of the Family Law Bill of the Clause recommended in paragraph 67 (0 (2) of the Report of the Senate Standing Committee on Constitutional and Legal Affairs, which will allow ‘any fact or circumstance’ to be taken into account when considering maintenance, completely alters the whole concept of specific guidelines as now set out in Section 54. and we oppose it.
  2. That the removal of the word ‘exceptional’ in Subsection 92 (2) of the new Family Law Bill will result in a high level of bitter and costly litigation in ancillary matters, which the proposed sharing of costs with legal aid available, would otherwise minimise.
  3. That Judicial discretion which allows fault in Property Settlement, the usual accusations necessitating defence in custody and access matters, as well as (a) and (b) above, will result in very much the same litigation in ancillary matters as under the present iniquitous Matrimonial Causes Act.

And your petitioners as in duty bound will ever pray. by Senator Carrick, Senator Missen, Senator Sir Kenneth Anderson, Senator James McClelland and Senator Baume.

Petitions received.

Family Law Bill

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:

  1. That the existing matrimonial laws in Australia are archaic, unrealistic, and cruel and so completely at variance with modern thought as to require their immediate repeal.
  2. That there is such urgent need for reform that there must be no delay in presenting the Family Law Bill 1974 to Parliament for debate.
  3. That the ground of Irretrievable Breakdown of Marriage be the sole ground for divorce with proof of this determined by a maximum of twelve months separation.
  4. That dissolution of marriage must come out of the legal system with people resolving their family matters between themselves according to guidelines and with assistance of a mediator. Family Courts only to bc used for enforcement as a last resort.

And your petitioners as in duty bound will ever pray. by Senator Sir Kenneth Anderson.

Petition received.

Family Law Bill

To the Honourable, the President and Members of the Senate of Australia in Parliament assembled: The humble petition of the undersigned citizens of Australia respectfully showeth:

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

  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 cither the training or suitable counsellors who can assist in conciliation procedures or for suitable initiatives to be taken prior to the breakdown of marriage.

Your petitioners therefore humbly pray that this Bill be tabled for six months and that all sections ofthe 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 Mulvihill. Petition received.

Family Law Bill

To the Honourable the President and the Members of the Senate in Parliament assembled. The humble petition ofthe 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 ofthe citizens of Australia:

That the proposals contained in this Bill are noi adequately known to the citizens of Australia:

That the Bill as such has not been the object ofthe 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 thai to facilitate (his aim the debate on this Bill be adjourned until April, 1975.

And your petitioners as in duty bound will ever pray, by Senator Walsh. Petition received.

Capital Gains Tax

To the Honourable the President and Members ofthe Senate in Parliament assembled. The humble petition of undersigned citizens of Australia respectfully showeth;

That a Capital Gains Tax as another death duty is unjust in its application and catastrophic in its effect.

Your Petitioners therefore humbly pray that a Capital Gains Tax bc not levied in addition to death duties.

And your petitioners as in duty bound will ever pray, by Senator Jessop. Petition received.

Baltic States

The humble petition ofthe undersigned citizens ofthe Commonwealth respectfully showeth:

Whereas the Government ofthe United Kingdom. United States of America, Canada and many European countries have noi recognised the unlawful annexation of the Baltic Stales- Lithuania, Latvia and Estonia by the Soviet Union, iiic Prime Minister of Australia has authorised the de jure recognition of this annexation.

According to the Charter ofthe United Nations, the BalticStates are entitled to independence and their people to selfdetermination.

We beg such de jure recognition be disallowed.

And your petitioners as in duty bound will ever pray. by Senator Drake-Brockman.

Petition received.

Taxation: Education Expenses

To the Honourable the President and Members ofthe 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 ofthe Income Tax Assessment Act from $400 to $ 1 50 is $50 below the 1 956-57 figure.

That this reduction will impose hardships on many parents who have children attending school, whether non government 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 over crowded and understaffed.

That the parents to benefit most relatively from educational income tax deductions, in the past and even more in the future, arc the parents of children in government schools and this has a divisive effect on 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 1973-1974 level either by increasing taxation deductions or through taxation rebates.

And your petitioners, as in duty bound, will ever pray. by Senator Missen (2 petitions) and Senator Sheil.

Petitions received.

page 2821

WOODCHIP INDUSTRY

Notice of Motion

Senator MULVIHILL:
New South Wales

-1 give notice that on the next day of sitting I shall move:

That there be referred to the Senate Standing Committee on Social Environment the following mailer- the impact on the Australian environment of the current woodchip industry program.

page 2822

QUESTION

QUESTIONS WITHOUT NOTICE

page 2822

QUESTION

PRIME MINISTER: OVERSEAS ITINERARY

Senator GREENWOOD:

– 1 direct a question to Senator Murphy in his capacity as Leader of the Government in the Senate and the Minister representing the Prime Minister. Will the Government table in the Senate the itinerary of the Prime Minister’s 5 weeks tour of 14 countries during December and January? Is it correct that the greater proportion of this visit will be sight seeing and holidaying? Is it also correct that as far as the national interest is concerned this trip need not occur? Will the Leader ofthe Government explain why the Ministers responsible for the state of the economy and for restoring employment, and he as leader of the Government in this chamber, are allowing the Prime Minister to engage in a scandalously expensive holiday jaunt at the taxpayers’ expense? How do they justify their inability to persuade the Prime Minister to adopt a more responsible course of action?

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

– 1 suppose the itinerary could be tabled and I suppose that along with it we could table the itinerary ofthe Leader of the Opposition, Mr Snedden. The Deputy Leader of the Opposition asks why we do not stop the Prime Minister from doing things. We have a lot of confidence in the leader of our Party, apparently unlike some in the camp of the Liberal Party, if all the rumours are true. We understand that there is a pretty effective minority in his Party who do not have any confidence in their leader. We on the Government side extend our congratulations to Mr Snedden. We trust, and we are confident, that he will remain for a very long time the Leader ofthe Opposition. May he enjoy the trip he is taking overseas because I suppose that for his part it will be largely sight seeing. As for the Prime Minister and other Ministers of this Government, as I have indicated before we are in the midst of world wide inflation. There are very serious problems in trade, currency and other matters. If ever there was a time in the history of the world when it was important for the leader of our country to be in touch with others on a personal basis, helping to solve these problems and helping to mitigate their effects, not only in our country but in theirs, it is now. I think Australia has been served well by the Prime Minister in his trips overseas. I would hope that the Deputy Leader of the Opposition would confine his efforts to the internal troubles of the Liberal Party.

page 2822

QUESTION

ROLE OF THE SENATE

Senator POYSER:
VICTORIA

-Is the Leader of the Government in the Senate aware that the Government of the State of Victoria recently invited certain Victorian senators to a Cabinet meeting to discuss so-called State rights constitutional matters? Is he aware that only 5 senators, all coalition Opposition members, were invited? Does this not conclusively give the lie direct to those who still continue to espouse the hoary myth that the Senate is a States’ House?

Senator MURPHY:
ALP

– I understand that the first part of the honourable senator’s question is right and I agree with his conclusion. It is quite clear that one can no longer talk sensibly of this House being a States’ House if the Victorian Government carries on in this way and seeks to have the problems of Victoria attended to only on a party political basis. That the Victorian Government would consort in this behind-doon manner with only five of the Victorian senators and ignore the rest in relation to a problem which it may or may not sincerely think is of concern to the State of Victoria indicates that it is prepared to ignore the real interests of the people of Victoria in order to indulge in some party political tactic.

page 2822

QUESTION

WHITLAM MINISTRY

Senator WITHERS:
WESTERN AUSTRALIA

-I ask the Leader of the Government in the Senate: In view of the Prime Minister’s refusal to accept a motion from Senator Georges for a spill in the Labor Caucus, will he accept the Opposition’s offer to sit on another day so that Senator Georges may tell the Senate and Australia the reasons why he thinks the Ministers presently in office ought to be deposed?

Senator MURPHY:
ALP

– I know of no motion by Senator Georges for any spill in the Labor Party Caucus, nor do I know of the Prime Minister’s refusal to accept such a motion. Indeed, this question reveals the honourable senator’s ignorance of the procedures adopted by the parliamentary Labor Party because, as I understand it, the Chairman of Caucus would be the person who would receive any such motion. Is this some foolish attempt to transfer attention away from the internal disputes and troubles of the Liberal Party which actually happened by suggesting some fictional troubles in the Labor Party which have not happened? This is a great absurdity. We have an Opposition Party- the Liberal Partytorn with dissension. It cannot seem to solve its own problems, and all it can do here is suggest fictional happenings in the parliamentary Labor Party. I thought that the happenings in the parliamentary Labor Party were spread all over the pages of the newspapers and were common knowledge to everyone. So I do not understand why the Leader ofthe Opposition in the Senate should be trying to invent things which have not happened.

page 2823

PERSONAL EXPLANATION

Senator GEORGES:
Queensland

– 1 came into the chamber in sufficient time to hear my name mentioned, and 1 heard sufficient to realise -

The PRESIDENT:

-Is this a personal explanation or are you asking a question?

Senator GEORGES:

– Yes, it is a personal explanation. It ought to be made at this stage and not at a later stage. 1 came into the chamber in sufficient time–

The PRESIDENT:

– Order! Does the honourable member seek leave to make a personal explanation?

Senator GEORGES:

– Yes, I seek leave.

The PRESIDENT:

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

Senator GEORGES:

– I came into the chamber in sufficient time to realise that I was being misrepresented by the Leader of the Opposition. I realise that the Attorney-General has stated the case clearly. Nothing that was implied by the Leader ofthe Opposition happened. None of the things implied by the Leader of the Opposition was contemplated. For that reason I want to put the record straight. We in the Labor Party did not reach the position of indecision that was reached in the Caucus of the Liberal and Country Parties this morning at which some illconceived move -

Senator Murphy:

– You are going beyond making a personal explanation.

The PRESIDENT:

– Order! The honourable senator must confine his remarks to the personal explanation.

Senator GEORGES:

– 1 will keep to the point. Some ill-conceived move -

Senator Murphy:

– You are going beyond a personal explanation. You cannot go into the affairs of the Liberal and Country Parties.

Senator GEORGES:

– I have been given leave to make a statement. I deny what the Leader of the Opposition implied in this question. In making my personal explanation surely I can make a comparison between the Australian Labor Party and what happened in the Caucus of the Liberal and Country parties.

Senator Missen:

– I rise to order. Surely the honourable senator should be making a personal explanation of his own behaviour and not of the behaviour of some other Part.

The PRESIDENT:

– I call for the next question.

page 2823

QUESTION

PRIME MINISTER: PROPOSED VISIT TO EUROPE

Senator MAUNSELL:
QUEENSLAND

– My question is directed to the Leader of the Government in the Senate. I ask: Is the Prime Minister concerned that he is leaving himself open to criticism as a leader who presides over havoc at home and gains his inspiration from visits to the ruins of the world?

Senator MURPHY:
ALP

-That is typical of the approach of the Australian Country Party to the affairs of this nation. I suppose there is a certain amount of havoc in part of the Parliament, that is, within the Opposition Parties and that one might say, in a loose sense, that the Prime Minister presides over that. Fortunate it is that he is over and above it. The Prime Minister is trying to do and is succeeding in doing, a good job ibr this nation. He goes overseas where he is respected by the other nations of the world and is doing his best on behalf of Australia. I do not think it does credit to any member of Parliament to make remarks like this about the leading citizen of the country.

page 2823

QUESTION

AUSTRALIAN BIRDS: TRAFFICKING

Senator DEVITT:
TASMANIA

– My question is directed to the Minister for Customs and Excise. From time to time the Minister has informed the Senate of the problem concerning illicit trafficking in Australian birds. Does the Department of Customs and Excise receive any co-operation from State fauna authorities in their investigations and has consideration been given to carrying out joint investigations into the problem?

Senator MURPHY:
ALP

-Yes, there is cooperation with the State fauna authorities. As a matter of fact I am able to inform the Senate that very recently and since some questions were asked in this House about the matter there have been some important developments. A joint exercise took place on 22 November and 23 November between officers of the National Fauna Squad of the Department of Customs and Excise and the State fauna authorities. This occurred at the commencement of seasonal activities in Australia when species of birds are most likely to be indiscriminately hunted and removed from their habitats to satisfy illegal demands. The investigations were conducted throughout Australia and involved the inspection of about 60 aviaries, including those in country areas as far afield as Mount Isa.

These aviaries were found to contain some 20,000 native birds, the majority of which were being kept in breach of State laws. Inquiries are continuing and it will be several weeks before a complete analysis of the investigations will be available. However, the results indicate the likelihood of charges being instituted against at least 12 persons involving some 2,000 birds. The offences include illegal trafficking, false documentation, illegal transfers interstate and unlawful possession of protected birds. Considerable intelligence has been obtained relating to unlawful trafficking at airports and seaports and the investigations will be intensified in non-control areas throughout Australia. The joint operations with the State fauna authorities were very good and demonstrated how mutual co-operation between these groups can provide a more effective control of the environment to reduce the incidence of unlawful movement and trafficking of fauna both within and without Australia.

page 2824

QUESTION

JAPANESE MOTOR VEHICLES

Senator DRAKE-BROCKMAN:
WESTERN AUSTRALIA

– Is the Minister for Customs and Excise aware that there is an over-production of Japanese manufactured cars in Japan? Has the Minister any evidence that cars fully assembled in Japan or reassembled from a knockdown vehicle of Japanese origin are being sold at lower prices to Australian buyers than to buyers in Japan? Has he received any complaints from Australian based interests about this matter? If so, what consideration is being given to taking action on this matter?

Senator MURPHY:
ALP

-The Department of Customs and Excise has been investigating complaints that Japanese cars have been dumped on the Australian market. Those investigations are continuing and they will take into account what Senator Drake-Brockman has said. I shall advise the Senate in due course.

page 2824

QUESTION

TELEVISION STATION AT LEIGH CREEK

Senator McLAREN:
SOUTH AUSTRALIA

– The Minister for the Media will recall that on 15 October last when answering my question concerning a television service for Leigh Creek he stated that a meeting had been held in Adelaide on 4 October for the purpose of discussing the matter. Can the Minister now say what further developments have taken place since that meeting?

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

– I recall the honourable senator’s raising the subject with me. As I told him at the time a discussion took place in Adelaide on 4 October in the office of the Australian Broadcasting Control Board between the interested parties on the problems involved in relation to the provision of a television service for Leigh Creek. The local parties at the meeting, particularly the Electricity Trust of South Australia, which has a prime interest in the matter, expressed their interests to the Board in assisting, not by cash but more in kind, to establish the facility at Leigh Creek. It was agreed that the various departments should have the opportunity to give consideration to any possible undertakings arising from the meeting before proceeding further on the matter. In the meantime the Board, the Post Office and the Australian Broadcasting Commission have had further discussions on the matter and they are to have other discussions arising out of those original discussions. I am given to understand that the Australian Broadcasting Control Board expects to be able to make a recommendation to me very shortly indeed on the provision of a television service for Leigh Creek. As soon as I receive the recommendation from the Board I shall advise the honourable senator.

page 2824

QUESTION

LEADER OF THE GOVERNMENT IN THE SENATE: STAFF

Senator YOUNG:
SOUTH AUSTRALIA

– I address my question to the Leader of the Government in the Senate. Is it a fact that a member of his staff was a senior member of the Australian Security Intelligence Organisation? If so is he still a member of ASIO and what position does he hold on the Minister’s staff?

Senator MURPHY:
ALP

-The answer is no. PUBLIC TELEPHONES: VANDALISM

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

– I direct my question to the Postmaster-General. Earlier this session I asked him a question regarding vandalism of public telephones. In his reply the Postmaster-General indicated that he had asked his Department to prepare an anti-vandalism publicity campaign. Can he give any further information regarding this campaign and when it is likely to commence?

Senator BISHOP:
Postmaster-General · SOUTH AUSTRALIA · ALP

-The Post Office has now made arrangements for the campaign. It will commence on 1 December, first in Sydney and Melbourne because those are the areas of greatest vandalism. The theme of the campaign will be to emphasise the public telephone as a community lifeline on which people’s lives may depend. The campaign has a small budget of $50,000. However the cost of vandalism is about $2m and obviously any money spent on the campaign is well spent. The television advertisement of 60 seconds duration will depict the effective use of the telephone in a road accident situation. We will make an evaluation of the success ofthe campaign in Sydney and Melbourne before extending it to other cities.

page 2825

QUESTION

QUAIL ISLAND

Senator BONNER:
QUEENSLAND

– I address my question to the Minister representing the Minister for Defence. Has the Minister received a telex message from the Northern Land Council at Croker Island objecting to the bombing of Quail Island? If so, will the Minister inform the Senate when or if his colleague intends to answer this telex message as the bombing of Quail Island restarted on 23 November at the Minister’s direction?

Senator BISHOP:
ALP

– I have not seen the message to which the honourable senator refers. I suggest the best thing to do would be to put the question on notice and I shall obtain an answer.

page 2825

QUESTION

POLITICAL PRISONERS IN CHILE

Senator GIETZELT:
NEW SOUTH WALES

– Has the Leader of the Government in the Senate seen a message from the International Secretariat of Amnesty International advising of the finding the tortured body of Lumi Videla Moya dumped on the premises of the Italian Embassy in Santiago, Chile, a report which was confirmed by the Italian Foreign Office in Rome? Does the message also allege that the husband and 4-year old son ofthe dead woman were also tortured in her presence? In view of the serious allegation and the extension of torture to young children, will the Leader of the Government raise this inhuman and fiendish development with the Prime Minister and ask him to protest on behalf of the Australian Government to General Binochet against the torture and murder of political prisoners in Chile? In particular, will the Attorney-General ask the Prime Minister to seek the release of Sergio Alfredo Perez Molina and his 4-year-old son and offer them asylum in Australia?

Senator MURPHY:
ALP

– 1 have seen the message. I think everyone would deplore the use of torture especially the torture of young children. It is something that is abhorrent to our morality. I will do whatever I can to assist. I will refer the matter to the attention of the Prime Minister or the Minister for Foreign Affairs to ascertain what can be done. As we all know, Amnesty International is a well respected body which tries to mitigate the ill-treatment of prisoners which unfortunately seems to be increasing throughout the world. I think that in deference to that body and in the interest of humanity whatever action can be taken ought to be taken.

page 2825

QUESTION

TELEVISION: RECEPTION IN TASMANIA

Senator BESSELL:
TASMANIA

– My question to the Minister for the Media relates to the improvement of television reception in the far north-west of Tasmania with the installation of a grid of repeater stations at Tier Hill, Lileah and Christmas Hills. As it is quite some time since a request was first made on this matter, has the Minister any information that would indicate when the people in this area can expect better television reception as a result of the completion of these relay stations?

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

-My colleague the honourable member for Braddon, Mr Davies, has constantly been making representations to me about the installation date of these stations and also stations in other places along the north-west of the Tasmanian coast. The 4 translators to which the honourable senator refers were approved for installation by the previous Government in September 1972 at an estimated cost- I am speaking from recollectionof about $470,000 and contracts for the work have been let. I am given to understand that the 4 translators are to be installed next year between July and October but as to which one will be installed in July and which one will be installed in October I am not in a position to say at this stage. I undertook only last week to obtain information for my colleague, Mr Davies, and when it comes to hand I will make it available to him and to the honourable senator as well as other senators who have been making representations on the matter.

page 2825

QUESTION

WOMEN’S ELECTORAL LOBBY: CANBERRA REX HOTEL

Senator COLEMAN:
WESTERN AUSTRALIA

– My question is directed to the Minister representing the Minister for the Capital Territory. The Minister has been made aware of the demonstration yesterday by members of the Women’s Electoral Lobby and others at the Canberra Rex Hotel. As segregation is the worst form of discrimination and in view of the terms of the liquor ordinance, will the Minister advise whether the owners or the management or both are contravening the ordinance? If so, will he advise what action he will take to ensure that this type of discrimination and segregation does not continue at the Canberra Rex Hotel or at any other hotel in the Australian Capital Territory?

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

-I will have to refer this to the Minister. As I generally understand the position- 1 would be subject to correction- bars are open to all sexes and to all people. Sometimes by custom some people are excluded. That is not very helpful, I know, lt is my general impression ofthe situation. I will refer the question to the Minister and get a full reply.

page 2826

QUESTION

ADMINISTRATIVE AND CLERICAL OFFICERS ASSOCIATION

Senator JESSOP:
SOUTH AUSTRALIA

– J direct my question to the Minister representing the Acting Minister for Labor and Immigration. Is the Minister aware that a Commonwealth arbitration inspector, a former endorsed Australian Labor Party candidate for the South Australian Legislative Council, attended a meeting of members of the Administrative and Clerical Officers Association held in the Adelaide Town Hall after the rejection of an ACOA pay claim this year? Is he also aware that at that meeting this Commonwealth arbitration inspector advocated that strike action be taken and suggested that workers in transport and communications be urged to go on strike and that a general fund be set up by the ACOA members to finance strikers who were called out? Can the Minister say whether this action is compatible with the officer’s position as a Commonwealth arbitration inspector?

Senator BISHOP:
ALP

– What Senator Jessop has said constitutes, I think, a serious charge against the officer if he is doing as Senator Jessop alleges. 1 presume that Senator Jessop is relying on information which has been given to him. The only proper way in which to deal with such a matter is to submit it to me personally without prejudice to the person concerned, or to put the question on the notice paper. Whichever course Senator Jessop chooses, I will ascertain the information for him.

page 2826

QUESTION

HONOURS AND AWARDS

Senator STEELE HALL:
SOUTH AUSTRALIA

– I direct my question to the Leader ofthe Government in the Senate. In view ofthe fact that the South Australian Government is considering the institution of a new system of recognition of its citizens under the title Company of Merit, which would have a companion of merit, an officer of merit and a member of merit as its gradations, I ask: Does the Commonwealth Government have any view about this matter? Is it liaising with the State Government in South Australia? Does it intend to establish at the Federal level some sort of award on the lines of that being considered by the State Government in South Australia? 1 ask that question in view of the general belief that the Australian Labor Party would adopt an egalitarian attitude and would not institute gradations of value betweeen members of the general community. I ask the Minister whether there is any liaison with the State Government in South Australia regarding the possible recognition of citizens.

Senator MURPHY:
ALP

– I can say that there certainly is liaison in the general sense. There is an understanding between the Australian Government and the South Australian Government, because I well remember that this matter came up for decision at a meeting of the Australian Labor Party Executive. Certainly there was a motion with which I think I had something to do. The general idea was that we wanted to get rid of the honours which were based on the old imperialistic things, such as retaining the Order of the British Empire, the Star of India and all sorts of absurd knighthoods and things which came out of the feudal system, and that we should support a system which was more compatible with the dignity of Australians and which was some indication of the merit of citizens. Where some citizen had given outstanding service to the community or to all humanity we thought it was reasonable that there should be some recognition. It has been characteristic of every society, I think, that there sould be some kind of recognition of this service.

I know that Mr Dunstan was a party to these discussions. I do not know whether there has been day to day discussion about how things have gone, but I have some impression that there has been. There was when the Labor Government was in power in Western Australia. I will endeavour to find out for the honourable senator. From some statements that the Prime Minister has made, I know that there has been some work in the Federal sphere in evolving some reasonable system of recognising the service and merit of our outstanding citizens.

page 2826

QUESTION

THE GREAT BARRIER REEF: OIL DRILLING

Senator GEORGES:

– I direct a question to the Minister representing the Prime Minister. Now that the report on oil drilling on the Great Barrier Reef has been received from the royal commission after 4l/i years of deliberation, will the Prime Minister expedite the printing of that report and will he make it available to the Senate? Will he consider referring it to the relevant committee of the Senate for consideration and recommendation? Will the Prime Minister also make a clear statement in the Parliament concerning the Government’s attitude to drilling in the area of the Great Barrier Reef?

Senator MURPHY:
ALP

– I see no reason why that report should not be made available to the Senate. 1 do not know what the costs of printing and so forth might be, but certainly the report should be available in some form or other to the Senate. On the question of referring the report to the appropriate committee, I suppose the Committee on Social Environment would cover matters such as this. My recollection is that there is a general reference to that Committee concerning all matters of pollution and I should think that the Committee, without any further reference from the Senate, could certainly undertake some kind of study of the report in question. If necessary, I suppose the general reference could be fortified by a special reference, but I think the study could be undertaken without any kind of reference from the Senate. If that is so, no doubt the Committee would go ahead and do it.

As to the third matter, in relation to a clear statement by the Prime Minister on the Government’s attitude to drilling, undoubtedly this will be a matter for the Government to consider and in due course the Prime Minister or the appropriate Minister would make such a statement.

page 2827

QUESTION

PENSIONER HOSPITAL CARE

Senator MISSEN:

– My question is addressed to the Minister representing the Minister for Health. Is he aware that the State Government of Victoria, after receiving approximately $30m from the Australian Government and from pharmaceutical and other benefits, is left to meet the remaining cost of hospital expenses for pensioners and that this net sum amounts to $73. 5m? Does the Minister agree that the cost of pensioner hospital care should be met substantially by the Australian Government and that its payments to the States should accordingly be substantially increased?

Senator WHEELDON:
Minister for Repatriation and Compensation · WESTERN AUSTRALIA · ALP

– 1 agree completely with Senator Missen. I do believe that the Australian Government should have responsibility not only for this matter but for very many other matters. I am pleased to see that Senator Missen subscribes to the policy of the Australian Labor Party in supporting the national Government’s approach to the provision of health services, and I look forward to receiving continued support from him. As to the particular details and the amounts, I am not aware of the answer but I shall obtain it for the honourable senator. In general principle, 1 am pleased to welcome Senator Missen to the ranks of those who advocate a national health scheme.

page 2827

QUESTION

PORNOGRAPHY

Senator EVERETT:
TASMANIA

– I direct a question to the Attorney-General relating to a national law for so-called pornographic material. I preface my question by referring to the conferences organised in 1973, on the initiative of the Australian Government, between representatives of the Australian Government and of the State governments and which were aimed at producing a uniform legal approach throughout Australia to questions relating to so-called pornographic material. Following the last conference, which I think was in November 1973, has any progress been made towards a national adoption of the Australian Labor Party policy in respect of pornographic material? As far as the State of Queensland is specifically concerned, is there any prospect that it will soon be relieved of the repressive legislation under which it suffers in this context?

Senator MURPHY:
ALP

-Mr President, there has been progress. There was another meeting of Australian Government and State government Ministers, I think in February of this year, and it seems that the States have come round to agreeing with the Australian Government. Indeed, the political parties seem to have come round to very much the same viewpoint- that, in general, adults ought to be able to read, hear and view what they wish in private or in public and that persons and those in their care should not be exposed to unsolicited material that is offensive to them. I understand that this viewpoint was adopted by the Liberal Party of Australia in Victoria some time last year. The verbiage might be slightly different, but it is to much the same effect all over the country.

The Queensland attitude, as I understand it, is not really very much different in theory. Queensland wants to maintain its own kind of censorship machinery in relation to films, books and so forth. But in practice there seems to be a very grave departure from the general principle to which I have referred. I think that the sooner we can implement these general principles on all hands the better it will be for everyone. The result of it, of course, will be that we will tend to become self censors and people will have the freedom to read the material they want to read and yet not be exposed to material which they find offensive. That seems to be a reasonable balancing of the conflicting views in society. A great deal of work has been done. There have been some departures from the aim of implementing this policy, but my understanding is that it was accepted and that we should work towards this general policy.

Mr President, I think that the Senate probably is entitled to access to the proceedings of those meetings. I will endeavour to see whether the record of those proceedings can be released. It is in accordance with the standing approach of the present Government that when it enters into such discussions with State Ministers the record of the proceedings ought to be made available. It probably would be useful to everyone if we were to have made public the record of the various conferences which have been held so that the Senate can judge for itself what the attitudes are and how much progress is being made.

page 2828

QUESTION

HOSPITAL AND MEDICAL BENEFIT FUNDS

Senator BAUME:

– My question is directed to the Minister representing the Minister for Social Security. I remind the Senate that in July the Minister for Social Security refused to grant permission to the Medical Benefits Fund of Australia and the Hospitals Contribution Fund of Australia to raise their contribution rates in order to cover higher benefits of from 52 per cent to 167 per cent. I also remind the Senate that the Minister for Social Security subsequently introduced a Bill to control further the health funds and that the Senate amended the Bill to provide an appeal mechanism. I ask: Have those two large health funds used this appeal mechanism? Did the Supreme Court of New South Wales give judgment last week allowing the funds to increase contributions by the full amount they sought and did the court in so doing effectively repudiate the earlier action of the Minister for Social Security? Will the Minister agree that one effect of continuing uncontrolled inflation is a rise in hospital costs and that this, in turn, will inevitably involve rises in the cost of health insurance?

Senator WHEELDON:
ALP

– 1 am not familiar with all the details of this matter. All I would say at this stage is that I should hardly think that a decision of a supreme court or any other court would repudiate an action in principle taken by a Minister in regulating the fees charged by any health fund. It is merely, it would seem to me, making a judgment, possibly on a question of law, but there is not a statement of any principle about the right of the national Government to regulate health funds. As far as the details of the matter are concerned, I will pass the honourable senator’s question on to the Minister for Social Security, Mr Hayden, and as soon as an answer is obtained from him I shall let the honourable senator have it.

page 2828

QUESTION

HONOURABLE MEMBER FOR WANNON

Senator WALSH:
WESTERN AUSTRALIA

– My question is directed to the Leader of the Government in the Senate. I ask: Can he inform the Senate whether the honourable member for Wannon walked through a bed of hot coals in his attempt to reach the political execution block and behead his leader?

Senator MURPHY:
ALP

-I do not believe that he did.

page 2828

QUESTION

TAXATION: FRINGE BENEFITS

Senator WEBSTER:
VICTORIA

-My question is addressed to the Minister representing the Treasurer. I ask the Minister to consider the question as a Minister, if he is unaware of the Treasurer’s view. I refer to current news articles which state that the Labor Government intends to ensure that fringe benefits which are applicable to executives are taxed in some way. Does the Government intend that such proposed laws will have universal application or will some people who are in receipt of high incomes and substantial fringe benefits be excluded under Labor’s proposition? For instance, will the Minister indicate from his own position what has been the consideration for members of Parliament, particularly Ministers, who have the availability of expensive cars and chauffeurs in every State of the Commonwealth and particularly for a Prime Minister who has the availability of cars such as Mercedes in nearly every State, the use of aircraft and the provision of private housing and other fringe benefits?

Senator WRIEDT:
Minister for Agriculture · TASMANIA · ALP

– I am not quite sure of the precise position. This matter obviously is the responsibility ofthe Treasurer himself, but Senator Webster was instancing Ministers and the Prime Minister and the fact that he uses a Mercedes. I would also add to the particulars that the honourable senator enumerated the evidence that was given before a Senate Estimates Committee only two or three weeks ago in which a photostate copy of the cost of providing Sir Robert Menzies with a motor vehicle showed $4,000 for his Bentley in one month. I believe much the same situation obtains with Sir John McEwen, who, I understand, was Prime Minister for 7 days only. The honourable senator nominated certain individuals but it is only fair that the Senate’s attention be drawn to other examples as well. I shall draw the attention of the Treasurer to the question and obtain an answer for the honourable senator.

page 2829

QUESTION

WHEAT AID TO STARVING PEOPLE

Senator LAUCKE:
SOUTH AUSTRALIA

– I direct a question to the Minister for Agriculture. I refer to a reported statement by the Minister when he was in Rome recently attending the World Food Conference. I quote the honourable senator: ‘To the full extent that our present harvest allows we will allocate as much wheat as we can to developing countries facing shortages. ‘ Can the Minister indicate the extent of present sale commitments of the anticipated 8.5 million tonnes of export wheat to normal outlets? What are the prospects of a further allocation to famine stricken developing countries?

Senator WRIEDT:
ALP

– It is not customary for the Australian Wheat Board to publish the normal commercial dealings of the Board. The Government respects the Board’s right to operate as a purely commercial organisation. It is true that I did state that we would make the maximum effort to allocate wheat to those countries which are short of wheat. Obviously people will be starving in those countries unless we can get wheat to them. I did not nominate a figure because at that time we were unsure of the final result of the wheat crop this year, nor was I conversant in detail with the commitments which the Board has entered into. We are providing, under the current food aid program about 380,000 tonnes of wheat. If we can find more wheat and the need is there, we will allocate it. I intend to have discussions in conjunction with three of my Cabinet colleagues with the Australian Wheat Board next week to look at the position currently now that we know pretty well the final crop for the year, and to ascertain whether there will be other wheat available to export to countries such as India and Bangladesh.

page 2829

QUESTION

VISAS: JAPANESE SHIPPING SALVAGE OPERATION

Senator BUTTON:

– My question, which is directed to the Minister representing the Minister for Labor and Immigration, relates to the salvaging of the bulk carrier MV ‘Sygna’ by a Japanese salvaging team under the direction of Captain Kintoku Yamada off Newcastle. Will the Minister inform the Senate whether Japanese tradesmen and divers were issued with 3-monthly business visas in order to perform salvage work on this vessel? If not, what type of visas were issued to Japanese salvage personnel and how many Japanese employees have in fact been employed on the salvage of this vessel and obtained visas to do so? Is the Minister aware that there are unemployed professional divers in Australia with considerable experience in salvage work? What inquiries were made by the Department to ascertain the availability of” skilled Australian labour to perform this work before issuing visas to Japanese divers and other employees?

Senator BISHOP:
ALP

- Senator Button warned me this morning that he would ask this question. I have some information and I am getting an answer from Mr Clyde Cameron to the latter part of the question. The information I have is that business visit visas were issued in Tokyo to Mr Yamada and 16 staff members of his company. The visas were endorsed ‘employment prohibited ‘. No inquiries were made in Australia prior to the issue of the visas because it was not realised that the group comprised a salvage crew. However, it is understood that before salvage operations commenced the agents of Mr Yamada in Newcastle discussed the matter with the Newcastle Trades and Labour Council, which agreed to work commencing on the condition that the work team included 8 local dockers and 3 local shipwrights. The Japanese group is no longer in Australia. I will follow up the honourable senator’s question and see whether I can get further information for him.

page 2829

QUESTION

AVIATION: BOEING 747 CRASH

Senator COTTON:
NEW SOUTH WALES

-Will the Minister representing the Minister for Transport direct his colleague’s attention to the observation that the Lufthansa Boeing 747 crash could have been avoided had that company adapted its wing flap warning system to the system operated on the British Airways fleet? Could he see to it that Qantas Airways Ltd has taken note of this position? Could he let us know whether these adjustments to the warning system have been made in the Qantas fleet?

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

– I will direct the question to the Minister for Transport. I do not know whether a crash could have been avoided if the company concerned had done certain things. I think this matter will be the subject of a thorough inquiry to see whether any remedial action can be taken.

page 2829

QUESTION

WATER IRRIGATION CHARGES

Senator MULVIHILL:

-I ask the Minister for Agriculture whether the New South Wales Government has increased water charges to Murrumbidgee Irrigation Area farmers by almost 100 per cent without prior consultation with the farmers concerned. If so, was this harsh action taken by a hypocritical Government which has tried to gain electoral advantage by attacking the Australian Government for what it terms unjust treatment of farmers?

Senator WRIEDT:
ALP

– I understand that the New South Wales Government has increased water charges to farmers in the MIA by 92 per cent and that the Victorian Government has increased its charges by 35 per cent. The Chairman of the Victorian Farmers Union has protested, 1 believe quite strongly, in a statement he issued, as has the President of the Rice Growers Association of New South Wales. It is true that both these State Liberal governments have not been slow in criticising this Government for any increased charges which have occurred to the rural community during the time we have been in office. I do not know the economic background or reason for the increases but presumably these governments consider them justified. If so, they have a right to impose them. But it is an act of hypocrisy, as Senator Mulvihill has pointed out, to criticise one government for doing these sorts of things and then turning around and doing precisely the same things themselves.

page 2830

QUESTION

OVERSEAS VISIT OF PRIME MINISTER

Senator WOOD:
QUEENSLAND

– I direct my question to the Leader of the Government in the Senate. In view of his reply relating to the Prime Minister’s visit overseas at Christmas time, does he not consider, in view of the serious economic circumstances operating in this country at the moment, that it is the duty ofthe Prime Minister to be here at this very important time? Will he express a view to whether the countries proposed to be visited would be very adversely affected if the Prime Minister did not visit them? Is it not appropriate that the visit is timed so that the Prime Minister might have Christmas in England with his family? Does he not consider that this trip by the Prime Minister and the 2 trips by the Leader of the Opposition, which this Government is paying for from the money of the people, are just junkets so that people can have a good time?

The PRES DENT- Order ! I must remind Senator Wood that he is asking the Leader of the Government for an opinion. I ask the honourable senator to be more specific in asking his question.

Senator WOOD:

– Could not these trips overseas by both the Prime Minister and the Leader of the Opposition be considered to be junkets? Would this money not serve a much better human purpose if it were diverted in this country to cancer research which is so badly languishing because of shortage of funds?

Senator MURPHY:
ALP

– If one examines what is put forward by Senator Wood one comes to this conclusion: The Prime Minister of a country is extremely valuable. His services should be devoted to the country. I put it to Senator Wood that if the Prime Minister is responsible for the general management of the country, surely he ought to be entrusted with the decision as to where his services are best deployed- in Australia at this critical time or in speaking to other leaders of the world in this critical timeespecially when one takes into account that Australia is one of the great trading nations of the world. Its problems are intimately tied up with the problems that other countries are experiencing. If ever there was a time for face to face discussions to be held with other leaders of the world it is right now, when one considers the inflationary situation, the oil crisis, and the other international problems which so much affect ourselves and the other countries. I think that Senator Wood would be one of the first to agree that if there were a collapse in other parts of the world the effects undoubtedly would be felt severely in Australia. No longer can we regard Australia as being isolated in some way. The problems of the world are our problems. If our leader thinks it is best for him to go overseas and discuss these problems with other busy leaders of the world then 1 think his judgment ought to be respected.

Senator Wood suggests that this trip may in some way be connected with the Prime Minister’s personal problems or desires to see his family. I do not think it is a good time of the year to be going to England or to Europe where it will be winter. On top of that, I think that if one thing could be said about the Prime Minister it is that he is a man who works extremely hard. No one could say that he is a loafer or a man who goes after pleasure. He is a man who is regarded on all hands as one who works extremely hard in the interests of the country.

Senator Wood asks whether the trip of the Leader of the Opposition is a junket. We cannot say that the considerations in his case are the same as those in the case of the Prime Minister for going overseas for discussions with world leaders about what is happening. I think we will leave it to the country to judge whether the Leader of the Opposition and the Opposition are justified in their complaints about the Prime Minister when Mr Snedden himself chooses to go away with no real reasons for doing so which could be seen as being of benefit to Australia

page 2830

QUESTION

MEDIA INDUSTRIES

Senator PRIMMER:
VICTORIA

– I ask the Minister for the Media whether his Department has made any attempt to ascertain a profile of the media industries. Has the Department looked into employment structure and numbers? Has an effort been made to evaluate what the media industries are worth in their many forms? Has there been an opportunity to look at the question of ownership of these industries?

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

– I did see a reference to a matter of this nature in an article in, I think it was, today’s Melbourne ‘Age’ written by a Mr Walker who is a journalist for that newspaper. It is true, as the honourable senator has suggested in his question, that my Department is involved in an examination of the media industries and that such a detailed examination is the first of its sort in Australia. It is one which will tell the nation much about this vital part of the business life of the Australian community. The task of my officers who are engaged on this activity is to define what the media industries are, what their employment picture is, what are the financial statistics which are available, right down to the value of the services that are produced and, of course, their relationship to the gross national product. Naturally the task is a long, detailed and involved one and my officers would not be able to do it finally and effectively unless there is the complete co-operation of all the industries involved. In regard to the last part of the honourable senator’s question, I can confirm also that the inquiry relates to the interlocking ownership and directorate control patterns throughout the media industries and that subject, of course, has been under inquiry by the Broadcasting Control Board over a period of years.

page 2831

DISTINGUISHED VISITOR

The PRESIDENT:

– I draw the attention of honourable senators to the presence in the Gallery of a former esteemed colleague, Dame Nancy Buttfield. We hope that she has an enjoyable stay in Canberra, and we welcome her to the Senate.

page 2831

QUESTION

PURCHASE OF ART WORKS

Senator TOWNLEY:
TASMANIA

– I ask the Minister representing the Prime Minister: Is he aware that only about 14 per cent of the $2.2m spent on the purchase of art by the National Gallery between the accession of the Labor Government and 1 3 December 1973 went towards the purchase of Australian art? Does the Minister not feel that if we are to spend such huge amounts of money on art at the present time it should be kept in Australia?

Senator MURPHY:
ALP

– Art is universal and I think therefore that the answer to the honourable senator’s question is no. If he had said that a substantial portion of total expenditure ought to be spent here I suppose no one would disagree with him. But it may be more important for our budding artists and our citizens that we bring into Australia the art which is not available so that it may be seen and may influence us than simply to acquire that art which is already in Australia and available in various galleries and privately.

Senator Wheeldon:

– Does he want Australian orchestras to play only Australian music?

Senator MURPHY:

– I think one may say that in Australia there has been a dearth of overseas art. Senator Wheeldon interjected by asking whether we really want Australian orchestras to play only Australian music and have an exclusionary policy against the great artists of the world coming here. I suppose if one looked at how much -

Senator Townley:

– You would not bring in American orchestras.

Senator MURPHY:

- Senator Townley suggests that we would not bring in an American orchestra. We have done it recently very much to the advantage and the enjoyment of the Australian people and I think we will continue to do that. Many Australians will welcome the initiative of this Government in bringing some of the best of art from overseas to Australia, and the Government is not ashamed of it. The honourable senator ought not to be criticising a government which is spending money on art and acquiring very valuable assets, even if we look at it commercially, and that criticism comes very badly from an Opposition- not altogether from Senator Townley since it has been repeated by others- which preferred to spend its money by the thousands of millions on activities to injure people overseas who had done no harm to us.

page 2831

QUESTION

GIPPSLAND INSTITUTE OF ADVANCED EDUCATION

Senator MELZER:
VICTORIA

– My question is directed to the Minister representing the Minister for Education. I ask: Has his attention been drawn to the report in today’s Melbourne ‘Age’ that the Gippsland Institute of Advanced Education at Churchill in Victoria will offer 75 places in a course for a diploma of teaching and a bachelor degree in education in 1975? As there is no oncampus accommodation at the Gippsland Institute at the moment, there will be none when the 1 975 education year opens, there will be accommodation for only 36 by the end of May, and as there is very little accommodation in the surrounding communities, yet there will be 629 full time students there before these additional students are taken on, will the Minister confer with the Minister for Housing and Construction to do what the Victorian Government is not prepared to do, that is, to ensure that some emergency measures are taken to provide housing so that students will not have to abandon studentships?

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

– I saw the article to which the honourable senator has now drawn my attention. In the time that was available to me prior to coming into the chamber I sought to make contact with my colleague the Minister for Education in another place about the article and to obtain his view on it. Unfortunately I was unable to do so. The Minister for Education and I will be joining a conference of State Ministers for Education on Friday to discuss generally the question of educational broadcasting throughout Australia. I certainly shall draw the matter to the attention of the Minister for Education and ask him to have discussions with the Minister for Housing and Construction and, if necessary, the Victorian Minister for Education.

page 2832

QUESTION

ECONOMY

Senator SCOTT:
NEW SOUTH WALES

– I direct my question to the Leader of the Government in the Senate. I refer to the Prime Minister’s attempt to blame the Treasury for Australia’s economic malaise. I ask: When a leader, be he in government, business or any other enterprise, shifts responsibility down the line for his own incompetence, is he not inviting dismissal? Why is it, if the fault lies with Treasury, that the Prime Minister has taken 2 years to identify the trouble? Is this not just another instance of the Government’s casting about for excuses it hopes to be able to sell to a disillusioned electorate?

Senator MURPHY:
ALP

– There may be something in the general principle which the honourable senator calls in aid, that is, if one were to shift responsibility down the line to cover one’s own incompetence. The principle simply is inapplicable here. We have a competent Prime Minister and a competent Government. We inherited certain difficulties in administration from the previous Government. Again the honourable senator tries to suggest that all the ills are in some way the personal incompetence or difficulties of the Prime Minister or other Ministers. Honourable senators opposite refuse to accept even for a moment that the problems are world wide and affect every country. They want to dismiss this and say that all the trouble in the country is the fault of Mr Whitlam or somebody else. I remind the honourable senator and those opposite that the people of Australia are even able to read in the newspapers, see on television and hear on the radio what is happening around the world. The people of Australia will not accept this nonsense that the Australian Government is responsible for an inflation that is isolated and happening only in Australia. They know only too well what is happening all around the world and they know only too well that the Australian Government is doing its best to assist them in Australia and by world standards is doing extremely well.

page 2832

TREATIES

Senator WILLESEE:
Western AustraliaMinister for Foreign Affairs · ALP

– I lay on the table the text of certain treaties which have entered into force and to which Australia has become a party by signature. A list of the treaties has been distributed to honourable senators for their information.

page 2832

CONSUMER AFFAIRS BUREAU

Senator WILLESEE:
Western AustraliaMinister for Foreign Affairs · ALP

– Pursuant to section 17 of the Consumer Affairs Ordinance 1974 I present the first annual report of the operations of the Consumer Affairs Council and the Consumer Affairs Bureau of the Australian Capital Territory for the year ended 30 June 1974.

page 2832

NATIONAL LIBRARY OF AUSTRALIA

Senator WILLESEE:
Western AustraliaMinister for Foreign Affairs · ALP

– Pursuant to section 27 ofthe National Library Act 1960-73 I present the 14th annual report of the National Library of Australia for the year ended 30 June 1974 together with financial statements and the Auditor-General ‘s report on those statements.

page 2832

COMMISSION OF INQUIRY INTO THE MARITIME INDUSTRY

Senator WILLESEE:
Western AustraliaMinister for Foreign Affairs · ALP

– For the information of honourable senators I present a report by the Commission of Inquiry into the Maritime Industry entitled ‘Report on Navigational Aid Systems’, dated November 1974.

page 2832

AUSTRALIAN ASSISTANCE PLAN

Senator WHEELDON (Western AustraliaMinister for Repatriation and Compensation)For the information of honourable senators I present a discussion paper prepared by the Social Welfare Commission entitled ‘Australian Assistance Plan’.

page 2833

STANDING COMMITTEE ON CONSTITUTIONAL AND LEGAL AFFAIRS

Senator James McClelland:
NEW SOUTH WALES · ALP

– I present an interim report from the Standing Committee on Constitutional and Legal Affairs on its inquiry into the clauses of the National Compensation Bill 1 974.

Ordered that the report be printed.

Senator James McClelland:
NEW SOUTH WALES · ALP

-Mr President, I seek leave to move a motion to extend the time for the presentation of this Committee’s report on the clauses of the National Compensation Bill 1974.

The PRESIDENT:

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

Senator James McClelland:
NEW SOUTH WALES · ALP

– I move:

Question resolved in the affirmative.

page 2833

PUBLIC WORKS COMMITTEE REPORT

Senator JESSOP:
South Australia

– In accordance with the provisions of the Public Works Committee Act 1969-1974, 1 present the report relating to the following proposed work:

Rehabilitation Centre at Townsville, Queensland.

page 2833

ABORIGINAL AND TORRES STRAIT

Motion (by Senator Cavanagh) agreed to:

That leave be given to introduce a Bill for an Act to make provision with respect to the people of the Aboriginal race of Australia, and the race to which Torres Strait Islanders belong, for the purpose of preventing discrimination in certain respects against those peoples under laws of Queensland.

Bill presented, and read a first time.

Standing orders suspended.

Second Reading

Senator CAVANAGH:
South AustraliaMinister for Aboriginal Affairs · ALP

– I move:

The purpose of this Bill is to supersede certain provisions of the laws of Queensland that discriminate against Aborigines and Torres Strait Islanders and deny them basic human rights. Some of these laws are discriminatory on grounds of race and others are of general application. They have the effect of imposing on Aboriginal and islander reserves a legal regime that is different from that which applies to persons in other parts of Queensland. The elimination of racial discrimination has been one of the major preoccupations of the international community since the Second World War. The United Nations charter is based on the principles of dignity and equality inherent in all human beings and the charter provides that one of the purposes of the United Nations is to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race.

A comprehensive series of instruments has been developed by the United Nations in fulfilment of these objectives. The Universal Declaration of Human Rights, the 25th anniversary of which was celebrated on 10 December 1973, proclaims that all human beings are born free and equal in dignity and rights, that everyone is entitled to all the rights and freedoms set out in the declaration, without distinction of any kind, in particular as to race. The declaration and subsequent instruments provide, for example, that all are equal before the law and are entitled without any discrimination to equal protection of the law. Everyone has the right to freedom of movement and residence and no one shall be subjected to arbitrary interference with his privacy, family or home. Everyone has the right to just conditions of work without discrimination and to protection from forced or compulsory labour. The International Convention on the Elimination of All Forms of Racial Discrimination (1965), which was signed on behalf of Australia by the then Minister for External Affairs, Mr Hasluck, on 13 October 1966, and to which 81 countries have subscribed, requires countries to prohibit racial discrimination in all its forms and to guarantee equality before the law without distinction as to race.

The United Nations has supplemented these instruments with numerous resolutions, conferences and programs designed to promote the elimination of racial discrimination. For example, the Proclamation of Teheran issued by the International Conference on Human Rights in 1968 observed that the implementation of the principle of non-discrimination, embodied in the United Nations Charter, the Universal Declaration and other instruments constituted a most urgent task of mankind. It further stated that gross denials of human rights arising from discrimination on grounds of race outraged the conscience of mankind. The Australian delegation to this conference included the then AttorneyGeneral, Mr Bowen, the present shadow Minister for Foreign Affairs, Mr Peacock, and Senator Murphy. Subsequently, the United Nations designated 1971 as the International Year for Action to Combat Racism and Racial Discrimination, and vigorous programs for the year were conducted throughout the world, including Australia. On 6 December 1971, the General Assembly of the United Nations adopted a resolution urging further ratifications of the Racial Discrimination Convention and this resolution was carried by 10 1 voting in favourincluding Australia- none against and 5 abstentions. On 10 December 1973, the Decade for Action to Combat Racism and Racial Discrimination was inaugurated by the United Nations. The program proposed by the United Nations for action on the national level during the decade includes the introduction of legislation, where appropriate, to prevent racial discrimination.

Against this background, it has been the conscious policy of both Liberal and Labor governments to eliminate all legislation in Australia that contains elements of racial discrimination. In his policy speech on 8 October 1 969, the then Prime Minister, Mr Gorton, stated:

In recent years most discriminatory legislation against Aborigines has been abolished. We intend to see that this process is completed in the life of the next Parliament upon both State and Federal levels.

In the Governor-General’s Speech on the opening of Parliament on 3 March 1970 the following statement was made:

My Government . . . hopes that during the lifetime ofthe Parliament any remnants of discriminatory legislation against Aboriginals will bc eliminated.

On 2 1 May 1970 Senator Keeffe received a letter from the then Minister-in-Charge of Aboriginal Affairs, Mr Wentworth, in relation to the Queensland legislation observing that, as a result of the 1967 referendum, the Commonwealth had concurrent legislative power with the States regarding Aborigines. The then Minister stated that the Commonwealth and the States had been discussing discriminatory and special legislation for some years, and that in the previous decade major changes had been made in all State Acts relating to Aborigines. He went on to say, as reported in Senate Hansard, 2 1 May 1970, at page 1750:

I would hope that the Commonwealth will not be compelled to bring down legislation in order to invalidate some sections of a Slate law.

The letter went on to say that discriminatory State legislation was being discussed with individual States and that he had asked the Attorney-General to assist him in these discussions. In a subsequent answer to a parliamentary question, Mr Wentworth identified the Queensland legislation with respect to Aborigines and Torres Strait Islanders as being ‘prima facie discriminatory’. On 19 January 1971, the then Prime Minister, Mr Gorton, speaking in Singapore, said:

Racism is an unmitigated evil . . . I am prepared to say and mean that we will abolish racism within Australia. . . . There is legal discrimination still in some Australian States against Aboriginals, but my Government has told those States that those laws repealed by those States within two years, or if they are not, we will move in and repeal them.

However, in April 1971 the then Prime Minister Mr McMahon, had discussions with the Queensland Premier on this matter and he agreed, in relation to the Queensland law permitting the management of the property of an Aboriginal without his consent, that in special cases there was a responsibility to protect Aboriginal people from exploitation. He regarded the measure as one for the protection of the Aboriginal people and not one of discrimination- Hansard 20 April 1971, page 1663.

In 1971 the United Nations Association of Australia set up an Australian Committee to Combat Racism and Racial Discrimination, as part ofthe United Nations program for the year that I have mentioned. This Committee consisted of representatives from 125 prominent community organizations. The then Australian Government made a grant of $12,000 to enable the Committee to carry out its program. In its report of its activities of the year, the Committee stated that during the year it had repeatedly urged the Australian and State Governments to repeal all legislation of a discriminatory nature and to take all necessary steps to ratify the Racial Discrimination Convention. The report stated that in reply to representations made by the Committee the then Prime Minister said:

The Commonwealth is pledged to remove all discriminatory legislation against Aborigines by the end of 1972. 1 regret that it is impossible to complete during 1971 the action necessary for Australia to ratify the Convention. You may be assured, however, that the Government is continuing its efforts to end all forms of racial discrimination in Australia.

I draw honourable senators’ attention to the policy platforms of the Liberal Party and the Labor Party on the issue of discrimination against Aborigines. The 1972 platform of the Labor Party included the proposal that the Australian Parliament should legislate against all forms of discrimination as part of a program to provide equal rights and opportunities for all persons. The federal platform of the Liberal Party, as approved by the Federal Council in October 1974, includes proposals for the implementation and enforcement of legislation to promote equality of rights between all Australian citizens and to remove any form of discrimination against Aborigines. The present

Australian Government has made numerous attempts to resolve these matters by consultation. Immediately after the 1972 elections, the Prime Minister (Mr Whitlam) wrote to the Queensland Premier on the matter and there were discussions on the matter at a meeting between the Prime Minister and the Queensland Premier on 28 March 1973. There were subsequent discussions between the Ministers of the Australian and Queensland Governments responsible for Aboriginal affairs.

As no action has been taken by the Queensland Government on these matters, provisions were included in the Racial Discrimination Bill 1973 to supersede the Queensland law that authorised the management of the property of Aboriginals and Islanders without their consent. In a teleprinter message on 27 September 1973 from the Prime Minister to the Premier the Prime Minister sought consultations with respect to the Bill. On 20 November 1973, the Prime Minister sent a further teleprinter message to the Premier of Queensland pointing out that, in addition to the provisions with respect to property management, there were other features of the Queensland legislation with respect to Aborigines and Islanders that were unsatisfactory from a civil liberties’ viewpoint, including provisions relating to liberty of movement to enter a reserve, legal representation before and appeal from Aboriginal courts, and relating to compulsory labour and conformity to a code of conduct on reserves. The Prime Minister sought to make these matters the subject of consultations.

I discussed the matter with the Queensland Minister in charge of Aboriginal affairs on 8 January 1974. In addition the Attorney-General (Senator Murphy) wrote to the Queensland Attorney-General on 15 January 1974 stating that his officers would be available for consultations on these matters. On 24 January the Queensland Attorney-General replied stating that State officers would be made available for this purpose. However, tentative arrangements made for these discussions to be held on 1 1 February 1974 and 21 March 1974 were cancelled due to the unavailability of State officers. On 3 April 1974 the State officers wrote stating that the question of a convenient date for appropriate discussions would be kept in mind and that further advice would be provided as early as possible. No further reply has been received from the State officers.

The introduction of legislation to supersede the Queensland laws was envisaged in the Governor-General’s Speech on the opening cf Parliament on 9 July 1974 and a further letter was sent by the Prime Minister to the Queensland Premier on 20 October 1974 informing him that draft legislation to override discriminatory aspects of the Queensland legislation was being drafted. He pointed out that on this and other matters he had sought mutually acceptable decisions through consultation and was prepared even at that stage further to pursue that course if there was still room for fruitful negotiation. The Queensland Premier replied on 1 November 1974 stating that steps had been taken to enact amendments to the Queensland Acts to remove restrictions on the control by an Aboriginal or Islander of his property. The Premier suggested that consultations be held but it has not yet been possible for this to be done.

The amendments referred to by the Premier were passed by the Queensland Parliament and came into force on 1 November. The amendments permit an Aboriginal or Islander to terminate the management of his property by notice in writing witnessed by a justice of the peace. However, the amendments leave intact provisions that authorise the continued management under the present legislation of property managed without the consent of Aborigines and Islanders under earlier Queensland legislation. Moreover, the amendments do not deal in any way with the matters of freedom of movement of an Aboriginal onto a reserve, legal representation before, and appeal from, Aboriginal courts, compulsory labour and the other unsatisfactory features of the Queensland laws. It is the contention of the Queensland Government that the Aborigines and Islanders in Queensland do not desire any further amendments to the Queensland law. The Australian Government does not accept this contention. It does not believe that any group of Australian citizens should be subject to laws that are inconsistent with fundamental rights.

The legislation now introduced will deal with the discriminatory aspects of Queensland legislation I have referred to. Clause 5 provides that any property in Queensland of an Aboriginal or Islander shall not be managed by another person without the consent of the Aboriginal or Islander and that any consent so given, whether given before or after the commencement of the Act, may be withdrawn at any time. The purpose of clause 6 is to provide that it is not to be necessary for an Aboriginal or Islander to obtain a permit to enter a Queensland reserve. The present Queensland law provides that, subject to certain exceptions, a permit must be obtained to enter a reserve. This means, for example, that Aborigines and Islanders are unable to visit their relations on reserves unless they apply for, and are granted, a permit to enter the reserve.

Clause 7 provides that an Aboriginal or Islander is not to be penalised by reason only that he has conducted himself in a way that is not to the satisfaction of an authority or person appointed under Queensland law if his conduct was not unreasonable. The purpose of this provision is to supersede such provisions as regulation 1 4 of the Aborigines Regulations, in its application to Aborigines which provides that a person authorised to be on a reserve shall conduct himself properly and to the satisfaction of the Aboriginal council and manager or district officer of a reserve. The purpose of clause 8 of the Bill is to deal with those provisions of the Queensland legislation that authorise persons to enter the premises of an Aboriginal or Islander for certain purposes. The clause provides that it is not to be possible for a person to enter the premises of an Aboriginal or Islander without his consent unless, if the premises were not situated on a reserve, the entry would not be unlawful. The purpose of the provision is to put an Aboriginal and Islander in the same position in this matter as a person outside a reserve.

Clause 9 deals with legal proceedings. It provides that an Aboriginal or Islander is to be entitled to be legally represented in proceedings for an offence before an Aboriginal or Island court. The present Queensland law permits representation only with the consent of the court. Clause 9 also deals with the question of appeals from Aboriginal and Island courts in criminal proceedings. It will have the effect of preventing an Aboriginal or Islander from being convicted by such a court of an offence against regulations or bylaws made under the legislation unless a right of appeal exists in the matter to a superior court. The present Queensland law provides merely for an appeal to a district officer and to a visiting justice.

The purpose of clause 10 is to deal with provisions of by-laws under the Queensland legislation which provide a system of compulsory labour. The by-laws provide that all able-bodied persons over the age of 15 years residing on the reserve shall, unless otherwise determined by the manager of the reserve, perform such work as is directed by the Manager or person authorised by the manager. Clause 10 provides that an Aboriginal or Islander on a reserve is not to be required to comply with any direction to perform work unless the direction is given in relation to the performance of reasonable community obligations or unless the work is in relation to an obligation that the Aboriginal would be obliged to perform if the direction were given outside the reserve.

Clause 1 1 deals with terms and conditions of employment. It provides that Aborigines or Islanders in Queensland are not to be employed on terms and conditions of employment that are less favourable than those applicable to other employees. Queensland laws with respect to Aborigines and Torres Strait Islanders contain provisions relating to the employment of Aborigines and Islanders in accordance with the provisions of awards, but these provisions only apply outside a reserve. There is also a provision which provides that an Aboriginal who is an aged, infirm or slow worker may be paid less than the basic wage or minimum wage prescribed by the award. This provision only applies to Aborigines and does not apply generally to persons in the work force.

The provisions of the Bill are not intended to replace the whole of the Queensland legislation with respect to Aborigines and Torres Strait Islanders. They are intended only to remove elements of this legislation that are inconsistent with what the Australian Government regards as basic civil rights to be enjoyed by all Australians, without regard to race or colour. The provisions that the BUI will supersede are quite contrary to the principles of equality and dignity contained in the United Nations charter and in the other international instruments that I have described. They should form no part of Australian law and ought to be removed. I commend the Bill to the Senate.

Debate (on motion by Senator Rae) adjourned.

page 2836

ASSENT TO BILLS

Assent to the following Bills reported:

States Grants (Housing Assistance) Bill 1974 Housing Agreement Bill 1974

Loans (Australian National Airlines Commission) Bill 1974

Loans ( Qantas Airways Ltd ) Bill 1 974 Airline Equipment (Loan Guarantee) Bill 1974

page 2836

ESTATE DUTY ASSESSMENT BILL 1974

Bill received from the House of Representatives.

Standing Orders suspended.

Bill (on motion by Senator Wriedt) read a first time.

Second Reading

Senator WRIEDT:
Minister for Agriculture · Tasmania · ALP

– I move:

Thai the Bill be now read a second time. 1 seek leave to have the second reading speech incorporated in Hansard.

The PRESIDENT:

-Is leave granted? There being no dissent, leave is granted. (The document read as follows)-

This Bill will amend the estate duty law in two substantial respects. It will provide for a deduction of up to $35,000 in the assessment of duty payable on an estate where an interest in a matrimonial home passes to a surviving spouse. It will also provide for the establishment of a board with power to release a person wholly or partly from estate duty where its exaction would cause serious hardship for a beneficiary. These 2 measures give effect to undertakings in the policy speech delivered by the Prime Minister (Mr Whitlam) on 29 April 1974.

For the proposed deduction to be available it will be necessary for the deceased person to have been domiciled in Australia immediately before his or her death and for property comprising an interest in a matrimonial home to pass to the surviving spouse. In addition to the more usual situations, shares conferring rights of occupancy of a flat or home unit used as a matrimonial home will be treated as such property. The amount of the deduction will be determined by reference to the gross value of the property disregarding any mortgage or other encumberance on it. A deduction up to the full gross value may be allowed where the value does not exceed $35,000. Where it exceeds that amount the deduction will be $35,000 less $7 for every $10 of the excess so that there will be no deduction at all where the gross value is $85,000 or more. The deduction is to be allowed in assessments of estates of persons who died on or after 30 April 1974.

Special provisions have been included in the Bill to deal with situations in which the matrimonial home was not used exclusively for that purpose and where something less than the whole of the property passes to the surviving spouse. There are also provisions to deal appropriately with such situations as where an interest in the matrimonial home has been gifted to a spouse within 3 years before death and is brought back into the estate for duty purposes as notional property. The special provisions are discussed in detail in the explanatory memorandum being made available to honourable senators and I will not elaborate on them in this introductory speech.

Like the Income Tax Relief Board, the board to be established to relieve a person from a liability to pay estate duty is to comprise the Commissioner of Taxation, the Secretary to the Treasury and the Comptroller-General of Customs or their substitutes. It will be able to grant relief only where the benefit will accrue to a beneficiary who would suffer hardship if the full amount of duty were collected. In cases involving applications for relief from duty of $2,000 or more the board will be required to refer the application to a taxation board of review or to the Chairman of the Valuation Board so that the appropriate persons can be examined regarding statements in support of the application. The Commissioner of Taxation will be authorised to deal with applications involving small amounts of $200 or less.

Other amendments contained in the Bill ensure that, where appropriate, the new deduction for the matrimonial home and any amounts for which relief has been granted are taken into account in calculating quick succession and primary producer rebates in estate duty assessments. I commend the Bill to the Senate.

Debate (on motion by Senator Cotton) adjourned.

page 2837

DISTINGUISHED VISITOR

The PRESIDENT:

– I would like to draw the attention of honourable senators to the presence in the Gallery of a former colleague, Elliott Lillico. We extent to him a welcome to the Senate and hope that his stay in Canberra will be a very pleasant one.

page 2837

STATES GRANTS (WATER RESOURCES ASSESSMENT) BILL 1974

Bill received from the House of Representatives.

Standing Orders suspended.

Bill (on motion by Senator Wheeldon) read a first time.

Second Reading

Senator WHEELDON:
Western AustraliaMinister for Repatriation and Compensation · ALP

– I move:

I seek leave to incorporate my second reading speech in Hansard.

The PRESIDENT:

-Is leave granted? There being no dissent, leave is granted. (The document read as follows)-

This Bill concerns the provision of grants to the States over the financial years 1974-75 and 1975-76 for the measurement of the quality of surface and underground water resources. Following a recommendation by the Australian Water Resources Council, the Australian and the State governments in 1964 adopted an accelerated program of surface and underground water investigations designed to improve knowledge of the rate of flow, the quantity and changes in quantity of Australia’s water resources. This program has been most successful and is a good example of co-operation between the Australian and State governments. It is now apparent to the Water Resources Council that the present program would benefit greatly by the concurrent assessment of water quality. Thus, this Bill provides for an expansion in the program to include water quality assessment of both surface and underground water resources. The cost of such a program for each State was determined by that State. The Australian Government’s contribution for water quality assessment is to be a grant on a dollar for dollar basis with the States, up to specified limits. Within this framework, the total amounts of Australian Government finance that would be available to the States is $446,305 for surface water quality assessment and $361,600 for underground water quality assessment. In making the contribution of $807,905, the Australian Government is confident that the States will meet their commitments to the water quality assessment program so that the objectives endorsed by the Water Resources Council may be achieved.

The proposed legislation does not, of course, cover the Northern Territory and the Australian Capital Territory as it is expected that this will be provided for in appropriations for the Departments of the Northern Territory and the Capital Territory respectively. It was originally intended that grants would be available to the States prior to the commencement of the 1974-75 financial year. However, due to unforeseen delays brought about by the election in May 1974, the Bill has been held over until now. Despite this, the Australian Government has decided to make available the full amount requested by the States for the remainder of this financial year.

I turn now to the Bill itself, which is in the form of amendments to the States Grants (Water Resources Measurement) Act 1973. Section 4 provides for an amendment to section 3 of the principal Act to set out the scope of the word assessment’ so that it now includes water quality measurement in addition to water quantity measurement. The Bill also amends the machinery provisions of the principal Act by altering the provisions for the submission of progress reports. Thus, it can be seen that section 8 (1) (b) and 8 ( 1 ) (c) allow the States an extra month in which to submit their reports. This is considered necessary due to the increase in the number of State departments that will be involved in collecting the extra data and also the increase in the data itself. Provisions for increases in the grants of financial assistance related to State expenditure is provided for by sections 9 and 10 which amend schedules 1 and 2 of the principal Act. These increases in grants have been allocated between the States on the basis of their own proposed programs.

In order to implement a planned program for the conservation, development and proper management of Australia’s water resources it is essential that a national water quality assessment program be implemented in conjunction with the present quantity measurement program to provide the necessary basic data. The program of water quality assessment which forms the basis for this Act and in which all governments in Australia will be participating has been devised with this end in view. Such a program was in fact envisaged in the water policy statement released on 10 October 1974. Mr President, I commend the Bill to the Senate.

Debate (on motion by Senator Cotton) adjourned.

page 2838

RIVER MURRAY WATERS BILL 1974

Bill received from the House of Representatives.

Standing Orders suspended.

Bill (on motion by Senator Wheeldon) read a first time.

Second Reading

Senator WHEELDON:
Western AustraliaMinister for Repatriation and Compensation · ALP

– I move:

I seek leave to incorporate my second reading speech in Hansard.

The PRESIDENT:

-Is leave granted? There being no dissent, leave is granted. (The document read as follows)-

The purpose of this Bill is to correct some anomalies in connection with the conditions of employment of staff of the River Murray Commission. An almost identical Bill was passed by the House of Representatives in March this year but lapsed when the double dissolution occurred before it was debated in this House. Because the River Murray Waters Act preceded the Officers’ Rights Declaration Act and the Superannuation Act, there have been problems in the application of those Acts to staff of the River Murray Commission. Furthermore, the Commission is not an agency of the Australian Government.

The proposed amendments will ensure that members of the Australian Government services will not be disadvantaged if they obtain employment with the River Murray Commission, and will enable staff recruited by the Commission from other sources, who are not covered by superannuation elsewhere, to be covered by the Superannuation Act 1922-1973. In addition, under the Remunerations Act 1973, salaries of statutory officers are now to be determined by that Tribunal. Section 6 in the River Murray Waters Act is being amended accordingly, although under present conditions no salaries are payable to the Commissioner and Deputy Commissioner.

I would stress that this Bill deals with amendments to the River Murray Waters Act which refers only to the Australian Government, and does not affect the River Murray Waters Agreement in which the 3 River Murray States are also involved. In addition, I should mention that a good deal of thought is being given to much more extensive amendments to the River Murray administration, but these must be expected to take a good deal of time to develop, and in the meantime, it is desired to correct existing anomalies in staff conditions. Mr President, I commend the Bill to the Senate.

Debate (on motion by Senator Carrick) adjourned.

page 2839

STEVEDORING INDUSTRY BILL 1974

Bill received from the House of Representatives.

Standing Orders suspended.

Bill (on motion by Senator Bishop) read a first time.

Second Reading

Senator BISHOP:
South AustraliaPostmasterGeneral · ALP

– I move:

I seek leave to have my second reading speech incorporated in Hansard.

The PRESIDENT:

-Is leave granted? There being no dissent, leave is granted. (The document read as follows)-

This Bill is brief and intended only to clarify an existing definition in the Stevedoring Industry Act 1 956-73. Stevedoring operations in Australia are conducted under various Stevedoring Industry Acts. In the Stevedoring Industry Act 1 956-73, section 7(1) provides, inter alia, a definition of waterside worker and, in paragraphs (i) to (n) of that definition, certain persons are excluded from the definition, and therefore from the requirements of the Act. Paragraph (n) currently excludes from the provisions of the Act: persons in the regular employment of a person engaged in an industrial undertaking, being persons whose duties include the performance of stevedoring operations in connexion with that undertaking.

Paragraph (n) was introduced into the legislation in 1956 and was intended to cover situations where the employer used his regular employees to unload or load cargo directly from or into ships at wharves associated with the employer’s works and where the cargo was to be used in or in connection with an undertaking of the employer.

It has come to the Government’s attention, as a result of a dispute in Darwin and an associated legal opinion, that the original intention of the legislation could be frustrated by the lack of clarity in the existing wording of paragraph (n). Thus, concern has been expressed by the principal parties in the industry that this paragraph should be clarified at the earliest opportunity. The amendment sought to the Stevedoring Industry Act 1956-73 seeks only to clarify the intention ofthe original legislation and to ensure that the intention of the Parliament is correctly reflected in the legislation. I might also add that, in moving this Bill, the Government has consulted with the principal parties associated with the industry. I commend the Bill to the Senate.

Debate (on motion by Senator Greenwood) adjourned.

page 2839

APPROPRIATION (URBAN PUBLIC TRANSPORT) BILL 1974

Bill received from the House of Representatives.

Standing Orders suspended.

Bill (on motion by Senator Cavanagh) read a first time.

Second Reading

Senator CAVANAGH:
South AustraliaMinister for Aboriginal Affairs · ALP

– I move:

That the Bill be now read a second time. 1 seek leave to have my second reading speech incorporated in Hansard.

The PRESIDENT:

-Is leave granted? There being no dissent, leave is granted. (The document read as follows)-

This Bill seeks to appropriate funds for allocation to the States under the Urban Public Transport Agreement for a further series of projects directed towards the upgrading of their urban public transport systems. The amount to be appropriated is $66. 1 lm of which $27.85m is expected to be allocated in 1974-75 and the

remainder during the balance of the program. The funds are additional to the $7 1.91m allocated under the States Grants (Urban Public Transport) Act 1974. It means that in the first 2 years of the Australian Government’s 5-year assistance program, $ 138.02m has been allocated to the States by way of grants to improve our major cities’ transport systems. The series of projects approved for commencement in 1974-75 and details of the phasing of total expenditure are:

When this new program of projects is added to that approved in the attachment to the Urban Public Transport Agreement it will be seen that the Australian Government has agreed to support public transport improvement projects involving assistance of $ 138.02m. These projects cover the various modes and analysis ofthe programs approved to date by State and mode is as follows: Our initial assistance program will enable the States to eliminate much of the ancient rolling stock which is still being used as part of our urban transport system. For example over 550 carriages in Sydney's urban passenger rail system are at least 45 years old and more than 500 of the Melbourne carriages are over 45 years old with some having been constructed in the last century. Many urban passenger buses are over 20 years old and half of Melbourne's tram fleet is over 40 years old. In this way we hope to achieve some immediate improvement in the quality of public transport. In the longer term we will be looking more to an overall system approach which integrates the various transport modes; with each performing the function to which it is best suited. Included in the provisions for this year are the first allocations for the cities of Newcastle, Wollongong and Geelong. In announcing the Urban Public Transport Assistance Program the Minister for Transport **(Mr Charles Jones)** indicated that based on comprehensive studies of their transport needs, assistance would be extended to cities with populations over 100,000 and to the corridors linking these cities to State capitals. Appropriate studies are in progress and it is expected that major projects for these areas will be included in the future assistance programs. However, in the meantime there are minor improvement projects which can be undertaken independent of such studies and $ 1 m has been provided for this purpose in 1 974-75. When the Treasurer **(Mr Crean)** announced the first ever Australian Government contribution to urban public transport in his 1973 Budget Speech it was expected that the States would spend $46.64m during 1973-74, attracting Australian Government assistance of $3 1.09m. However the Australian Government was not able to appropriate these funds in that year. And the States have the honourable gentlemen opposite to thank for that situation. As the States respect this Government as one which will honour its promises some $ 18.46m was spent on the program during 1973-74. This promise was honoured when the Minister for Transport reintroduced the States Grants (Urban Public Transport) Bill into the other House on 1 1 July. It is now enacted. We expect to make payments to the States totalling $67.49m during 1974-75. This amount is made up of $ 12.32m being re-imbursement of monies expended by the States in 1973-74, $26.98m being the 1974-75 expenditure on projects approved for commencement last year, $27.85m for projects approved to commence in 1974-75 and $0.34m for planning and research projects undertaken in 1973-74. The Government is conscious of the requirement for the States to meet their contribution and this factor has been taken into account in formulating the extent of our assistance. We have been assured that the States are in a position to match our planned allocations in 1974-75. As I mentioned very limited progress was made under the scheme in 1973-74 because of delays in the provision of Australian Government funds. However, I would like to comment on the benefits of one project which has been implemented. The project to which I refer is the Adelaide Terrace bus way in Perth. It involved the construction of a segregated roadway for the exclusive use of buses on the approaches to the Causeway roundabout at the eastern end of Adelaide Terrace. Cost of this project was not high, at less than $20,000, yet during the p.m. peak period buses are taking up to 8 minutes less to cover this small section of their journey as compared with those vehicles that use the Adelaide Terrace roadway. One of the most effective means of encouraging additional patronage onto public transport will, I believe, be projects such as this where the benefits are obvious. What will attract people to public transport more than being forced to sit waiting in heavy traffic as public transport vehicle after public transport vehicle speeds past on their way to their destination. I would now like to make a few comments on projects included in the 1974-75 assistance program. As I said earlier our initial program reflected an emphasis on new rolling stock. Our projects this year cover much more of the urban transport system. Workshop facilities have been included in the program as recognition that maintenance of systems is vital to their efficiency. Improvements to these facilities also take account of the human element of the systems by including appropriate amenities for employees. We in this Government do not believe that we could provide massive funds for improvements to the standard of service offered to the travelling public whilst at the same time continuing to have the people who operate these systems work under conditions that resemble nothing so much as a Dickensian 'work house'. Much has been said about the attitude of the people who operate public transport. Is it any wonder that morale is so low when conditions are so primitive? By supporting improvements to workshops and staff amenities the Australian Government believes that a significant step forward will be made in providing greater job satisfaction for our public transport employees. Over recent times the Minister for Transport has received numerous representations concerning the problems being experienced by the private operators of urban public transport services. We are sympathetic to their problems and have noted the action taken by the Victorian Government to provide assistance to the private operators in Melbourne. The Minister for Transport does not believe that he could justify to our colleagues and to the Australian public that the Australian Government should take a similar initiative at this stage. Instead the Minister proposes to have a comprehensive investigation undertaken into the private operators industry. At the present time he is considering the terms of reference for this investigation and the Australian Government's policy to this industry will be determined following the completion of this study. However, in the case of some private operators events have overtaken the Australian Government's approach. The Manly ferry and hydrofoil services were to be closed by Brambles and in Adelaide the majority of the private bus operators threatened to withdraw their services unless the State Government assumed responsibility for their services. Some 22 million passenger journeys were performed annually by these services. Rather than have these services disappear from the total urban transport system the respective States decided they must act urgently to acquire these services. To reduce the financial burden placed on the States by these 'rescue operations', the Australian Government has approved assistance to New South Wales and South Australia to defray the expense incurred in acquiring these services. I would add that in the South Australian case it was essential for the State Government to act rapidly to prevent the sale of buses interstate. I would now like to comment on a few issues that have attracted a good deal of public attention in recent time. The Minister for Transport has often condemned increases in the fares on public transport and 1 do so again today. We had hoped that with the financial aid under the Urban Public Transport Agreement the States would have accepted the logic of keeping fares at a reasonable price. But no, we still find the Premier of New South Wales incorporating quite unsatisfactory increases in public transport fares in his Budget because he considers that the Australian Government is not providing sufficient assistance. I cannot agree. It is a fact that to increase public transport fares is to cause significant losses in patronage. I must applaud the actions of the Victorian Premier to keep fares as low as possible. It is a tragedy that this approach is not more widely adopted by the States. Considerable comment has been made on the plans for the re-introduction of trams to central Sydney. The Minister for Transport endorses the concept of giving the centre of the city back to the people but is not yet persuaded that the tram is the optimum vehicle to provide this service. The Department of Transport is examining the report prepared by the Melbourne and Metropolitan Tramways Board for the New South Wales Government on this proposal. The Australian Government's examination will also cover alternative means of providing this service. It may be worth while investigating whether electric buses or some similar vehicle should be used. New South Wales has come under fire recently regarding ferry services on Sydney Harbour. I share the view expressed by the Minister for Transport that out natural highways should be utilised to the maximum extent practicable and would not therefore wish to see Sydney's ferry services wither away; as has happened to so many public transport services. Honourable senators will observe that assistance has been approved to enable the New South Wales Government to acquire the 4 hydrofoil and 3 conventional ferries which provided the Manly services. The future of one of the conventional ferries, the South Steyne' which has been damaged by fire, is uncertain and these seems to be a prima facie case for concern at the level of services provided to Manly. The Minister for Transport is therefore arranging for officials of his Department to discuss the overall question of a future strategy for ferry operations on Sydney Harbour with New South Wales officials. Subsequent discussions might eventually extend beyond the immediate question of public transport to that of freight movements. This Government is not prepared to rely solely on the Urban Public Transport Assistance Scheme to upgrade public transport in our major cities. Complementary to the Urban Public Transport Assistance Scheme, the Government has initiated numerous activities which will all have a direct impact on the urban transport systems of our major cities. The Prime Minister **(Mr Whitlam)** has offered to construct, at no cost to New South Wales, a distinct railway system using the Australian urban passenger trainAUPT based on Parramatta and radiating to Hoxton Park, Castle Hill and through Carlingford to Epping. Agreement has not yet been reached but in anticipation of New South Wales accepting our offer $3. 5m has been provided in the Budget. On 13 September the Prime Minister wrote to the Premier of Victoria inviting him to consider the potential for a similar initiative in Melbourne. The Australian urban passenger train is being developed so that Australians can have the best public transport vehicles possible. The Government has been concerned that the trains being acquired in recent times are not a great advance, technically, or in terms of passenger comfort, on those they are replacing. For this reason the Government, in co-operation with the States, has set up a design team which is developing the Australian urban passenger train, which, with modifications, will be able to run on all State urban systems. We intend that the new train will incorporate the best in proven rail technology. For the traveller this simply means high standards of comfort, safety and reliability and an attractive alternative to the automobile. Good progress is being achieved with the AUPT. Stage 1 , a preliminary study on the possibilities of the AUPT has been successfully completed and stage II, the development of specifications for the train, has commenced. It is expected to have a prototype on the rails in 1 976. A mock-up of the train to gauge commuter reaction has met with most gratifying success. Some 80,000 persons visited the exhibit in Adelaide and 50,000 in Perth. In Melbourne each day about 10,000 people are inspecting the model. The purpose of exhibiting the display car in the various capital cities is to show people the different carriage layouts so that a market survey can be made to assess passenger preferences. We want the people to say what type of seating they want; whether or not they prefer air conditioning or natural ventilation; do they want more seats per train or more standing room. Public reactions will be taken into account in finalising designs. We have been gratified and encouraged by the reaction of the vast majority of visitors to date. This program also has another first in that train drivers and guards are being involved, through their unions, in the design of those compartments of the vehicle in which they must operate. At the request of the Australian Transport Advisory Council the Department of Transport is examining the feasibility of developing a standard urban passenger bus. A basic problem is the differing legislation and regulations which apply to bus construction and operation in each of the States. With a view to developing a standard specification the Minister for Transport hopes to arrange for a conference of government and private operators and unions to be held to attempt to rationalise the requirements of each jurisdiction. The activities I have listed indicate the sincerity of this Government's determination to contribute to the quality of life in our major urban centres by improving the quality, capacity, efficiency and frequency of public transport services. We are not content merely to assist the States with finances which are desperately needed but where necessary we are also prepared to undertake projects ourselves which have the potential to vastly improve urban transport systems. I commend the Bill to the Senate. Debate (on motion by **Senator Young)** adjourned. FAMILY LAW BILL 1974 [No. 2] In Committee Consideration resumed from 26 November. {: #subdebate-48-0-s2 .speaker-JTT} ##### Senator DAVIDSON:
South Australia **- Mr Chairman,** the Committee is looking at an amendment which, I suppose, in essence argues whether the separation period should be for one year or for 2 years. Honourable senators will be aware of paragraph 55 of the report ofthe Senate Standing Committee on Constitutional and Legal Affairs in which the Committee recognised that there may well be differences of views regarding the appropriate period of separation in proving irretrievable breakdown. The report states that a majority of members of the Committee believe that the period of 12 months separation which is proposed in the Bill should be required to establish irretrievable breakdown, but 2 members of the Committee, **Senator Durack** and **Senator Chaney,** dissent from this recommendation and believe that 12 months is an inadequate period. They propose a period of 2 years. The dissent which has been referred to is the basis for the amendment which is before the Committee of the Whole this afternoon. If we are favouring a no-fault basis for divorce, as I said during my speech at the second reading stage, this means that any divorce laws must, as far as possible and as often as possible, strengthen the institution of marriage, not allow marriage to be easily undertaken and, most of all, not allow divorce to be easily obtained. Therefore any legal processes to deal with a marriage that has broken down must be laws that influence people both before and after they enter marriage. The law that deals with a marriage that has broken down must promote a sense and an attitude of responsibility towards the whole institution and process of marriage and the establishment of marriage. Therefore in the context in which we are looking at the law now it must involve a period of time which reflects those attitudes and which provides for and encourages that degree of responsibility to which I have referred. It must also involve a period of time which on the one hand does not impose undue hardship, or what might be described as undue cruelty, but which on the other hand allows for a maximum of good factors to be undertaken and reconciliatory events to take place. Also, if I may refer again to my second reading speech, it must provide opportunity for such things as are described in the Subordinate Standard of the Presbyterian Church of Australia, which I mentioned in that speech, where reference is made to qualities of pardon, direction, promise, repentence and forgiveness. I do not think that 12 months is long enough for all these things to take place, for all these attitudes to develop and for these senses of responsibility to be realised. Various authorities have challenged me on this view. I have been challenged that if one persists in the view of having 2 years we will be amending the Act within a year. I have no doubt that we will be amending the Act and some people may have a revised view as to the period of time. It must be pointed out again that the Bill itself, and this clause in particular which is before the Committee, is all part of a move of vast changes in this important aspect of our national, social and community life. It is imperative, as we discuss and legislate for quite extraordinary and vast changes in an Act such as this, that we take the community with us. If it is argued that 12 months is adequate, that does not provide me with a satisfactory response because I am not satisfied that 12 months allows sufficient time to prove that a marriage has irretrievably broken down. I think we need to take sufficient time to distinguish between a simple separation on the one hand and an irretrievable breakdown on the other. If no guilt has to be proved we need to ensure that sufficient time has elapsed to prove that the breakdown has taken place and to take account of separations which may be enforced on people through circumstances beyond their control, maybe in the area of illness, maybe in the area of some kind of duty, detention or other absences, and of which, under some circumstances, maybe extreme circumstances, some improper advantage may be taken. I am fortified in the view which I have reached in relation to sustaining this amendment which is before the Committee by the communications sent to me, as they have been sent to all other honourable senators in relation to the Bill and this clause in particular, by a variety of community groups. I select only two, and they are from South Australia whence I come. One communication from the Hindmarsh area expresses concern that the period of 12 months is an insufficient period of time. The minister concerned writes that as Christian ministers he and others endeavour to make sure that young couples they marry realise that they are entering into a life contract and that this period of 12 months separation is not sufficient. The other communication is from the Marriage Preparation Course of the Archdiocese of Adelaide over the signature of the Director, the Rev. John F. Swan. He is concerned about this matter. Having studied the Bill and the report 'of the Senate Standing Committee on Constitutional and Legal Affairs, he said that he has some doubts about the one year separation. In his view it is not long enough to establish an irretrievable breakdown. He has some doubts because it may hasten attitudinal changes regarding the permanence of marriage. That final reference leads me to confirm my support for the amendment before the Committee because the most important reason, in my view, for sustaining the amendment is to meet the concern in the community regarding what the Director referred to in his letter as the attitude to marriage. If there is a fear that this attitude to marriage will change, a fear that the stability of marriage will be undermined, I think we have to give this far reaching and important legislation every chance not only to operate successfully and adequately but also, as I said at the beginning, the chance to take the community with it so that the community becomes persuaded as to the no-fault concept and the irretrievable breakdown concept. 1 think the 2 year period will allow all these attitudes to mature and I am certain that a 2 year period will allow the stability of marriage to be maintained. I hope the amendment is successful. {: #subdebate-48-0-s3 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP **- Mr Chairman,** the 12 months period is favoured by the majority of the Standing Committee on Constitutional and Legal Affairs and the relative committee of the Law Council of Australia. That period is favoured by the Australian Council of Marriage Guidance Organsiations, the people with the best knowledge of case histories of marriage breakdown. The latest public opinion poll shows that 60 per cent of the population favours nonfault divorce based on a separation period of 1 2 months or less. **Senator Davidson** said he thinks that we have to carry the community with us. If he supports the amendment he will be going against the expressed community attitude which is in line with what was expressed some 12 months ago except that I think that the number in favour of irretrievable breakdown, as evidenced by at least 12 months separation, has increased. Approximately half the divorces under the existing legislation, for adultery, cruelty and drunkenness, do not require any period of separation. It astonishes me, **Mr Chairman,** that some honourable senators come in here and say that 12 months separation is not sufficient yet they have raised no voice against the existing state of the law under which one can get a divorce on an isolated act of adultery. Not the slightest evidence has to be produced to the court that the marriage has broken down irretrievably. One single act of adultery is sufficient. It does not matter how much the party might express sorrow and state that he wants the marriage to go on, that it was a mistake. Those honourable senators are not concerned about this aspect. Apparently that state of the law is acceptable to some persons. I am not directing these remarks at **Senator Davidson.** The provision before us is that divorce will be granted only on irretrievable breakdown and the evidence required is at least 12 months separation. There is a provision, which should not be overlooked, that if the court is satisfied that there is a reasonable likelihood of resumption of cohabitation it shall not grant the dissolution. The period of 12 months separation was selected for the United States Uniform Marriage and Divorce Act as the criterion of irretrievable breakdown. That is one ground. The other is serious marital misconduct. Approximately 90 per cent of divorces at present are undefended and this appears to indicate that even under the present law both parties want a marriage which has broken down terminated as quickly as possible. {: .speaker-ME4} ##### Senator Baume: -- What was that figure again? {: .speaker-1L5} ##### Senator MURPHY: -- Ninety per cent. {: .speaker-JTT} ##### Senator Davidson: -- You are basing your argument almost on a fault concept. {: .speaker-1L5} ##### Senator MURPHY: -No. I am saying that when a marriage has really broken down, a period of 12 months separation and no reasonable prospect of a resumption of cohabitation is enough, in any plain person's terms, to establish irretrievable breakdown. If the honourable senator thinks that extending the period to 2 years will be advancing the matter, I think he is wrong. What it would do would be to return the law to the dreadful state in which perjury was committed daily in the courts. I think that anyone who is familiar with what happened when divorce was based on the failure to comply with a decree for restitution of conjugal rights would want to avoid a return to that state of affairs. Inevitably we would get it if the period were extended to something like 2 years. This would be just unreasonable and petitioners would be forced to perjure themselves as they did previously, and as they did to the knowledge of the legal profession and to the knowledge of the judiciary. The judges knew about it and condoned it. They knew that people had to get into the courts day after day and swear that they sincerely wanted their spouse to return, but everyone knew that in at least 90 per cent of the cases, and perhaps in 99 per cent of the cases, that was a lie; it was perjury being condoned by the legal profession and the judiciary. The same situation will arise if the period is extended to 2 years. Petitioners will be put in the position, in order to save themselves from the distress, the humiliation and the wreckage of their lives, of having to back-date periods. They will do all sorts of things which we do not want to be part of the operation of the law. The Archbishop of Canterbury 's committee - {: .speaker-8G4} ##### Senator Durack: -- Do you have any evidence that that is happening with the 5-year ground of separation? {: .speaker-1L5} ##### Senator MURPHY: -- No, I have not. I am assisted by one of my advisers who tells me that he had such a case in his office today. The aim should be to fix a period which is not so short that it might undermine the stability of marriage but not so long that the parties would not be prepared to wait. Professor Hahlo said that the time required must be sufficiently long to give the spouses a reasonable chance to be reconciled, but it must not be longer. If it is, the separation ground has to be supplemented with a short-cut divorce on the ground of matrimonial offence or fault. In 1967 the Scottish Law Reform Commission said that it is not practicable to make separation for a period the unique ground of divorce unless the period is a short one. To take a large slice out of a person's life by withholding a divorce from him or her after all hope of reconciliation has vanished can only be explained by a conscious or sub-conscious desire to punish the person for seeking a divorce. Marriage counsellors have said that 6 months is normally sufficient to determine whether there is any hope of reconciliation. I referred earlier to Professor Hahlo. He said in his report on divorce reform to the Canadian Law Reform Commission in March 1974: >The only clean solution, in my view, is the one contained in the new Australian Bill, where separation Tor one year is made the only way to establish marriage breakdown- I accordingly so recommend. I would suggest that the proposal contained in the Bill is in accordance with the wishes of the Australian people. It is a workable solution to a very difficult problem. Much as I understand the motives of those who support the longer period, I implore the Senate not to render the Bill really worse than the existing state of the law, which I believe would happen if the amendment were accepted. {: #subdebate-48-0-s4 .speaker-KUU} ##### Senator MISSEN:
Victoria -- I join with the Attorney-General **(Senator Murphy)** in urging the Senate to reject this amendment. It is a very important amendment. It is one which I think will destroy most of the benefits of this Bill and which will reverse the progress which has been made if it is in fact adopted. As one of the majority of the Committee who supported this recommendation in the Committee's report, I now feel more strongly than ever that it is a wise and desirable thing that one year should be chosen as the period. **Senator Davidson** made two or three points which I think should be answered. He suggestedI agree with him- that the law must promote a sense of responsibility in marriage. The Family Law Bill is not the only place in which that should be done because the Marriage Act is also a greatly responsible aspect in that respect. When we consider amendments to that Act no doubt that point should be in the forefront of our minds. **Senator Davidson** also pointed out that not only is a sense of responsibility necessarythe Bill goes a long way towards that end- but also we must not impose an undue hardship on those persons who come before the courts to obtain a divorce. The period which should be chosen as proof of irretrievable breakdown is a matter of judgment. **Senator Davidson** says that 12 months is not enough. He illustrates- in this I am afraid he shows that he does not quite understand the concept of separation- that illness or duty may take a person away. Separation has been defined for many years. It is a matter which has been considered by the courts. To separate and live apart means that there must be a conscious decision, lt means that something must be done. It is not sufficient to say that it is merely an absence due to no deliberate act. Therefore we must come to the conclusion that this one year period is a year of deliberate separation which will be shown to have taken place. {: .speaker-8G4} ##### Senator Durack: -- If that is the case, how will you get on in cases of insanity and so on? {: .speaker-KUU} ##### Senator MISSEN: -- The separation by the party who is applying for a divorce will have to be established to the satisfaction of the court. The party concerned will have to establish that he or she intends to live apart from the person to whom he or she is married and who is insane. {: .speaker-5U4} ##### Senator James McClelland:
NEW SOUTH WALES · ALP **- Senator Durack,** how does the 2-year period solve the problem? {: .speaker-KUU} ##### Senator MISSEN: -- That is a further point, of course; 2 years makes no difference whatever in this regard. In fact, it probably makes the position worse. I want to turn to what **Senator Durack** said in relation to this matter. Last evening he made some points in support of his case for a 2-year period. In the first place, he made the point that there is a great deal of evidence from experts in this field who have found in their experience that people going through the turmoil of marriage breakdown may well be separated for a period longer than 12 months but are ultimately reconciled. From my reading of what the experts have been saying to us, there is not very much evidence of that, and it certainly has not been my professional experience over many years that many people are reconciled after they have been separated for a period of 12 months. I think that such cases are rare, and if we are to act upon that rarity for the purpose of making the period 2 years we will be doing a great deal of injustice to those people- it would be something like half the present petitioners- who will have to give up an opportunity of an immediate ground for relief. {: .speaker-5U4} ##### Senator James McClelland:
NEW SOUTH WALES · ALP -- The rare cases can remarry. {: .speaker-KUU} ##### Senator MISSEN: -- The rare cases will overwhelm half the cases in this community. **Senator Durack,** who is noted for his fairness, said this in justification for his case: >That is why I have brought forward this amendment for the period of separation to bc 2 years. I can conceive that maybe that is going a little too far, but I just have the feeling that 12 months is too short a period of time, lt does seem to be unrealistic to talk about any period between 12 months and 2 years and that is why I have settled on 2 years. I would suggest that even in **Senator Durack** 's mind there is a great deal of obscurity and doubt about this matter. As a matter of judgment he has chosen 2 years. As a matter of judgment I go for' one year as being a desirable period. In addition to the various experts referred to by the Attorney-General who have said that they believe that one year is sufficient, let me refer to a statement appearing in the Melbourne 'Herald' of 22 November of this year from the Reverend Bruce Reddrop who is and has been since 1961 the Director of the Church of England Marriage Guidance Council in Melbourne. He, like many other religious leaders and marriage guidance people, has expressed his views favourably on this Bill. {: .speaker-JZQ} ##### Senator Sir Kenneth Anderson: -- I will remind you about the religious leaders in a few minutes. {: .speaker-KUU} ##### Senator MISSEN: -- An impression has been given abroad that religious leaders are mostly against this Bill, whereas if we leave out the city of Sydney my experience as a member of this Senate is that throughout the rest of the country they are overwhelmingly in support of the general principles of the Bill. In this newspaper article Reverend Bruce Reddrop says: >I see the Family Law Bill as sound, imaginative legislation which fills a long-felt need. In referring particularly to the 12 months' period, he says this: >The 12 months' separation envisaged by the Bill is. I believe, an accurate indication that the marriage has broken down. No doubt there arc cases where marriages have been resumed after a year or more of separation, but I believe they are very few. That is the experience of a man who has directed the operations of that organisation for the last 16 years. I believe it is accurate and true. I do not propose to repeat the arguments which I raised in my speech in the second reading debate on this Bill. There are arguments of fairness to petitioners referred to by the Attorney-General. There are arguments in favour of the Family Court now envisaged in this Bill. It will be a helping court, an involved court, as distinct from the past where there has been no involvement until one came to the judgment of the court after perhaps *2lA* or 3 years. Therefore the situation is quite different. Of course, the second year, as I have said, is the one in which far from there being much prospect of reconciliation trouble breaks out and permanent harm is done to the relationship within families. More than 60 per cent of people, as illustrated by the Morgan poll, believe that the period of separation should be one year or less. We must remember that most of those who voted in this poll plumped for less than one year. But when a poll was taken of those who wanted a period of separation of 2 years the vote over Australia was 3.7 per cent and in Western Australia, from which this amendment proceeds, it was 2 per cent. Are we to impose the opinions- and I believe the figures to be accurate- of 2, 3 or 4 per cent of people on 60 per cent of the community who I really believe recognise that one year of separation is a fair amount. I support the original Bill and oppose the amendment. {: #subdebate-48-0-s5 .speaker-4F4} ##### Senator BUTTON:
Victoria -I support the recommendation for a period of 12 months' separation. As **Senator Missen** has said, it is a matter of judgment for each of us. In a sense my judgment has been determined by the report of the Senate Standing Committee on Constitutional and Legal Affairs of which I was a member. I want to say something about **Senator Durack** 's amendment and the context in which it was put. To be fair to him, what he really said was that in this Family Law Bill we have some proposals which in one context he described as revolutionary and in another as far reaching, and I agree with him. He then went on to say that having made those sorts of changes, having introduced a ground of irretrievable breakdown, we should perhaps retreat slightly from that position, and that when we look at the period for which separation must be established we should make it 2 years instead of one year because we may have gone a bit far in establishing the new ground of irretrievable breakdown. What I am really putting to the Senate is that the sort of criteria which **Senator Durack** put forward in support of his proposal for 2 years are not logically valid. The period of time is a matter of judgment and is quite independent of the ground of irretrievable breakdown, the establishment of that ground and a number of other factors which are new and have been described as revolutionary in this legislation. I agree with **Senator Missen** when he says that the relevant period must be looked at in the light of other proposals made in the Bill- for example, the almost instant availability of counselling facilities and the whole structure of the Family Court. I also remind honourable senators that it is not compulsory, as some have almost suggested by implication, to seek a divorce after 12 months separation. With the amendment to clause 26 (2) a party cannot proceed with a divorce until that ground of 12 months separation has been established, which means that it will probably be 18 months or so before a divorce is granted. It has been said by **Senator Missen** and me that this is a matter of personal judgment. One factor which has strongly influenced me in exercising my judgment in favour of a 12-month period is simply that we are dealing with a situation of marital breakdown in which 2 parties are involved and in which frequently children also are involved. I think it is most desirable that we do everything that we can, even though the formal structure of a marriage has gone, to ensure that as far as possible there is an on-going relationship between those 2 people as human beings and that we should do nothing in this legislation which is likely in any way to disrupt and fracture the possibility of some permanent on-going relationship between the parties, particularly where children are involved. It seems to me very strongly that if there is added to the established period of 12 months separation another period of 6 months, 12 months or whatever one likes, it is in that extra period that most likely there will develop between the parties friction and tension which are adverse to any relationship which they might have though divorced and, more particularly, adverse to the future of the children of that marriage. That is to say, if we prolong a situation in limbo too much we will very adversely affect the possibility, of a viable situation developing between that father and that mother if there are children or between that husband and that wife if it is a marriage without children. For that reason I strongly support the 12 months ground, not because we are dealing just with the formal structure of a dissolution of marriage but because in a much more profound sense we are dealing with human relationships and the viability of human relationships whether in marriage or outside marriage. {: #subdebate-48-0-s6 .speaker-ME4} ##### Senator BAUME:
New South Wales -- I intervene at this stage to seek some clarification from the Attorney-General or from some member of the Committee on Constitutional and Legal Affairs. The amendment before this Committee concerns the period of separation required as proof of irretrievable breakdown. {: .speaker-1L5} ##### Senator Murphy: -- Yes. {: .speaker-ME4} ##### Senator BAUME: -- In the transcript of evidence which I referred to last night there were several references to the difficulty of establishing separation for some people. I seem to remember **Senator Everett** at one stage in the evidence asking questions of a **Mr Barblett** who was giving evidence to the Committee. **Senator Everett** was proposing that it would be or could be sometimes impossible to prove separation. I am very concerned that we might be introducing a Bill under which it would be impossible for a few people, only a small percentage, to establish grounds for dissolution of marriage. I remember that during the second reading debate it was pointed out that separation did not always have to be physical but I also remember that **Senator Everett** expressed the view that it might be impossible sometimes for separation to be proved. I ask for the advice of the Attorney-General. Can we be certain that everyone will be able to prove separation where a marriage has broken down? {: #subdebate-48-0-s7 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- I suppose that whatever criterion you put in the Bill there might be some difficulty in a particular case. We will get to a border line whatever we put in. References have been made, for example, to consent. Although that might seem to be a very simple concept, in fact it has proved to be difficult in some cases in its application to ascertain whether there has been true consent. Yet one would have thought there would not have been that much difficulty over that. Of course, if it is legally ascertained that the parties have not separated, the ground is not established. Whatever the ground might be it will have to be established. It is said that there may be some people who, on a proper interpretation of 'separation', notwithstanding the extended meaning that has been given to separation' by the decisions of courts and which is applicable under this legislation, may not come within that criterion. Let us face that problem squarely. Suppose they do not. Say we have a situation where the circumstances have been very difficult and someone has had to put up with an awful lot but the parties, in contemplation of the law, simply have not separated. The ground would not be established. It is as simple as that. There is no suggestion here that anyone who feels that he or she is entitled to a divorce can simply go along and say: 'Give me a divorce'. A 12 months separation period has to be established in its proper interpretation to the court's satisfaction. In almost all cases we imagine there would not be very much difficulty about establishing that ground. There may be some difficult cases where the parties are living in the same household. The honourable senator puts to me that there may be some cases where the party cannot establish separation for the 12 months; that is possible. But there may be a remedy in the hands of the party. The party can take certain steps. There are injunction procedures. If the marriage has irretrievably broken down the party may be able to take steps to change the circumstances. {: .speaker-5U4} ##### Senator James McClelland:
NEW SOUTH WALES · ALP -- Today there is difficulty in establishing adultery. {: .speaker-1L5} ##### Senator MURPHY: -- As **Senator James** McClelland interposes, there may be in relation to almost any one of the grounds some cases where a party might find some difficulty in establishing the ground. That is something that is inherent in the operation of our law. No matter what ground is prescribed there might be some difficulty in establishing it. It is suggested that this could be overcome by introducing some kind of other ground. I think that the disadvantages of that would far outweigh any advantages. If a person really feels that a marriage has irretrievably broken down I think the course will be to see to it that there is a separation. I think that what is being imagined will not prove to be a real difficulty to the persons who are caught up in the situation. I must concede, and there is no escape from the fact, that whatever ground is put in some people might find, in cases with some kind of special circumstances, difficulty in establishing the ground. I do not think that there is any great problem here. In fact, I think the virtually universal opinion is that we are selecting a ground which is free of the fault concept and which is more free than any other ground would be if the difficulties envisaged occurred. **Senator Sir KENNETH** ANDERSON (New South Wales) (4.37)- As the Committee is aware I moved an amendment to clause 26. The amendment envisaged a separation period of 3 years. Other matters were also mentioned in my amendment. The amendment moved by **Senator Durack** provides for a separation period of 2 years. This is in contradistinction to the Bill which provides for a one-year period. Naturally I will cast my vote in the Committee for the 2-year period. I feel bound to say that the AttorneyGeneral in speaking this afternoon against the amendment, rather jarred my susceptibilities. He put forward argument for a one-year period. First of all, he cited the legal profession as the authority for a one-year period for separation. I feel bound to say that the testimony he brought forward was from people associated with the legalisms of the dissolution of marriage. I thought the Attorney-General made a very gratuitous criticism of the legal profession and of the judiciary, to put it in gentle terms, when he said that they acknowledged and had regard to the fact that in 99 per cent of the cases- **Senator Murphy** used these words- perjury was being committed. {: .speaker-1L5} ##### Senator Murphy: -- I was thinking back to a particular ground; that of the non-compliance with the decree of restitution. {: .speaker-JZQ} ##### Senator Sir KENNETH ANDERSON: -- I know. But you brought the testimony of the legal profession in favour of the one-year separation. Then, of course, the Attorney-General referred to the American scene. Out of his own mouth he cited an example which showed that the American concept had a fault provision in it. {: .speaker-1L5} ##### Senator Murphy: -- That is not quite right. I went on to quote the Australian Council of Marriage Guidance Organisations. {: .speaker-JZQ} ##### Senator Sir KENNETH ANDERSON: -- I know. On the one hand the Attorney-General says that the period of separation should be one year because that is what the legal people say. On the other hand he gave the legal people a very definite backhander. This will be seen from reading Hansard. The legal profession is comprised of people who are associated with the dissolution of marriage. In 1972 87.1 per cent of marriages were celebrated in religious gatherings. **Senator Missen** dismissed this because it related only to New South Wales. But leaders of religious organisations in New South Wales, including His Eminence the Cardinal of the Roman Catholic Church, the senior archbishop ofthe Church of England and representatives of the Methodist Church, as well as some members ofthe legal profession, say that the period should be 3 years. If **Senator Murphy** relies on the authority of the legal profession which is associated with the dissolution of marriage I put forward the testimony of the religious leaders of New South Wales who say the period should be not one year but 3 years. One other aspect concerns me. I have said that I will vote for the period of 2 years separation because the amendment to make the period 3 years has been defeated. It is well to look at clause 26 (2) which states: . . iiic co url is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months - Clause 29 states that the separation does not have to be for a continuous period of 12 months. **Senator Durack,** to his credit, when speaking to his amendment pointed out that there could be a break and a separation period would be only 3 months. It is not a question of the separation being continuous as is stated in clause 26. The parties, in fact, may have a break in the separation in the 12 months period as outlined in clause 29. {: .speaker-1L5} ##### Senator Murphy: -- It has to be a total of 12 months. {: .speaker-JZQ} ##### Senator Sir KENNETH ANDERSON: -Yes, that is right. As the proceedings of the Committee are being broadcast, as this is a very complex Bill and as about 23,000 people have asked for its deferment so that they might understand it, it is desirable to point out that the separation does not have to be for a continuous period of 12 months, as is stated in clause 26, but has to be for a total of 12 months. That surely is another reason why the period of separation should be 2 years and not 12 months. It is of no use to give examples of the American scene. The Bill does not provide for no-fault divorce at all. When we talk in terms of the people who will stand up to testify for what they want I put the leaders of the religious community of New South Wales, who favour the 2-year period, ahead of the legal people, to whom the Attorney-General referred, who favour a period of, in fact, less than 12 months. {: #subdebate-48-0-s8 .speaker-EF4} ##### Senator CHANEY:
Western Australia -- As a co-sponsor of the proposal put forward by **Senator Durack** I should like to take a little of the Committee's time. The reasons which I had for supporting the proposal I set out in my speech on the second reading stage of the Bill. I shall try not to canvass the same ground. I agree with those honourable senators who have spoken and who have suggested that this is a matter of subjective judgment. In fact that is a comment I made in my speech at the second reading stage. It appears to me that the subjective judgment which is being made by proponents of the oneyear period is a bolder judgment than the one which is being made by those of us who believe that that period is not adequate. What is being put forward is that a 12-month period of separation is adequate proof that a marriage has irretrievably broken down. If I may give a completely subjective view on the matter, my belief is that there would be marriages where a separation for up to 12 months would occur and in fact there was not irretrievable breakdown. When one takes into account the provisions of clause 29, which have just been referred to by **Senator Sir Kenneth** Anderson, then I would say that if the period of 12 months is accepted there would be occasions when a marriage with some hope for reconciliation might be brought to an end. So since there are doubts in my mind, I find it necessary to support this amendment. I am fortified by the fact that other people in the community have expressed the same view. I was very encouraged one day when I got 72 letters all of which expressed that view or a view I think in favour of mine but unfortunately I got them all on the one day and nothing subsequently so I suspect they did not show any - {: .speaker-K1F} ##### Senator Poyser: -- They were organised. {: .speaker-EF4} ##### Senator CHANEY: -- Well, they were not as much help to me as perhaps more sporadic correspondence might have been. I should like to refer to some considered opinions that were made available to honourable senators prior to this debate coming on. I refer to an address given by the Rev. Alan Walker in Sydney on 20 October in which he expressed a number of reservations on the Bill. He said: {: type="i" start="1"} 0. . the period of one year of separation is not long enough. The former Act prescribed live years of separation which is too long. He went on to say: >Therefore the period of effective separation should be extended to two years. The Rev. Alan Walker is a clergyman not of my faith but he is a man who, I understand, has always shown an active interest in social issues and his opinion is worth some consideration. 1 was further fortified by the views of the Bishop of Wangaratta, the Right Reverend K. Rayner, who 1 understand is an Anglican bishop. He wrote in terms which were generally complimentary of the Bill on my reading of his letter. He said in a letter which was addressed to the Attorney-General- he forwarded a copy to the Leader of the Opposition, **Mr Snedden-** in the third paragraph: >I would myself accept the irretrievable break-down of marriage as the basis for divorce legislation, but I am not convinced that the mere fact of twelve months separation in itself is sufficient evidence that a marriage has irretrievably broken down. He went on in that letter to support the proposal of the minority, namely **Senator Durack** and myself, to increase the period of separation to 2 years. Another Anglican view put forward to the Standing Committee was that of the Archbishop of Melbourne, the Primate of the Church of England in Australia, Frank Woods. In his submission to the Committee he said: . . I think nearly all Anglicans would agree wilh the tenor of the English Report called 'Putting Asunder', which believes thai State Courts should be no more than formal inquiries as to whether a marriage has irretrievably broken down or nol. In this connection T fmd that many Anglicans have difficulty in accepting that twelve months is an adequate period of separation other than in cases of total abandonment. Those admittedly subjective views which fit in with my own have encouraged me to support this amendment. I would suggest that since 2 years has been the period of separation required in desertion cases to date- and that ground, I think, is one which has been considerably availed of lately- if we do introduce a period of 2 years we can do so confident that we are not introducing some really radical change which might have the sort of effects which have been dreaded by some of the honourable senators who have been opposed to this Bill. I refer very briefly to the results of polls that both the Attorney-General and **Senator Missen** have mentioned. I have only the detailed figures for the poll which was taken last year and which similarly showed considerable support for allowing divorce after a separation of 12 months. I draw the attention of the Committee to the fact that the question asked in that poll- I am specifically referring to last year's poll- was not really relevant to clause 26 because the question was phrased as follows: 'If a husband and wife tell the court their marriage has broken down, should a divorce be granted or not?' The question presupposes that the parties are in agreement that the marriage has broken down. 1 would suggest that the results of that poll are more relevant to the amendment which has been put forward by **Senator Baume** and which has yet to be considered by the Senate because what those figures show is that in a consensual situation where the husband and wife agree that the marriage has broken down - {: .speaker-KUU} ##### Senator Missen: -- It would not be a question of a consensus, surely. {: .speaker-EF4} ##### Senator CHANEY: -- It requires both the husband and wife to tell the court that the marriage has broken down. That is what the question specifically says. In my view that poll is of no great assistance in a -discussion on the ground which one party alone may bring forward over the objections of the other party. My support is for a period of separation for 2 years. I would suggest to the Committee that we cannot be certain that the period of one year is an adequate period to show irretrievable breakdown. The fact of the matter is that for any number of reasons a marriage may go through a period of stress and that period of stress may be considerable. I think that in the consideration of this clause we ought to give marriages benefit of the doubt. {: #subdebate-48-0-s9 .speaker-JYN} ##### Senator EVERETT:
Tasmania -I am prompted to speak very briefly in this debate because earlier today **Senator Baume** referred to some questions which as a member of the Senate Standing Committee on Constitutional and Legal Affairs I had asked during the course of the Committee's investigation of this matter. I believe that he also referred to paragraph 59 ofthe report of the Committee, the first sentence of which reads: >The Committee gave deep consideration to the question of whether or not an alternative mode of proof of irretrievable breakdown should be included in Clause 26 to cover cases in which, for example, a wife is subject to intolerable conduct, but because of practical considerations is unable to establish an actual state of separation. My recollection is that the Standing Committee began its consideration of this matter, which it said in its report became deep consideration, because one of the members of the Committee suggested that there could be a small percentage of cases in which, because of practical considerations, it was impossible for, let us say, a wife or it may be a husband to prove ultimately to a court that a state of actual separation in the legal sense had occurred. It was at first thought, I think by all members of the Committee, that in those circumstances it might be desirable to include an alternative mode of proof of irretrievable breakdown. But the more the Committee considered this matter the more convinced it became that clause 90 of the Bill took care of the particular circumstances which at first had given rise to this situation. The terms of clause 90 are wide and will be even wider under the terms of an amendment to be proposed by the Attorney-General. Bearing in mind the fact that the situation which had given rise to the Committee's consideration would have to come within the clear words of clause 90 in respect of either an order or an injunction, the Committee, as its report says, ultimately came to the conclusion that it was not necessary to include any alternative mode of proof of irretrievable breakdown. 1 make that explanation in view of the fact that **Senator Baume,** as I have said, referred to questions I asked during the Committee's investigations. I hope that explains to him why paragraph 59 of the Committee's report is couched in the terms in which it is. Having addressed my mind to that matter I feel that as a member of the Committee I should briefly state the reasons why I came to the view that 12 months was an appropriate period. The fact is that the Committee of the Whole by its vote last night adopted the legislative principle that dissolution of marriage should be only on proof of irretrievable breakdown. The matter that the Committee is now debating is simply the period which is appropriate. It would be idle to suggest that this is not a matter on which there can be room for honest differences of opinion between individuals. But this Committee has the responsibility of determining in the public interest- I emphasise the words 'in the public interest'- and not on the basis of any sectional view one way or the other what is an appropriate period, bearing in mind the fact that obviously it has to be an arbitrary period. I think some of the earlier speakers may have overlooked the fact that if the proposals of the Attorney-General are agreed to by the Committee and the Senate the law will not be a virtual automatic divorce at the end of 12 months, because a period of at least 12 months must elapse before any application for dissolution can bc filed. It by no means follows that within a very short time after than there will necessarily be a dissolution. The bars to that happening are several. Firstly, sub-clause (3) of clause 26 provides that the court shall not make a decree if it is satisfied that there is a reasonable likelihood of cohabitation being resumed. The court is forbidden to make a decree if the evidence before it satisfies it that there is a reasonable likelihoodnot by any means a certainty or a probability- of cohabitation being resumed. One would expect that, bearing in mind the duties of the court as they are set out in new clause 21 A, the court would err on the side of safety in exercising that jurisdiction. That is the first point I make. {: .speaker-KMX} ##### Senator Greenwood: -- There would not have to be any material put before the court in regard to that ground, would there? They would simply say in their petition that there is no likelihood of cohabitation being resumed. {: .speaker-JYN} ##### Senator EVERETT: -The petition will not be a joint one; the petition will be by one party. It may well be that the other party asserts facts that satisfy the court that there is a reasonable likelihood of cohabitation being resumed. Maybe it is unlikely, but the matter is for the court. It will not make this decision in vacuo. It will make it on the material placed before it. The second point is that under a subsequent clause of the Bill- clause 42- it is provided that a decree nisi cannot become absolute unless the court is satisfied in relation to the children in the terms of clause 42. Further- this is the result of the recommendation of the Senate Standing Committee on Constitutional and Legal Affairs -if the court is in doubt as to whether proper arrangments have been made in relation to the children, it may adjourn the proceedings until a report regarding those arrangements has been obtained from a welfare officer. Then, of course, there is the question of the normal delays in the hearing of these matters. The main point which influenced me was that as a member ofthe Senate Standing Committee I conceived it my duty to inquire from as many persons as possible who had had experience with the practical aspect of this matter- namely, members of the legal profession, members of marriage guidance counselling organisations and members of the church- how many cases there had been within their experience, expressed on a percentage basis, in which there had been separation in the true legal sense for more than 12 months and in which reconciliation had occurred. The answer accords very much with what **Senator Missen** attributed to a Victorian church leader earlier today. The answer is that they are very rare indeed. If the true criterion, as I submit it is, is what in the public interest is the appropriate period, bearing in mind that it must be arbitrary, one has to set alongside the potential interest of a rare number of cases the much more numerous number of cases in which there is no hope of reconciliation. That has been proved over many years by persons experienced in all fields who come into contact with these situations. Perhaps I should have added when I was speaking earlier that it by no means follows that simply because an application for dissolution under this legislation is filed there will be a decree because, as has been recognised by all members of the Committee, this Bill contains realistic provisions aimed at effecting reconciliations in appropriate cases. So it could well be that after a 12 months period has elapsed and an application for dissolution is filed, the counselling procedures of the Family Court would ensure that a reconciliation did take place, and if it did take place in some cases that would be all to the good. I simply wish to say that, in determining in my own mind what from the public interest point of view was the appropriate period, I weighed the interests of the rare number of cases- I think that that is not an exaggeration- in which there was after a 12 months period a subsequent reconciliation with the overwhelming majority of cases in which there was not a subsequent reconciliation. For obvious reasons, looking at it numerically, the public interest lies with the latter group. 1 ask myself the question: What would be the disadvantages to that overwhelmingly predominating group if the period were extended beyond 12 months? It would seem to me that in some cases there would be further opportunity for recriminations and for difficulties to arise, especially in relation to children; that the general moral public interest would not be enhanced by a longer period of the parties being legally married but being de facto not married; and that when one looked at the balance of public interest and public convenience then, admittedly in an arbitrary situation, a period of 12 months was an appropriate period. No one could really say that the period was too short, and I do not think that anyone could say realistically that the period was too long. It would be the appropriate period for this Committee to determine in relation to a matter which the Committee has already decided, namely, irretrievable breakdown. {: #subdebate-48-0-s10 .speaker-C7D} ##### Senator GUILFOYLE:
Victoria -- I was interested in **Senator Everett's** reference to clause 26 (3) which states: >A decree of dissolution of marriage shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed. I have been reading sub-clauses (1) and (2) of clause 26, and I should like the AttorneyGeneral to comment for me on the way in which these sub-clauses will function. I should like to know what will be the function of the judiciary in relation to petitions for dissolution of marriage that will be made under sub-clauses ( 1 ) and (2) of clause 26, and how we are to relate them to sub-clause (3) of clause 26 to which **Senator Everett** has referred. I should like to know whether the function of the judiciary will be to weigh the facts presented by the 2 parties involved in regard to the establishment of irretrievable breakdown, and how the judiciary will determine this when it is related to the way in which the Bill is drafted. We have been given to understand by many speakers that there is this sole ground of irretrievable breakdown for a period of 12 months, with a further period of 3 months which is established under another clause. I should like a comment from the Attorney-General as to the function of the judiciary in these circumstances, and particularly I should like him to relate that to clause 26 (3) which, as I said, has been discussed this afternoon by **Senator Everett.** I find myself in some conflict as to how these provisions will be implemented in the practical sense, and I should like some clarification from the AttorneyGeneral. {: #subdebate-48-0-s11 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- As happens now, in many cases the marriage has broken down, and all that the parties want is to have the marriage decently buried and to get on with their own affairs either singly or together with another party in another marriage. I think that what would happen with the great majority of the cases would be that one party would file for a divorce after a 12 months separation and would prove the separation. No evidence would be put before the court to suggest that there was any reasonable likelihood of resumption of cohabitation, and the court would grant the decree. Unless there were something put before the court to indicate that there was some likelihood of resumption of cohabitation, such as the respondent putting some material before the court or perhaps a legal practitioner or the party who was applying saying 'I am not too sure whether I want to go on with it', or something like that which would raise the question for inquiry by the court, in the ordinary case the court would be satisfied that there was the irretrievable breakdown because the 12 months separation had been proven and there was no evidence of any likelihood of resumption of cohabitation. The simple fact is that that would be the result in the overwhelming number of cases because that is what the parties would want. They would not want to resume cohabitation after they had been apart for 12 months. There might be the rare case where the question would arise and, in that case, the positive obligation is there for the court not to grant the decree if it is satisfied that there is a reasonable likelihood of cohabitation being resumed. The matter would be inquired into and if the court thought that there was some reasonable likelihood it would not grant the decree. {: #subdebate-48-0-s12 .speaker-C7D} ##### Senator GUILFOYLE:
Victoria -- I want to refer to something that was said earlier this afternoon along the same lines, I think by **Senator Baume.** Are we in a situation now where it could be extremely difficult or even impossible for parties to prove irretrievable breakdown of marriage, taking into account clause 26 (1), (2) and (3)? {: #subdebate-48-0-s13 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- It is nice to see the wheel turn right around from where it was alleged that the Bill would provide quick and easy divorce and would destroy marriage to where it is now suggested that we are making it impossible for anyone to get a divorce. I think that that is not the result of the Bill and that in the vast majority of cases there will be no question arising, except that the party wants the divorce, the 12 months separation has been proven, and there is no suggestion of any resumption of cohabitation. There would be no problems at all. There are all the provisions about counselling and reconciliation and so forth which I will not go into, but if there is a case where the party cannot prove the ground, that is, the 12 months separation ground which the Committee went through before, or where the court is satisfied that there is a reasonable likelihood of resumption of cohabitation, then of course the parties would not get the divorce. There is no escape from that, but if the honourable senator is suggesting that this Bill is going to prevent people somehow from getting a divorce and they will be imprisoned in marriage, that is contrary to the effect ofthe Bill. {: #subdebate-48-0-s14 .speaker-8G4} ##### Senator DURACK:
Western Australia -- There does not appear to be any other speaker to my amendment and, although I do not want to delay the vote, 1 should like to say a few words in answer to some of the arguments that have been advanced. First of all, **Senator Murphy** strongly opposed the proposition that the period of separation should be 2 years instead of one year, suggesting that the change would encourage fraud on the part of many parties. In other words, people who had not been separated for 2 years but who badly wanted a divorce and who did not wish to wait for that period of 2 years would put up a fraudulent case by stating that they had been separated for 2 years, backdating the time when the separation began. I asked **Senator Murphy** whether he had any evidence of that occurring in relation to the present 5 year separation period, because I should have thought that under our present law parties might have been much more tempted to put forward a fraudulent case if they had to wait for 5 years instead of for only 2 years. He hesitated considerably, because he obviously did not have any evidence himself of that, but then he said that one of his legal advisers had said that he had one case. {: .speaker-1L5} ##### Senator Murphy: -- No, he had had one today. {: .speaker-8G4} ##### Senator DURACK: -- That must be about the first one that has occurred, and the Act has been in operation since 1960. He is an adviser who has had very great experience in this matter over many years and I should have thought that if there had been many of them he would have said more than one. However, the fact of the matter is that we have not heard of this type of thing happening extensively under the present law. Admittedly, in the situation **Senator Murphy** mentioned of the old application for restitution of conjugal rights which seemed to be a feature of the New South Wales law for many years- in the more enlightened States it had been abandoned long before the Matrimonial Causes Act 1959- that law recognised that that did happen. But we are talking about a completely different situation and I have never heard it said that there has been any extensive misuse of the ground of 5 years separation by parties claiming fraudulent periods of separation. Certainly in my own experience where parties were going ahead on that ground it was necessary to deal with the circumstances of the separation. There was very often an order of the court which established the commencement of the period of the separation or there was a separation deed. In cases of separation there is very often clear objective proof of when the separation period began. I should think that there is really very little likelihood of parties being able to abuse this provision and put up a fraudulent case. Of course, there are always going to be some such cases, whatever the law happens to be. I imagine that there would be some even if the ground of separation were one year. There would be some parties who would act in a fraudulent manner and sometimes they would get away with it. These are just things that have got to be accepted, but I think it is a weak argument to say that there is more likelihood of fraud if the ground is 2 years separation than there is if it is one year. The only other argument that has been advanced against my proposition with which I want to deal relates to the opinion polls about which some honourable senators have spoken. The Morgan gallup poll I think has been referred to and some doubt has been thrown by **Senator Chaney** on the value of the question asked. I do not want to argue whether the question was right or wrong but 1 do question whether it is of any relevance or whether we in this Senate should place any weight on what some opinion polls say on a matter such as this where we are exercising our own responsibility and our own judgment. I hope that no honourable senator in this chamber is going to be influenced on such a fundamentally important issue as this by something he has read in the newspaper about a gallup poll result. To sum up briefly my own view in relation to this amendment, I do not want to argue particularly whether separation of one year is enough to prove that a marriage has broken down. In many cases it may well be enough, but I have some doubt of whether that is so in all cases. Therefore, acting on the basis of caution, I should prefer to see a longer period. Provision is made in the Bill for very much more adequate counselling services. In fact, the Bill provides for not just more adequate counselling services but for an entirely new concept of counselling for parties whose marriages have broken down. It is a really new and most exciting concept and, in my judgment, it is the greatest aspect of this Bill. I believe that we might see some" very major changes resulting in relation to marriage breakdown. We might well find that there will be very much more success in effecting reconciliations than we have known in the past, and therefore it might well be that people will be able to be reconciled over longer periods of time. Therefore, as I said, it might well be that 12 months will not be sufficient. 1 come back to my major point and my major argument in relation to this amendment. We have said- everybody says- that the purpose of a good divorce law is to buttress a marriage. I believe that we have to have a divorce law which does not make it easy to get a divorce. Nobody believes in divorce by consent. Nobody believes in divorce after 3 months or some unrealistic period of separation. We have to have a divorce law which makes people think both before they enter into a marriage and, probably more importantly, before the marriage into which they have entered and which is perhaps starting to come apart has broken down. When he gave evidence -some time ago now- **Mr Justice** Selby, who was the first witness to appear before the Senate Standing Committee on Constitutional and Legal Affairs, stressed the point that people really must be encouraged to work at their marriages. I do not believe that there is any man in Australia who has had more experience than he in administering the law on this subject. The point he stressed is the whole reason why we have a divorce law which places impediments upon people getting an easy divorce. It is on that basis- not that basis alone, but that basis is certainly my major argument in support of my amendment- that I have proposed that the period of separation should be 2 years instead of one year. Question put: >Thai the amendment **(Senator Durack's)** be agreed to. The Committee divided. (The Chairman- Senator J. J. Webster) AYES: 23 NOES: 34 Majority....... 11 AYES NOES Question so resolved in the negative. {: #subdebate-48-0-s15 .speaker-ME4} ##### Senator BAUME:
New South Wales -- The next amendment with which the Committee is about to deal is the last one proposed to clause 26. The amendment I wish to move is different from the one circulated in that I am not going to move paragraph (c) of the circulated amendment immediately. I move: As was the case with the amendment moved by Senators Durack and Chaney, I hope that we will be able to get a vote on this amendment, which in my opinion will be of benefit to the Bill. I will proceed with sub-paragraph (c) of the circulated amendment only if I am successful in getting sub-paragraphs (a) and (b) accepted; otherwise there is no point in including it. What we are discussing here is the means by which we are establishing the existence of an irretrievable breakdown of marriage. What I have proposed is an alternative means of going about this kind of proof. The Attorney-General **(Senator Murphy)** has proposed one ground, which is that of irretrievable breakdown, and one means only of establishing that this has occurred. It is simple to put up a single ground, but it lacks any logic. I have no argument with the central idea that we are seeking to establish the existence of irretrievable breakdown. In fact I support this idea. Throughout the debate we have all supported the idea that irretrievable breakdown is what we are talking about. There is considerable concern about the means of establishing the existence of this ground. We have already heard in discussion ofthe last amendment that there could be cases in which the proposition which is in the Bill at present could be disadvantageous to certain people. There are reasons for saying that the existence of a single method of proof does have its disadvantages. It is simple, and its simplicity is attractive. It is not necessarily the fairest method. Until we have settled the best means of establishing irretrievable breakdown we cannot necessarily say that the single ground which is proposed by the Attorney-General is necessarily the best one. I believe it is too simple to think that 12 months separation should be the only way of establishing breakdown of marriage. What has been put forward is that after 1 2 months separation most people want a divorce. 1 accept that. What 1 am proposing in this amendment is that if there has been separation for 12 months and both parties want a divorce, they should be able to obtain dissolution of the marriage. I am saying in paragraph (b) that 12 months should be an adequate period of time if both parties consent. It was suggested that if both parties crosspetitioned this would in itself be a demonstration that they consented to 12 months as the period. All we have done is to separate out the group of people who may disagree about 12 months being an adequate period. Let me be quite clear about this. Where breakdown is clear and all that is left is the shell of a marriage, under my amendment one would be able to obtain a dissolution at the end of 12 months. In circumstances in which there is some doubt we are proposing that the period should be 2 years. I suppose that what I am doing is trying to take the best of the arguments that **Senator Chaney** and **Senator Durack** put to the Committee of the Whole, combining them with the argument that the Attorney-General has put and trying to come up with a composite ground which will cover both kinds of situation. We could have a situation in which the existence of irretrievable breakdown is not clear at the end of 12 months and in which one of the 2 parties to the marriage is not satisfied that the marriage is irretrievably lost. **Senator Everett** referred to clause 26 (3), but I understand that if one party to the marriage went to court and said: 'I do not care what the other party says. I believe the marriage has broken down forever and I wish to have no further part in it', the judge, in interpreting subclause (3), would probably not withhold an order for dissolution under the Bill as it stands at present. {: .speaker-JYN} ##### Senator Everett: -- Each case would depend on its merits. {: .speaker-ME4} ##### Senator BAUME: **- Senator Everett** says that each case would depend on its merits, but it is possible that the judge might decide that the opinion of one party alone is sufficient to establish irretrievable breakdown. My concern is that there will be a small number of people who wish to have a longer period. Let us be quite clear. Most people who seek dissolution of marriage and use the amendment which I am proposing would clearly use the 12-month period. It would meet their needs. It would be simple. It would have all the advantages of the ground which the Attorney-General has already put into the Bill. To provide protection for those people who want a longer time we would say that the period should be 2 years when consent from both parties could not be obtained. If 90 per cent of divorces at present are undefended- this is the figure that I heard mentioned today- it indicates that 90 per cent of cases probably would be dissolved at the end of 12 months, under my amendment. There would be a very small number of cases in which one of the parties would have an objection to dissolution at the end of 12 months. I am not worried about adding an extra ground if we make the Bill fairer and if we take into account the needs of everyone who must be looked after. As someone said, we need a period which is not so short as to prevent reconciliation and not so long as to prolong the agony unduly. I was told during the debate this afternoon that 60 per cent of people wanted one year but a very small percentage wanted a longer period. I believe it is possible for this kind of amendment to achieve both those aims. {: .speaker-4F4} ##### Senator Button: -- What about those who want a shorter period? {: .speaker-ME4} ##### Senator BAUME: -- That is another question. I believe 12 months is a short enough period. I believe 12 months gives justice in terms of not being too long. If **Senator Button** is suggesting an even shorter period he should propose an amendment to that effect. {: .speaker-4F4} ##### Senator Button: -- I am not; I am just querying your argument. {: .speaker-ME4} ##### Senator BAUME: -- Fine. I believe we have a duty to examine what will happen to all the parties to all marriages and to try to avoid injustices. We have already established that certain people in society probably will be locked into marriage and will not be able to establish separation at all. Even if they can obtain an injunction under clause 90, that injunction does not entitle them to a dissolution of marriage. I remind **Senator Everett** that when he was answering my earlier question about people who cannot establish seperation, he made the point that people can get an injunction and that should protect them. It does not get them to the stage of dissolution of marriage. {: .speaker-JYN} ##### Senator Everett: -- Neither does your current amendment go anywhere near that. {: .speaker-ME4} ##### Senator BAUME: -- If my current amendment is agreed to I would suggest to the Committee further consideration of sub-clause (3) which I have not yet put to the Committee. {: .speaker-JYN} ##### Senator Everett: -- In other words this is a precursor to the rein troduction of fault. On your admission, it is. {: .speaker-ME4} ##### Senator BAUME: -- The vote will be taken separately on both parts so that the Committee can clearly decide between them. I believe there is considerable merit in making the period 12 months only if both parties consent, otherwise 2 years. I hope that the Committee will consider the amendment favourably. {: #subdebate-48-0-s16 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- I think **Senator Baume** indicated yesterday that he had put his major arguments in the debate at that time. I believe we have traversed these arguments in great detail during the second reading stage and again during the very long debate on this clause. With respect to the proposition that **Senator Baume** has put- he has indicated that he would regard this as the precursor- I suggest that we should vote on the matter as soon as we can. I think the issues have been gone into extremely well. All I would add to what has been said is that to introduce an element of consent introduces a difficulty. Certainly it could be overcome, but it has proved to be difficult in practice elsewhere. I think it ought not to be introduced. I would ask the Committee of the Whole not to accept the amendment. {: #subdebate-48-0-s17 .speaker-KKD} ##### Senator JESSOP:
South Australia -- I would like to support briefly **Senator Baume** 's amendment. It seems to me that it is an ideal compromise which provides an opportunity for one partner, who agrees that there is some chance of repairing the marriage, to be given what I believe to be a more adequate period- 2 years- to do that. It provides also the opportunity for those people who both agree that their marriage should be dissolved to effect dissolution in a relatively short time. I commend **Senator Baume** for offering this alternative which I believe is an ideal compromise. I support him. {: #subdebate-48-0-s18 .speaker-KUU} ##### Senator MISSEN:
Victoria -- I oppose this amendment both in principle and in practice. I take up what I said last night about the dangers of importing into legislation the idea of consent, with all its blackmailing possibilities which would enable the parties to agree in terms of money before they give their consent. It is a matter of consent. This is why in practice it should also be rejected. The amendment says that there may be a decree if the separation is for 12 months provided that neither party opposes the dissolution of the marriage. In practice this would be extremely difficult. Until one reached court one would not necessarily know whether the matter was opposed. If the other party came along and wanted to oppose the divorce the court no doubt would be obliged to re-open the matter- no doubt the rules would permit it to do so- and the case would then be lost. The case might have been going for many months. Therefore in practice I think it is inoperable. In theory and in principle I think it is inoperable. I admire **Senator Baume** 's attitude of trying to obtain a compromise which might be acceptable but I find it objectionable in principle to introduce this idea of consent into the legislation. {: #subdebate-48-0-s19 .speaker-K5H} ##### Senator SCOTT:
New South Wales -- I must support **Senator Baume** 's amendment. We have discussed this important Bill, particularly this most important clause 26, at some length and in some depth, and so we should. Out of all that discussion it seems to me that in **Senator Baume** 's amendment we have a real measure of compromise. It incorporates quite a lot of the attitude of the Attorney-General **(Senator Murphy)** but at the same time I believe it accepts considerable areas of the amendments moved by Senators Laucke, **Sir Kenneth** Anderson, Durack and Chaney. I believe that the period of 2 years is reasonable insofar as it rules out the possibility inherent in such a short initial period of 12 months of marriage becoming nothing more than a period of experiment. To enable a couple who may well have been married only a few days to choose to part and some 12 months later be divorced permits, I believe, in this area of contract which is basic to our society, a lack of responsibility which ill befits legislation from this Parliament. I think 2 years is sufficient time. After all, it represents a very considerable reduction from 5 years. It permits sufficient time for there to be retained within the marriage contract, within marriage itself and the concept of the family, a real measure of responsibility. I believe that is what marriage is all about. We already have ruled out, perhaps unfortunately, the question of another ground to cater for the areas of cruelty in which there should be a way for dissolution to become possible in a much shorter period. We ruled this out under the no fault concept. 1 believe it is somewhat naive to assume that there is no fault in anything. Fault must exist, whether it be 90 parts to 10, 60 parts to 40 or 50 parts each way. There must be fault. We are naive because ultimately in this legislation that sort of fault will be revealed. However, be that as it may, **Senator Baume** 's amendment which is before us and which I support suggests in the first place that 2 years provides a greater and proper area of responsibility. Most importantly, the second part of his amendment is such that divorce or dissolution within a 12 months period of separation or after such a period of separation is also possible on the very reasonable and proper ground that it should be sought. Evidence suggests that it will be sought in the great majority of cases by both parties. After listening to the depth and breadth of this discussion I find I must firmly support **Senator Baume** 's amendment because I think it is a realistic and responsible compromise in a most important piece of legislation. {: #subdebate-48-0-s20 .speaker-8G4} ##### Senator DURACK:
Western Australia -- I only rise to speak because it may be thought, in view of the fact that I moved for a 2-year period of separation, that I would support this amendment as a second best proposition, bringing in, as it does, not only 2 years separation but the provision that the parties may get a divorce after 12 months separation if both consent. I wish to state that I am opposed to this amendment because I do not believe that it should be easier to get a divorce in any circumstances if parties consent to it. I believe that is contrary to the principles that I conceive should govern a proper divorce law. There are a great many practical difficulties and objections to the provision as well. **Senator Missen** referred to the possibility, and the likelihood or even inevitability, of blackmail in order to obtain consent. As well, there is the difficulty of proving consent. There is also the injustice that may operate because it is not always possible, for practical reasons, to obtain the consent of a party. The party may not be available, as happens frequently. Why should a party facing those practical difficulties find it more difficult to obtain a divorce than if the other party is readily available to give consent? I believe it is very dangerous to introduce the concept of consent into divorce legislation. I oppose this amendment because I am entirely opposed to the introduction of such a principle into divorce law. Question put: >That the amendment **(Senator Baume's)** be agreed to. The Committee divided. (The Chairman- Senator J. J. Webster) AYES: 17 NOES: 39 Majority....... 22 AYES NOES Question so resolved in the negative. Clause, as amended, agreed to. Postponed clause 9. {: type="1" start="2"} 0. Pending proceedings for a decree of dissolution of marriage shall, if the applicant so requests, be dealt with as if they were proceedings instituted under this Act on the ground referred to in section 26. {: #subdebate-48-0-s21 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- I move: The Senate will recall that consideration of clause 9 was postponed because of the possibility that the Senate might adopt the 2-year provision instead of the 12-months provision. It was thought that if we had dealt with this clause, although it is only a technical matter, it would have prejudiced the proposition that it was intended would be put by **Senator Durack.** Amendments agreed to. Clause, as amended, agreed to. Clause 27. {: type="1" start="1"} 0. 1 ) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties. 1. The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence. {: #subdebate-48-0-s22 .speaker-KMX} ##### Senator GREENWOOD:
Victoria -- Clause 27 is vital because it is linked to clause 26 in a very direct way. Clause 26 provides that the sole ground of separation shall be irretrievable breakdown and clause 27 defines what is meant by separation. My particular concern is with subclause (2) of clause 27 which reads: >The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence. The Attorney-General **(Senator Murphy)** has given notice that he intends to move a subsequent amendment which proposes that words shall be added so that the clause provides that the parties will be held to have separated and to have lived separately and apart not only where they have continued to reside in the same residence but also in circumstances in which either party has rendered some household service to the other. I feel that this clause ought to be looked at tremendously closely. If we are going to have as a ground for divorce one year's separation, I believe it ought to be effectively established by a demonstration that the parties have separated. I think it is a farce and would be regarded as a farce if a married couple could live in their matrimonial home and at the end of the 12-months period present to the court an argument that they have been separated over the course of that 12 months period. {: .speaker-5U4} ##### Senator James McClelland:
NEW SOUTH WALES · ALP -- Has the law been a farce up till now, because that is what the law is? {: .speaker-KMX} ##### Senator GREENWOOD: -- With respect to **Senator James** McClelland, that is not what the law is, and I am surprised at the cursory treatment that was given to this matter by the Senate Standing Committee on Constitutional and Legal Affairs. Where the grounds of desertion existed it was recognised by decisions of the courts that in cases in which the parties lived under one roof it could be said that one party had deserted the other because an intention to terminate the marriage relationship was clearly disclosed and that following that determination or decision to terminate the marriage relationship there was a physical separateness, even if the parties lived under the one roof. The courts regarded this as a sufficient desertion. I think it was a matter for special pleading, but it developed as part of the general law. It was applied in cases of desertion, and I think that those who practised in the courts knew what it constituted. But I think there is still some doubt as to whether that same concept applied in the area of separation, and that doubt has not been resolved. I am not familiar with the cases which may have been heard in the High Court of Australia in the last year or two. If I am wrong in the assumptions I am making I ask the AttorneyGeneral to correct me. But I would have thought that, even if in the last 1 2 months or 2 years there has been some High Court decision which says that the principles relating to the ground of desertion now apply to the ground of separation, there is sufficient reason in the origin of this practice for it not to be regarded as being obligatory upon the Senate to make that the law for the future. I believe that we should insist, with a 12 months separation ground, that the parties should not be regarded as having lived separately and apart if they have lived under the one roof. I move: Quite an amount of writing has been advanced by academic lawyers on this subject. It is interesting to refer to one set of facts which was said to be a distinctive case where a matrimonial causes judge applied the one roof test- that is the situation of parties living under the one roof and claiming to have been separated- to this ground of separation under the existing Matrimonial Causes Act. That was the case of Porter v. Porter in South Australia which was decided by Her Honour Justice Mitchell. When the proceedings were instituted in 1968 the petitioner and her husband were living in the same house. They had for the last 6 years been sleeping in separate beds but they had occasionally communicated on matters concerning their children. From time to time the wife had taken meals with the rest of the family, especially when common acquaintances were present. In 1965 she had eaten Christmas dinner with her husband and children and had continued for a time to prepare their meals. But notwithstanding that she went before the court and said they had separated over a period of 5 years, the court did not accept that that was the situation. {: .speaker-5U4} ##### Senator James McClelland:
NEW SOUTH WALES · ALP -- Tell us about Crabtree v. Crabtree. {: .speaker-KMX} ##### Senator GREENWOOD: -Give me time and I will be delighted to discuss Crabtree v. Crabtree. In the circumstances in which Porter v. Porter was decided, Justice Mitchell said that if the facts met the test- that is, that people living under the one roof were still able to establish the ground of separation- that ground can be shown to have been proved. But it had not been proved in those circumstances. Where there is a 5 year period of separation one can imagine the judges of the courts, as they interpret what constitutes 5 years separation, recognising that for one year or 2 years persons may well be living under the one roof but that for the balance of the period they were living separately and apart. The real test for the court is whether for a determinate time the parties can show that there has been 5 years separation. The way the courts would have interpreted a ground of separation may have allowed some part of that period to be under the one roof. Certainly the language of Justice Mitchell in Porter v. Porter and the language of the majority of the court in New South Wales in Crabtree v. Crabtree would permit that type of interpretation. But that was in respect of a 5 year period. It was in respect of a ground of separation which existed together with other grounds such as the ground of desertion where all that a petitioner had to show was that a party had deserted the other without just cause or excuse for a period of 2 years. What we are now establishing is that there shall be one ground and one ground only of irretrievable breakdown of the marriage to be shown in one way and one way only, that is, that the parties have separated and have lived separately and apart for 12 months. Then let it be shown by the way in which we enact this particular provision, seeing that the concept has now been accepted, that it is a genuine separation and a genuine living separately and apart. I think that that is implicit in what the Attorney-General has said in advance of this argument. I do not believe we will show it in the genuine way in which it ought to be demonstrated if we accept that persons can live under the one roof and perform household services for each other. It is that sort of situation which will create disrespect for the law and develop practices which the AttorneyGeneral says characterise the existing law and which he wishes to eliminate. {: .speaker-1L5} ##### Senator Murphy: -- I said they characterise the ground of desertion by reason of noncompliance with the decree for restitution of conjugal rights. Sitting suspended from 6 to 8 p.m. (Quorum formed) {: .speaker-KMX} ##### Senator GREENWOOD: -Before the sitting of the Senate was suspended for dinner I had been referring to the definition of - {: .speaker-JUH} ##### Senator Devitt: **- Senator Greenwood** called for a quorum on a matter which is the subject of a free vote. None of his mates would do so. {: .speaker-KMX} ##### Senator GREENWOOD: -Well, 1 hear the comment of **Senator Devitt.** When I came into the chamber there were, I think, one member of the Government and 2 members of the Opposition present and that is not fair for the chamber. I say that only because of the noise of the Government senators. Before the sitting of the Senate was suspended I was saying that the definition of what constitutes a separation for the purpose of this one ground which will now apply in the family law legislation is a matter of great consequence. I think it is quite unreal to say that separation can be established if husband and wife could be living together under the one roof, sleeping in the same bed, the wife providing meals for the husband, the wife washing for the husband and the husband providing the means by which the wife can buy the food which she cooks for both of them, lt is quite unreal, at the end of 12 months for the parties to come along and say that in some way they were separate. I know the way the court has developed the law with regard to desertion. It appears to me that to develop that thesis so that the result can be as 1 have explained it is, totally inconsistent with the type of divorce law which the AttorneyGeneral has been espousing. To suggest in the amendment which is ultimately to come into this provision that the one can provide household services for the other and they can still be regarded as separated is, I believe, making a farce and mockery of divorce law. I have moved my amendment on the basis that if there is one thing which individual senators from the Opposition can do it is to make these provisions meaningful. I do not believe that as the provisions are now presented they are anything more than a farce, and that is demonstrable. {: #subdebate-48-0-s23 .speaker-5U4} ##### Senator James McClelland:
NEW SOUTH WALES · ALP **- Senator Greenwood** is not content with resisting reform; he wants to set the clock back and reverse the tendencies of an enlightened interpretation of our existing divorce laws. A long line of authority indicates that judges have come to accept the notion that people may live under the same roof and yet, for all practical purposes, may be living separately. I do not need to refer to the cases; we are not in a court of law. But **Senator Greenwood** said, in answer to an interjection of mine, that he would advert to the authorities. The leading ones that lawyers will know are Crabtree v. Crabtree, Fewkes v. Fewkes and Hastings v. Hastings. They are recent cases. {: .speaker-KMX} ##### Senator Greenwood: -- Well, Main v. Main is still the main High Court judgment. {: .speaker-5U4} ##### Senator James McClelland:
NEW SOUTH WALES · ALP -- Hastings v. Hastings is a fairly recent case. It was decided in the South Australian courts in 1970. It is authority for this proposition: The parties had lived under the same roof but occupied separate bedrooms, had not had sexual intercourse, did not go to social functions together; and though the wife did not cook or perform any domestic services for the husband they were held to be living separately and apart within the meaning of section 28 (m) ofthe old Act. What really is the force of **Senator Greenwood** 's proposition? It is well known that people with enough financial resources were always able to part when life together became intolerable and live in separate establishments, but people who are more poorly placed do not happen to be able to afford that luxury. What **Senator Greenwood** is really suggesting is that those who cannot afford to leave an intolerable household but who are forced, even though their marriage has become an empty husk, to stay together should be prevented from being regarded as having mentally, physically and emotionally severed the marital tie. **Senator Greenwood** seeks to reverse a humane tendency in judicial interpretation of the notion of separation which is well established in the authoritiesauthorities which **Senator Greenwood** chose to ignore. {: .speaker-KMX} ##### Senator Greenwood: -- That is not fair. You know that I am familiar with the authorities - {: .speaker-5U4} ##### Senator James McClelland:
NEW SOUTH WALES · ALP -The honourable senator did not advert to Crabtree v. Crabtree. He did not mention Hastings v. Hastings in which case the interpretation of the judge is quite contrary to his and has been established in the minds of all lawyers practising in this jurisdiction. The interpretation is that parties may live under the same roof and yet be living totally separate lives. {: .speaker-KMX} ##### Senator Greenwood: -- If you are to suggest that this is our attitude then as far as I am concerned you can have this debate going on all night. You are being quite unreasonable. {: .speaker-5U4} ##### Senator James McClelland:
NEW SOUTH WALES · ALP -Senator Greenwood has unwittingly dropped his guard. He has made it quite clear that his intention in this debate is not to shed some light on a very profound human problem but to filibuster and to prolong this debate in order that this enlightened piece of legislation will not be carried. If that is his will, if that is his wish, I think he should make it quite clear to the people of Australia. He can go ahead and take all his pettifogging points, misinterpret the authorities and keep this debate going forever, but he will not be thanked by the people of Australia or by this Parliament. I assure him that he will not even be thanked by his own colleagues. {: #subdebate-48-0-s24 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- I resist this amendment. I think that it is not well designed. It states: >The parties to a marriage shall not be held to have separated and to have lived separately and apart if they have continued to reside in the same residence. Now that is a direction to the court. No matter how much the evidence is that although under the same roof the parties have lived separately and apart, that one has lived at one end of the house and the other at the other end, or one has lived in the fowlhouse and the other in the master bedroom, the amendment would compel the court to decline to hold that they had lived separately and apart. This means that an awful difficulty is placed in the path of those people who cannot afford to get another home. One might say it is almost a class amendment directed at the poor people who cannot, when they get into marital difficulties, separate one from the other in different residences although, as sometimes occurs- it occurs in times, say, of housing crises; it has happened from time to time in our society and happens even now- people find it difficult to move into another place because they just do not have the finance. For one reason or another they cannot do so. The obligation is on the court if this amendment is not accepted to decide that the parties have lived separately and apart whether or not under the same roof. Surely that ought to be enough. What the honourable senator is suggesting would, I think, reverse the whole line of decisions on this aspect which have held that people may be living separately and apart even though they happen to be under the same roof. The honourable senator is saying that the courts should be prevented from developing the law in that direction. 1 think it would be extremely unsatisfactory and I ask the Committee to reject the amendment. I think that as a matter of convenience and in order to avoid having to go through the same argument again the Committee ought to deal with my amendment as well as the amendment moved by **Senator Greenwood.** Therefore, I move: **Mr Chairman,** 1 suggest that we deal with the matter in this way. There are 2 proposals in relation to the same clause. I suggest that the Senate vote on each matter. I do not care which one is put first. In regard to my amendment, I give the example where some service is performed by either party such as in the case mentioned earlier by **Senator James** McClelland in which the wife cooked the Christmas dinner, no doubt in the interests of the children. This might have hap- . pened even if the husband had been living apart and residing somewhere else. It may have been done for the sake of the children. It may have involved an access situation in which some small service was performed by either party. It seems wrong to me that as a result of a humanitarian gesture like that the right of the party to divorce should be affected when there may be some kind of exigency or out of the goodness ofthe heart of a party some service like that may be performed. If this proposal is added to the clause the court will still be left in the position where it must decide that the parties are living separately and apart notwithstanding that a service has been rendered. Simply because the parties are under the same roof and because some household service is rendered should not prevent the court from coming to the conclusion that they are living separately and apart. The court is not forced to come to that conclusion, but it is left open to the court to come to the conclusion that they are living separately and apart. What **Senator Greenwood** is asking this Committee to put into the Bill is that if the parties are living under the same roof in no circumstance whatever could the court come to the conclusion that they were living separately and apart. So the poor people who are in this position will not be able to do anything about it, no matter how much the court wants to find that the parties were living separately and apart. The court might say: 'Look, if it were open to the court to find that the parties were living separately and apart, as a judge 1 would find that they were living separately and apart'. But **Senator Greenwood** is asking this Committee to put into this Bill a provision which will debar a court from so finding. He is saying that the parties to a marriage shall not be held to have separated and lived apart if they have continued to reside in the same residence. {: .speaker-JXR} ##### Senator Drake-Brockman: -- Do I understand you to say that you want to deal with both amendments? {: .speaker-1L5} ##### Senator MURPHY: -Yes. We could have the arguments now and then take the votes, one after the other without further argument. The proposition in the Bill is that the parties may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence. My amendment seeks to add the words 'or that either party has rendered some household services to the other'. 1 have suggested these additional words because it was the considered opinion of the Standing Committee that this should be done, and I adopted its suggestion. That is why I am seeking to add those words. The acceptance of my amendment would mean that the court would decide the fundamental question of whether the parties have lived separately and apart. The court may decide that, even if the parties are under the same roof and even if some household service has been rendered. The court will not be forced to make that finding. It may do so. **Senator Greenwood** has put a proposal to the effect that if the parties happen to be under the same roof then the matter is out of the hands of the court and in no way at all may the court come to the conclusion that the parties have lived separately and apart. Therefore, irrespective of how the parties feel, despite the strong circumstances and irrespective of whether it may seem to the ordinary person absolutely clear that the parties have lived separately and apart, the court will have no option in the matter. By his amendment **Senator Greenwood** seeks to take this out of the judicial sphere despite all the fine words we hear about judicial discretion and about the proper judicial approach. He is saying that in this circumstance the judge will have no option whatever and will be forced out of the matter by this amendment. Despite any weight of evidence that is put to him he will have to say: ' I am not able to find, because of this amendment, that the parties have lived separately and apart'. I ask this Committee to reject the amendment moved by **Senator Greenwood** and to accept the amendment which I have moved. {: #subdebate-48-0-s25 .speaker-KAS} ##### The CHAIRMAN (Senator Webster:
VICTORIA -If there be no objection in the Committee - {: .speaker-KMX} ##### Senator Greenwood: -- There is objection, **Mr Chairman.** {: #subdebate-48-0-s26 .speaker-10000} ##### The CHAIRMAN: -- If there is no objection in the Committee I will follow the course that the Attorney has suggested, that is that the 2 amendments, the amendment moved by **Senator Greenwood** and that moved by **Senator Murphy,** be dealt with in the one debate but they will be voted on separately. **Senator Greenwood's** amendment will be voted on first. He has indicated he has an objection so I will deal with that. {: .speaker-KMX} ##### Senator Greenwood: -- I know that **Senator Laucke** wants to speak. I will not interrupt him but I do object to the amendments being taken together. {: .speaker-1L5} ##### Senator Murphy: -- Very well, I accept that, rather than debate it. {: .speaker-10000} ##### The CHAIRMAN: -- In the interests of progress I have suggested that the 2 amendments may be debated together but that they would be voted on separately. {: .speaker-KMX} ##### Senator Greenwood: -- I have no objection to that. I have absolutely no objection to the 2 issues being debated together because they are obviously related matters. But I do not wish to be committed by any decision I might make now agreeing to what the Attorney-General has suggested that after the first vote one cannot address oneself to the second amendment. That is the only point I wish to preserve. {: .speaker-10000} ##### The CHAIRMAN: **- Senator Greenwood,** I realise you have no objection to my ruling. {: #subdebate-48-0-s27 .speaker-EF4} ##### Senator CHANEY:
Western Australia -- I commence my remarks with a plea to the Committee that we not spend too much time on this because I do not believe that it is of enormous significance. I think we have a duty to proceed with the Bill with reasonable expedition. I should like to say that I support clause 27. I oppose **Senator Greenwood's** amendment. I support the addition of the words recommended by the Senate Standing Committee on Constitutional and Legal Affairs. I believe that clause 27 will, with the inclusion of the words recommended by that Committee, remove what is a distinction between the rich and the poor in this field of the law. I think that really that is about all that needs to be said about the clause. {: #subdebate-48-0-s28 .speaker-KUU} ##### Senator MISSEN:
Victoria -I agree with that. I further say that when **Senator Greenwood** suggests that a genuine separation and a genuine living apart should be shown I point out to him that is the purpose of the amendment moved by the Attorney-General which embraces the words sought to be included in this clause by the Standing Committee. **Senator Greenwood's** amendment, which suddenly comes upon us to remove part of this clause and to say that the parties cannot be considered to be living separately and apart unless they are living in different residences, is certainly something which would be a great affliction on those who cannot leave the matrimonial home because of their financial position or because they do not have people to whom they can go for assistance and live. I think it would be a great blot on the law if we put **Senator Greenwood's** amendment into the legislation. It would be against the principles which have been developed over a number of years. It is highly desirable that we should be fair to those people who cannot leave the matrimonial home but who are still separated in all reality. They have enough difficulty in proving separation. If they prove that they are separated in reality they should have the opportunity to obtain a divorce. I think it would be a mistake for this Committee if it adopted the amendment moved by **Senator Greenwood.** {: #subdebate-48-0-s29 .speaker-KQN} ##### Senator LAUCKE:
South Australia -- I would like the Attorney-General to elaborate on his interpretation of the words 'household services' which are in his amendment. It appears that there will be a degree of limitation. I would like more elucidation on the real meaning ofthe words he proposes to add. {: #subdebate-48-0-s30 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- One of the obvious things would be a natural act of kindness of a wife cooking a meal for her husband. We heard earlier the illustration of a wife cooking the Christmas dinner. Such an event might take place even though the parties have been living apart. The occasion may involve a visit to the children on Christmas day. Let us suppose that a wife looked after her husband. Let us suppose that while the husband was visiting his wife he got sick or he had an accident and his wife did something for him, which one might do out of humanity, I suppose, for anyone else and which could be regarded as a household service. Let us suppose that 2 people have decided to live separately and apart and one did something which could be construed as a houshold service. Let us suppose that they were living apart, sleeping in separate beds, living different lives, going out with different people and perhaps making arrangements which otherwise were quite incompatible with marriage. Let us suppose that the wife performed some kind of service such as that which I have mentioned. All we are saying is that the court could still find that they were living separately and apart, notwithstanding that. Of course, if there was a great number of these things the court might decide that they were not living seperately and apart. But it would be open to the court to find that they were living separately and apart, notwithstanding that they were under the same roof and that one party had rendered some household service to the other party. {: #subdebate-48-0-s31 .speaker-KMX} ##### Senator GREENWOOD:
Victoria -- I rise because I feel that the attitude of the Government is becoming transparently clear. We know that the Government in the Government Party Caucus - {: .speaker-1L5} ##### Senator Murphy: **- Mr Chairman,** may I say that this has been clear. May I remind the Committee that - {: .speaker-KMX} ##### Senator GREENWOOD: -Is this a point of order? {: .speaker-1L5} ##### Senator Murphy: -- lt is a point of order. This Bill is being dealt with not as a Government measure, except for the purpose of bringing it on. lt is a free vote. It has been demonstrated that it is a free vote, and the honourable senator should not refer to it as the attitude ofthe Government. {: #subdebate-48-0-s32 .speaker-KBL} ##### Senator GREEN WOOD:
QUEENSLAND -The attitude ofthe Government Party senators is that they must get this Bill through, because it is common talk in the lobbies of this Parliament that there has been a constant wrangle day by day as to whether or not the Family Law Bill is to be the subject for debate in the Senate. We have on the list at the moment some 40 Bills which have been introduced into the Senate during the past fortnight and which have been held up because of the debate on the Family Law Bill. {: .speaker-5U4} ##### Senator James McClelland:
NEW SOUTH WALES · ALP -- I rise on a point of order, **Mr Chairman.** We are in the Committee stage, debating an amendment proposed by **Senator Greenwood.** He is addressing himself now to subjects widely astray from his own proposed amendment. The attitude in the lobbies, what may be the attitude of the Government Party, has nothing to do with **Senator Greenwood** 's own proposed amendment, which proposes to set back the clock in the matter of matrimonial law. Let him address himself to that subject. {: .speaker-10000} ##### The CHAIRMAN: -I note the point of order, and there is some weight in it. I think that **Senator Greenwood** is capable of making the point relating to attitude, lt may be something associated with this amendment. But I would ask **Senator Greenwood** to relate his remarks directly to his amendment, and we may be able to get a vote. {: .speaker-KMX} ##### Senator GREENWOOD: **- Mr Chairman,** I accept your suggestion. In the light of what I have said, what we have heard from **Senator James** McClelland tonight is an accusation totally unsubstantiated and totally inaccurate in what it seeks to portray as my attitude. I have not argued in terms of misrepresentation of the legal position. I have not been filibustering. I sat here throughout the whole afternoon listening to the debate, and I did not contribute to it at all; I listened. If I have a particular point that I want to make tonight, I do not know why 1, when I start to speak, should be regarded as filibustering. I have my points of view on this issue and I desire to be heard. The suggestion made by **Senator James** McClelland that the amendment which I have moved would deny to the poor something which was available to the rich is a specious argument ofthe nature of an irrelevancy. The real issue is not what is right or proper or available for wealthy people and what is not available for not so wealthy people; it is simply a question of what should be a ground for divorce. The Committee has decided by its earlier votes that the ground for divorce should be one year's separation. All 1 am concerned to say is that if it is to be one year's separation let it be a genuine separation, and what is proposed in this Bill is not a genuine separation. No matter how much people may seek to argue that the words in the Bill constitute a genuine separation they are arguing, I believe, an impossibility because I cannot accept- I do not believe that ordinary people faced with ordinary situations would acceptthat if a husband and wife are living together under the same roof, in one house, in which the wife provides the daily meals for the husband and in which she provides other household services, such as washing his clothes, making his bed and doing all the other household chores which happily married families would expect a wife to do for a husband, that constitutes a separation which ought to be regarded as a separation for the purpose of divorce. If people want to argue that way, let them build up the arguments and show why it is a ground for divorce. It is that sort of argument which brings the law into disrepute. It is no excuse to say that rich people can live in large houses and that one party can live in one corner of an establishment and the other party can live in the far corner of the establishment and that they never meet, and therefore there are 2 separate households. That type of situation is rare. If people are wealthy enough to live in that situation, let them separate if they want to use this ground for divorce. But I think that it is absolutely absurd where people are living in a three or four roomed house and we want to establish a proper ground for divorce- that is what we are concerned about- to say that they can be regarded as separate and living apart if they still continue to live in a three or four roomed house, particularly when they are jointly caring for the children. It is humbug and hypocrisy to say that that can be a situation in which there can be a ground for divorce. {: .speaker-JUH} ##### Senator Devitt: -- Sit down. {: .speaker-KMX} ##### Senator GREENWOOD: -- I hear **Senator Devitt** say: 'Sit down'. That, **Mr Chairman,** was why I introduced my remarks with the comments which I made, because I know- it has been said to me outside this chamber- that this Government will get this Bill through tonight; it will push it through. I resent that sort of attitude because it is inconsistent with the standards which ought to prevail on a vote of this character, particularly when this clause is being considered. There was another argument which I submit is completely specious. I think it is absolutely specious to use the argument that where parties cannot live together and they want to be divorced, they should not be required to live separately and apart because it may not be possible for the wife or the husband to leave the house in which they are living together. I know there may be problems like that. When we have argued, as we argued with regard to clause 26, that there may be occasions when a husband is ill-treating a wife, is subjecting her to cruelty and to mistreatment which makes it intolerable, we have been told that the wife can go to the court and get an injunction and that will require the husband to live separate and apart from her. If it is easy enough, as a matter of argument, to ask a wife to do that, why is it unreasonable to expect either party, if the parties cannot live together, to separate from the house in which they are living? The 2 arguments do not stand together, and when the attempt is made to equate the one with the other then I think it reveals the hollowness ofthe arguments which are being put forward. It is a terribly difficult task to argue against the combined strength of a Committee which has looked at this Bill for months, and against the AttorneyGeneral, who presented it, with any hope of having a point of view even listened to, let alone accepted, because it is held that only one point of view ought to prevail. I simply say that if one looks at the authorities as decided by the courts the position is not as the Chairman of the Committee, **Senator James** McClelland, declared it to be. I do not care whether one looks at the book which was edited by the Attorney-General's adviser, **Mr Watson,** together with **Mr Justice** Toose and **Dr Benjafield,** whether one looks at **Mr Finlay** 's volume or whether one looks at the other writings of the academic writers, but there is generally accepted to be a very real area of doubt as to what is the proper material upon which a court should decide whether or not separation has been established between the parties. I refer to the volume Toose, Benjafield and Watson on family law, which 1 concede was written in 1968, but on my researches the position has not significantly altered in the intervening years. They say at paragraph 409 - {: .speaker-EF4} ##### Senator Chaney: -- Whom are you going to convince? {: .speaker-KMX} ##### Senator GREENWOOD: -- I am told that I am not going to convince anybody. I am interested that this is the standard of debate in this chamber. As I said, a committee has looked at this, the Attorney-General has looked at it, and no one else's point of view is regarded as worth while putting. That is a viewpoint I have never accepted and it is a viewpoint that I will not accept so long as there is an argument which is able to be advanced. When one has the advantage of having the law reports and textbook writers and the writings of academic lawyers to support the viewpoint one is putting, contrary to the viewpoint which is put by the AttorneyGeneral and the Committee, then at least one has got that comfort. As far as the question of separation is concerned and 'separate and living apart' for the purpose of establishing that separation, there is no question but that under the ground of separation there is a moot point as to whether the parties can be separated while under the one roof or whether they have to move into separate residences. The volume to which I am referring states: >So far as concerns desertion under s. 28b - That is, of the present legislation, it is clear that there may be destruction of consortium - That is, the desire to live together- . . while the parties still occupy the same house ... but it has been much debated whether the same approach can be made to the ground of separation . . . In the United States - And this is an indication of where the United States position is quite contrary to what the Attorney-General is urging on Australia, and he is urging a vastly more liberal position in Australia- >In the United States the courts seem consistently to have held that the ground of separation is not available where the parties have occupied the same house. The courts appear to have reached this position either on the basis of grammatical interpretation ofthe words used in the relevant legislation or on the basis that the policy underlying the legislation is that dissolution should bc granted only where it is clear to those in the neighbourhood that the marriage has broken down. If people are living together in the same house and to all intents and appearances the wife is providing for the husband the ordinary household services that one would expect a wife to provide for a husband, how can it be reasonably argued or assumed that that marriage has broken down? If we allow that situation to exist, then it appears to me that we are making of the question of separation a mockery and a farce. Why is it unreasonable to say that to establish this aspect of separation the parties should be prepared to live not under the same roof but in separate residences? To the ordinary lay mind, to anyone who asks the question: Are the parties separated?, one would expect to get a response: Obviously they are separated because they are not living together'. But if the answer is 'They can 't be separated, they are living together and she is providing for him', then I should have thought and most people would assume that there is no separation existing. Yet this is the point which is at the heart of this debate, and I have not yet heard from the Attorney-General or from any member of the Committee why it should be otherwise. As I said earlier, it is regrettable that the Committee did not take further time to examine the matter and to elaborate the position more than it did. All that the Committee said in its report is this: >The provision in Clause 27 (2) reproduces the Common Law position that separation may occur 'under the one roof. I interpolate that that is not the Common Law position, and indeed the issue of whether or not that is the law is one in which the High Court has decided precisely the opposite in its only decision on this question in Main v. Main under the Western Australian legislation and therefore that particular assertion is wrong. The report continues: >The Committee believes this requires extension by providing that such separation may occur notwithstanding that one party has from time to time performed services for the other party. It is trying to create by legislation a notional situation, a make-believe situation, that the parties have separated when in fact they are performing services for each other, and I do not believe that the Parliament should lend itself to establishing that farce. Amendment **(Senator Greenwood's)** negatived. {: .speaker-KAS} ##### The CHAIRMAN (Senator Webster: -The question is that the amendment moved by the Attorney-General be agreed to. {: #subdebate-48-0-s33 .speaker-KMX} ##### Senator GREENWOOD:
Victoria **- Mr Chairman,** I rise, notwithstanding the attempted ridicule from Government senators, because there is a point of view which ought to be expressed, and I do not care whether there are some Liberals who lend themselves to the support of the Labor Party on this issue. We are debating a Bill on which every honourable senator has the opportunity to express his views if he so chooses. The Attorney-General has proposed that there should be an amendment which would add to the existing words of the clause, which are: >The parties to a marriage may bc held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence - The Attorney-General proposes that the following words be added: or that either party has rendered some household services to the other. I want to be perfectly reasonable about this and all I ask is that the Senate and those who may be listening to its proceedings may be informed as to why it is that those words should be added. The Committee has apparently persuaded itself in its private sessions that these words should be added. The Attorney-General is content that these words should be added, but there has been no word of justification offered by anybody as to why it is necessary to add those words to this particular clause when the whole purpose of the words in the clause is to establish what is meant by separation. Why does it add to the concept of separation of parties to a marriage to say that the separation may be said to exist whilst either party is rendering some household services to the other? {: .speaker-1L5} ##### Senator Murphy: -- It may be said. {: .speaker-K1F} ##### Senator Poyser: -- You have said all this. {: .speaker-KMX} ##### Senator GREENWOOD: -- I have been trying to put a point of view tonight all the time I have been speaking and it has been jolly difficult against the incessant background of interjections throughout the Senate. It is difficult enough when one senses that one is in isolation in putting the point of view and believes that the point of view should be put. But I am asking, because I think the question of what constitutes separation is one which will have ramifications extending over the decades, and it ought to be regarded as an important matter and not one to be treated with ridicule and ignored just because some people have made up their minds about what the position should be, why it is that the rendering of household services should be sufficient? I refer again to what the standard text says on the subject. I think it is relevant because it takes into account, first of all, the High Court of Australia and then the Court of Appeal in England. It says: >The 2 words "separately and apart" show that physical separation is necessary and that it is not enough that there has been a destruction of the consortium vitae or matrimonial relationship - {: .speaker-K1F} ##### Senator Poyser: -- This is tedious repetition. {: .speaker-10000} ##### The CHAIRMAN: -- Order! {: .speaker-KMX} ##### Senator GREENWOOD: -- I shall start again, **Mr Chairman.** {: .speaker-K1F} ##### Senator Poyser: -- Please do. We are so interested. {: .speaker-KMX} ##### Senator GREENWOOD: -- I shall start again. It says: >The 2 words "separately and apart" show that physical separation is necessary and that it is not enough that there has been a destruction of the consortium vitae or matrimonial relationship while the spouses dwell under the same roof. In matrimonial law the expressions like "live separately", "separated" and "separation" are commonly used to indicate that the conjugal relation no longer exists between the parties to the marriage. ' Yet in the same year - This is referring to what was said in the Hopes v. Hopes case in England- >Denning L. J. . . . said . . . 'The parties must not be "residing with" one another; they must be "living separately and apart" or "living apart" from one another: or they must not be "cohabiting" with one another. All these phrases mean the same thing to my mind. At least I can sec no sensible distinction between them. They all express the fact of separation'. Lord Denning went on to say that what really must be looked for is whether there is one household or there are 2 households. It seems to me that what is involved in the Attorney-General's amendment is that there can be a situation in which there is one household and that will not constitute a bar to establishing that there is a separation. All I am asking- I am seeking some information and no one is prepared to be forthcoming with it- is: Why is it that that ought to be the situation in which there is in existence a separation? Why should it be in those circumstances that parties can be said to be living separately and apart when in fact they are living together? I repeat that we are making an absolute mockery of this provision in what we are doing. I can only regret that, to the discredit of the Parliament, it is being done without any attempt of justification. Amendment agreed to. Clause, as amended, agreed to. Clause 28. A decree of dissolution of marriage may be made notwithstanding that there was in existence at any relevant time- {: type="a" start="a"} 0. a separation order in relation to the parties to the marriage: or 1. an agreement between those parties for separation. Amendment (by **Senator Murphy)** agreed to: Leave out the clause. Clause negatived. Clause 29 agreed to. Clause 30. An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void. Amendment (by **Senator Murphy)** agreed to: >Add the following sub-clauses: > >A marriage that takes place after the commencement of this Act is void where- > >either of the parties is. at the time ofthe marriage, lawfully married to some other person; > >the parties arc within a prohibited relationship; > >the marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnization of marriages; > >) the consent thereto of either ofthe parties is not a real consent because- > >i ) it was obtained by duress or fraud; > >that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or > >that party is menially incapable of understanding the nature and effect of the marriage ceremony, or > >) either of the parties is not of marriageable age. and noi otherwise. "(3) Marriages that are within a prohibited relationship are marriages- > >between a person and an ancestor or descendant of the person; or > >between a brother and a sister (whether of the whole blood or the half-blood ). > >Any relationship specified in sub-section (3) includes a relationship traced through, or lo, a person who is or was an adopted child, and, for that purpose, the relationship between an adopted child and his adoptive parent, or each of his adoptive parents, shall be deemed to bc or to have been the natural relationship of child and parent. "(5) Nothing in sub-section (4) makes it lawful for a person to marry a person whom the first-mentioned person could not lawfully have married if that sub-section had not been enacted. > >For the purposes of this sectionfa) a person who has at any time been adopted by another person shall be deemed to remain the adopted child of that other person notwithstanding that any order by which the adoption was effected has been annulled, cancelled or discharged or that the adoption has for any other reason ceased to be effective; and > >a person who has been adopted on more than one occasion shall be deemed to be the adopted child of each person by whom he has been adopted. > >Paragraph (2) (c) does not apply in relation to a marriage solemnized under Part V ofthe Marriage Act 1961 or of that Act as amended or to any other marriage recognized in Australia by virtue of that Act or regulations made under that Act. '. Clause, as amended, agreed to. Clauses 3 1 to 34- by leave- taken together, and agreed to. Clause 35. {: type="1" start="1"} 0. 1 ) Where a decree nisi becomes absolute, the Registrar of the court by which the decree was made shall prepare and file a memorandum of the fact and of the date upon which the decree became absolute. 1. Where a decree nisi has become absolute, any person is entitled, on application to the Registrar of the court by which the decree was made, to receive a certificate signed by the Registrar that the decree nisi has become absolute. 2. A certificate given under sub-section (2) is, in all courts (whether exercising federal jurisdiction or not) and for all purposes, evidence of the matters specified in the certificate. Amendment (by **Senator Murphy)** agreed to: >Add the following new sub-clause:- > >The regulations may provide for the establishment of central records of decrees made under this Act and for the notification of decrees to the appropriate marriage registering authorities of the States and Territories. '. Clause, as amended, agreed to. Clause 36 agreed to. Clauses 37 to 39- by leave- taken together, and agreed to. Clause 40. {: type="1" start="1"} 0. 1 ) Subject to any order of a court for the time being in force, each of the parties to a marriage is a guardian of any child of the marriage who has not attained the age of 1 8 years and those parties have the joint custody ofthe child. 1. A party to a marriage may institute proceedings under this Act with respect to the custody or guardianship of. or access to, a child of the marriage. 2. An order with respect to the custody or guardianship of, or access to, a child- {: type="a" start="a"} 0. shall not be made in respect of a child who has attained the age of 18 years; and 1. b ) ceases to be in force when the child attains the age of 18 years or is adopted by a person who is not a party to the marriage. 3. On the death of a party to a marriage in whose favour a custody order has been made in respect of a child of the marriage, the other party to the marriage is entitled to the custody of the child only if the court so orders on application by that other party and, upon such an application, any other person who had the care and control of the child at the time ofthe application is entitled to be a party to the proceedings. Amendments (by **Senator Murphy)-** by leave -taken together. Leave out sub-clause ( 2 ), In sub-clause (3), paragraph (a), after 'years' insert 'or is or has been married '. In sub-clause (3), paragraph (b), leave out 'is adopted by a person who is not a party to the marriage' and insert 'marries '. After sub-clause (3), insert the following new subclause: "(3a) Unless a court having jurisdiction under this Act otherwise orders, an order in respect of the custody or guardianship of, or access to, a child of a marriage ceases to be in force if the child is adopted by a person who is not a party to the marriage. '. {: #subdebate-48-0-s34 .speaker-KMX} ##### Senator GREENWOOD:
Victoria -I do not rise to oppose the amendments because I do not know what the reasons for the amendments are and no effort has been made to explain them. I rise only to register my protest, which I expressed at some length earlier this evening, as to the way in which this debate has been conducted by the Government Party and by the members of the Committee. I feel that it is not fair to the Senate that the debate should be conducted in this way. I do not seek any explanation. I just register my protest because . I think that it should be on the record that this is not the way in which a Bill of this importance ought to be considered. {: #subdebate-48-0-s35 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- Perhaps it is fair to the Committee of the Whole and to those who might be listening to the broadcast of this debate to say that it should be understood that this Bill was prepared, introduced into this chamber, circulated among all honourable senators and available to all honourable senators. The clauses of the Bill were referred to a Committee of the Senate- the Standing Committee on Constitutional and Legal Affairs. That Committee reported in depth on the clauses of the Bill. {: .speaker-5U4} ##### Senator James McClelland:
NEW SOUTH WALES · ALP -- After 2 months' consideration. {: .speaker-1L5} ##### Senator MURPHY: -Yes. It came forward with certain recommendations that there be changes in some clauses of the Bill. Those recommendations were made available to all members of Parliament. Any person who had an interest in this Bill had an opportunity to study the clauses. The amendments which I have now moved are simply amendments seeking to carry out the recommendations of the Committee. The fact that I was going to move these amendments was made known to every member of this chamber some time ago in a printed document which set out the original clauses and the proposed amendments. These are simply amendments of a technical nature. There is no need to go into them. Every honourable senator has had an opportunity to consider them and, if he wanted to do so because he thought there was something wrong with them, to object to them or to ascertain what they are all about. It is not right and it is not fair to make the observation that in some way something is being pushed through. These amendments should, of course, go through without any objection at all because they have been given full consideration by the Standing Committee, by myself and by my officers. They have been circulated. It has been made known that I intended to move them because I accepted what the Committee put forward. Now we are being subjected to this sort of thing as if in some way something is being rushed or pushed through the Senate. I have moved them and I think that they ought to be accepted by the Committee. Amendments agreed to. Clause, as amended, agreed to. Clause 41. {: type="1" start="3"} 0. 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 but the failure does not constitute a contempt of the court. 1. The court may adjourn any proceedings referred to in sub-section ( 1 ) until a report has been obtained from a welfare officer on such matters relevant to the proceedings as the court considers desirable, and may receive the report in evidence. 2. Subject to sub-section (4), evidence of anything said or of any admission made at a conference that takes place in pursuance of an order made under this section 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. {: #subdebate-48-0-s36 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- I move: This amendment was discussed in some depth, I think, several days ago. It is in line with the recommendation of the Senate Standing Committee on Constitutional and Legal Affairs. Amendment agreed to. Clause, as amended, agreed to. Clause 42. A decree nisi of dissolution of marriage does not become absolute unless the court, by order, has declared that it is satisfied- {: type="a" start="a"} 0. that there are no children of the marriage who have not attained the age of 1 8 years; or 1. that the only children of the marriage who have not attained the age of 18 years are the children specified in the order and that- {: type="i" start="i"} 0. proper arrangements in all the circumstances have been made for the welfare of those children; or 1. there are circumstances by reason of which the decree nisi should become absolute notwithstanding that the court is not satisfied that such arrangements have been made. Amendment (by **Senator Murphy)** agreed to: >At the end of the clause add the following new subclause: > >Where, in proceedings for a decree of dissolution of marriage, the court is in doubt whether the arrangements made for the welfare of a child ofthe marriage are proper in all the circumstances, the court may adjourn the proceedings until a report has been obtained from a welfare officer regarding those arrangements'. Clause, as amended, agreed to. Clause 43. {: type="1" start="1"} 0. 1) In proceedings with respect to the custody or guardianship of, or access to, a child of a marriagefa) the court shall regard the welfare of the child as the paramount consideration and in doing so shall take into account the wishes of the child; {: type="a" start="b"} 0. except where the court is satisfied that it is necessary to do so by reason of special circumstances, the court shall not make an order with respect to the custody of, or access to, a child who has attained the age of 14 years where the order would be contrary to the wishes ofthe child; and 1. subject to paragraphs (a) and (b). the court may make such order in respect of those matters as it thinks proper. 1. In proceedings with respect to the custody of a child of a marriage, the court may, if it is satisfied that it is desirable to do so, make an order placing the child in the custody of a person other than a party to the marriage. 2. Where the court makes an order placing a child of a marriage in the custody of a party to the marriage, or of a person other than a party to the marriage, it may include in the order such provision as it thinks proper for access to the child by any person. 3. Where a court makes an order under this Part with respect to a child, the court may also, if it thinks the welfare of the child so requires, by order direct that compliance with the first-mentioned order shall, as far as practicable, be supervised by a welfare officer. {: type="I" start="1"} 0. 5 ) An order under this section may bc a permanent order or an order pending the disposal ofthe proceedings. 1. The Attorney-General may appoint persons to be enforcement officers for the purposes of this Part and a warrant under sub-section (8) or (9) may be addressed to a person so appointed. Amendments (by **Senator Murphy)-** by leave- taken together and agreed to: >Leave out sub-clause ( I ) and insert the following subclause: > >1 ) In proceedings with respect to the custody or guardianship of, or access to, a child of a marriage- > >the court shall regard the welfare ofthe child as the paramount consideration; > >where the child has attained the age of 14 years, the court shall not make an order under this Part contrary to the wishes of the child unless the court is satisfied that, by reason of special circumstances, it is necessary to do so; and > >subject to paragraphs (a) and (b), the court may make such order in respect of those matters as it thinks proper, including an order until further order. '. > >After sub-clause (3 ), insert the following new sub-clause: (3a) Where a court makes an order for joint custody of a child of a marriage or declines to make an order for the sole custody ofthe child, it may make orders as to access or such other orders as it thinks proper. '. > >Leave out sub-clause (5) and insert the following subclause: > >Where the court is of the opinion that there is a possibility or threat that a child will be removed from Australia, it may order the passport of the child and of any other person concerned to be delivered up to the court upon such conditions as the court thinks fit. '. Clause, as amended, agreed to. Clauses 44 and 45- by leave- taken together and agreed to. Clause 46. {: type="1" start="1"} 0. 1 ) In this section- court', in relation to a State or Territory, means the Supreme Court, or a court of summary jurisdiction, of that State or Territory; custody order' means a subsisting order for custody of, or access to, an ex-nuptial child who has not attained the age of 1 8 years. 1. The regulations may make provision for and in relation to- {: type="a" start="a"} 0. the registration in the courts of a State of custody orders made by the courts of other States or by the courts of the Territories; and 1. the registration in the courts of a Territory of custody orders made by the courts of other Territories or by the courts of the States. 2. Where a custody order is registered in a court under this section, the order has the same force and effect as if it were an order made by that court under this Act. Amendment (by **Senator Murphy)** agreed to: >Leave out sub-clause (2) and insert the following sub-clause: (2) The regulations may make provision for and in relation to the registration in a State or Territory in a court having jurisdiction under this Act (including the Family Court) of custody orders made by a court in another State or Territory. ' Clause, as amended, agreed to. Clauses 47 and 48- by leave- taken together and agreed to. Clause 49. {: type="1" start="6"} 0. If a court having jurisdiction under this Act is satisfied that a person has knowingly and without reasonable cause contravened or failed to comply with a provision of this section, that court may- {: type="a" start="a"} 0. order that person to pay a fine not exceeding $1,000; 1. require that person to enter into a recognizance, with or without sureties, in such reasonable amount as the court thinks fit, that that person will comply with the relevant order, or order that person to be imprisoned until that person enters into such a recognizance or until the expiration of 3 months, whichever first occurs; 2. order that person to deliver up to the court that person's passport and such other documents as the court thinks fit; and 3. make such other orders as the court considers necessary to enforce compliance with this section. 1. Sub-section (6) does not prejudice the power of acourt to punish a person for contempt of court. Amendment (by **Senator Murphy)** agreed to: >After sub-clause (6). insert the following new sub-clause: (6a) Where an act or omission referred to in sub-section (6) is an offence against any other law. the person committing the offence may bc prosecuted and convicted under that law, but nothing in this section shall render any person liable to bc punished twice in respect ofthe same offence.' Clause, as amended, agreed to. Clause 50 agreed to. Clause 51. A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so. if, and only if, that other party is unable to support herself or himself adequately, whether by reason of having the care or control of a child of the marriage who has not attained the age of 18 years, or by reason of age or physical or mental incapacity for gainful employment or for any other adequate reason. Amendments (by **Senator Murphy)-** by leave- taken together and agreed to: >In clause 51, before 'gainful 'insert 'appropriate'. Insert at end ofthe clause- having regard to any relevant matter referred to in subsection 54 (2)'. Clause, as amended, agreed to. Clauses 52 and 53- by leave- taken together and agreed to. Clause 54. {: type="1" start="1"} 0. 1 ) In determining- {: type="a" start="a"} 0. what constitutes adequate support of a party to a marriage for the purpose of section 5 1 ; 1. whether to make an order for the maintenance of a party to a marriage or a child of a marriage; or 2. the period for which such an order should continue in force or the amount of any payment to be required to be made under such an order, the court shall take into account only the matters referred to in sub-section (2). 1. The matters to be so taken into account are- {: type="a" start="a"} 0. the agc and state of health of each of the parties; 1. the income, earning capacity, property and other financial resources of each of the parties; 2. the financial needs and obligations of each of the parties: 3. the responsibilities of either party to support any other person; 4. the eligibility of either party for a pension, allowance or benefit under any law of Australia or of a State or Territory or under any superannuation fund or scheme, or the rate of any such pension, allowance or benefit being paid to either party; 5. f ) where the parties have separated or the marriage has been dissolved, the standard of living of the parties before the breakdown of the marriage; 6. the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business; 7. the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration: 8. ) if the party whose maintenance is under consideration is cohabiting with another person- the financial circumstances ofthe cohabitation; and 9. the terms of any order made or proposed to be made under section 58 in relation to the property of the parties. Amendments (by **Senator Murphy)-** by leave- taken together and agreed to: >Leave out sub-clause ( 1 ) and insert the following subclause: > >In exercising jurisdiction under this Part, the court shall take into account only the matters referred to in subsection^).'. > >In sub-clause (2) leave out paragraph (b) and insert the following paragraphs:- > >the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment: (ba) whether either party has the care or control of a child ofthe marriage who has not attained the age of 1 8 years; '. > >In sub-clause (2), paragraph ( f), leave out- the standard of living of the parties before the breakdown of the marriage' and insert 'a standard of living that in all the circumstances, is reasonable'. > >In sub-clause (2 ) at end of paragraph (g) add- or otherwise to obtain an adequate income". > >In sub-clause (2) after paragraph (g), insert the following new paragraph:- (ga) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; '. > >In sub-clause (2), paragraph (j ), leave out 'of the cohabitation; and' and insert 'relating to the cohabitation; and '. Amendment (by **Senator Durack)** agreed to: >In sub-clause (2) after paragraph (k), add the following new paragraph: > >any fact or circumstances which in the opinion ofthe Court the justice ofthe case requires to be taken into account '. Clause, as amended, agreed to. Clause 55. {: type="1" start="4"} 0. The court shall not make an order under sub-section (3) unless it is satisfied that, having regard to the child's standard of living and the availability of educational and social benefits, refusal to make the order would subject the child to substantial hardship. {: #subdebate-48-0-s37 .speaker-KUU} ##### Senator MISSEN:
Victoria -- I move: This clause relates to the matters to be taken into consideration in proceedings with respect to the maintenance of children. There is a provision already in clause 55 which states: if the court is satisfied that the provision ofthe maintenance is necessary to enable the child to complete his education (including vocational training or apprenticeship) or because he is menially or physically handicapped, and, in that case, the order continues in force until that day or the expiration of that period, as the case may be. That is the concluding part of the provision with regard to maintenance for children. Sub-clause (4) states: >The court shall not make an order under sub-section (3) unless it is satisfied that having regard to the child's standard of living and the availability of educational and social benefits, refusal to make the order would subject the child to substantial hardship. The Senate Standing Committee on Constitutional and Legal Affairs was of the opinion that it was not necessary to impose a standard that the child had to establish was necessary for him. It is unlikely of course that in many cases this will operate. There may be scholarships and other benefits to the child. It is felt that to put such an onus on the child to go to the court and satisfy the court that it would be a substantial hardship unless maintenance was continued was wrong and unsatisfactory and was requiring too high a standard of proof. The Committee felt that this clause should be deleted. {: #subdebate-48-0-s38 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- I am going to vote against this amendment but I will not seek to divide the Committee. I think it is wrong. I believe there ought to be a certain consistency. When people turn 18 they are adults, not children. I do not believe that this law should provide for orders for maintenance of an adult. If we are to do that we might as well extend the law and provide for the maintenance of adult brothers, or fathers or other adult relatives. Provision for such circumstances, and children who go through university or undertake other training and so forth will need it, should be made in other areas of the law. I think it is quite absurd to use the family law in this regard, particularly that aspect of it directed to maintenance of children, to deal with the position of an adult who happens to need maintenance while undergoing education or some kind of training. I think this represents a twisting and a distortion of the maintenance law. It is quite wrong to do this. I saw what the Constitutional and Legal Affairs Committee said. There are pressures here tonight which impel me because I want to see the Bill go through. I do not want to see it delayed unduly. I know that a great number of people are going to be affected by it. These pressures probably will affect my attitude not only in regard to this amendment but perhaps in regard to some other clauses. Rather than prolong the debate on this matter and perhaps lose the Bill in a practical sense for this year, and perhaps for a long time, I do not propose to debate the matter further. I indicate that I think this amendment is not in the spirit of what we ought to be providing in respect of maintenance of children. Amendment agreed to. Clause, as amended, agreed to. Clause 56. Where, in proceedings with respect to the maintenance of a party to a marriage or a child of a marriage, it appears to the court that the party or child is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal ofthe proceedings, of such periodic sum as the court considers reasonable. {: #subdebate-48-0-s39 .speaker-KUU} ##### Senator MISSEN:
Victoria -- I have an amendment to this clause, which relates to urgent maintenance cases. The amendment relates to cases where there is a very urgent order and there is no time for the court to investigate entirely the financial circumstances either of the party or of the child. A suggestion was made to me by a Sydney solicitor and I think it is a worthwhile one. Looking at the fifth line of clause 56 we see that the court may order payment, pending the disposal of proceedings, of such periodic sum as the court considers reasonable. A periodic sum normally would be $20 a week, $30 a week, or some such figure. It is suggested that in an urgent case of a wife left by a husband there may have to be a mortgage payment made which, if not met, would lead to the loss of the house, or some other payment which needs to be made but which could not be described as a periodic payment. Therefore I move: This is to meet urgent cases where the court does not have time to investigate the facts and to make a payment of a different nature. {: #subdebate-48-0-s40 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- I think this is a wise amendment. Amendment agreed to. Clause, as amended, agreed to. Clause 57. {: type="1" start="1"} 0. 1 ) In proceedings between the parties to a marriage with respect to existing title or rights in respect of property, the court may declare the title or rights, if any, that a party has in respect ofthe property. 1. An order under this section is binding on the parties to the marriage but not on any other person. Amendment (by **Senator Murphy)** agreed to: >After sub-clause ( I ). insert the following sub-clause:- ( Ia) Where a court makes a declaration under sub-section ( I ), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession. '. Clause, as amended, agreed to. Clause 58. {: type="1" start="1"} 0. 1 ) In proceedings with respect to the property ofthe partics to the marriage or either of them, the court may make such order as it thinks fit altering the interests ofthe parties in the property, including an order requiring either or both of the parties to make, for the benefit of either or both ofthe parties or a child of the marriage who has not attained the agc of 1 8 years, such settlement or transfer of property as the court determines. 1. The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. 2. The court shall not make an order under this section unless a decree nisi for dissolution of the marriage, or a decree of nullity ofthe marriage, has been made or proceedings for a decree of dissolution or nullity of the marriage have been instituted in that court or in another court having jurisdiction under this Act. 3. In considering what order should bc made under this section the court shall take into account- {: type="a" start="a"} 0. the financial contribution made directly or indirectly by or on behalf of a party or a child to the acquisition, conservation or improvement ofthe property: 1. the contribution made to the acquisition, conservation or improvement of the property by either party in the capacity of homemaker or parent or otherwise; 2. the effect of any proposed order upon the earning ca pacity of cither party; 3. the matters referred to in sub-section 54 (2) so far as they are relevant: and 4. ) any other order made under this Act affecting a party. Amendment (by **Senator Murphy)** agreed to: >Leave out sub-clause ( 1 ) and insert the following subclause: > >1 ) In proceedings with respect to the property of the parlies to a marriage or cither of them, the court may make such order as it thinks fit altering the interests ofthe parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both ofthe parties to make, for the benefit of cither or both ofthe parties or a child of the marriage, such settlement or transfer of property as the court determines.'. {: #subdebate-48-0-s41 .speaker-KUU} ##### Senator MISSEN:
Victoria -- I have another amendment to move on behalf of members of the Standing Committee. I move: >At the end of sub-clause (3) add the words 'or a party has filed in the court a notice under section 14a of this Act.' That wording is different from what was circulated in the printed amendment. The circulated proposed amendment refers to a notice stating that the marriage has broken down. We changed the situation in clause 14a and I think what I have moved covers it. This means, in effect, that an application can be made for a settlement of property without requiring a party to institute divorce proceedings. It will stop the situation of someone having to institute divorce proceedings to obtain settlement of property. They will be able to do it if they file in the court a notice calling for conciliation. This will probably have greater constitutional validity because there already will be proceedings in the court. The Committee recommends that these words be inserted in the clause. {: #subdebate-48-0-s42 .speaker-KUS} ##### Senator MILLINER:
Queensland -Do I correctly understand the intention of the amendment to be that, if there is no dissolution, proceedings can take place on the distribution of assets? Is that the intention? It appears that that is intended from what **Senator Missen** said. If so I think it is right outside the scope of the legislation. {: #subdebate-48-0-s43 .speaker-KUU} ##### Senator MISSEN:
Victoria -- It is the intention that that should be so. The situation under the Bill as it stands is that if somebody wants a settlement of property there is a dispute but they may not want divorce proceedings. The Bill would require them to start divorce proceedings just to get a settlement of property. It may well be that parties separate and do not intend to proceed with divorce at that stage. They may desire to split up the matrimonial property and make their own arrangements. Later they may proceed with divorce. As the Bill stands it is almost an encouragement of divorce. It almost forces people into divorce proceedings when they may not have made up their minds to do so. The Constitutional and Legal Affairs Committee thought that this should not be forced on them. They should have the opportunity to obtain a settlement of property just as they can obtain custody or maintenance orders before starting divorce proceedings. The intention of the Committee with this amendment is that they should not be forced into divorce proceedings to achieve these results. {: #subdebate-48-0-s44 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- I do not agree with this amendment. I do not think it helps. I know that some of my advisers think that it is unconstitutional. I do not agree with them. I think they are thinking in terms of the kind of matrimonial causes that we have traditionally had and this, perhaps, creates some kind of matter arising out of marriage. Some may think that this will lead to provocation. I am not so upset about it because I think that in practice it will not mean very much. If one ofthe parties commences an antagonistic action for, in effect, a redistribution of the property- as **Senator Milliner** has put it, an alteration ofthe property interests- that would probably lead to a divorce. But I think that many of these things can be approached theoretically whereas in a practical sort of way the parties may be living reasonably well together and solving their problems. If they are not living reasonably well together, I suppose it does not matter whether the divorce proceedings or the property action comes first. So really I do not think it will make much difference in practice. I must confess that my instinct is completely against it. I do not like it. It is one of the Committee's proposals which is not good, and I will vote against it. {: #subdebate-48-0-s45 .speaker-KUS} ##### Senator MILLINER:
Queensland -- Having had my suspicions verified by the explanation, I intend to oppose the amendment. I do not think it will make much difference but I think that the Committee would be wise if it withdrew its amendment, even at this late stage. If it finds on some subsequent occasion that it should proceed with what it believes then such a proposal could be introduced as an amendment to the legislation. At this point I oppose the amendment. {: #subdebate-48-0-s46 .speaker-3E4} ##### Senator MARTIN:
Queensland -- I wish to speak briefly to the point that **Senator Milliner** has made. I think his is a very important point. One of the major criticisms that has been made by opponents of the Bill is that it will force divorce on those who do not want it. While I am not opposed to the notion of somebody taking divorce proceedings against the will of somebody else, 1 do very much object to the position where people are forced to take proceedings when it is against the will of both. I can well envisage a situation in which, in the interests of justice and in order to settle a matter of marital property- this is the matter at which we have been looking- a person may be forced to take proceedings. But for very genuine religious reasons or some other reason that person may just feel quite prohibited personally from actually instituting divorce proceedings. I think acceptance of the Bill in the minds of a lot of people would depend on that notion, namely, whether we force people into divorce courts against their will simply to bring about a fair settlement of marital property. For that reason 1 support the amendment that **Senator Missen** has moved. Amendment agreed to. Amendment ( by **Senator Murphy)** agreed to: >In sub-clause (4), leave out paragraphs (a) and (b) and insert the following paragraphs: > >the financial contribution made directly or indirectly by or on behalf of a party or a child to the acquisition, conservation or improvement of the property, or otherwise in relation to the property; > >the contribution made directly or indirectly to the acquisition, conservation or improvement of the property by cither party, including any contribution made in the capacity of homemaker or parent; ' Clause, as amended, agreed to. Clauses 59 and 60- by leave- taken together, and agreed to. Clause 6 1 . {: type="1" start="4"} 0. An order with respect to the maintenance of a party to a marriage or a child of a marriage ceases to have effect upon the re-marriage ofthe party or the marriage of the child. 1. Nothing in this section affects the recovery of arrears due under an order at the time when the order ceased to have effect. Amendment (by **Senator Murphy)** agreed to: Leave out sub-clause (4) and insert the following sub-clauses: {: type="1" start="4"} 0. An order with respect to the maintenance of a party to a marriage ceases to have effect upon the re-marriage ofthe party. (4a) An order with respect to the maintenance of a child of a marriage ceases to have effect upon the adoption or marriage of the child. (4b) Where a re-marriage referred to in sub-section (4) or a marriage referred to in sub-section (4a) takes place, it is the duty of the person for whose benefit the order was made to inform without delay the person liable to make payments under the order of the date ofthe re-marriage or marriage. (4c) Any moneys paid in respect of a period after the event referred to in sub-section (4) or (4a) may be recovered in a court having jurisdiction under this Act. '. {: #subdebate-48-0-s47 .speaker-KUU} ##### Senator MISSEN:
Victoria -On behalf of the 6 members of the Committee, I move: The amendment moved by the AttorneyGeneral **(Senator Murphy)** reads: >An order with respect to the maintenance of a party to a marriage ceases to have effect upon the re-marriage of the party. The Committee has decided that its amendment should make provision for the fact that there may be certain special circumstances in which such an order should not cease. This is a matter, I think, of policy difference between the AttorneyGeneral and the Committee. The situation may arise where somebody re-marries a man who is either in poor health or in poor financial circumstances. She may have a maintenance order in respect of the husband who is a wealthy man and fully able to contribute to her maintenance. She may be keeping children in private schools and in circumstances upon which the first husband insists. It is felt that there may be special circumstances in rare cases where there should be a continuance of the court order. It should be so only when the court having jurisdiction so orders. Of course, the onus is on the person to maintain continuance of that order. This is a matter on which we may make our decision quite easily, but it is the Committee's opinion that that right should continue if the court thinks that it should. {: #subdebate-48-0-s48 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- For once I feel myself in the company of **Senator Sir Kenneth** Anderson, lt is said that marriage is something voluntarily entered into by a man and a woman to the exclusion of all others for life. But this amendment says that it is to the exclusion of all others, except the one to whom you were marriedthe one removed. Somehow or other it seems to be thought that if a person obtains a divorce he can end everything except the financial relations. Notwithstanding that a divorce has been granted, the parties have gone their separate ways and have married others. If it so happens that one of the previous partners wins the lottery or something the other former partner may wake up one day, read of it in the newspaper and say: ' 1 was married to that fellow once and he has won the lottery. Let me go back and get a share of it'. For ever afterwards there is some kind of potential, dependent or contingent interest in the former partner, notwithstanding what we have solemnly put into the Bill about marriage being to the exclusion of all others. It is suggested that we put into parenthesis the words except some person to whom you were once married ', because such a person is not excluded. You can always look back on this kind of proposal. I understand that the Committee has considered this matter and I do not suppose it will mean very much in practice. In theory I think it goes quite contrary to the notion of dissolution of marriage. I think that once again **Senator Sir Kenneth** Anderson was right in this respect. I think that the approach of the lawyers to this matter is that forever there must be some right of action, some way, to get some financial contribution. The obligation will be there forever after, notwithstanding even that a marriage has been entered into. To me it seems the height of absurdity. I will vote against the amendment, but 1 think it will mean very little in practice. I certainly hope that the wise judges who will staff the family courts and even the young judges who may, if the wishes of some people come true, staff the State courts will not have a bar of this nonsense which allows a person who has been divorced and gone on to marry someone else to turn back to the former partner and seek maintenance from the former partner. {: #subdebate-48-0-s49 .speaker-8G4} ##### Senator DURACK:
Western Australia -- Despite my desire to co-operate in seeing that this Bill goes through as quickly as possible, I wish to say a few words on this matter. I notice that we are making good progress. We have some time up our sleeve, which I think gives me some licence to answer the argument of the Attorney-General **(Senator Murphy)** on this matter because, really, I just cannot let this go by without comment. For a start, the AttorneyGeneral's argument is related to a situation which has no application whatever to this particular amendment. Sub-clause 4 of clause 6 1 of the Bill provides that an order with respect to the maintenance of a party to a marriage ceases to have effect upon the re-marriage of the party. The Bill deals with an existing order. It is not concerned with the situation in which somebody who does not have an order reads in the newspaper, years after the marriage has been washed up, that her former husband has won the lottery. That is what the Attorney-General has put to the Committee and it has nothing whatever to do with this amendment. {: .speaker-1L5} ##### Senator Murphy: -- Do not existing provisions say that an order, such as I am proposing, with respect to the maintenance of a party shall cease to have effect upon the remarriage of the party? {: .speaker-8G4} ##### Senator DURACK: -That is not what the Attorney-General's example dealt with. I want to put clearly before the Committee the circumstances in which this may well apply. The sort of situation which the Standing Committee on Constitutional and Legal Affairs had in mind was one where a man of some means- I am not talking about a man who won the lottery or about a millionaire; I am talking about a man of some means- obtained a divorce after one year's separation from a wife who may have been entirely unwilling to agree to the divorce but who, because of this law, has been divorced and she was clearly entitled to maintenance, and substantial maintenance, for herself and the children of the marriage and obtained such an order. Suppose this woman, who has been abandoned by this well off husband, has been divorced and obtained maintenance, and then in her loneliness decided to remarry and married a man who is on the minimum wage. This is not an unrealistic situation because I have had professional experience of it. Under the clause of the Bill as printed, that woman will cease to be entitled to any maintenance and will have no rights in respect of her former husband whatsoever. That is what this clause is dealing with. It is a situation which in all justice demands that she should still have some rights to maintenance from her former husband. It may well be that in most cases this provision will not be required but what the Committee is objecting to are the absolute provisions of the sub-clause as printed which would exclude a woman in those circumstances. Consider also the situation where a woman has remarried and the second marriage ends because ofthe death of the second husband. She may well be left in destitute circumstances whereas her first husband is a man of means and can contribute to her maintenance. These are the sorts of situations which the amendment of the Committee, as moved, deals with and not the fanciful, unrealistic and quite fallacious circumstances which have been mentioned by the Attorney-General. {: #subdebate-48-0-s50 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- I understand that the clauses I proposed by way of amendment to be inserted have been inserted in lieu of what was there and I think it would be consistent with the way in which the Committee has operated till now that we should not have any difficulty about this amendment. If this amendment replaces mine I shall be content with it. I would suggest with the consent of the Committee that the amendment which has been moved be put to the Committee notwithstanding that my amendment has replaced the earlier clause. If this amendment prevails then it will take effect. Amendment agreed to. {: #subdebate-48-0-s51 .speaker-KUU} ##### Senator MISSEN:
Victoria -I move: Sub-clause (4a) as amended by the amendment moved by the Attorney-General **(Senator Murphy)** now reads: >An order with respect to the maintenance of a child of a marriage ceases to have effect upon the adoption or marriage ofthe child. What is desired by the 6 members of the Committee on Constitutional and Legal Affairs is to insert at the commencement of that clause the amendment I have just moved so that it would then begin with the words: 'Subject to the provisions of Section 55 (3)'. Clause 55 (3), which we mentioned some little time ago, deals with the maintenance of children and says that a court may continue an order beyond 18 years of age for the maintenance of a child where it is considered necessary to complete his education. What is desired by the Committee on Constitutional and Legal Affairs is that clause 55 (3) should be read with sub-clause (4a), otherwise they would appear to be inconsistent. Amendment agreed to. Clause, as amended, agreed to. Clause 62. {: type="1" start="1"} 0. 1 ) In proceedings with respect to the maintenance of a party to a marriage or of a child of a marriage, if there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of that party or child by the other party to the marriage- {: type="a" start="a"} 0. made by the court; or 1. made by another court (including the Superior Court or the Supreme Court of a State or Territory) and registered in the first-mentioned court in accordance with the regulations, the court may- 2. discharge the order if there is any just cause for so doing; 3. suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event; 4. revive wholly or in part an order suspended under paragraph (d); or (0 subject to sub-section (2), vary the order so as to increase of decrease any amount ordered to be paid or in any other manner. 1. Sub-section (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first-mentioned order is made for the purpose of giving effect to section 5 1 . Amendments (by **Senator Murphy)-** by leave- taken together, and agreed to. In sub-clause ( I.), paragraph (b) leave out the words in parenthesis. In sub-clause (3) leave out 'section 51' and insert 'this Part'. Clause, as amended, agreed to. Clause 63 agreed to. Clause 64. {: type="A" start="1"} 0. I ) In proceedings under this Part, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interests of, a party, if it is made or proposed to bc made to defeat an existing or anticipated order in those proceedings for costs, maintenance or the declaration or alteration of any interests in property. {: type="1" start="2"} 0. The court may order that any money or real or personal property dealt with by any such instrument or disposition may be taken in execution or charged with the payment of such sums for costs or maintenance as the court directs, or that the proceeds of a sale shall be paid into court to abide its order. 1. The court shall have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested. 2. A party or a person acting in collusion with a party may be ordered to pay the costs of any other party or of a bona fide purchaser or other person interested of and incidental to any such instrument or disposition and the setting aside or restraining ofthe instrument or disposition. 3. In this section, 'disposition 'includes a sale and a gift. {: #subdebate-48-0-s52 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- I move: {: .speaker-JYN} ##### Senator Everett: **- Mr Chairman,** it would be convenient if that amendment were postponed because it will not grammatically fit in with the next amendment which I propose to move. I will take care of the grammar in moving my amendment. {: .speaker-1L5} ##### Senator MURPHY: -I agree. {: #subdebate-48-0-s53 .speaker-10000} ##### The CHAIRMAN: -- Is leave granted to postpone consideration of the amendment moved by **Senator Murphy?** There being no objection, that course will be followed. {: #subdebate-48-0-s54 .speaker-JYN} ##### Senator EVERETT:
Tasmania -- I move: I also move: >In sub-clause ( I ) delete the words 'if it' and substitute the word 'which'. Sub-clause 64 ( 1 ) as amended would read: >In proceedings under this Part, the court may set aside or restrain the making of an instrument or disposition by or on behalf or. or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings for costs, maintenance or the declaration or alteration of any interests in property or which, irrespective of intention, is likely to defeat any such order. Clause 64 as printed is in terms similar to Section 120 of the existing Act and the general purpose of it is to give the court power to set aside instruments or dispositions which are made with the intention of defeating orders or claims pursuant to the statute. The courts have interpreted that section in the existing Act as necessarily involving an intention on the part of the person making the instrument or disposition to produce that effect. There are a number of decisions on those lines. So the section at the moment is ineffective unless an intention to defeat claims can be proved and that is often extremely difficult. The Committee on Constitutional and Legal Affairs considered that the words which I seek to add at the end of subclause ( 1 ) were desirable; in other words, that irrespective of intention, if the making of the instrument or disposition had the effect of defeating claims then it was liable to be set aside by the court. I simply add that since the power is discretionary the court would always have the power to protect bona fide purchasers for value. {: #subdebate-48-0-s55 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- The proposal of the Standing Committee to make intention immaterial is not without precedent in Australian legislation. An example of such a provision is section 122 of the Bankruptcy Act which is applied to companies by section 293 of the uniform companies legislation. Both provisions are concerned with avoidance of preference to creditors. Section 122 of the Bankruptcy Act has certain safeguards for bona fide purchasers and other interested persons other than what clause 64 would as it stands. I do not oppose the amendment. Amendments agreed to. Clause 64, as amended, agreed to. Clause 65 {: type="1" start="1"} 0. 1 ) A maintenance agreement is not enforceable unless it has been approved by the court and the approval has not been revoked. 1. In proceedings for the approval of a maintenance agreement, if the court is satisfied that the provisions of the agreement with respect to financial matters are proper, the court shall approve the agreement, but, if the court is not so satisfied, it shall refuse to approve the agreement. 2. A maintenance agreement ceases to be in force upon the death of a party to the agreement unless the agreement otherwise provides. 3. A court may revoke its approval of a maintenance agreement only if it is satisfied that the concurrence of a party or the approval of the court was obtained by fraud or that the parties to the agreement desire the revocation ofthe approval. 4. Where a court has approved a maintenance agreement and the approval has not been revoked, the agreement shall be deemed to be registered in that court. 5. The regulations may make provisions for and in relation to the registration in a court having jurisdiction under this Act of a maintenance agreement that has been approved by another court under his section. 6. A subsisting maintenance agreement that is registered in a court may be enforced as if it were an order of that court. 7. Subject to sub-section (9), where a subsisting maintenance agreement that is registered makes provisions with respect to financial matters, the court shall not make an order with respect to the financial matters dealt with in the agreement. 8. Where the court is satisfied that the arrangements in a subsisting maintenance agreement that is registered relating to a child ofthe marriage who has not attained the age of 18 years are no longer proper, it may make an order under this Part. 9. 10) Nothing in this Act affects the operation of an agreement sanctioned under paragraph 87 ( 1 ) (k) of the repealed Act or the rights and obligations of a person under such an agreement. 10. Subject to section 66, this section does not apply to overseas maintenance agreements. {: #subdebate-48-0-s56 .speaker-JYN} ##### Senator EVERETT:
Tasmania -- I move: In explanation 1 point out that as printed the Bill provides that a maintenance agreement as defined in clause 4 is not enforceable unless it has been approved by the court. That is in clause 65 ( 1 ) as printed. I invite the Committee's attention to paragraph 76 of the Standing Committee's report in which it expressed the view that there was some conflict in clause 65(1) as printed and the expressed purpose given in the explanatory memorandum to the Bill. That led to further discussion as a result of which it was thought desirable to split clause 65 as printed into 2 sections which now appear in the amendments as clause 65 and clause 65a. Those 2 amendments provide for 2 alternative approaches. In the first place, proposed new clause 65 provides for the registration of subsisting maintenance agreements; 'subsisting' means an agreement which still remains in force. As I have said the proposed new clause provides for registration of maintenance agreements and where they have been registered the court can exercise the powers of variation which are conferred on it by clause 62. I invite attention to proposed new clause 65 (3) whereby the court in which a subsisting maintenance agreement is registered may set aside that agreement only if it is satisfied that the concurrence of a party was obtained by fraud or undue influence or that the parties desire the agreement to be set aside. That is the first section of the agreement dealt with by the amendment. Proposed new clause 65a contains the second alternative approach to the question of maintenance agreements and it provides that an agreement can operate in substitution for any rights under the Act provided it is approved by the court. As such the principle is very similar to that which is contained in section 87 (1) (k) of the existing Act. 1 invite the attention of the Committee to the safeguards which are contained in proposed new sub-clauses 4 and 6. {: .speaker-5U4} ##### Senator James McClelland:
NEW SOUTH WALES · ALP -- That is in proposed new clause 65a. {: .speaker-JYN} ##### Senator EVERETT: -Yes. Proposed new subclause 4 provides that the court shall refuse to approve an agreement unless it is satisfied that the financial matters with which it deals are proper. Sub-clause 6 relates to revocation of a court's approval in cases of fraud or undue influence. It seems to the members of the Standing Committeeand 1 think I am speaking on their behalf in relation to this latest proposed amendment- that these new proposed amendments provide a more systematic approach to the question of maintenance agreements. There would really be a 3-tier scheme because the amendments do not interfere with the recognition at common law of an agreement provided it is not contrary to public policy by attempting to oust the jurisdiction of the court. It then provides for a second tier of registered agreements. Thirdly, it provides for an agreement to be approved in proposed new clause 65a very-much in the same manner as an agreement is now sanctioned under section 87 ( 1 ) (k) of the Matrimonial Causes Act. {: #subdebate-48-0-s57 .speaker-1L5} ##### Senator MURPHY:
ALP -- The amendments are acceptable. {: #subdebate-48-0-s58 .speaker-8G4} ##### Senator DURACK:
Western Australia -- I support the amendments moved by **Senator Everett.** I think they are a vast improvement on the provisions of the Bill and indeed on the Standing Committee's own recommendations. I think we have had some rather satisfactory second thoughts. In forming those second thoughts we have had assistance from a number of people. However there is one point that bothers me. It is purely a thoroughly legalistic point. When I read the proposed amendments I could not understand what on earth the phrase 'subsisting maintenance agreement' meant. I know there is some reference to it in the present clause, but by and large we talk about maintenance agreements throughout both the present clause and this amendment. To my mind either there is an agreement in law or there is not an agreement. I just do not know how there can be an agreement which is not a subsisting agreement. I think the addition ofthe word 'subsisting' leads to ambiguity. I am concerned that there might be some rather unnecessary and gratuitous legal argument as to what on earth the word means and why it should be there at all. {: #subdebate-48-0-s59 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- As I understand it, it means a maintenance agreement that has not been revoked, that has not been set aside. It means one that is in operation. I think there may be something in what **Senator Durack** says. I do not think it would do any harm if the word 'subsisting' were removed. {: .speaker-JYN} ##### Senator Everett: -- I am prepared to move to omit the word 'subsisting'. {: .speaker-1L5} ##### Senator MURPHY: -The word 'subsisting' appears in clauses 65( 1 ), 65(3), 65a.(6), 65a.(9) and 65 b. I have had those people who are advising me look through this and may I say that they commend **Senator Everett** and the other members of the Standing Committee for the proposal which has been made. It seems to be an entirely acceptable one and an improvement on the law. {: #subdebate-48-0-s60 .speaker-KAS} ##### The CHAIRMAN (Senator Webster: -I think it would suit the purposes of the Committee if that amendment were proposed by **Senator Everett,** by leave, instead of having a second amendment from the Attorney-General. {: .speaker-1L5} ##### Senator Murphy: -- Very well. {: #subdebate-48-0-s61 .speaker-10000} ##### The CHAIRMAN: -- I take it that the motion proposed to be moved by **Senator Everett,** by leave, seeks to omit the word 'subsisting' where appearing in your proposal. **Senator EVERETT** (Tasmania)-That is so, **Mr Chairman.** I seek leave to move accordingly. {: .speaker-10000} ##### The CHAIRMAN: -- Is leave granted? There being no objection, leave is granted. {: .speaker-JYN} ##### Senator EVERETT: -- I move: I seek the advice of the Chair. I also wish to move an amendment to clause 66 which is consequential to proposed new clause 65 b. {: .speaker-10000} ##### The CHAIRMAN: -- The Chair understands that your first amendment embraces proposed new clause 65, 65a and 65b. {: .speaker-JYN} ##### Senator EVERETT: -- Clause 66 will be dealt with when this amendment is disposed of, I take it. Amendment agreed to. Clause, as amended, and proposed new clauses agreed to. Clause 66 The regulations may make provision Tor and in relation to- {: type="a" start="a"} 0. the application of section 65, with such additions, exceptions and modifications as are prescribed, to overseas maintenance agreements: and 1. the transmission to appropriate courts or authorities of prescribed overseas countries of, or of copies of. maintenance agreements and of agreements for maintenance of ex-nuptial children for the purpose of securing the enforcement of those agreements in those countries. Amendment (by **Senator Everett)** agreed to: >Leave out 'section 65', substitute 'sections 65 and 65a'. Clause, as amended, agreed to. Clause 67 A maintenance agreement, or a deed or other instrument executed by a person for the purposes of such an agreement or for the purposes of. or in accordance with an order under, this Part, is not subject to stamp duty under any law of a State or Territory. Amendment (by **Senator Murphy)** agreed to : leave out 'stamp duty' and insert ' any duty or charge '. Clause, as amended, agreed to. Clauses 68 to 70- by leave- taken together and agreed to. Clause 7 1 {: type="1" start="1"} 0. 1 ) A person aggrieved by a decree of a Judge of the Supreme Court of a State exercising jurisdiction with which that Court is invested by this Act may, within such time as is prescribed, appeal from the decree to the Supreme Court of that State sitting as a Full Court or as a Court of Appeal. 1. The Supreme Court of each State is invested with jurisdiction to hear and determine appeals under this section. 2. Upon such an appeal the Court may affirm, reverse or vary the decree the subject ofthe appeal and may make such decree as, in the opinion of the Court, ought to have been made in the first instance, or may, if it thinks fit, order a rehearing on such terms and conditions, if any, asu thinks just. Amendment (by **Senator Murphy)** agreed to: >Leave out the clause and insert the following clause: > >1 . ( 1 ) A person aggrieved by a decision of a Judge ofthe Supreme Court of a State exercising jurisdiction under this Act or of the Family Court exercising original jurisdiction under this Act may, within the time prescribed by the regulations, appeal from the decree to the Full Court ofthe Family Court. > >Upon such an appeal, the Full Court may affirm, reverse or vary the decree the subject of the appeal and may make such decree as, in the opinion of the court, ought to have been made in the first instance, or may, if it thinks fit, order a re-hearing, on such terms and conditions, if any. as it thinks fit.' {: #subdebate-48-0-s62 .speaker-KUU} ##### Senator MISSEN:
Tasmania -I move: This amendment will enable appeals to go from the Family Court to the Full Court of the Family Court. {: .speaker-1L5} ##### Senator Murphy: -- That is acceptable. Amendment agreed to. Clause, as amended, agreed to. Clause 72. Notwithstanding anything contained in the Judiciary Act 1903-1973, an appeal does not lie to the High Court, except by special leave ofthe High Court, from a judgment, decree or order of the Supreme Court of a State given or made under this Act, whether in the exercise of original or appellate jurisdiction Amendment (by **Senator Murphy)** agreed to: >Leave out the clause and insert the following new clause: > >Notwithstanding anything contained in the Judiciary Act 1903-1973, an appeal doth not lie to the High Court from a judgment, decree or order of a court exercising jurisdiction under this Act, whether original or appellate, except- > >by special leave ofthe High Court; or > >upon a certificate of the Full Court of the Family Court that an important question of law or of public interest is involved. '. Clause, as amended, agreed to. Clause 73. {: type="1" start="1"} 0. 1 ) A person aggrieved by the decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under this Act may, within such time as is prescribed, appeal to the Superior Court or to the Supreme Court of that State or Territory. 1. The Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Superior Court and on the Supreme Court of each Territory, to hear and determine appeals instituted in that Court under this section. 2. A court shall determine an appeal under this section in accordance with- {: type="a" start="a"} 0. the law in force on the date on which the hearing of the appeal is concluded: and 1. the evidence that was before the court of summary jurisdiction and any other evidence adduced with the leave of that court under sub-section (4). 3. On the hearing of an appeal to which this section applies a party is not entitled to adduce evidence except with the leave ofthe court- {: type="a" start="a"} 0. granted on the ground that the evidence relates to matters that occurred after the hearing of the proceedings in the court of summary jurisdiction: or 1. granted in special circumstances on another ground. Amendments (by **Senator Murphy)-** by leave- taken together and agreed to: >In sub-clause ( 1 ) leave out 'Superior 'and insert 'Family'. > >In sub-clause ( 2 ) leave out 'Superior' and insert ' Family". > >Insert the following new sub-clause:- (2a) The Governor-General may, by Proclamation, fix a date as the date on or after which appeals to the Supreme Court of a specified State or Territory under this section may not be instituted. '. Clause, as amended, agreed to. Clause 74. {: type="1" start="74"} 0. ( 1 ) Subject to sub-section (2) and to the regulations, all proceedings under this Act shall be heard in closed court. Amendment ( by **Senator Murphy)** agreed to: >In sub-clause ( 1 ) leave out 'under this Act' and insert 'in the Family Court, or in another court when exercising jurisdiction under this Act.'. Clause, as amended, agreed to. Clauses 75 to 83- by leave- taken together and agreed to. Clause 84. {: type="A" start="1"} 0. I ) After the commencement of this Act, no person shall be imprisoned or otherwise placed in custody by reason of contravention of. or failure to comply with, an order made in a matrimonial cause and any person who is in a prison or other custody al the commencement of this Act as a result of contravention of, or failure to comply with, such an order shall be released forthwith. {: type="1" start="1"} 0. 2 ) The release from prison or other custody under subsection ( I ) of a person who was in that prison or custody by reason of failure to pay any moneys docs not release the person from any liability to pay those moneys. (.3) This section does not affect the operation of subsection 49 (6) or sub-section 90 (3). Amendments (by **Senator Murphy)-** by leave- taken together and agreed to: >In sub-clause ( I ). after 'order' insert 'for the payment of money'. > >After clause 84 insert the following new clause:- 84a. ( 1) Notwithstanding any other provision of law, a court having jurisdiction under this Act may punish persons for contempt in the face of the court when exercising that jurisdiction or for wilful disobedience of any decree made by the court in the exercise of jurisdiction under this Act. "(2) The regulations may provide for practice and procedure as to charging with contempt and the hearing of the charge. > >Where a person in contempt is not a corporation, the court may punish the contempt by committal to prison or fine or both. (.4) Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both. > >5 ) The court may make an order for- > >punishment on terms: > >b) suspension of punishment; or > >the giving of security for good behaviour. > >Where a person is committed to prison for a term for contempt, the court may order his discharge before the expiry of that term.'. Clause, as amended, and proposed new clause agreed to. Clause 85. {: type="1" start="2"} 0. The regulations may make provision for and in relation to- {: type="a" start="a"} 0. the enforcement by a court of a State having jurisdiction under this Act of orders to which this section applies made by a court of another State or of a Territory: and 1. the enforcement by a court ora Territory having jurisdiction under this Act of orders to which this section applies made by a court of another Territory or of a State. Amendment (by **Senator Murphy)** agreed to: >Leave out sub-clause (2) and substitute the following subclause: > >The regulations may make provision for and in relation to the enforcement in a State or Territory by a court having jurisdiction under this Act of orders to which this section applies made by a court in another Stale or Territory.'. Clause, as amended, agreed to. Clauses 86 to 89- by leave- taken together, and agreed to. Clause 90. {: type="1" start="1"} 0. 1 ) In proceedings ofthe kind referred to in paragraph (e) of the definition of 'matrimonial cause' in sub-section 4(1). the court may make such order or grant such injunction as it thinks proper with respect to the matter to which the proceedings relate, including an injunction for the personal protection of a parly to the marriage or of a child of the marriage or for the protection of the marital relationship or in relation to the property of a party to the marriage. Amendments (by **Senator Murphy)** proposed: >In sub-clause ( 1 ), add 'or relating to the use or occupancy ofthe matrimonial home'. > >After sub-clause ( I ) insert the following new sub-clause:- ( I a) In exercising its powers under sub-section ( I ), the court may make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights.' > >At the end of the clause add the following new subclause: > >Where an act or omission referred to in sub-section (3) is an offence against any other law, the person committing the offence may be prosecuted and convicted under that law, but nothing in this section renders any person liable to be punished twice in respect of the same offence. '. {: #subdebate-48-0-s63 .speaker-KUU} ##### Senator MISSEN:
Victoria -These are important amendments. Perhaps attention might be drawn to them because they add considerably to the strength of what can be done by the injunction power under clause 90. Now it will include orders being made relating to the use or occupancy of the matrimonial home, which will be of great value to people who are in a home but who do not necessarily require divorce action at that stage. It will also include orders relieving a party to a marriage from any obligation to perform marital services or render conjugal rights. This will be a great improvement in the Bill and will greatly widen the Family Court's power to make orders irrespective of divorce proceedings. Amendments agreed to. Clause, as amended, agreed to. Clause 91. {: type="1" start="1"} 0. 1 ) The Attorney-General may establish a Family Law Advisory Committee, consisting of persons appointed by him in accordance with sub-section (2 ). 1. The Committee shall consist of a Judge ofthe Family Law Division of the Superior Court of Australia and such other judges, magistrates, officers of the Public Service of Australia or of a State, representatives of marriage counselling organizations and other persons as the AttorneyGeneral thinks fit. 2. The function of the Committee is to advise the Attorney-General on the working of this Act and on other matters relating to family law. 3. The Attorney-General shall appoint one of the members to be the Chairman of the Committee. 4. The members ofthe Committee shall be paid such allowances in respect of expenses in connexion with their duties as are prescribed. 5. Meetings ofthe Committee shall be convened by the Chairman or the Attorney-General. 6. ) The Committee shall meet at least once a year. 7. The Chairman shall cause records of meetings ofthe Committee to bc kept and shall promptly report to the Attorney-General on the deliberations ofthe Committee. {: #subdebate-48-0-s64 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- I move: Proposed sub-sections (5), (6), (7) and (8) are an addition to the consolidated list of amendments. They refer to the employment of persons to assist the Institute of Family Studies, terms and conditions of employment, certain matters about members of the Public Service who might happen to be employed by the Institute, and technical matters. This means that clause 9 1 has been redrafted. The name of the body to be established has been changed to the Family Law Council in accordance with the recommendation of the Senate Standing Committee in paragraph 82 (b) of its report. The functions of the Council have been extended to include advising and making recommendations to the Attorney-General, not only at his request but also of its own motion, on the working of the Family Law Act and on other matters relating to family law, and on the working of legal aid in proceedings in family law as recommended by the Senate Standing Committee in paragraph 82 (c) of its report. Provision has been made for the Council to present an annual report for tabling in Parliament as recommended in paragraph 82 (f) of the Senate Standing Committee's report. The Council is to consist of a judge of the Family Court and of such other judges, public servants, representatives of marriage counselling organisations and other persons as the AttorneyGeneral thinks fit. The members of the Council shall be entitled to such allowances in respect of expenses in connection with their duties as are prescribed. There is no corresponding provision in the existing law. The new clause 91a provides for the establishment of the Institute of Family Studies which will have the functions of promoting research into the factors affecting marital and family stability in Australia and advising and assisting the Attorney-General in relation to the making of grants of money for the purpose of such research and the supervising ofthe employment of grants so made. The Institute shall consist of a director and 4 or more other persons, each of whom shall be appointed by the Attorney-General. Subclauses (4) to (9) make provision for the operation and administration of the Institute. Amendment agreed to. Clause, as amended, and proposed new clause 9 1 a agreed to. Clause 92 {: type="1" start="1"} 0. 1 ) Subject to sub-section (2). each party to proceedings under this Act shall bear his own costs. 1. If the court is of opinion in a particular case that there arc exceptional circumstances that justify it in doing so. the court may. subject to the regulations, make such orders as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court thinks just. {: #subdebate-48-0-s65 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- I move: >In sub-clause ( 1 ) after 'sub-section (2)'. insert 'and section 94'. > >In sub-clause (2) leave out 'exceptional'. > >After sub-clause (2) add the following new sub-clauses: "(3) A person who has instituted a matrimonial cause or a person who 'is entitled to participate in proceedings either as a respondent or intervener may apply to the Australian Legal Aid Office for legal assistance under this section in respect ofthe proceedings. "(4) Where an application is made by a person under subclause (3). the Attorney-General, the Director of the Australian Legal Aid Office or a person employed in the Australian Legal Aid Office authorized by the Director in writing in that behalf may (in the case of a person employed in the Australian Legal Aid Office, subject to any restriction in that authority in writing), authorize legal assistance to the applicant in accordance with the means and needs test ofthe Australian Legal Aid Office for the giving of legal assistance.' These sub-clauses deal with the question of costs. Whilst I move the amendments one of them troubles me very much. That is the amendment to sub-clause (2). The Senate Standing Committee proposed that we should leave out the word 'exceptional' in the sub-clause, which reads: >If the court is of opinion in a particular case that there are exceptional circumstances that justify it in doing so, the court may. subject to the regulations, make such orders as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court thinks just. That is a qualification on the main rule which is expressed in sub-clause ( 1 ), which provides that each party to the proceedings under the Act shall bear his or her own costs. One of the things that I should like to see removed out of this area is the heavy burden of costs which have fallen upon people. I know that the Standing Committee thinks that there may be cases where orders for costs should be made. I am of the feeling that it ought to be only in exceptional cases. I feel that we can probably deal with the costs which a party has to meet by the provision of legal aid, if the party cannot bear the costs. Experience has shown that these questions of costs can be very difficult. Sometimes costs can be ruinous, and sometimes they can be a means of really deterring parties from putting their cases properly. However, legal aid will probably make up for any deficiencies that might be found in the law. If the law is applied wisely I do not think that there will be any problems. I know that there will be some dissension over the removal of this, and I do it not very happily. But in order to get some concensus in a law such as this, one has to make some compromises. This is one which I make not very happily, but I make it. {: #subdebate-48-0-s66 .speaker-KBL} ##### Senator WOOD:
Queensland -- I agree with what the Attorney-General has said, that costs can be a great burden to people who want to get disentangled from marriage. Is there no way in which we can settle this matter now so that this difficulty will be overcome? It is quite apparent that the Attorney-General is sympathetic to this idea of relieving the costs of people involved in divorce actions. I just wonder whether the Attorney-General could present something to us now that might overcome this difficulty. {: #subdebate-48-0-s67 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- What we are really saying is that the first approach is that there ought to be no order for costs against a party. Consistently with what the Senate Standing Committee has put, we are saying that nevertheless, if courts are of the opinion that there are circumstances which justify their making an order for costs, they may make an order. On the other hand, orders as to costs ought to be made only where there are exceptional circumstances. But if the courts act wisely it may be that they will pay attention to the prime rule and not too readily invoke the provisions of sub-clause (2). I would hope they would do so. In any event, in cases where people cannot afford costs and have to use moneys which would otherwise be used in providing for their families, I think that the burden will be met by the provision of legal aid. I say to **Senator Wood** that if we have effective legal aid the problem will disappear. That is the solution that I see. In any event, we have given a legislative guideline. Unless there are some circumstances which really call for the court to depart from the rule, it shall not order costs. Amendments agreed to. Clause, as amended, agreed to. Clause 93. The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious, dismiss the proceedings. Amendment (by **Senator Murphy)** agreed to. At the end ofthe clause add- and make such orders as to cost as it thinks just'. Clause, as amended, agreed to. Proposed new Clause 94a. Amendment (by **Senator Murphy)** agreed to. Insert the following new clause:- 94a. After the commencement of this Act, no action lies for criminal conversation, damages for adultery, or for enticement of a party to a marriage.'. Clause agreed to. Clause 95. {: type="1" start="1"} 0. 1 ) A person shall not print or publish, or cause to be printed or published, any statement or report that proceedings have been instituted under this Act unless the statement or report relates to proceedings the hearing of which has commenced or been completed. 1. Except as provided by this section, a person shall not, in relation to any proceedings under this Act, print or publish, or cause to be printed or published, any account of evidence in the proceedings, or any other account or particulars ofthe proceedings other than- {: type="a" start="a"} 0. the names and addresses ofthe parties, and the name or names ofthe member or members of the court and ofthe counsel and solicitors: 1. a concise statement ofthe nature of the proceedings; 2. submissions on any points of law arising in the course of the proceedings, and the decision of the court on those points: or 3. ) particulars of the decree made by the court. and a person shall not print any matter referred to in any of the paragraphs or this sub-section in letters larger than 12 point Times or publish any matter so printed. 2. A person who contravenes sub-section (1) or (2) is guilty of an offence punishable, on conviction- {: type="a" start="a"} 0. in the case of a first offence, or a second or subsequent offence prosecuted summarily- by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months; and 1. in the case of a second or subsequent offence, being an offence prosecuted on indictment- by a fine not exceeding $2,000 or imprisonment for a period not exceeding I year. 3. Any offence against this section may be prosecuted summarily, and a second or subsequent offence by a person against this section may be prosecuted summarily or on indictment. 4. 5 ) Proceedings for an offence against this section shall not be commenced except by, or with the written consent of. the Attorney-General. 5. The preceding provisions of this section do not apply to or in relation to- {: type="a" start="1"} 0. a ) the printing of any pleading, transcript of evidence or other document for use in connexion with proceedings in any court or the communication of any such document to persons concerned in the proceedings: 1. the printing or publishing of a notice or report in pursuance of the direction of a court; 2. the printing or publishing of law court lists; 3. the printing or publishing of any publication bona fide intended primarily for the use of members of the legal or medical profession being- 4. a separate volume or part of a series of law reports; or {: type="i" start="ii"} 0. any other publication of a technical character; or 1. the printing or publishing of a photograph of any person, not being a photograph forming part of the evidence in proceedings under this Act. 6. In this section, 'court' includes an officer of a court investigating a matter in accordance with the regulations and judgment ofthe court' includes a report made to a court by such an officer. Amendments (by **Senator Murphy)** agreed to. Leave out marginal note and sub-clauses ( 1) and (2) and insert- 95 ( 1 ) A person shall not print or publish- {: type="a" start="a"} 0. any statement or report that proceedings have been instituted in the Family Court or in another court exercising jurisdiction under this Act; or 1. any account of evidence in proceedings instituted in the Family Court or in another court having jurisdiction under this Act, or any other account or particulars of any such proceedings.'. In sub-clause ( 3 ) leave out 'or (2 ) '. In sub-clause (6) at end of paragraph (c) add 'or'. In sub-clause (6), paragraph (d), leave out 'or' and paragraph (c). After clause 95, insert the following new clause:- "95a. A person who is, under Part VIIIA ofthe Judiciary Act 1903-1973, entitled to practice in any federal court as a barrister or solicitor, or as both, has the like right to practice in any Slate court exercising jurisdiction under this Act. ". Clause 95, as amended and proposed new clause 95a, agreed to. Clause 96 The Governor-General may make regulations, not inconsistent with this Act, for or in relation to the practice and procedure ofthe courts having jurisdiction under this Act, or any of them, including regulationsfa) prescribing matters relating to the costs of proceedings and the assessment or taxation of those costs: {: type="a" start="b"} 0. authorizing a court to refer to an officer of the court for investigation, report and recommendation claims or applications for or relating to any matter before the court: 1. authorizing an officer making an investigation referred to in paragraph (b) to take evidence on oath or affirmation, and to obtain and receive in evidence a report from a welfare officer, and enabling the summoning of witnesses before an officer making such an investigation for the purpose of giving evidence or producing books and documents; 2. regulating the procedure of a court upon receiving a report of an officer who has made an investigation referred to in paragraph (b); 3. providing for the manner of service of process of a court under this Act, and for dispending with such service; 4. subject to the Constitution, authorizing an officer of a court to perform and exercise powers and functions, on behalf of the court or otherwise, in relation to proceedings under this Act and enabling the court to review the decision of that officer in relation to the performance or exercise of any function or power; 5. providing for and in relation to the grant of legal aid in proceedings under this Act; 6. prescribing matters incidental to the matters specified in the preceding paragraphs of this section; and 7. prescribing penalties not exceeding $200 for offences against the regulations. Amendment (by **Senator Murphy)** agreed to. Leave out the clause and insert the following new clause: - {: type="1" start="96"} 0. ( I ) The Governor-General may make regulations, not inconsistent with this Act. prescribing all matters that are required or permitted by this Act to be prescribed or are ncessary or convenient to be prescribed for the carrying out or giving effect to this Act. {: type="1" start="2"} 0. The regulations may make provision for or in relation to the practice and procedure to bc followed in the Family Court and in other courts exercising jurisdiction under this Act, and for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business in those courts. 1. Without limiting the generality of sub-section (2), the regulations may make provision for or in relation to- {: type="a" start="a"} 0. the attendance of witnesses; 1. providing for the manner of service of process of the Family Court or another court exercising jurisdiction under this Act, and for dispensing with such service; 2. the enforcement and execution of the judgments of the Family Court and other courts exercising jurisdiction under this Act: 3. the time and manner of institution of appeals in and to the Family Court; 4. the duties of officers ofthe Family Court; ( 0 subject to the Constitution, authorizing an officer of the Family Court or of another court exercising jurisdiction under this Act to perform and exercise powers and functions, on behalf ofthe court or otherwise, in relation to proceedings instituted in the Family Court or proceedings tinder this Act, and enabling the court concerned to review the decision of that officer in relation to the performance or exercise of any function or power: 5. the seals and stamps to bc used in the Family Court and in courts having jurisdiction under this Act: 6. prescribing matters relating to the costs of proceedings and the assessment or taxation of those costs; 7. authorizing a court to refer to an officer of the court for investigation, report and recommendation claims or applications Tor or relating to any matters before the court; 8. authorizing an officer making an investigation referred to in paragraph (i) to take evidence on oath or affirmation, and to obtain and receive in evidence a report from a welfare officer, and enabling the summoning of witnesses before an officer making such an investigation for the purpose of giving evidence or producing books and documents; 9. regulating the procedure of a court upon receiving a report of an officer who has made an investigation referred to in paragraph (i); 2. prescribing matters incidental to the matter specified in the preceding paragraphs of this section; {: type="a" start="m"} 0. prescribing penalties not exceeding $500 for offences against the regulations.'. Clause, as amended, agreed to. Postponed Clause 4. Amendments (by **Senator Murphy)-** by leave- taken together and agreed to. In sub-clause ( 1 ) insert the following definition:- "Family Court" means the Family Court of Australia'. In sub-clause (I), in the definition of 'marriage counsellors ', insert: (aa) a person appointed as a counsellor under section 1 7s;*. In sub-clause ( I ), in the definition of 'matrimonial cause' paragraph (c) (i), leave out 'those parties' and insert 'the parties to a marriage'. In sub-clause ( I ), in the definition of 'matrimonial cause' paragraph (c) (ii), leave out 'those parties' and insert 'the parties to a marriage '. In sub-clause (1) in the definition of 'matrimonial cause' paragraph (c) (iii), leave out 'children ofthe marriage' and insert ' a child of a marriage '. In sub-clause ( 1) in the definition of 'matrimonial cause' paragraph (e), leave out 'the' and insert 'a'. In sub-clause ( 1 ) in the definition of 'proceedings', leave out 'includes cross-proceedings' and insert- means a proceeding in a court, whether between parties or not. and includes cross-proceedings or an incidental proceeding in the course of or in connection with a proceeding'. In sub-clause ( 1 ), in the definition of 'repealed Act', leave out all the words after 'amended' and insert 'at any time'. In sub-clause ( 1 ) leave out the definition of 'Superior Court'. In sub-clause (1), in the definition of 'welfare officer' insert '(aa) a person appointed as a welfare officer under section I7s: In sub-clause (2) after 'annulled' insert ', in Australia or elsewhere'. Clause, as amended, agreed to. Postponed Clause 14. {: #subdebate-48-0-s68 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- If the Committee would look at Clause 14, amendment No.. 24, some question was raised about the use of the words 'opportunity to consider' and this question was put to me. I think it would be reasonable to take out the words 'had an opportunity to' and alter the word 'consider' to 'considered'. So subclause (6)(a) would read in part: '. . . the parties have considered a reconciliation'. I seek leave to take out the words in (6)(a) 'had an opportunity to consider' and to insert in lieu thereof the word 'considered ', so that it would then read the parties have considered'. {: #subdebate-48-0-s69 .speaker-10000} ##### The CHAIRMAN: -- The Attorney-General **(Senator Murphy)** seeks leave to alter the amendment which was before the Senate. Is leave granted? There being no objection, leave is granted. {: .speaker-1L5} ##### Senator MURPHY: -I move: {: #subdebate-48-0-s70 .speaker-4F4} ##### Senator BUTTON:
Victoria -- I want to comment on this because I think it is most important that in a situation where parties have been married for only 2 years. They are normally young people. It is important that we write into the legislation a provision which ensures that they have taken some positive step in the circumstances to see a marriage counsellor and not merely being given an opportunity to do so. I think this amendment strengthens the reconciliation provisions as a whole, particularly in relation to marriages of that kind, and I strongly urge the Senate to support the amendment for that reason. It is a matter which I think was initially raised by someone else in the chamber. I stress the importance of reconciliation of parties who have been in a state of disarray, as it were, in their matrimonial situation. Amendment agreed to. Clause, as amended, agreed to. Postponed Clause 17c {: #subdebate-48-0-s71 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- 1 move: >Insert the following new clause: 17c A Judge shall, before proceeding to discharge the duties of his office, take, before the Chief Justice or a Justice of the High Court of Australia or a Judge of the Family Court or of another court created by the Parliament, an oath or affirmation of allegiance in the form in the Schedule to the Constitution and also an oath or affirmation in the following form- > >I, , do swear that I will well and truly serve in the office of the (Chief Judge, Senior Judge or Judge, as the case may be) of the Family Court of Australia and that 1 will do right to all manner of people according to law, without fear or favour, affection or illwill, So help me God.' or > >I, , do solemnly and sincerely promise and declare that ... (as above, omitting the words 'So help mc God ') '. The clause would require the judge to take an oath of allegiance as set out in the Constitution and would also require him to say: 'I do swear that I will well and truly serve in the office of Chief Judge, Senior Judge or Judge of the Family Court of Australia and that I will do right to all manner of people according to law, without fear or favour, affection or ill-will, So help me God.' If he takes an affirmation he will be required to say the same thing: 'I do solemnly and sincerely promise and declare 'etc. So he will take 2 oaths, the oath of allegiance and an oath to perform faithfully the duties of his office. {: #subdebate-48-0-s72 .speaker-KMX} ##### Senator GREENWOOD:
Victoria -- I rise, having returned after feeling shut out of the earlier part of this debate, to come back to a matter which I raised yesterday. It has 2 parts. One is the oath of allegiance and the other is the form of oath which a judge of the Family Court should take. I welcome what the Attorney-General has done in introducing his amendment to provide that there should be an oath of allegiance and I will support that amendment. But I also believe that the oath of office which a judge should take should be in the accustomed form- that he will well and truly serve, after swearing allegiance to Her Majesty the Queen. I do not know why that was left out and I will persist with the amendment which 1 introduced yesterday and which has not yet been voted upon. I hope therefore that the Attorney-General's amendment will be supported and that the amendment which I moved yesterday will be supported. I hope that this is one issue on which the Senate will be prepared to accept that the traditional form of oath is a reasonable one. {: #subdebate-48-0-s73 .speaker-10000} ##### The CHAIRMAN: -- I am advised by the Clerk that **Senator Greenwood's** amendment is before the Chair. {: #subdebate-48-0-s74 .speaker-5U4} ##### Senator James McClelland:
NEW SOUTH WALES · ALP **- Mr Chairman,** while the text is being examined, for the guidance of honourable senators perhaps **Senator Greenwood** would enlighten us as to the precise point of differentiation between his amendment and the words which the Attorney-General was prepared to accept. {: #subdebate-48-0-s75 .speaker-KMX} ##### Senator GREENWOOD:
Victoria -- It is interesting that **Senator James** McClelland has now requested elucidation. In the earlier stages of the debate on the Bill elucidation was the very last thing that he and his colleagues were interested in having. This was elucidated yesterday, but I am very happy to repeat it now. In relation to the amendment circulated yesterday by the Attorney-General concerning the oath of allegiance to be taken by a judge of the Family Court I drew attention to 2 important omissions. The first omission was the omission of an oath of allegiance. An oath of allegiance is required to be taken by every judge in this country; yet for reasons which were unexplained the Attorney-General omitted this provision from this Bill. I know that he omitted it for the reason that the Government omitted it last year from the Public Service Act and I know that he is proposing to omit it from certain other things for which he is responsible. But I believe that it ought to be included in this Bill. Therefore I welcome, after our remonstrations yesterday, the fact that the Attorney-General has now seen fit to repair the omission. I do not think that point is really in dispute. The second point is the form ofthe oath which a judge should take. The amendment, as it stands at the moment, provides that a judge shall swear or affirm that he will well and truly serve in the office of Chief Judge, Senior Judge or Judge, as the case may be. of the Family Court and do right to all manner of people according to law without fear or favour, affection or ill-will, so help him God. The oath which is traditionally taken is in a different form and we have not been told why there has been a change. {: .speaker-5U4} ##### Senator James McClelland:
NEW SOUTH WALES · ALP -- What does the honourable senator want us to do, for God's sake? {: .speaker-KMX} ##### Senator GREENWOOD: -- If the honourable senator will only stop shouting and accept that there is a point of view which - {: .speaker-5U4} ##### Senator James McClelland:
NEW SOUTH WALES · ALP -- Do not talk all night about it. The honourable senator has talked about it for 3 days. The honourable senator should let us know what he wants so that we can get it over with. {: .speaker-KMX} ##### Senator GREENWOOD: -- 1 spoke on this Bill for half an hour today and even that half an hour apparently was sufficient to cause concern among supporters of the Government. I am sorry if I have touched **Senator James** McClelland on the raw. What I am saying is that the form of oath which is contained in the AttorneyGeneral's proposal is different from the form of the oath which is made by other judges when they accept office. It is a simple distinction but it is an important distinction. The traditional form of oath is for a person to swear that he will well and truly serve Her Majesty the Queen, her heirs and successors according to law. Those words have been omitted from this Bill by the AttorneyGeneral. I do not know why. He has not deigned to inform us. My amendment, which was circulated yesterday and which is currently before the Senate, seeks to prescribe a form of oath which contains those words. I hope that the Senate will agree with it. {: .speaker-10000} ##### The CHAIRMAN: -Order! I think it may suit the purposes of the Committee if I were to be allowed to reverse the decision I made that **Senator Greenwood's** amendment is before the Chair and to give permission to the Attorney-General to move his amendment in the form in which he now proposes to put it. If that were to happen perhaps the debate could be resumed and any objection or amendment to the AttorneyGeneral's proposition could be stated. I call upon the Attorney-General to move his new amendment. {: #subdebate-48-0-s76 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- I move: In the proposal I am putting the judge will take an oath of allegiance and also will swear that he will carry out and serve properly in the office to which he is appointed. It seems to me, in all reason, that this is sufficient, proper and consonant with what has been put. **Senator Greenwood** seems to think that this is some kind of traditional thing and that forever there must be written into an oath of allegiance an oath to serve the Queen, her heirs and successors according to law- that this must be done every time one opens one's mouth. I have been reminded that the Justices of the High Court of Australia do not have to say anything about the 'heirs and successors according to law'- it is just not in their oath. There have been variations on this. In al) reason, an obligation has now been included in what I have put to swear an oath of allegiance, to swear that the person will serve properly in the office and do right to all manner of persons. I suggest, with great respect, that we ought not to go on putting in any more of these old fashioned matters. We will go back in time and put Queen Victoria and everyone else in the proposal if he wants us to do so. I think that what I have put is a reasonable proposition. I ask the Senate to accept it. {: .speaker-10000} ##### The CHAIRMAN: -- Order! **Mr AttorneyGeneral,** if you were to seek leave to insert the words that you propose to be inserted, and if leave were granted, your amendment would then be in order. We would then be in a position to see whether any amendment to it is sought. {: .speaker-1L5} ##### Senator MURPHY: -I seek leave, **Mr Chairman.** {: .speaker-10000} ##### The CHAIRMAN: -- Is leave granted? There being no objection leave is granted. {: #subdebate-48-0-s77 .speaker-KMX} ##### Senator GREENWOOD:
Victoria **- Mr Chairman,** I now move, seeing that we are apparently starting again, the words which I submitted to the Committee yesterday, that is: >In proposed new section 17g, delete all words after' form' and insert the following: > >I , , do swear that I will well and truly serve Her Majesty the Queen of Australia, her heirs and successors according to law, in the office of (Chief Judge, Senior Judge or Judge, as the case may be) of the Family Court of Australia and that I will do right to all manner of people according to law, without fear of favour, affection, or ill-will.' > >. , do solemnly and sincerely promise and declare that 1 will well and truly serve Her Majesty, the Queen of Australia, her heirs and successors according to law, in the office 01(Chief Judge, Senior Judge or Judge, as the case may be) of the Family Court of Australia and that 1 will do right to all manner of people according to law, without fear of favour, affection or illwill.' {: .speaker-K1F} ##### Senator Poyser: -- Where is the amendment? {: .speaker-KMX} ##### Senator GREENWOOD: -- It was circulated yesterday, lt is contained, for those honourable senators like **Senator Poyser** who are doubting me, in the Hansard record of yesterday. I ask honourable senators opposite to be patient and to turn over the pages. I do not feel that it is necessary to elaborate upon what I said earlier. My amendment is in the traditional form of the oath or affirmation which judges take in the Australian Capital Territory Supreme Court. I believe that it is right and proper that judges of the Family Court should swear allegiance to a person because that is the form. Question put: >That the words proposed to be added **(Senator Greenwood's** amendment) be added. The Committee divided. (The Chairman- Senator J. J. Webster) AYES: 26 NOES: 26 AYES NOES Question so resolved in the negative. Clause, as amended by leave, agreed to. Title. {: #subdebate-48-0-s78 .speaker-KBL} ##### Senator WOOD:
Queensland -- I would like to ask the Attorney-General **(Senator Murphy)** for some information. Clause 95( 1 ) (a) states: >A person shall not print or publish- > >Any statement or report that proceedings have been instituted in the Family Court or in another court . . . The Bill that was brought in by **Sir Garfield** Barwick prevented the publication of details of divorce proceedings. I noticed that a certain judge on occasions went out of his way to make some remarks. I asked **Sir Garfield** Barwick why those statements or questions were published. He said that there was nothing to stop statements or observations made by the judge from being published. These statements may reveal certain activities of the parties to divorce proceedings. The Attorney-General might say whether this new sub-clause tightens up that aspect and prevents judges from making observations which can be published. {: #subdebate-48-0-s79 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- Yes, it does. I would agree that sometimes remarks have been made by judges which were not in accordance with the spirit of the enactment. It is regrettable that that has happened. It has caused great embarrassment and humiliation to the parties concerned, and the provisions of this Bill are intended to prevent that. Title agreed to. Bill reported with amendments; report adopted. {:#subdebate-48-1} #### Third Reading Motion (by **Senator Murphy)** proposed: That the Bill be now read a third time. {: #subdebate-48-1-s0 .speaker-KSN} ##### Senator MARRIOTT:
Tasmania -- I rise briefly, but sincerely, to seek some information from the Attorney-General **(Senator Murphy).** 1 have been extremely silent throughout the Committee stage of the Bill because 1 realise that in the Senate we have some of the most able legal brains that have given great attention to all aspects of this Bill. I was prepared to listen to the debate and vote accordingly. More often than not I voted on the losing side. I remind the Senate that in my participation in the second reading debate I urged delay because I thought the report of the Senate Standing Committee on Constitutional and Legal Affairs should have been circulated and understood by the public and that public opinion should have become vocal. I also held the belief that with so many amendments the Bill should have been delayed until the next session so that public opinion could become vocal. As a result of parliamentary experience I raised the point of view that as there were over 100 amendments to the 90-odd clauses of the Bill it would be difficult for the Parliamentary Counsel to keep up with the insertion of the amendments and to know what effect they would have on the whole spectrum of the Bil! and allied legislation, if there is such legislation. I am not going to be provocative but in the divisions in which 1 took part only once was there a division in which some Government supporters voted on the same side as the Opposition. In the majority of divisions in the Committee stage it was revealed that the Government and some Opposition supporters voted against the remainder of the Opposition. This Bill is to go to the other place and it will go there as a completely new publication. Anything honourable members in the other place have read about the Bill prior to its coming into the Senate will be a handicap to them, not a help. I want some information from the Attorney-General which I think should be revealed to the Senate. We have a responsibility to ask the Government this question: Will time be given for the Parliamentary Counsel and the Attorney-General's Department, if it is appropriate for it to have a say, to have a reprint of the Bill and to make a study of it in order to ensure that it is a legal entity, a viable law, an understandable law and a watertight law before it goes to the other place where no doubt it will be rushed through, guillotined or gagged. Government supporters- Oh! {: .speaker-KSN} ##### Senator MARRIOTT: -Government supporters should not say 'Oh'. That is the truth. There are only 9 sitting days left in which the House of Representatives can meet. I understand that the Press reports fairly the leaks it gets from the 'think tanks ' and I understand from the Press that some 50 or 60 Bills are to be considered in the other place in the last 9 days that it can possibly meet in this session of Parliament. I believe I am being fair and just and am doing the right thing by the Senate in asking the AttorneyGeneral to tell us the program as to when this Bill, passed at its third reading stage here tonight, with my vote, will be presented for a first reading in the other place. As the senior legal man in the Australian Government will he say that he believes iri his heart that the Bill as presented for a first reading in the House of Representatives will be one that lawyers will not be able to drive a bullock wagon through? If a bad Bill is passed, the speed, the cheapness and ease of divorce aimed at in this Bill will go by the board. There will be frustration and expense to litigants and thousands of dollars will flow to the legal profession which will drive holes through a Bill rushed through this Parliament. If the Attorney-General can give me his assurance that in his belief the Bill as presented for a first reading in the other place will represent sound legislation I will believe him. {: #subdebate-48-1-s1 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- in reply- **Mr President,** first may I - {: .speaker-KMX} ##### Senator Greenwood: -- Will **Senator Murphy** close the debate? {: #subdebate-48-1-s2 .speaker-10000} ##### The PRESIDENT: -- Yes, he will close the debate. {: .speaker-KMX} ##### Senator Greenwood: -- I would like to speak to the motion for the third reading and I think the opportunity ought to be given. {: .speaker-10000} ##### The PRESIDENT: -- I gave **Senator Marriott** a certain amount of latitude. He referred to the previous debate and also made imputations against another place. I intend to keep the debate very closely within the bounds of the third reading where new matter cannot be raised. {: .speaker-KMX} ##### Senator Greenwood: -- I know that **Senator Durack** rose earlier. I do not know whether he intends to speak but I certainly would like to speak and 1 rose only on a point of order. If the Attorney-General desires to close the debate he will be shutting out other honourable senators who want to speak. I think you may not have been aware that other honourable senators wished to speak. {: .speaker-10000} ##### The PRESIDENT: -- 1 looked around the chamber and the only honourable senator on his feet was **Senator Murphy.** I gave him the call. {: .speaker-KMX} ##### Senator Greenwood: -- I raise a point of order. It is most unreasonable conduct. You have a discretion and the Attorney-General can act accordingly. If there now is to be a prevention of debate on the third reading of this Bill it is a denial of the right of honourable senators. The AttorneyGeneral has the opportunity to reply to **Senator Marriott** at the conclusion of the third reading stage. I was waiting for **Senator Durack** to speak because he had risen to speak earlier and I thought he would have the call. {: .speaker-1L5} ##### Senator MURPHY: **- Mr President,** despite what **Senator Greenwood** said about a denial of the right to speak you called me to speak. In this atmosphere it might help if I yielded to other honourable senators. If I do so I plead that honourable senators- especially **Senator Greenwood** if I yield to him although I was properly called- not unduly delay the Senate. {: .speaker-KMX} ##### Senator Greenwood: -- I claim to have been personally misrepresented. I have not sought unduly to delay. The imputation was entirely unwarranted. {: #subdebate-48-1-s3 .speaker-KBL} ##### Senator WOOD:
Queensland -This Bill came before us as a non-party matter and it is one of great moment to many people. I would like to compliment the Attorney-General **(Senator Murphy)** on this great Bill of very great moment and concern which he brought forth. I do so because it deals with a very serious human problem. Therefore it requires deep thought, consideration and sympathy for people who come under its ambit. I know that the Bill has been before the Senate in various ways for quite a long time. There has been a feeling that not enough time has been given to it but that depends on the individual. Each parliamentarian has been supplied with numerous petitions and numerous letters for and against the Bill because with this type of legislation there always is a division of conscience, heart and mind. Probably also there are religious opinions and scruples and other such considerations. It is very difficult to bring in a Bill that will be suitable to everybody. My opinion is that the Attorney-General put a tremendous amount of work into this Bill. Over a period of time he considered the representations made and the debate in this chamber revealed that serious consideration was given to the Bill. I believe in saying that people have done a good job. I think the Bill brought into effect through the sponsorship of the Attorney-General will result in the right consideration being given to people needing it in the circumstances dealt with by the Bill. I sincerely believe that the Bill is a real mark in the history of legislation of its type passed by the Parliament of this country. I say thank you to the Attorney-General and I congratulate him. {: #subdebate-48-1-s4 .speaker-8G4} ##### Senator DURACK:
Western Australia -- I also would like to associate myself with the remarks just made by **Senator Wood** and I think I can do so on behalf of my colleagues on the Senate Standing Committee on Constitutional and Legal Affairs. However, I would like to broaden the matter. I think recognition must be given to the Attorney-General **(Senator Murphy)** in the first place for initiating the Senate inquiry into this subject. It was on 7 December 1971 that **Senator Murphy** moved his motion to refer to that Committee this whole subject of divorce law reform. I think it is a very interesting observation on the working of our democracy that, on reflection, it is 3 years since that reference was first made. In this day and age when people expect wonders to be achieved and reforms to be achieved overnight, it ought to be a sobering thought that any major reform of the law does take a very great deal of time and ought to take a great deal of time. The Senate Committee's inquiry which commenced shortly after the reference was made continued really right up to the time when the report of the Committee was presented by **Senator James** McClelland a little over a month ago. During that period a great many people in the community- people who are expert in this whole field of matrimonial law- gave a great deal of their time and thought to the work of the Committee and, indeed, to the preparation of this Bill which shortly will finally be passed by the Senate. If honourable senators look at the appendix to the Committee's report they will see listed the large number of people and organisations who have contributed greatly to the deliberations of the Committee on this very sensitive and very vital subject. In addition to those people and those organisations who have taken part, the Attorney-General has had the benefit of the advice of a number of expert people, some of whom are in the chamber this evening. But other people who are not here have participated also in all these deliberations. The way in which the Committee's consideration ofthe Bill was conducted may well appear to be confusing to the lay members of the Senate. They may have been confused by the prolific nature of the amendments put before the Committee. But I say to **Senator Marriott** and other honourable senators who may be concerned about this matter that in fact the Bill as it has emerged from the Committee is a legal document of very high calibre. As I have said, a large number of people are to be congratulated on that fact. I appreciate very much the attitude the Attorney-General has adopted, not only throughout this prolonged and arduous debate but also in respect of the organisations which contributed to the deliberations of the Committee. It would not have been possible to achieve the degree of agreement that has been achieved throughout this debate if it had not been for the fact that the Attorney-General was prepared to accept a great many of the Committee's recommendations. Also I think it is a great commendation of the Senate committee system that we were able in a perfectly non-partisan and non-party manner to put forward to the Senate a report on the Bill. We were able to isolate only some very fundamental areas of disagreement but, by and large, a very notable degree of agreement was achieved by the senators who served on the Committee. All in all I believe that it has been a very valuable and a very notable exercise in our democratic system of government. I have been very proud to be associated with the exercise. As I say, I express my gratitude particularly to those people outside the Senate who have participated in such an outstanding way in assisting us in our deliberations. {: #subdebate-48-1-s5 .speaker-5U4} ##### Senator James McClelland:
NEW SOUTH WALES · ALP -Very briefly, as the Chairman of the Senate Standing Committee on Constitutional and Legal Affairs to which this matter was referred for examination in some detail, I would like to associate myself with the remarks of **Senator Durack.** In my view the passage of this Bill by the Senate is as good an example of the workings of parliamentary democracy as I have witnessed in the time that I have been here. I want especially to compliment the senators on the opposite side of the chamber for their contribution to the deliberations of the Committee. I can honestly say that at no time when we were considering this Bill did we consider ourselves to be members of opposing parties in the Senate. The Bill was examined on its merits. We had an eye always, I feel, not to what advantage might accrue to either of our parties but only to what would be for the benefit of the community. I can honestly say that it has been my greatest experience in the working of this Parliament. I compliment and thank not only those senators on the other side of the chamber but also the senators on my own side of the chamber- Senators Everett and Button- for their work on this Committee. I think that most credit for this Bill must go to the Attorney-General **(Senator Murphy)** for his doggedness and his persistence in bringing this Bill forward, for his willingness to accept amendments and suggestions for change, and for his flexibility and his general sincerity in attempting to get a better Family Law Bill before this Parliament. I think it is a compliment to the Senate, to the members ofthe Committee and, above all, to the Attorney-General. {: #subdebate-48-1-s6 .speaker-KMX} ##### Senator GREENWOOD:
Victoria -- I rise to strike a discordant note in terms of what has earlier been said, but this is the occasion upon which to make these remarks. I can only hope for your protection, **Mr President,** that I may be able to make them. I want to say only 3 things. The first is that I do share with the other honourable senators who have spoken the feelings that they have expressed to the Attorney-General **(Senator Murphy).** This is a mammoth Bill. It is a Bill which will have a significant effect upon family law in this country. I think that the work of the Attorney-General in bringing the Bill before the Parliament and having it passed through the Parliament deserves acknowledgement, and I unfailingly give it. I think it is only proper to acknowledge the importance of this Bill and the work that the AttorneyGeneral has done. The second point is that I do not share the views expressed by **Senator James** McClelland and others that the passage of this Bill has demonstrated parliamentary democracy at its best. I do not feel that an opportunity has been given to the public or to the Senate to give to this measure the consideration which its importance required. In the first place, we have had the Committee consideration. I hear **Senator Poyser** interjecting, and it is a constant refrain; I am getting used to it. He will discover in due course that his interjections make no impact on me at all. If only he would be constructive it would be helpful. The Senate Standing Committee on Constitutional and Legal Affairs which examined this measure presented 2 reports, and those reports were not available to the public until the day on which the debate in this Parliament commenced. That is not a fair way in which to treat an important measure such as this. Also certain amendmentstremendously significant amendments, including one involving the concept of whether there was to be a Family Court of Australiawere introduced about the time at which the Bill came before the Committee of the Whole for consideration. In those circumstances, there was no opportunity for persons who were interested in the concept of whether we should have a Family Court or State family courts to give consideration to it. I feel, thirdly, that there was unfortunately in the Senate during the Committee consideration of the Bill an attitude which was evidenced by the solid phalanx of an inflexible Government party, together with a group of Liberal senators, exercising a free judgment, which meant that any other point of view was not only not listened to but also was not even tolerated when an attempt was made to put it forward. That, as I understand it, denies the expression of a point of view which, even if it was ultimately not to commend itself to the Senate which had made up its mind to vote in the way that it did, ought to be allowed to be expressed, because that is the way in which our whole system functions. The community is therefore better informed. Because that denial of an opportunity for the expression of opinion characterised the attitude of those in the Committee and in the Government Party who had formed views which they felt ought to be the prevailing views, it prevented the debate being the kind of debate which I think it could have been. The point I make in conclusion is simply that when the Bill was introduced I said that it was a basis for the constructive development of good family law in this country. Seeing that we have passed the Bill through the Senate I hope that it will work out in the interests of those for whom it was designed. But I have the fear- I have expressed those fears and I do not repeat them herethat in certain areas the Bill is unconstitutional and that there are doubts as to the validity of certain provisions which have been made. In particular in regard to what constitutes a separation and living apart it does less than justice to what ought to be the proper determination of the one ground which is involved in this Bill. If there was a division on the third reading- I do not propose to call for a division- I would reverse the vote that I made on the second reading in support of this Bill and vote against the third reading because that crucial ground has been destroyed by the unwillingness of the Senate to recognise that it has made a mockery of the whole question of separation. {: #subdebate-48-1-s7 .speaker-1L5} ##### Senator MURPHY:
New South WalesAttorneyGeneral · ALP -- I thank honourable senators from **Senator Wood** onward who have said some complimentary things about me. I appreciate the way in which the Senate as a whole, especially in Committee, has dealt with the Bill. It is an extremely important Bill, as everyone recognises, which makes a significant contribution to social reform. I am glad that it has been dealt with in this way despite the discordant note. I thank especially the Chairman of Committees, **Senator Webster,** for the way in which he has dealt with the Bill courteously, patiently and efficiently, lt recalls to my mind the way in which he dealt once before with another very long Bill, the Trade Practices Bill. I thank him very much. I feel sure that the Senate is indebted to him. I also thank the Chairman and members of the Standing Committee on Constitutional and Legal Affairs. We know of the work they did in presenting a report on the clauses of the Bill. The Committee of the whole was very much assisted by that report. I think all here will have noted that many of the amendments which I moved to the Bill, which was largely the same as was introduced last year, were those which were recommended by the Standing Committee. I thank that Committee for those recommendations; they were improvements to the Bill. Some of the amendments which it recommended I did not accept and they were moved by members of the Committee. Contrary to what has been suggested by several honourable senators opposite, it is quite clear that there was a division of opinion on the provisions of the Bill. On a number of occasions I voted against what was being put by members of the Standing Committee, including members from my Party, and I was defeated. The mere fact that the vote was not pushed to a division should not be allowed to gloss over the fact that there was a clear division of opinion and in the vote on a number of matters of some importance, not of overwhelming importance, I was defeated on the view which I took and in which I persisted. As well, on a number of other matters there were divisions on non-Party lines. It is quite wrong to suggest that in some way the Government senators were voting other than on free lines. The Government Party promised that honourable senators were entitled to a free vote and they had a free vote. The mere fact that there might be some concordance of opinion amongst them should not detract from the fact that they clearly had and exercised a free vote. In the Bill there are provisions for an on-going examination by the Family Law Council and also a provision for an Institute of Family Studies to study the problems of the family. In this way the provisions of this Bill, if it becomes law, will be subjected to a rigorous examination in the light of experience and I trust that this will overcome some of the reservations which have been expressed by honourable senators opposite. Again, I thank all honourable senators for accepting the Bill. {: .speaker-KSN} ##### Senator Marriott: -- Have you answered my questions? {: .speaker-1L5} ##### Senator MURPHY: -- I will answer the questions asked by **Senator Marriott** as I recall them. The Office of Parliamentary Counsel has been associated with this Bill for some 12 months at least. The First Parliamentary Counsel will continue to be associated with it. Work is being done on putting the Bill together in a shape in which it can go to the House of Representatives. The honourable senator and I know that it would not be right for me to comment at all on the manner in which the House of Representatives might deal with a Bill which is sent from the Senate, and I shall not do so. Question resolved in the affirmative. Bill read a third time. Senate adjourned at 10.57 p.m. {: .page-start } page 2895 {:#debate-49} ### ANSWERS TO QUESTIONS The following answers to questions were circulated: Australian Government's Land Purchase Near Brisbane {:#subdebate-49-0} #### Aboriginal Enterprises (Question No. 190) {: #subdebate-49-0-s0 .speaker-C7D} ##### Senator Guilfoyle: asked the Minister for Aboriginal Affairs upon notice: {: type="1" start="1"} 0. 1 ) Has a 70 per cent interest in the Perkins Shipping and Mining Corporation been purchased by the Department of Aboriginal Affairs, and has that Department equity in the Company held by the Capital Fund for Aboriginal Enterprises. 1. Is a holding company being formed to hold this interest; if so, what is to be its composition. 2. Will the enterprise be subject to the scrutiny of the Auditor-General 's Office. {: #subdebate-49-0-s1 .speaker-K6F} ##### Senator Cavanagh:
ALP -- The answer to the honourable senator's question is as follows: {: type="1" start="1"} 0. The Capital Fund for Aboriginal Enterprises has acquired 70 per cent of the issued shares in Perkins Ltd. 1. A company, Arnhem Transport Services Pty Ltd. has been formed to take up the shares presently held by the Capital Fund. Initially all of the shares will be held by the Capital Fund. 2. The enterprise will be subject to the scrutiny of a registered company auditor. The holding company and the Capital Fund are subject to audit by the Auditor-General.

Cite as: Australia, Senate, Debates, 27 November 1974, viewed 22 October 2017, <http://historichansard.net/senate/1974/19741127_senate_29_s62/>.

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