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Thursday, 28 February 1985
Page: 303


Senator DURACK(10.43) —Any legislation which deals with such a fundamental institution as marriage is of great importance to the Parliament and gives rise to occasion for consideration of problems relating to that institution. Some amendments to the Marriage Act may be of a technical kind and would not necessarily involve any major debate. But this amendment to the Marriage Act raises a number of very important issues relating to that institution and to the way our laws give buttress to it. I think this Bill does deserve close consideration by the Senate.

The immediate purpose and, indeed, according to the second reading speech of the Minister for Resources and Energy (Senator Gareth Evans), the principal purpose of the Bill is to make amendments to the Marriage Act to give effect to a convention known as the Hague Convention on the Celebration and Recognition of the Validity of Marriages which was signed by Australia in July 1980. I am very pleased that when I was Attorney-General at that time we took that decision to become party to such an important convention. Indeed, as the Minister acknowledges in his second reading speech, that is the first of the Hague conventions Australia has signed and this will now be the first implementation by this Parliament of any of the conventions signed by Australia.

The major difficulty with which the Hague Convention dealt concerned the enormously complicated rules that exist not only under the common law of this country and our Marriage Act but indeed under the laws of many other countries as to what extent laws governing the actual entry into marriage in one country apply to that marriage when the parties to it go to another country. Therefore, there is a question concerning the laws that govern the entry into marriage by persons in this country and the recognition in this country of marriages entered into overseas. The outcome of the Convention-I think it was a successful one-was an acceptance that, as far as possible, there should be uniform rules throughout the world. The more countries that adhere to and give effect to the Convention-as we do in Australia-the greater the convenience for the parties to marriages and the greater the uniformity of rights flowing from the marriage, wherever it may have been entered into.

As I have said, we have a Marriage Act which sets down the laws governing the entry into a marriage by Australians in Australia. However, problems arise when in fact one of the parties or both parties to the marriage are not Australians or are not domiciled in Australia but happen to be married in Australia. The same situation may arise for Australians in other countries. As I have said, the existing laws are complicated in relation to those problems which arise. In many marriages which the parties have entered into genuinely and in good faith, believing the marriage to be valid because it was valid in the country in which it took place, problems arise later when the partners find that the marriage they entered into is void in the particular country in which they then reside.

I think what is required, and what the Hague Convention addressed and I believe very sensibly resolved to do, is to have those matters simplified with a common rule adopted throughout the world or, at least, in those countries that are parties to the Convention. Hopefully, in due course more and more countries will adhere to the Convention. The more countries that adhere to that Convention the better these problems can be overcome.

It is interesting to note that in this country the extent of the problem is revealed by the statistic mentioned by the Minister for Resources and Energy in his second reading speech. In 1983, 35 per cent of all marriages in Australia involved one party who had been born overseas. Therefore, in 35 per cent of all marriages in Australia there is the potential-I am not saying, nor was the Minister, that that 35 per cent of marriages will have difficulties-that those marriages could be struck down because of some invalid aspect arising from the fact that one party may not have been domiciled in Australia or is not an Australian citizen. That is a striking feature of modern Australian society. As a result of the immigration program one of the parties to some 35 per cent of marriages in Australia in 1983 was born overseas. As I said, therefore, whenever that occurs in regard to any marriage entered into in Australia, there is always the possibility-I put it no higher than that-of some legal complication about the validity of the marriage.

If this Bill becomes law, as determined by the Hague Convention, our law will be based on the principle that the law of the place in which the marriage is entered into will govern the validity of the marriage. It will govern not only the rules for the celebration of the marriage but also the capacity of the parties to enter into that marriage. In future, in Australia the celebration of marriage and the capacity of parties to enter into a marriage will be determined by Australian law, regardless of whether one of the parties may be domiciled in another country and the laws of that country contain a different rule about the capacity to enter into the marriage or how the marriage should be celebrated.

At the same time this legislation which gives effect to the Convention provides that we in Australia will recognise as valid a marriage which has been entered into in another country which conforms with the laws of that country. There are some exceptions to that principle of the recognition of a foreign marriage which I think make good sense and which are also part of the Convention. They are set out in the Minister's second reading speech. I suppose the most important exception is that we will not recognise a foreign marriage which is bigamous. There are three other exceptions to the rule which states that we will recognise as valid any marriage entered into in a foreign country which conforms with the laws of that country. I believe that the proposal contained in this legislation is sound and the Opposition gives its warm support to it. As I said, when in government we adhered to that principle when we signed the Convention in July 1980.

Another aspect of this Bill is what is perhaps a fairly minor amendment. It may be a rather technical amendment in many ways. There may be some controversy as to whether it is even required at all. It deals with what is today a very important and very sensitive question; that is, the legitimacy of children who have been born as a result of modern procedures such as artificial insemination and in vitro fertilisation. There has been, as has been recognised for some years, a problem as to the legitimacy of those children under existing law. Even though the child has been born to a woman who is married, and who has a husband living with her who has consented to the whole procedure, there is a real doubt under existing law as to the legitimacy of that child. Of course, that has horrific consequences for the child and for his or her parents in regard to not only litigation between the parents-in case of divorce and custody of the child-but also the rights of succession of that child and the various instruments under which he or she may obtain benefits.

It is a very important question and one which has been addressed for some time by the Standing Committees of Commonwealth and State Attorneys-General. As large elements of State law are involved, it was decided some years ago by a Standing Committee of Attorneys-General that we would endeavour to achieve uniform laws throughout Australia. Both State law and Federal law-either the law for the Commonwealth or any territories of the Commonwealth-should be uniform. That uniform law has been developed and I understand that it has been implemented in some jurisdictions. I would be pleased to know from the Minister for Industry, Technology and Commerce (Senator Button), who is at the table, whether he can tell me in which jurisdictions that uniform law has been implemented in accordance with the decisions that were made some time ago by the Standing Committee of Attorneys-General. Certainly, a sound approach, in order to have a complete coverage of legal systems in Australia and of Federal or State powers, is to have uniform laws throughout Australia so that there is no gap in ensuring the legitimacy of such children.

As the Minister stated, the decision in principle has been that the donor of genetic material shall have no relationship with the child, and the legal parental relationship should be given to the social parents. The amendment contained in this legislation simply insures that there could be no argument that that exercise could run foul of the constitutional provision which, impacting on the provision contained in the Marriage Act, might strike it down due to some very technical argument. So the object of the provision is to remove that argument. I do not need to discuss that question any further. I applaud the fact that that is being done and that the uniform law exercise will be able to go ahead without running into a problem of that kind.

Incidentally, as far as the Commonwealth is concerned, amendments to the Family Law Act in 1983 have given effect to the same principles that have been agreed by the Standing Committee of Attorneys-General in relation to definitions of a child of the marriage under the Family Law Act. Although a recent decision by the High Court of Australia has thrown some doubt on some aspects of those amendments, as I understand it, the decision of the High Court would not strike down or affect those principles in relation to children who have been born as a result of those artificial procedures. Again, I would welcome some advice from the Minister, perhaps during the Committee stage, as to whether that is the view of the Government and, if it is the Government's view, whether it still sees some problems in relation to the amendments that were made to the Family Law Act to give effect to this principle in relation to those children. I would certainly be interested to know whether the Government sees any way of overcoming those problems.

Another matter that has been dealt with in this Bill concerns fees for civil marriage celebrants. This is the one aspect of the Bill which the Opposition does not support. The Bill inserts a provision to the effect that a civil marriage celebrant is not entitled to charge a fee for solemnising a marriage which is higher than that prescribed by regulations. For a long time fees which marriage celebrants can charge have been prescribed by regulations. They have been increased from time to time, but some questions have arisen, with which I have been familiar, as to whether they can charge a higher fee. This proposal in the Bill makes it clear that they cannot. However, the Opposition believes that the ordinary principles of contracts should be allowed to apply in relation to these matters. This proposal amounts fairly and squarely to price fixing by the Government of charges to be paid to civil marriage celebrants and the Opposition is completely opposed to that approach.

Clearly, fees should be prescribed because the parties may wish to enter into a contractual relationship on the basis of those fees. They may not, in many cases, address themselves to that issue. A marriage celebrant has the right to charge a fee as prescribed. The parties may wish to have a special service performed by a marriage celebrant. Indeed, there are some marriage celebrants who provide a very fine service to parties. It is not just a matter, as the Minister says, of providing extra things such as flowers or music; it is a question of the whole style of the marriage celebrant. For reasons that escape me, some marriage celebrants have been very much in demand. Certainly, some are very popular.

We see no reason why ordinary contractual and free-market arrangements should not apply to the determination of a celebrant's fees. The only danger, as I see it, would be if the Government's policy were to restrict the numbers of such marriage celebrants to the extent that they were able to force up fees. I do not see any danger of that happening. It has been the policy to expand the number of civil marriage celebrants. I think a fairly expansive view should be held as to the appointment of suitable people. The only real question that should arise is whether people are suitable. No problems of that kind should arise; so the Opposition will be opposed to the provision relating to fees.

The Bill provides for a widening of the concept of marriage education. Under the present Act there is a provision for pre-marital education. Pre-marital education programs have been available for some time. That provision was inserted by my predecessor as Attorney-General in the Fraser Government, Mr Bob Ellicott. This Bill proposes that the concept of pre-marital education should be broadened to marriage education. The Opposition strongly supports that view. The ability to encourage pre-marital education is limited. It seems to be the experience of the people who have been conducting pre-marital education programs that it is very difficult to get couples, particularly young people marrying for the first time, really to see that they need some education for marriage. For some church groups that can be more easily achieved than is generally the case.

Young people are probably fairly starry-eyed about their prospects. They really do not admit to each other that there could be problems. That is a very sound approach for people to have when entering into marriage but, as we know-this is a tragedy in our community today-the fact is that problems soon arise, and there has been a rise in the divorce rate. So it is really after marriage, when people suddenly find that there are problems, that they are then more ready to accept or seek advice. Clearly that is the most appropriate time for provision to be made for marriage education.

We have some very fine counselling bodies in Australia. Since 1960 it has been the policy of successive governments to fund marriage counselling organisations of one kind or another. So there has been a long-standing program. Far more needs to be done and far more resources need to be put into marriage counselling to provide education before marriage and education for those who are already married but who have problems. The sooner that people can seek advice on their problems before they become more serious-when the parties are contemplating separation or have separated-the better.

The Opposition believes that the whole role of marriage counselling and marriage education should be greatly expanded and that greater resources should be made available to the marriage counselling organisations which have already developed expertise in the field. I think that last year the Government spent $100,000 in publicising the availability of marriage counselling organisations in an attempt to encourage more people to seek counselling. In fact, the Government did not significantly increase in proportion to the money spent on the campaign the resources needed to meet that growing demand.

Fortunately, there is a growing demand for counselling. More and more people are realising that marriage is not just an institution which one can go in and out of as it suits one and that couples have very real responsibilities to each other and to the children of a marriage. People are now seeking guidance and help when they run into difficulties. It is imperative that the Government provide more resources to cope with the demand.

Marriage counselling organisations have had a great success rate. A consistent 70 per cent of the people who have been counselled report a positive outcome. A survey conducted a few years ago by the Marriage Guidance Council of New South Wales showed that 21 per cent of couples who had sought help from the Council after they had separated had in fact been reconciled. Very much more encouragement must be given to people to seek such services, and more resources must be made available by the Government. As I have said, the Government did take the initiative in publicising the availability of counselling. By so doing it has really only compounded the problem, although the effort was no doubt worth while to some extent, because it has not provided an adequate increase in resources to meet the demand.

In the last year or so the Government also established what it calls pilot family law centres. Unfortunately, at the Estimates Committee hearings last year it was very difficult to ascertain from the then Attorney-General, Senator Gareth Evans, despite the willingness of his officers, any information on the Government's policy in this regard. I do not know whether Senator Evans did not know what it was or whether he was just being cagey. The fact is that we need to know a lot more about the Government's policy in relation to these matters. On the face of it the establishment of these pilot centres seems to be only duplicating services that are already available from the existing marriage counselling organisations and, indeed, from the Family Court counsellors. The Family Court counsellors report an increase in the number of people who are seeking counselling from them in order to achieve reconciliation. Until recent years, most of the counselling done by the Family Court counsellors was simply conciliation in regard to the process of a divorce and custody problems. I understand that now apparently more people are seeking from the Family Court counselling for reconciliation. The Opposition believes that the time has come when there should be an inquiry into the whole basis of marriage counselling. This should deal with counselling to preserve and buttress marriage not simply with conciliating parties seeking a divorce.

There is a question whether Family Court counsellors should be removed from the atmosphere of the Court and become part of a more general service to the community of counselling to preserve marriage rather than to assist in the process of its dissolution. More and more people want to save their marriages and the present system is not meeting that demand. It is necessary to rethink the whole policy and some form of inquiry is required. It may be a good idea for the Senate to consider whether one of its committees should look at the question. There can be no more important question facing the nation than the preservation of marriage and trying to do something about the divorce rate. A recent seminar in Melbourne, reported in the Age the other day, revealed the enormity of the problem. The point I am now making, which was made by the Opposition in the election campaign, was made at that seminar by Dr Edgar, Director of the Institute of Family Studies. If the Liberal-National Party coalition had been elected, we would now be proceeding firmly on the lines I have been advocating. I hope the Government will give serious and urgent consideration to acting in the same way.