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Wednesday, 1 May 1957

Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) . - I join with the two preceding speakers in congratulating the honorable member for Balaclava (Mr. Joske) on the step he has taken to introduce into Australia, for the first time, a uniform divorce law. There was not really any need for the honorable member for Sturt (Mr. Wilson) to devote the first quarter of his speech to telling us what the founders of federation including Sir John Downer and others believed about the need for uniform divorce law. I should like to know the reasons why the many Liberal governments that have held office have not given effect to the views expressed by those founders by introducing a uniform divorce law. It seems that it was not until the Leader of the

Opposition (Dr. Evatt) moved in the matter when he was Attorney-General ten years ago that anything was done by a responsible government to initiate a measure which the founders of federation thought was so important. Unfortunately, for those who favour uniform divorce law, the committee of which the honorable member for Balaclava, Mr. Harry Alderman, Q.C., and Mr. Toose were members was not able to finish its report in time to present its recommendations to the Parliament before a change of government took place. For the last eight years the government of which the honorable member for Balaclava has been a supporter has done absolutely nothing about the recommendations of the committee which was appointed by the Leader of the Opposition to deal with this very important matter.

Mr Wilson - Why does the Opposition want to put it off again?

Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) - The honorable member for Sturt asks why we want to put it off again. Let me tell him. During the course of his remarks, the honorable gentleman mentioned that that committee had been appointed and asked why another committee should now be appointed to do what a previous committee had already done. Let me tell the honorable member that the bill now before the House does not seek to give effect to the recommendations of that committee.

Mr Wilson - It is competent for the Opposition to move amendments, if it does not like the bill.

Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) - I am explaining to the House that the recommendations of the committee of which the honorable member for Balaclava, Mr. Alderman, and Mr. Toose, who later became a Judge in Divorce, were members, are not included in the bill. That is a very good reason why a select committee should be appointed now.

Mr Beale - This is substantially the same bill as that which was recommended by the committee, and the Labour government did nothing about it for two years. The Leader of the Opposition ran away from it for two years.

Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) - I shall examine that statement. First of all, the committee was not appointed until 1947.

Mr Beale - And it did its work in less than a month and presented a bill to the Leader of the Opposition.

Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) - It did not. The committee sat for several months before it presented its bill. The Minister for Supply (Mr. Beale) knows perfectly well that the recommendations of the committee would have been given effect to immediately after the 1949 elections had the Labour Government been re-elected.

Mr Beale - The Labour government had two years in which to do it.

Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) - But let me tell the Minister what the committee recommended. Having contrasted the recommendations of the committee and the contents of the bill, I think that honorable members will agree that there is every reason why we should now appoint a select committee to find out why there is a discrepancy between the recommendations of this important committee and the provisions contained in the present bill. These are the uniform grounds for divorce which the committee recommended should be contained in any bill brought into this Parliament -

(a)   Adultery;

(b)   desertion for two years.

That was the original recommendation of the committee. The recommendations continued -

(c)   habitual cruelty for one year;

(d)   habitual drunkenness for two years;

(e)   habitual intoxication for two years from the use of any sedative, narcotic or stimulating drug.

That provision has been left out of the present measure. The next recommendation was -

(f)   Sodomy, rape or bestiality.

Rape has been omitted altogether from the bill. There must have been some good reason why the committee recommended the inclusion of rape.

Mr Joske - Rape is adultery.

Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) - Yes; but the rape of a man's wife is not necessarily adultery. That is a condition which applies in some of the other laws of the Commonwealth to-day. The fact that the original committee of which the honorable member for Balaclava was a member recommended specifically the inclusion of the word " rape " and it has been omitted from the present measure shows either that the committee erred in including it or that the honorable member is now erring in omitting it. The recommendations went on as follows: - or has -

(g)   been imprisoned for the three years imme diately preceding the petition under a commuted sentence for a capital crime or under a sentence of at least seven years;

(h)   been convicted during the year immediately preceding the petition of having attempted to murder, or of having assaulted with intent to inflict grievous bodily harm or of having caused grievous bodily harm to the petitioner;

(i)   failed for one year immediately preceding the petition to comply with a decree of restitution of conjugal rights;

That provision has been omitted altogether from the bill and I ask, "Why?". Why has it been omitted, if the committee originally saw fit to include paragraph (i)? Why has the mover of the bill now seen fit to omit that paragraph?

I move now to paragraph (j), which reads - within the five years immediately preceding the petition, been imprisoned in the aggregate for not less than two years since the marriage and has been frequently convicted either before or after the marriage;

(k)   been confined for an aggregate of not less than five years out of the six years immediately preceding the petition in an institution or institutions (whether in Australia or elsewhere) where persons may be confined for unsoundness of mind in pursuance of the law in force where the institution is situated, and is of unsound mind, and is unlikely to recover;

(1)   habitually and wilfully failed during the three years immediately preceding the petition, to pay maintenance for the respondent ordered by any court to be paid or agreed to be paid under any agreement providing for a separation between the parties; or

(m)   been absent from the petitioner for such time and in such circumstances as provide reasonable grounds for presuming that the respondent is dead.

Mr Beale - That is in the bill.

Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) - It is not in the bill in those exact terms. Let us see whether that is so or not. What the bill says is this -

.   . has been absent from the petitioner until such time and under such circumstances as to provide reasonable grounds for presuming that he or she is dead.

I think that almost everybody is in favour of uniform divorce law, but each person is in favour of it according to his or her individual conception of what ought to be the law. And therein lies the difficulty. Everybody has a different conception of what ought to be the law in regard to uniform divorce, and therefore it is a most -important matter indeed to determine whether or not divorces should be attainable on liberal terms or on restricted terms. There are those people who are against divorce in any circumstances whatever. If they had their way they would insist on a uniform divorce law in this country that was parallel with the divorce law of many other countries, particularly some countries of Europe. I am utterly opposed to that. Then there are other people who are in favour of divorce laws being as liberal as possible. These people believe that it is completely sinful for a man and a woman who have grown to detest, hate and loathe each other to be compelled by the law of the land to continue their matrimonial relations. 1 agree with this point of view. In my opinion, people who say that a man and wife who have reached the stage where they detest, hate and loathe each other should be compelled by the law of the land to continue matrimonial relations, are not preaching the Christian point of view, whether they be church leaders or anybody else. I have no hesitation in saying that that is not Christian ethics and would never be accepted by anybody who really understood the Christian doctrine.

This bill seeks to repeal three major grounds for divorce, but before I deal with this matter, let me read from an article on the measure that appeared in the " Sydney Morning Herald ", written by Mr. Trevor Martin, a lawyer practising in divorce in Sydney. He had this to say -

Ils opponents, who have not been vocal, fear it is a step back, making future reforms harder (since agreement will be needed on an Australiawide basis, whereas under decentralised divorce, reform only needs State-wide agreement) and destroying reforms already made in single States only. The latter fear will come true if Mr. Joske's bill passes unamended through Federal Parliament. He and his friends are reformers of good intentions, but his bill is in its main aspect reactionary.

It is reactionary because it seeks to take away the great reforms in divorce procedure that have been adopted by many of the States, particularly New South Wales. South Australia and Western Australia. That brings me to the point that the honorable member for Sturt (Mr. Wilson) made when he said that this bill does not foist anything on to the Parliament to which the people have not agreed. I dispute that. The honorable member and every other honorable member from South Australia is in this position: Not one of them has a mandate from the people to take away from the people of South Australia the rights of divorce that they now enjoy. Similarly, not one honorable member from New South Wales, on either side of the House, has a mandate from the people of New South Wales to take away from them the right that they now have to sue for divorce because of failure to comply with an order for restitution of conjugal rights. Not a single honorable member from New South Wales can rise in this Parliament and say that he has a mandate to take away from the people of New South Wales that right which has operated for so many years in that State. Not one honorable member, Liberal or Labour, from Western Australia has the right in this Parliament to vote away from the people of Western Australia the right to obtain a divorce on the ground that the two parties have been living apart for a period of five years.

It is all very well for the honorable member for Sturt to say that nothing is being foisted upon the Parliament to which the people have not agreed. The fact is that the bill is seeking to take away from the people of the various States of Australia rights that they have enjoyed for years, and I say that the Government has no mandate to do that. It is trying to do so simply because it wants to placate and play up to pressure groups which have no right to dictate to this Parliament. The Government should not do these things unless it has a clear mandate. If the Government parties want to alter the divorce laws they should have sufficient courage, before a general election takes place, to tell the people that that is what they intend to do. Having omitted to do that they should not seek to pilot through a measure like this which proposes to take away from the people grounds for divorce that have been accepted for years in the respective States. That is entirely wrong.

This bill proposes to repeal three major grounds for divorce. As I have said, in New South Wales, where 36 per cent, of the total population of Australia resides, the bill seeks to take away from the people the right to institute immediate divorce proceedings when there has been failure to comply with an order for restitution of conjugal rights. It proposes to take away from the people of South Australia the right to institute divorce proceedings in cases where it can be proved that there has been one year's habitual cruelty, and in South Australia that includes mental cruelty. And what does this bill say about that? It provides that it shall be a ground for divorce if, during a period of one year, the hushand or the wife has repeatedly assaulted and cruelly beaten the petitioner. Under this bill, therefore, before a wife can obtain a divorce from her husband, she has to be able to prove that the husband has repeatedly assaulted her and cruelly beaten her. In England, all that is necessary for a wife to do - and I emphasize " wife " because very few husbands would ever have just cause to take action against their wives on the ground that they had been cruelly beaten, although I believe some husbands maintain that that is what happens to them - is to be able to prove that her husband has treated her with cruelty. In South Australia it is sufficient to prove-

Mr Beale - Habitual cruelly.

Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) - Which includes mental cruelty, the kind of cruelty that perhaps even the Minister for Supply (Mr. Beale) would be capable of committing. Cruelty of that kind would include such things as the husband rushing in every night when he came home from work and opening every cupboard door to see whether there was a man hiding there, or looking under the bed every night and accusing his wife of having carried on an illicit relationship with some other person. How would the Minister for Supply like to have his wife doing that to him every night? Would he not think it was cruel, or would he be flattered by it? It all depends on the point of view, perhaps, but I should think that any ordinary, decent, selfrespecting woman would be entitled to feel that she was being cruelly treated by a husband who practised that kind of behaviour.

In South Australia she would have the right. - and a very just right - to seek a divorce, and would have no difficulty in obtaining it. But, under this proposal, the wife has no right until she can prove that she has been cruelly beaten, not once, but habitually. It is not enough for this bill that she has been beaten once. Under the bill she has to be beaten regularly before she can establish a case against her husband for divorce.

Now, 1 turn to Western Australia. NoWest Australian in this Parliament has the right to say here that he has a mandate to take from the Western Australian people a right they have enjoyed for so many years, which is that where a man and a wife have lived apart for five years, and providing there is no guilt on the part of the petitioner, that petitioner has the right to seek an order for divorce.

I believe that a uniform divorce law ought to contain, not the most niggardly, but the most liberal provisions of all the State acts. If we are to have a uniform divorce law it should be as wide as possible. Once a manand a woman can no longer live happily together - and no God-made law ever would compel them to - they should not be compelled by a man-made law to continue to live together and carry on the ordinary matrimonial relationship which is usually accepted as inherent in living together. I. think it is entirely wrong. It. is unchristianlike, and ought to be opposed. I want to say that the general body of the people, and public opinion, are absolutely not opposed to the grounds of divorce that I have indicated.

Now I want to quote from the same letter in the " Sydney Morning Herald " that I mentioned a moment ago. It says -

Mr. Joske'ssolution is to accept the common narrower grounds.

And this is, I think, rather important -

Apparently he values uniformity more than keeping the three major grounds in three States. No doubt he fears opposition to uniformity if headopted the three wider grounds and extended them to all States. He avoids that opposition by repealing the three grounds. It seems he fears less the opposition of supporters of wider grounds.

I have no doubt that is the reason for the fact that the original committee's recommendations have been so watered down, and why even the recommendations fall far short of what were the provisions in the various State acts. It is entirely wrong that the bill should abolish altogether the provision for judicial separation. It is archaic to try to put the clock back and to take away judicial separation. I quote now from a letter that I have received from a prominent Queen's Counsel in South Australia. He wrote -

The abolition of proceedings in courts of summary jurisdiction for separate orders is something I cannot possibly approve.

Mr Freeth - Who is this?

Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) - If the honorable member listens to it he will know that it is not I who am saying this. I am quoting from a letter written to me from a prominent South Australian Queen's Counsel. He goes on to say - I think it is very important that his views should be considered by the Parliament -

The abolition of judicial separation means that a woman whose husband is guilty of open and flagrant adultery, perhaps with someone who is very little short of a harlot, has to endure that public dishonor to herself and her children or else get a divorce from him which enables him to marry the woman who has destroyed the wife's happiness and home. It not only has that result but the effect is also that she puts the husband in a position, because of his wrong-doing, of marrying the other woman (which is, perhaps, what he wants) and producing children by the second marriage who will compete with the innocent wife and her children for a fair share of the husband's income - with all the leaning on the part of the husband in favour of his new wife and her children.

Then he goes on to say -

Despite my strong leaning in favour of uniform divorce, I am not sure that I would not oppose this Bill by reason of the inclusion of such iniquitous provisions as the abolition of the judicial separation and Clause 25. Of course, if divorce is only to be considered from the male point of view, then it is quite all right, but I happen to be one of those who think that wives also have some rights which emerge from the marriage and which a husband should not be able to throw overboard at his will when his wife attains the age of, say, 45 or 50 years. I have heard of judges criticising wives who " refuse to free the husbands " but I personally do not agree with such comment as a general proposition.

I am opposed to the removal from not only the State Courts of summary jurisdiction but also from the Supreme Courts of any power to relieve a wife from her duty to co-habit with a husband with whom life has really become intolerable or dangerous. As long as the husband maintains her she will have no immediate redress if this Bill becomes law.

Under this bill the wife will have to continue to live with a man with whom life has become intolerable and, in some cases, dangerous. It is all very well for a Parliament consisting almost entirely of men to pass laws which entirely favour the male members of the community. What we have to remember is that the female section of the community, if I may use that term, has as much right as the male section in regard to divorce. This Parliament has no right to pass a law so overwhelmingly loaded against women and so overwhelmingly favouring men as this bill is. Under the law as it stands, or as it will apply when this bill goes through, if it is passed unamended, as long as a husband maintains his wife she will have no immediate redress at all. Surely, that is wrong. No one who has any regard for the rights of women in this community can support that. The prominent Queen's Counsel from whose letter I have been quoting then deals with some confusion which has been caused in his mind by the word " suit " in the definition of matrimonial causes, and so on. That is a technical matter.

The Opposition therefore asks, "What is wrong? ". The present position has obtained for 57 years and the Liberal party has never seen fit to bring down a bill to alter it. The Government, and not a private member, should have brought down this bill, and it should have produced it in an annotated form so that we would be able to see what the provisions in the various States are. No such annotated document is before us. For these reasons, and as we have delayed this matter for 57 years, it will not matter if we delay it for another four or five weeks. Is it not better to delay the bill for that short time so that a joint select committee of the Parliament can go into the pros and cons of the original recommendations of the committee, which are vastly different from the bill introduced by the honorable member for Balaclava, and find out why there is this discrepancy between the original committee's recommendations to the Government in 1947 and the bill now before us. Surely, we should do that if this is such an important matter as the honorable member for Sturt (Mr. Wilson) pointed out when he quoted what somebody said in 1887. It is so important that, surely to goodness, we ought to make up our minds and be perfectly certain that what we are doing is not something entirely wrong and immoral. Above all, let not this men's Parliament forget the rights of women in the community.

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