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Wednesday, 1 May 1957


Mr WILSON (Sturt) .- I believe that the passage of this bill will constitute a landmark in Australia's progress along the road to nationhood. I am deeply honoured to have been asked by the honorable member for Balaclava (Mr. Joske) to second the motion that the bill be read a second time. No man is better fitted than he to prepare and introduce this measure. The honorable member is one of Australia's most distinguished barristers. Indeed, I think that he has been correctly described as the leader of the Australian Bar in matrimonial matters. He has written textbooks from which our law students, solicitors, and barristers have learned their law, and he has had many years of practical experience which have fitted him to form opinions about the weaknesses in many of the existing laws of the States and to prepare and submit to this House a bill designed to remove many of those weaknesses.

As the honorable member for Balaclava has stated, this measure will not make it easier to obtain a divorce. Its purpose is to reconcile the parties to a marriage, or to deal with the matter after the marriage has been broken. In examining this bill, we must first consider whether the Commonwealth Parliament has jurisdiction to pass such a measure and, if it has, whether it should do so. In determining the question of jurisdiction, we should look at the history of the Australian Constitution. From the earliest days, the great thinkers in the Australian colonies had in mind the creation of an Australian nation, but it was not until 1891 that they got together for the purpose of establishing that nation and deciding which powers should be vested in a national parliament and which should be vested in the States. In 1891, a draft bill entitled " The Constitution of the Commonwealth of Australia Bill 1891 " was prepared and submitted to a convention of representatives of all the States. Clause 52, which prescribed the powers of the proposed national parliament, stated -

The Parliament shall, subject to the provisions of this Constitution, have power and authority to make all such laws as it thinks necessary for the peace, order and good government of the Commonwealth, with respect to all or any of the matters following ....

Placitum (xxi.) dealt with marriage and divorce. Therefore, we can say that the great thinking people of Australia as far back as 1891, when visualizing the formation of an Australian nation and preparing an Australian constitution, had firmly fi ed in their minds the view that matters in re lation to marriage and divorce were universal matters which should be dealt with by the National Parliament and not by the provinces or States. When that clause came before the convention of 1891, it was unanimously accepted without debate that the power over marriage and divorce should be taken from the States and vested in the National Parliament.

Between 1891 and 1897, the people of Australia discussed the draft Constitution. In 1897, a further convention was held. Once again, representatives from all States met to consider the Constitution and. among other things, what powers should be vested in the National Parliament and what powers should be vested in the States. The draft bill that came before the convention in 1897 again included a provision that the Commonwealth should have power to make laws for the peace, order and good government of the Commonwealth in relation to marriage and divorce. On this occasion, the delegates discussed the wisdom of introducing the questions of marriage and divorce as a power of the Commonwealth Parliament. The Honorable Sir John Downer, the very distinguished father of our distinguished member for Angas, summarized the predominant view of the convention when he said -

What subject is more fitting for general legislation? In what subject do we want a universal law more than that dealing with the most sacred relations that concern not merely the individuals that are parties to the Contract, or whatever you please to call it, but also those who are to come afterwards. Any one who seriously considers the social feelings of pain and grief, and worry and trouble caused by the differentiation of the laws of the Colonies, as between themselves, on this most vital subject, must agree that something ought to be done to prevent the anomaly continuing.

The Honorable R. C. O'Connor, who later became one of the distinguished judges of the High Court, said -

We want to bring about not only a recognition of the status, but a uniformity of the laws in regard to marriage and divorce.

When the Constitution became the law of the land in 1901, clause 51, under "Part V. - Powers of the Parliament", provided -

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to: - (xxi.) Marriage: (xxii.) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants:

Therefore, we can say that, so long as there has been a Constitution, the people of Australia have recognized that marriage and divorce should be uniform and should be dealt with by the Commonwealth or National Parliament and not be left within the jurisdictions of the States.

When we consider the bill which is now before the House, we should ask ourselves. " Having the power to deal with this subject, should we, as a Parliament, deal with it? ". Were all the distinguished men who attended the convention of 1891 wrong when they said that matters of marriage and divorce should be dealt with by the National Parliament? Were those who attended the convention of 1897 wrong? Were those who attended the convention of 1898 wrong? Were the first members of the Federal Parliament and those who adopted the Commonwealth of Australia Constitution wrong? The only thing that is amazing and difficult to understand is why it has taken 57 years for a bill which has any likelihood of consent to be introduced on this subject.

Let us look as the situation as it is. First of all, on matters of divorce and matrimonial causes, jurisdiction is recognized under international law to rest upon the domicile of the parties concerned. Domicile is most difficult to determine. It is said to be the place where a person resides with the intention of permanently residing there. In England or France, probably no major difficulty is created. A person who lives in England, in the main, intends to live there all his life. The same thing applies with France. But we cannot say that in relation to Australia, when we deal with State domiciles. When a person happens to be born in South Australia, and is, perhaps, educated in Victoria, then works in New South Wales and later in Queensland, then moves to Tasmania and, perhaps, goes to Western Australia, it is difficult for any one to determine where that person intends to reside permanently. He probably do3s not know himself; he has probably never given any serious consideration to the subject. Yet, before any of our State courts have jurisdiction to deal with the matter, the question of domicile has to be determined.

That is one of the greatest advances made in this bill. The question of the State in which a person is domiciled will vanish overnight; an Australian domicile is established. If a person is living in Australia, and it can be assumed that he intends to live in Australia, the State of the Commonwealth in which he happens to live or in which he has been living for some time will not matter. Therefore, the great reform effected by this bill, as I see it, is not the grounds for divorce or anything of that nature but the establishment of an Australian domicile. Courts will no longer have to conduct a most difficult investigation to determine whether they have jurisdiction in relation to a person who has moved from one State to another.

Since this bil] was introduced I have taken the trouble to investigate and read some pleadings in relation to certain applications for divorce in my own State. In one pleading I looked at there were two pages in which the petitioner was endeavouring to put the facts before the court so that the court could make up its mind in which State the petitioner or the respondent was domiciled. Virtually the pleading stated that on such and such a date the parties went to Western Australia, where they remained for so many years, and then they moved to Victoria and remained there for so many years. After evidence was considered on all these facts the unfortunate judge had to try to read the mind of the husband, who was not there, and find out what was really the domicile of the parties concerned.

So I suggest, sir, that this bill will remove what is virtually a lawyer's nightmare - the need to establish a person's domicile. It will thus save a tremendous amount of worry, time, and expense. As well as that, we will have a universal divorce law for Australia. We are all Australians, and to have one divorce law in one State and an entirely different one in a State to which one can fly in a matter or hours seems extraordinarily backward for a country such as this.

The honorable member for Balaclava has been most skilful in his preparation of this bill. He has not attempted to foist anything upon the Parliament that the people of Australia have not clearly agreed to. As the honorable member has pointed out, 95 per cent, of the divorces granted in all States are granted either on the ground of adultery or on the ground of desertion, and those two grounds are common to all the States. Further, the honorable member for Balaclava has rightly said that we can assume that the people of Australia have already accepted those two grounds as grounds for divorce. So in the bill before the House there is no change in the grounds which affect 95 per cent, of the divorces in Australia. Probably it is no exaggeration to say that of the remaining 5 per cent, of divorces, 3 per cent, are on grounds that are common to all States. Therefore, the difficulties that have been pointed out by the honorable member for Werriwa (Mr. Whitlam) relate only to a very small proportion of the total number of cases that will ever come before the courts. The honorable member for Balaclava has rightly said that where a majority of the States have accepted a particular ground, he has incorporated that ground in the bill, and where a majority of the States have not accepted a particular ground, that has not been included. Generally the honorable member has endeavoured to interpret the will of the people of Australia, and I believe he has done so very skilfully and in a manner that makes the bill acceptable to the people of Australia.

I was rather shocked to hear from the honorable member for Werriwa that the Labour party wants further delay in this matter. It is now 57 years since the Commonwealth Parliament was given power to deal with this subject. Fifty-seven years is quite a long time. It is ten years since the right honorable member for Barton (Dr. Evatt) made up his mind that legislation should be introduced to provide a Commonwealth act to deal with marriage and matrimonial causes, and it is just ten years since the right honorable member for Barton appointed Mr. Toose, Mr. Harry Alderman and Mr. Joske, who is now the honorable member for Balaclava, as a committee to do the very thing that the honorable member for Werriwa now wants another committee to do. These three very distinguished members of the committee appointed ten years ago considered every aspect of the subject. They prepared a draft bill, and that bill went the rounds of the law societies of the six States of the Commonwealth. It was very carefully considered, but, unfortunately, like most matters dealing with these personal relationships, that bill did not see the light of this House.


Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) - Why?


Mr WILSON - Because private members' bills dealing with social legislation seldom reach the House.


Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) - Who was responsible for that?


Mr WILSON - Well, the right honorable member for Barton was AttorneyGeneral at the time. Having appointed a committee to do the job, and the job having been completed magnificently by the committee, for some reason, perhaps best known to the right honorable gentleman, the bill was not presented to the House.


Mr Beale - I asked questions about this when I was a member of the Opposition. The bill was not brought in.


Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) - What about the eight years since?


Mr WILSON - During those eight years this matter has been continually in the minds of a great many people throughout Australia. Generally, we can say there is acceptance of the principles of this bill. First there is acceptance of the principle that this is a matter to be dealt with by the National Parliament and secondly there is acceptance of the approach that was made by the committee in 1947, and of the approach that the honorable member for Balaclava has made in the preparation of this measure. So I suggest, Mr. Deputy Speaker, that it is just drawing a red herring across the trail to suggest that this matter should be referred to another committee. There is nothing new that we can be told. We were told everything by the committee appointed in 1947 and by the various law societies, law councils and committees which have investigated the matter since. It is extraordinary that the Labour party which professes to believe in unification should try to postpone consideration of this bill which seeks to enable the Commonwealth Parliament, for the first time in 56 years, to exercise powers which clearly are vested in this Parliament. If honorable members opposite sincerely believe that this is a matter which should be decided by each honorable member according to his conscience, why do they not support the motion for the second reading of the bill? Surely, it is in line with Labour's policy of giving additional powers or functions to the Commonwealth. Therefore, honorable members opposite should support the motion for the second reading.

If Opposition members desire to amend the measure it is perfectly competent for them to put forward amendments at the committee stage. The Leader of the House (Mr. Harold Holt) has already pointed out that every member on this side of the House is free to act and vote according to the dictates of his conscience. Therefore, there is no reason why any member of the Labour party cannot get an amendment adopted if he can convince the House that the amendment is worth while. No good purpose can be served by continuing to put off the matter. This Parliament for 56 years has had power to legislate in respect of this matter, which has been under discussion for ten years. If that is not sufficient time to enable honorable members to make up their minds, all I can say is that they will never make up their minds, if they have any minds to make up. Therefore, I congratulate the honorable member for Balaclava on the skilful manner in which he has drafted this bill. I thank him for the tremendous amount of work and effort that he has put into the bill, and I urge honorable members to give it their wholehearted support, because I believe this bill will be a monument to Australian nationhood.







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