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Wednesday, 18 November 1959


Mr KILLEN (Moreton) .- The Attorney-General, in his well-tempered reply to my amendment said, among other things, that there is no human or divine law in existence or possible of being fabricated that will prevent divorce.


Sir Garfield Barwick - 1 did not say that; T did not say anything like it.


Mr KILLEN - Well, I apologize.


Mr Timson - What you have said is too broad.


Mr KILLEN - Very well, I will thin it down a little, but that was the effect of the honorable gentleman's remarks, as I understood them. He said that no law would prevent desertion - if you like to have it on that ground.

If that is the case, and if 1 concede that as an argument, where does that lead us? Surely it does not postulate that this legislature is not entitled to exercise its judgment as to where, in point of time, there should be a secular barrier. If the legislature is not able to exercise any judgment at all then we might as well leave divorce simply on the basis of application. That is to say, parties who want to secure a divorce may make an application to the appropriate government authority and the divorce is granted.

That is not my approach to the bill and I am perfectly sure that it is not the approach of any honorable member. Every member of this Parliament believes that he must exercise his judgment and a great deal depends precisely on where he comes down. The honorable gentleman has referred to the terms of years, as he styles it. He said, " Let us deal with the merits of the case. Surely after two years' desertion there is a matrimonial offence." I put it to the honorable gentleman that surely after twelve months' desertion there is a matrimonial offence. So again we come to the point where we draw the line at what should be approved by the authority charged with the responsibility of adjudicating on these matters.

The Attorney-General has invoked the opinion of the Law Council of Australia. He said, " The Law Council has approved of two years for desertion ". I am not impressed by that invocation, nor did it impress the honorable and learned member for Balaclava (Mr. Joske). When he constructed his bill he considered that desertion for three years was an adequate ground. It would seem strange that the honorable member for Balaclava, who for so many years has specialized in this field and has built up a well-deserved and well-recognized reputation, should have simply walked past the recommendations and considerations of the Law Council. But the Attorney-General to-night invoked the authority of the council as one reason why we should support the proposal for a period of two years' desertion.

Then the honorable gentleman said, " Of course, the honorable member for Moreton misconstrued my comment last night when I referred to the fact that we must be careful in changing any of the grounds now existing in the States ". I am prepared to concede this much to the honorable gentleman: If he admits that there is no change or dropping of a ground now existing in a State, I think that the very best that he can make out of it is that there has been a substantial modification of the ground. For all practical purposes, six Australian States provide three years for desertion.


Sir Wilfrid Kent Hughes - That is the provision in five States.


Mr KILLEN - Tasmania is an exception. I used the qualifying words " for all practical purposes " in the hope that the committee would understand me. Yet we are now asked to say that the period should be two years. I want to say to those honorable members who have expressed concern over the financial and social position of wives who have been deserted, as I have said in this place before - and I say it, indeed with a sense of shame - that I believe that if this Parliament had the authority, which I am told it has not, it should impose the most severe form of sanction upon that miserable wretch who will walk out of a home and leave his wife and children without a bob to bless themselves with. I can well understand the attitude of mind of the character who says to his wife, " I can't stand a bar of you, I am going ". I understand that attitude but I despise the performance when he walks out and says, " No, I am not going to make any provision for you ".

So T say to the Attorney-General that in invoking the authority and the opinion of the Law Council he has failed to impress me and I am sure he has failed to impress the committee also. He referred to the fact that State parliaments would not touch divorce with a 40-foot pole. The inference T drew from that observation was that every State parliament, for years now, has been lacking in a sense of political, social and moral courage. That, Mr. Chairman, is an inference which I am not prepared to accept. So I say to the committee that here it is, on this occasion that we are disturbing the status quo, for all practical purposes of six Australian States. My judgment is that we are not at liberty to do that and I should hope that the judgment of the majority of the committee would be similar.







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