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Wednesday, 1 May 1957


Mr DRURY (Ryan) .- May I, first of all, join with the honorable member for Sturt (Mr. Wilson) and the honorable member for Werriwa (Mr. Whitlam) in expressing appreciation and admiration of the work that has been put into this measure by the honorable member for Balaclava (Mr. Joske), of the skilful way in which it was drafted with the assistance of the Parliamentary Draftsman, of the immense amount of thought and care that has been devoted to it, and of the honorable member's persistence, over a considerable period of time, in arriving at what he believes is the best possible basis for such a measure? The honorable member for Stuart and the honorable member for Werriwa kept this debate on a high plane. I believe that the honorable member for Werriwa approached the matter sincerely and intelligently and that he was sincere in advocating the appointment of a select committee. I believe, however, that such a committee is not necessary and that the statement of the honorable member for Sturt should be accepted - that is, that the committee appointed by the right honorable member for Barton (Dr. Evatt) ten years ago, consisting of the honorable member for Balaclava, Mr. Justice Toose and Mr. Aldermann, Q.C., did the very work that certain honorable members opposite now propose should be done by a joint committee of the two Houses.

I believe that the public reaction to this measure speaks for itself. The other day, a gallup poll taken on this subject showed that more than 80 per cent, of the people of Australia were in favour of the bill as drafted. I say again that I see no occasion whatever for the appointment of a select committee at this stage or at any stage.

The honorable member for Werriwa referred to certain additional grounds for divorce without specifically indicating that he was in favour of liberalizing grounds for divorce. On the other hand, the honorable member for Hindmarsh (Mr. Clyde Cameron) has shown quite clearly, to my mind, that he is in favour of more liberal grounds being granted. The honorable member for Hindmarsh brought the level of the debate down in a most unfortunate way by making a misstatement in the early part of his speech in regard to the report and recommendations of the committee to which I have referred, the work of which was completed in January, 1947 - in plenty of time for the Labour government of the day to have brought down and implemented a uniform divorce measure had it so intended, lt is unfortunate that the honorable member for Hindmarsh should have made that statement and persisted with it. Even though he was corrected by members on this side of the House who were in the Parliament in 1 947, he repeated the charge that the report had not been presented early enough for the Labour government of the day to do anything about it. I do not think that there was the same degree of sincerity in the remarks of the honorable member for Hindmarsh as there was in those of the honorable member for Werriwa.

I do not think that the honorable member for Hindmarsh would claim to be an authority on matters of matrimonial law. I felt that it was rather an impertinence on his part to indulge in some of the criticisms that he voiced, and, indeed, to cross swords across the chamber with the honorable member for Balaclava himself on one or two points of interpretation. I do not propose to enter the labyrinth of arguments put forward by the honorable member for Hindmarsh in relation to various points contained in the 1947 report compared with the points in the bill now before the House. I should like to make one or two observations, however, on what the honorable member said.

In effect, he has damned the bill because it has not received 100 per cent, approval all round. I feel that all intelligent members of the House will agree that in a highly complex social matter such as this, involving, as is obvious, a vast amount of care, thought and compilation, it would be unique indeed if there were a complete measure of agreement. I think that the Government has adopted a proper attitude by allowing this matter to go forward on a non-party basis, as a private member's bill, which will allow each honorable member to speak on it and vote on it according to his own conscience and judgment. I believe that many honorable members opposite, if not the honorable member for Hindmarsh, will approach it on that basis and I am confident that the measure will receive the overwhelming support of all honorable members of this Parliament, just as it has clearly received the overwhelming support and endorsement of a great percentage of the people outside, not only in the legal profession but also among the community at large.

The contents of the bill have received wide publicity through the press and it cannot be argued, as a ground for establishing a joint select committee now, that they have not been made sufficiently known publicly. I believe that the people of Australia do not want more liberal grounds for divorce, despite what the honorable member for Hindmarsh has said about mandates.

Let me, for a moment, refer to the question of mandates. It is obvious that there is a standing mandate for this Parliament to legislate on this matter. It has been standing in our favour for 57 years. The fact is that it has not been exercised. I suggest that the honorable member for Hindmarsh is on rather slippery ground when he talks about introducing legislation for which there is no mandate. I refer him to the banking legislation introduced by the Labour Government in 1947 and I ask him whether a mandate was given at the 1946 general elections for that legislation. The circumstances of that measure and this are not comparable in any way. This is a private member's bill, brought forward on the authority of section 51 of the Commonwealth Constitution, which provides a standing mandate for the Parliament to legislate upon this matter.

It is very clear to students of the Constitution, and I should think generally, that there was an intention on the part of the framers of the Commonwealth Constitution that the Commonwealth Parliament should, in its earlier days, introduce uniform divorce laws. From time to time noted judges have made reference to the need for uniform divorce laws in Australia. The late Mr. Justice Rich, in a case that came before the High Court of Australia in 1942, suggested that the Parliament of the Commonwealth might exercise its constitutional powers and enact uniform divorce laws. I wish to quote from an extract of the judgment in that case which appears in a journal issued by the Law School of Melbourne under the heading " Res Judicatae - Vol. 7, No. 4". Mr. Justice Rich said -

It appears to be a matter of some importance that the residents of 'the six States of the Commonwealth should live under corresponding conditions so far as divorce is concerned.

The article went on to deal with the method of approach to ascertain a uniform set of grounds of divorce. Were they to be narrow grounds, or the widest possible grounds? Or were there to be no grounds at all? Obviously, as none of these could be accepted in a matter of this nature, there must be something in the way of a compromise. The article goes on to support that idea. It says -

Where [here is a particular ground accepted in the majority of the States, it would seem that that ground should be accepted throughout the Commonwealth, even though there be some variations in detail at present existing between the different Slates. Variations of this nature should become the subject of a reasonable compromise.

In drafting this bill, the honorable member for Balaclava has obviously steered what might be described as a middle course. He realized, of course, that some people would be dissatisfied. This bill is not in any way the work of a man who has been subject to the approaches of pressure groups, and I refute very strongly the remarks of the honorable member for Hindmarsh (Mr. Clyde Cameron) in that respect. I also refute his charge that the bill is loaded against the women of the community. Clearly, he has tried to make a political matter of this, and has not bent his mind to the task of trying to understand the bill, which is complex and therefore probably beyond his comprehension. If he had tried to analyse it in an objective way, as the honorable member for Werriwa (Mr. Whitlam) did, and had approached it in an intelligent and constructive manner, he would have made a much more effective speech. He spoke about certain major grounds of divorce being removed from certain States. Does he consider that this Parliament would have a mandate for foisting upon certain States grounds which do not already exist in those States? The honorable member for Balaclava has recognized and accepted the fact that throughout the Commonwealth there are about 30 different grounds for divorce. In steering a middle course, he has adopted those grounds which have found favour and have been accepted by the courts and the people in the States. That is a very fair, practical and sensible approach.

On the question of the appointment of a select committee, may I refer to another major piece of legislation on this subject? It was introduced in the United Kingdom Parliament twenty years ago by another very eminent member, Mr. A. P. Herbert, now Sir Alan Herbert. He went into the House of Commons for the express purpose of bringing up to date the matrimonial laws of England, which were then in a state of chaos and full of anomalies and injustices. No select committee was appointed to examine that measure which was, in its way, perhaps even more complex and farreaching than the bill before us. That speaks for itself on this question of the need to appoint a select committee. I would like to quote from the preamble to Sir Alan Herbert's Matrimonial Causes Bill of 1937 for I believe that it epitomizes what the honorable member for Balaclava had in mind in approaching this complex task. It reads -

Whereas it is expedient for the true support of marriage, the protection of children, the removal of hardship, the reduction of illicit unions and unseemly litigation, the relief of conscience among the clergy, and the restoration of due respect for the law, that the acts relating to marriage and divorce be amended:

Be it therefore enacted.

I am not suggesting for a moment that a similar preamble should be included in this measure. I merely quote it to illustrate what I believe is the main thought behind the bill. The honorable member for Balaclava, by virtue of his great experience and knowledge of this subject, is better qualified than any one else in this Parliament and indeed almost any one else in this country, to draft such a piece of legislation and to say what should or should not be included. Knowing him as well as we do, we respect his judgment, experience, sincerity and ability. I may say that I have full confidence in his judgment regarding the contents of this bill.

I would like to say something in relation to the proposed grounds for divorce, especially as they affect my own State of Queensland. I would like to have it on record that three additional grounds will be allowed in Queensland under this bill.

Those additional grounds are to be found in paragraphs (c), (e) and (f) of clause 20. The clause reads - (1.) The ground of a petition under this Act for a decree of dissolution of marriage shall be that since the marriage the other party to the marriage -

(c)   being the petitioner's husband, has, during three years and upwards, been an habitual drunkard and either habitually left his wife without the means of support or habitually been guilty of cruelty towards her, or, being the petitioner's wife, has, during a like period, been an habitual drunkard and habitually neglected her domestic duties or rendered herself unfit to discharge them;

(e)   has, during a period of one year, repeatedly. assaulted and cruelly beaten the petitioner;

(f)   being the petitioner's husband, has, within a period of five years, undergone frequent convictions for crime in respect of which he has been sentenced in the aggregate to imprisonment for not less than three years and habitually left his wife without the means of support;

I have read these paragraphs in full because I want to quote something from the report of a royal commission that was appointed in England to consider the whole question of divorce. In case there may be people who will query the need for granting these additional grounds, I shall quote portion of the report that deals with drunkenness as a ground for divorce. May I say in passing that in actual practice the courts pay great attention to proof of drunkenness. If they are satisfied that there is habitual drunkenness they do not, as a rule, require much proof of any other element in the ground. In the case of a woman drunkard, neglect of domestic duties usually follows. The same may be said regarding the absence of support from a male drunkard. The report has this to say on the subject of drunkenness as a ground for divorce -

It seems probable from the evidence given before us that habitual drunkenness produces as much, if not more misery for the sober partner and the children of a marriage, as any other cause in the list of grave causes. Such inebriety carries with it loss of interest in surroundings, loss of self respect, neglect of duty, personal uncleanliness, neglect of children, violence, delusions of suspicion, a tendency to indecent behaviour, and a general state which makes companionship impossible.

This applies to both sexes, but in the case of a drunken husband the physical pain of brute force is often added to the mental and moral injury he inflicts upon his wife; moreover, by neglect of business and wanton expenditure, he has power to reduce himself and those dependent upon him to penury. In the case of a drunken wife neglect of home duties and the care of the children, waste of means, pawning and selling possessions, and many attendant evils, produce a most deplorable state of things. In both cases the ruin of the children can be traced to the evil parental example.

Ido not think that any on: in Queensland or in any other State to which this ground for divorce will be extended under this bill would take exception to it after hearing that passage from the report of the Royal Commission on Divorce.

Paragraph (e) of sub-clause (I.) of clause 20 deals with repeated assault? and cruel beatings. May I point out, Mr. Speaker, that this is already a ground for dissolution of marriage in four Sta es. although, as the honorable member for Balaclava pointed out in his very brilliant secondreading speech, the term used in the law of one State was slightly different from that in the laws of the others. Paragraph (f) deals with frequent convictions. May I point out, sir, that at present Queensland is the only State in which that is not a ground for dissolution of marriage.

I have taken the liberty of deal ng with those three grounds at greater length than perhaps I would otherwise have done because they are to be new grounds for dissolution of marriage in Queensland, and because I feel strongly that there is ample justification for extending those three grounds to States where they are not already applicable. The honorable member for Balaclava dealt very fully with the principal points of the bill, and there is no need for me to recapitulate them at this stage. However, I should like to say that 1 am sure that the legal profession will greatly appreciate the clarification of a number of points. One concerns the interpretation of intention and the other ihe question of constructive desertion. As has been pointed out, the bill provides that the conduct of one spouse may justify the other in leaving the matrimonial home, and constructive desertion is to be a ground for dissolution of marriage after a statutory period of three years. That is fully set out in clause 26. Clause 27 also is very important. It clarifies the existing legal position by providing that desertion shall not be deemed to be terminated by insanity if the desertion would probably have continued anyway.

The honorable member for Hindmarsh cited a letter that he had received from a South Australian Queen's Counsel. As I pointed out earlier, Mr. Speaker, there are no doubt individual members of the le .al profession, just as there are, apparently, individual members of this Parliament, and as there are, no doubt, individuals outside the Parliament, who are not by any means completely in sympathy with the bill as it stands. I believe that it represents the climax of many years' work and intensive study, and the application of balanced judgment on the part not only of the honorable member for Balaclava, Mr. Justice Toose, and Mr. Alderman, Q.C. but also of the members of the Law Council of Australia and the various law societies throughout Australia. I myself have been in touch with a considerable number of people, both in the legal profession and outside it, in my home city of Brisbane during the recent recess, and without exception the comments made have been favorable. There have been one or two suggestions that perhaps the measure could be improved a little here or there, but I should say that about 98 per cent, of the people to whom I have spoken are fully in agreement with the bill as it stands. I consider that that in itself is a remarkable tribute to the skill with which it has been prepared. It is so complex, and represents such a great innovation in an attempt to provide eight uniform grounds for dissolution of marriage in lieu of a total of more than 30 existing grounds throughout Australia, that it is a major achievement on the part of the honorable member for Balaclava.

Various other matters are of considerable interest, Sir. One of these relates to prohibited degrees of consanguinity and affinity, which are dealt with in Part X. of the bill. I mention this specifically because it is of particular interest in Queensland where we have on the statute-book legislation that does not appear in some of the other States, at any rate. For example, we have in Queensland the Deceased Wife's Sister Marriage Act of 1877 - quite an old act - and the Deceased Husband's Brother Marriage Act of 1931. Each of those enactments legalizes marriages that would otherwise not be valid. This bill will introduce a uniform approach in ail the States to this very important matter of prohibited degrees of consanguinity and affinity, and many anomalies and variations as between the States will be removed.

After all, Mr. Speaker, one of the main purposes of this bill is to remove anomalies and injustices. As I said earlier, it represents a middle-of-the-road approach. Its purpose is not to make divorce easier or to enable it to be obtained more quickly. Its primary purpose is to obtain Australiawide uniformity and to remove anomalies and injustices in the existing laws. 1 believe that it represents a sensible, proper and balanced approach to the very complex and difficult legal and social problems involved in matrimonial matters, and I am glad to have this opportunity to support the measure to the best of my ability, to congratulate the honorable member for Balaclava, and to voice the wish that the bill will receive in this Parliament the support that it merits.

Debate (on motion by Mr. Duthie) adjourned.







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