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Thursday, 28 February 1985
Page: 312


Senator HARRADINE(11.51) —It is customary for a senator who speaks after a newly elected senator to congratulate him on his maiden speech. I do not think Senator Puplick has just made his maiden speech, so I am not required to congratulate him, but as a matter of courtesy I do welcome him back to the Senate. I had hoped that his sojourn out of the Senate would have got a bit of the woolly thinking out of his brains, but apparently it has not. He is back on the old secular humanist tack he was wont to parade when he was here last time.


Senator Puplick —That is why they re-elected me.


Senator HARRADINE —No, it was because they did not know about it. Senator Puplick seemed to berate the Senate in some way for not passing uniform legislation to overcome what he sees as a difficulty-it is a difficulty-in regard to the legitimation of children in particular States. Quite frankly, I ask him: Under which constitutional power has this Parliament the authority so to legislate?


Senator Puplick —Section 109.


Senator HARRADINE —Not only does that show Senator Puplick's lack of knowledge in this area but also his lack of constitutional knowledge. I defy anyone to support what Senator Puplick has said, that is, that this Parliament has constitutional authority to legislate and to pass uniform laws regarding the legitimation of children.

I am concerned also that there are people such as Senator Puplick who have a gung ho approach about-I use his words-the production of children by artificial means. I am concerned about the individual rights of children, not only as to their legitimation but also as to their rights when they grow older, to knowledge about how they came to be born; let alone the rights of embryos as persons, the status of frozen and unfrozen human beings, and the problems that inevitably will arise and have arisen about experimentation by the medical profession and other scientists on embryos without addressing the fundamental issue as to the status of the embryo as a person.

It does concern me, whilst I am on this subject, that legislation such as this goes through the Parliament and in a way legitimises the sorts of procedures that are nominated in this legislation, that is to say, in vitro fertilisation and artificial insemination by donor, without clarifying in any way what are the delimiting areas. I agree to this extent with Senator Puplick: It is unfortunate that the Parliament is faced with a situation where these methods are, as it were, recognised in law, are placed in statutes without substantive debate. They may be pointed to in later debates as a recognition by the Parliament of these procedures. Of course, we know that simply placing the words in the legislation for the purposes of determining questions of legitimation of children does not in itself mean that the Parliament recognises these procedures in all their various methods.


Senator Watson —Surely that is the problem?


Senator HARRADINE —Yes, that is what concerns me. I agree with Senator Watson. Last year amendments were made to the Australian Citizenship Act. On that occasion there were provisions similar to those in the legislation before us now. As was the case on that occasion, I believe that the Marriage Amendment Bill is not a suitable vehicle for seeking to settle or even to contribute to the current public debate on the acceptability or otherwise of IVF or AID procedures generally and on how the performance of these procedures should be regulated by law. I believe that we need to have a full and open debate on these matters and on relevant questions of rights and responsibilities. I consider that there are means of determining questions relating to the legitimation of children other than those which are contained in the Bill; that is to say, the legitimation of children born as a result of the procedures referred to in the Bill. In the circumstances this Parliament should not seek to contribute in a wholly uninformed manner to the resolution of these questions.

I leave it at that for the moment. I believe that the Government has a responsibility to bear in mind that this is a very important area which needs more mature consideration than obviously it has been given. I am concerned, as is Senator Watson, that because we have clauses which incidentally mention the procedures, the clauses may be pointed to by advocates of the procedures as being accepted by the parliament in general. I make it perfectly clear that this is a concern and it should be recognised by the Government and the Parliament. I believed there was a way under the Australian Citizenship Amendment Bill, and at that time I pointed it out, to deal with the matter by way of regulation. The Minister had the power under that legislation to do so. Having just looked at the principal Act, I am not so certain, due to the constitutional problems, that the Minister, insofar as the Australian Capital Territory is concerned, or State Ministers have not the power to deal with this matter in another way.

Let me come to the other matters in the Bill. I do not have a problem as to the validity of the legislation, because of the marriage power of the Commonwealth Constitution but I wonder whether the Senate ought to be considering a Bill to give effect to the Hague Convention on Celebration and Recognition of the Validity of Marriages when that Convention has not even come into effect. It will not come into effect until after the deposit of the third instrument of ratification acceptance, approval or accession. That has not occurred. I do not know of any country that has ratified this Convention. I ask the Minister to tell me whether any countries have ratified it, acceded to it or approved of it in the required terms for the Convention to come into effect. I do not know of any. Australia has signed it, as Senator Durack has said, but that is not ratification. Is it fair for the Senate to be asked to give effect to a convention which has not come into effect? It is a technical point, I know, but it is one which I think requires an unequivocal statement by the Government. No doubt there is some explanation.

The Bill also seeks to extend the areas of marriage counselling. I have expressed concern about this matter over a number of years in this Parliament. My concern has been that this Government is not giving genuine legislative and administrative support to the fundamental institution of marriage. Last year the Australian Broadcasting Corporation made a decision concerning homosexuals. The Special Minister of State (Mr Young) last year made a decision which gave de factos the same status as wives or husbands of members and senators in regard to overseas travel entitlements for members of Parliament. Incidentally, that matter will come before the Parliament again because, during the debate last year on my private member's Bill, a statement was made both by the Opposition and by the Government which indicated quite clearly that that is a matter which should be determined by the Parliament. I indicate that I will be giving the Parliament the opportunity to determine that matter very soon.

The law is very clear about the meaning and the importance of marriage and the family as the fundamental institution of society. This is stated in the Family Law Act. When members of the ABC appeared before Estimates Committee A I asked the following question of the Managing Director:

Is not this decision clearly at odds with the importance Parliament attaches to marriage? Parliament does not regard marriage and the family as simply another social phenomenon with no more significance than any other, whereas the Board's decision equating a homosexual household with a family or a homosexual relationship with a marital relationship flies in the face of the clearly expressed view of the democratically elected representatives of the people, does it not? If that is so, by what authority has the non-elected Board of the ABC taken on itself the role of legislative pacesetter?

Senator Button chose to field that question and, as reported at page 164 of the Hansard record of Estimates Committee A, said:

Mr Chairman, I would object to the form of that question. It is impossible, I would believe, for any citizen to divine the clearly expressed view of the democratically elected people in this Parliament on these matters. Senator Harradine formerly referred to the Marriage Act. I am not sure how many decades it is since the Marriage Act was amended, but it is not, with respect, a method of divining the view of the elected representatives in this Parliament. I do not see how any citizen can be expected to apprehend what that view is.

I responded by saying:

Mr Chairman, let me read it. I am not talking about the Marriage Act-

Senator Button said:

You were talking about the Marriage Act.

I said:

I am not talking about a Marriage Act which for some years was on the statute book. I am talking about the document which a marriage celebrant is obliged to give here and now to the intended partner to a marriage. By law that document says that marriage and family life have been basic to the strength of our society for a long time. If the public wants to know what the Parliament thinks, this document says that the Parliament in the Family Law Act has placed great stress on their importance.

It is sometimes necessary to remind ourselves of what the Family Law Act says about marriage because, if members of parliament and the Government have some other idea about marriage, I challenge them to amend this legislation. Here we have an amendment to the Marriage Act. One of the Ministers during the hearing of the Estimates Committees said in effect: 'That is old hat, because the legislation has not been amended for years'. We now have an amendment here. This was an opportunity for the Government and the Minister, if he wanted to, to ensure that there were amendments which reflected the Government's attitude on marriage. As the Government has not brought down any such amendment, so the people of Australia can surely assume that it is the opinion of the Government that the Act reflects the Government's attitude. The Family Law Act refers to:

the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;

and refers to:

the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;

Under section 46 of the principal Act, the Marriage Act, which is being amended, although not in this respect, the Parliament insists that the authorised celebrant must, in the presence of witnesses, remind the couple of:

. . . the solemn and binding nature of the relationship in which you are now about to enter.

Let us not have any more of this cant that was put to the Estimates Committee by Senator Button. He said: 'The Marriage Act has not been amended for years, therefore, the public cannot determine what attitude the Parliament has to marriage'. Let the Government, if it has any other attitude, be fair dinkum about it and its supporters come into this chamber and say so. Let it not do with marriage-


Senator Missen —It is merely a hortatory clause. It is not a significant part of the family law legislation.


Senator HARRADINE —Let Senator Missen start amending the legislation and let us have a vote on it. Let us not have what occurred in respect of the flood of violence and pornography and have a situation where the reasonable adult person test cannot be met. Let us not have what happened when Senator Lionel Murphy was Attorney-General. He told the Customs people to turn a blind eye. Is that what is happening to marriage at the moment? I believe it is. By default we are witnessing an attack on the institution of marriage. That attack has resulted and is resulting in the most disastrous consequences to the social as well as the economic life of the community. Even the Director of the Institute of Family Studies has indicated clearly that the breakdown of marriage has an economic as well as a social effect. The stability of the family has a vast effect on the economic well-being of this country. As I have said repeatedly in this Parliament, one of the principal causes of poverty in this day and age is family breakdown.

What is the situation of the family at the moment and the effect of this attack on the family? The result has been that from the time the family law legislation became operative until 1983, which is the period of the latest figures, there have been 355,125 divorces involving 465,765 children. Nearly a half a million children have been involved. As the researcher for the Institute of Family Studies has indicated, 40 per cent of all new marriages in Australia will end in failure, based on the 1983 divorce rate. The cost of marriage breakdown to the taxpayer last year was $1.2 billion, not to mention the trauma of the individuals concerned and the individual cost to them, which would have been enormous.

The other day we had the annual report of the Department of Social Security before the Parliament. It was put towards the end of the list so that we could not get to it. Page 121 of that report sets out the categories of widow pensioners. Only 42.6 per cent are widows in the normal sense of that word-that is to say, persons who have lost a spouse through death. The report states that 57.4 per cent are divorcees, deserted wives and the like. In 1983-84 the cost in that aspect alone was $829.5m. Very few people in our society would begrudge payment of those moneys, particularly in view of the trauma, dislocation and distress experienced by those involved. The stark fact, as I have said, is that a major cause of poverty in Australia today is marriage breakdown, and the law does little or nothing to help people live up to their marriage promises and commitments. Judges and staff of the Family Court of Australia have the unenviable task of administering a law which fails to reflect the concept of justice to the ordinary person. Those points relate of course, to the Family Law Act.

Let us come back to the Marriage Act. Let us come to the question of family counselling. I believe that it is important that more effort be put into reconciliation counselling. As Senator Durack said, the overwhelming effort-in fact, unfortunately it is almost total-of Family Court counsellors in attempting conciliation is directed to the dissolution of marriage. Not enough support is being given and not enough references are being made from the Family Court to the authorised reconciliation counselling services. As Senator Durack said, there is a desire on the part of many people, knowing of the legal and economic consequences and the consequences to their children, to achieve reconciliation. This Government is virtually ignoring that. I know that the amendments I proposed to the family law legislation about required reconciliation processes obtained a great deal of support in this place when they were put forward. I believe we should have a further opportunity and I ask the Government to give us a further opportunity so that these measures can again be tested. At least let us try to do something about this problem.


Senator Aulich —Get the lawyers out of it.


Senator HARRADINE —I agree. That is what I am saying about the Family Law Court.


Senator Missen —You mean the Family Court.


Senator HARRADINE —I am sorry, I mean the Family Court. It is better that these conciliation processes be dealt with away from the courts, and preferably by those very good institutions which are now in the field but which are starved of money and resources to vastly improve the situation.

I come back to the three points I have mentioned about which I believe the Government has a responsibility to do something. Apart from the technical question that I raised-perhaps that technical question has a very simple answer-it just seemed odd to me that we are being asked to bring into effect a convention which is not already in effect. If people have any other opinion about the definition of marriage and of what a marriage is, as it has been clearly defined in the Family Law Act and by the Marriage Act and as it is required to be pointed out to partners, let them say so in this place. Now is their opportunity. Let us not hear this nonsense in the Estimates Committee about the law not having been amended for years. They have their opportunity now; let them do so.

Secondly, what needs to be done of course, is, to provide legislative and administrative support for the institution of marriage. Again, I remind the Senate that the proposed reconciliation processes amendments should be debated again in the Parliament. I invite the Government to give us the practical opportunity to do so. Finally, I think that more administrative support should be given to support marriage and pre-marriage counselling organisations.


The ACTING DEPUTY PRESIDENT (Senator Elstob) —Order! The honourable senator's time has expired.