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Thursday, 28 February 1985
Page: 362


Senator GARETH EVANS (Minister for Resources and Energy)(6.03) —in reply-I thank honourable senators for the general support for the Marriage Amendment Bill which has been expressed in their remarks. Obviously it was a matter for regret for a number of honourable senators that they were debating only the Marriage Act and not the Family Law Act which is, of course, rather than the present legislation, that which deals with marriage preservation and breakdown. I regret that I was not able to be present in the chamber for many of the contributions to this debate, but officials from the Attorney-General's Department have been very assiduous in taking notes and bringing me up to date. I want to reply in a little detail to a number of the matters that were raised in the course of an interesting debate. First of all, I want to say something about the major amendments proposed by the Bill, those which will implement the Hague Convention on Celebration and Recognition of the Validity of Marriages. I thank Senator Durack for his helpful and concise summary of the amendments that are proposed in this respect. As he pointed out, Australian implementation of the Convention will hopefully be a means to encourage other countries to do so.

Senator Harradine was quite correct in pointing out, in what he himself has described to me was an esoteric point, that the Convention has not yet entered into force, no countries having yet ratified it. However, this is no reason at all for Australia not to put itself in a position to do so. I know that some honourable senators opposite do take the view that nothing should ever be done for the first time but, after all, some country has to be the first. By our implementation we hope to encourage others to do so and so set up a more uniform regime. As Senator Puplick pointed out, in addition to Australia, four other countries have signed the Convention as an indication of their intention to adopt it eventually. Those countries are Portugal, Egypt, Luxembourg and Finland.

Senator Puplick and Senator Teague were concerned about the situation of a person who had married polygamously in, for example, Egypt, and who then came to Australia with his wives. The existing rules of common law provide that a polygamous marriage entered into in a place permitting polygamy, between parties whose domicile permitted such marriages, is valid in Australia. This was the result reached as long ago as 1963 by the Chief Justice of the Western Australia Supreme Court in the case of Haque v. Haque. Those interested in these things will find it at page 26 of Western Australian Reports 15. The present Bill, in proposed section 88E (1), preserves the operation of the common law where the Convention rules do not cover the situation. Thus, while paragraph (a) of section 88D (2) provides that validity under sub-section 88D (1) will not be given to a polygamous marriage, this does not prevent the marriage being valid if the common law rules so provide. The general principle of the Convention and, surely one would hope of this Parliament, is that such marriages should not be invalidated. While the marriage to both wives will be valid in the case I have mentioned, the treatment that is given to the two wives under individual pieces of Australian legislation may differ. These questions, which can arise in a taxation and social security context, are, I am grateful to say, as no doubt Lionel Bowen is, matters essentially for other Ministers to grapple with.

Senator Teague also raised the question-a good old chestnut for those opposite-of the recognition to be afforded to so-called homosexual marriages celebrated outside Australia. Let me stress at the outset that neither I nor the Attorney-General's Department is aware of any overseas country or jurisdiction that, in fact, recognises such unions, although suggestions to this effect appear periodically in the Press. Even if such were the case I confirm the honourable senator's understanding that the provisions of Part VA would not extend to a homosexual union. Marriage under Australian law, and that includes the law as to overseas marriages is, as honourable senators have pointed out, 'the union of a man and a woman to the exclusion of all others, voluntarily entered into for life'. That is also the internationally accepted meaning of the term and I have no doubt whatsoever that the framers of the Hague Convention did not intend it to apply to homosexual relationships.

Considerable interest was expressed by honourable senators in the provision of the Bill relating to the effect of State laws as to the parentage of children born through procedures such as artificial insemination by donor and invitro fertilisation. This is a topic on which there are deeply held and widely differing views in the community; that is, as to the question of whether the procedures should be carried out, who should be involved, what protection should be built into the law and so on. It must be understood that the Government does not intend to enter into this debate by the insertion of new sub-section 93 (3) in clause 26. The Government is not even proposing in the sub-section that this Parliament commit itself to saying anything positive about the legitimacy of these children, as much as many of us might want such a statement to be made and think it appropriate. Whatever the differing personal views one might have on the subject, it cannot be assumed or implied by anyone that a mere reference to these procedures in legislation imparts any governmental approval of the procedures themselves.

The basis of the amendment is simple. I can testify to this personally because I was involved in it in my previous portfolio. It arose out of a concern that has been expressed by some States-probably unnecessarily as a matter of law but nonetheless the point was pressed in the context of the Standing Committee of Attorneys-General-that the Marriage Act would somehow prevent children whose parentage is dealt with by State law from being legitimate. Really all this provision is designed to do is to make it clear that the question of legitimacy as determined by State law will not be overridden by anything in Commonwealth legislation. State law is to prevail in this respect.

It seemed to be suggested at one stage that the Commonwealth should legislate comprehensively for the legitimacy or the parentage of these children. That is a recurring theme which I can well understand being promoted. This question has been considered within the Attorney-General's Department and with the assistance of the Solicitor-General. The view has been taken that the constitutional power to do this is, in fact, by no means clear. Part VI of the Marriage Act deals with legitimacy as as a result of marriage. It is not clear, however, whether the Commonwealth can go any further and deal with legitimacy arising otherwise than through marriage in the context of the marriage power. I certainly share Senator Missen's regrets in this respect over the failure of the interchange of powers constitutional referendum which would have made it much more easily possible to resolve anomalies or limitations of this kind in Commonwealth power.


Senator Durack —You did not do too well in getting a reference of other powers from the States. Why did you think they would give you that?


Senator GARETH EVANS —I lived in hope, which is a state of mind unknown to the honourable senator, for reasons I can well understand. We are now going back to seeking uniformity, I am told, through the operation of State law. That is a laborious process to which I hope Senator Durack can testify in as heartfelt a fashion as I can. That is the track we are now going down. In response to Senator Durack's specific question, the jurisdictions which have so far legislated in accordance with the Standing Committee are New South Wales, Victoria and South Australia. The Attorney-General, Mr Bowen, is considering the Australian Capital Territory legislation at the moment. Senator Durack also queried whether the recent decision of the High Court of Australia in Cormick v. Cormick on the provisions of section 5 of the Family Law Act will have any implications for those parts of section 5 relating to AID-IVF children. I understand that the Solicitor-General is being approached to advise in detail about the consequences of the Cormick decision for the definition of 'child of a marriage' in the Family Law Act, and I can assure Senator Durack that this will be one of the questions that are looked at.


Senator Durack —Like my advisers, I do not think it does.


Senator GARETH EVANS —I am happy to have that advice on the record, and I am sure that it will be of great comfort to the Solicitor-General, when he is wrestling with this subject in the middle of the night, to have that phrase looming at him out of the text of Hansard. I am indebted to Senator Durack, and I am sure the Solicitor-General will be too. I should also take the opportunity to correct a misunderstanding about that provision of the Family Law Act. While it is relevant throughout Australia and not just for the Australian Capital Territory, it does not deal generally with the status or parentage of these children. It is simply designed for the specific purpose of allowing courts exercising jurisdiction under that Act to deal with questions of guardianship, maintenance and so on of these children after the break-up of a married household in which they are involved.

Senator Haines on this subject expressed concern that the broader social and ethical issues raised here have not been adequately addressed. The Government is very much aware of the various State and overseas inquiries into these issues and is examining these reports. Our principal advisory body on family law matters, the Family Law Council, is currently finalising a report of a sub-committee, chaired by Mr Justice Asche, a senior judge of the Family Court, on some of the wider social issues raised by the new procedures, and I am told that he expects to report to the Attorney-General within the next month.

Let me say something about marriage education, which expression, in case anyone is in doubt, and I gather somebody was, is intended to encompass the existing pre-marital education activities. I am grateful to see the general support that was expressed for this change, although I did notice with some interest the remarks of Senator Chaney at the end of the debate, expressing some reservations about the likely efficacy of any program of marriage education and his tentative but very interesting canvassing of the question of marriage contracts as perhaps a more immediately useful way of clarifying the ground rules of the battleground before things get too far down the track. The Government recognises the staggering cost of marriage and family breakdown to our community, both personal and economic. This amendment of itself, as Senator Teague commented, provides only the structure to allow the Government to spend money in this area. As such, I have to reject Senator Haines's criticisms of the statement that the legislation has no financial impact. Of course, it is now up to the Government to explore seriously the ways in which, in a time of severe economic restraint, funds can be wisely used to combat this problem, both in an preventative way and in order to deal with the consequences of break-down.


Senator Puplick —Is it not the explanatory memorandum that says it has no financial impact? It is your own explanatory memorandum which says there are no financial implications.


Senator GARETH EVANS —It is inconsistent with what I have just said, then. We will just have to be brave about it and acknowledge that, in my view, or in the view of my former officials, who have taken so much loving care and attention in drafting this speech, it does have some financial impact. We bear that responsibility with such fortitude as we can command, Senator Puplick. In bearing it with that fortitude, I remind honourable senators that this Government, in its first year of office, increased by 60 per cent the funds available for pre-marital education, which had remained static since 1976. I hope Senator Harradine in particular, who tends to be grumpy about these matters, gives full acknowledgement to that state of affairs. We will be examining all options here and will, of course, gratefully receive any further suggestions. Mr Acting Deputy President, I seek leave to continue my remarks later because there are some machinery matters to be attended to.

Leave granted; debate adjourned.