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Thursday, 12 November 1959


Mr COSTA (Banks) .- I think we all realize that this bill is of the greatest importance, because it affects the life of the whole Australian community. It seeks to effect some far-reaching reforms. It affects not only the rights of persons to marry but also the social welfare of the people as a whole. I think that my party adopted the proper course when it decided to treat this matter on a 'non-party basis, because marriage is a very individual matter. It is fitting, therefore, that each of us should be allowed to think the question out for himself and make an individual decision upon it.

I commend the bill, because it contains provisions for a uniform code of matrimonial laws throughout the Commonwealth. We will have one national law on this subject, and I think that this is the most important feature of the bill. We are one nation, one people "with one destiny, and it is time we introduced some uniformity into our laws. It would be a great step forward if we could have more of our laws made uniform. We have laws which may be described as hackneyed, as a result of the fact that there are too many law-making bodies in Australia. The result is that we have bad laws.

There is a saying that too many cooks spoil the broth, and the present state of our laws bears out the truth of this adage. Al the present time there are eight bodies in Australia with power to make divorce laws. There is one in each of the six States, one in the Northern Territory and one in the Australian Capital Territory. For good measure, we also have five Upper Houses of Parliament in Australia, each of which has power to make laws. In these circumstances how can we have good laws? I believe it would be a miracle if we had good laws, because with so many lawmaking bodies we must inevitably encounter prejudice and jealousy, and all we have in the final .analysis is a great deal of confusion.

We have bad laws throughout Australia because of this divided power. If we consider our criminal laws we can see the result of this divided power. We can see it also in laws with respect to education and other aspects of our community life. We find a provision in force on one side of a State boundary which does not apply on the other side. Consider the rate of road accidents in Australia. I suggest that a major contributory cause of these accidents is confusion about traffic laws. If you are travelling from New South Wales to Victoria you have to stop at the Murray River and study the Jaws that apply across the border. .Similar remarks apply in respect of laws governing trade, commerce, industry, health and native welfare. The natives of Australia are practically nobody's business, because the Commonwealth has power to look after them only in Commonwealth Territories. I could give many more examples of the way in which confusion and bad laws arise because of divided power.

Let me say at this stage that I have no quarrel with the churches with respect to this divorce bill that we have before us, andI refer to churches of every denomination. They preach the law of God, which I believe in and which I believe is the best Jaw of all. I believe in the Ten Commandments, and I believe that if they were properly observed there would be no need for a divorce law or any other law. If everybody observed those rules there would be no need for the bill that we have before the House. However, one must acknowledge human frailties and human weaknesses, which will wreck the best and -strongest rules. Hence there is a need to make our divorce laws somewhat elastic.

I do not think any of the churches have a total prohibition on separation. In certain circumstances separation is possible, notwithstanding the golden rule, "Those whom God has joined together let no man put asunder". Contingencies arise which relax even that rigid and wise rule - and let me say that I favour such a strict rule. I do not believe in making divorce easier.

Let me return to my contention that we should have uniformity of law. I believe it is a basic necessity to have a common law for all the people of Australia. Nearly every opinion that I have heard expressed, not only in this Parliament but also in other places, has been in favour of uniform laws for divorce. I believe this is common sense. I wish to cite some criticisms and comments made by some of the people referred to by the honorable member who recently spoke in this debate. After I have done so it will be obvious to everybody that there are many people in favour of the measure before the House. The first criticism I shall refer to is that offered by the National Catholic Welfare Committee. The committee's comments on the bill were reported in the " Catholic Weekly " of 13th August, 1959, in the following terms: -

The Committee carefully distinguishes between two broad aspects of the Bill and examines them from a sociological point of view.

It warmly approves:

1.   The expressed Parliamentary endeavour of the Bill "to maintain marriage and protect the family ".

2.   The emphasis placed on marriage guidance and reconciliation.

3.   The restriction, with certain exceptions, on the granting of divorce within the first three years of marriage.

4.   The provisions made to ensure that the welfare of the children of divorced parents is adequately protected.

5.   The preservation of the right to sue for judicial separation.

6.   The procedure for enforcing maintenance orders by means of an " attachment of earnings order ".

7.   The restriction of press publicity. The committee sternly criticizes:

1.   The overall extension of divorce grounds. (There is not one ground for divorce in any State that has been wholly discarded in the proposed legislation.)

2.   The provision for a divorce after five years' separation. (Under this section, an innocent wife may be sued by an erring husband.)

3.   Reduction of the period of desertion as a ground for divorce to two years.

4.   Extension to all States of the New South Wales ground for divorce - "failure to comply with a restitution order". (The time allowed for compliance is extended from 21 days to one year.)

The Committee based its assessments on the merits or otherwise of the various parts of the bill, according to whether it considered they would assist or retard the achievement of "the paramount endeavour of the Bill ... to maintain marriage and to protect the family."

The Committee declares that the emphasis thus placed at the very beginning of the Bill on marriage guidance and reconciliation represents a notable advance in thinking and approach upon all existing State legislation, and merits public approval.

I pass from that genuine criticism to a letter that was sent to me by His Grace the Anglican Archbishop of Sydney. He said -

The Bishops of Australia who met at Brisbane recently have issued the following statement concerning the proposed Matrimonial Causes Bill which is to be brought before the Federal Parliament at its next session.

Whereas the Bishops of the Anglican Church in Australia have not yet had sufficient time to consider The Matrimonial Causes Bill in toto they are prepared to make the following considered comments.

(1)   The passage of the proposed Bill would in no way alter the Church's attitude to divorce, and re-marriage after divorce, or to the marriage of divorced persons in Anglican churches.

(2)   The Bishops recognize that the Government has a duty in the present situation to legislate in matrimonial affairs. It is in this light that the Bishops view the Bill.

(3)   The Bishops commend the provision which will give a uniform code of matrimonial laws throughout the Commonwealth.

They are in complete agreement with me on that aspect -

(4)   The Bishops commend all provisions for attempts at conciliation, and in particular the support given to Marriage Guidance Councils.

They are strongly in favour of them -

(5)   The Bishops deplore every provision which would make divorce easier than it is at present.

They refer, of course, to clause 27 (k) of the bill. Clause 27 seems to be the bone of contention. I have had representations from other sections of the community, and I propose to place them before the Parliament. I have a letter from the secretary of the Mothers Union Branch of the Holy Trinity Church, Peakhurst, which reads -

The twenty members of the Mothers Union of Holy Trinity Peakhurst Branch wish me to signify their objection to sections (b) and (m) of clause 27 of die Matrimonial Causes Bill, now before Federal Parliament.

Section (b), by cutting the time of apparent desertion from (3) to (2) years, lessens considerably the hope of reconciliation.

Section (m) is a definite threat to the homes and families of the nation, making easier the breaking up of homes and depriving the children of their security, which in turn could lead to delinquency.

We believe the deletion of these sections would remove the cause of the objections by many people to this bill.

I have received a letter in similar strain from the Mothers Union of St. John's Church of England, Hurstville. That union raises objection to clause 27 of the bill, but it approves the rest of the bill.

On 27th October last I received the folowing telegram -

League of Women Voters N.S.W. earnestly request your fullest possible support for uniform divorce bill as presented by Attorney-General.

That was signed by Ruby Rich, President. Apparently those people are 100 per cent, in favour of the bill. I have also received a criticism of the bill from four family welfare services in Melbourne. They state that they hope that the marriage guidance provisions of the bill, instead of being left in their present weak state, can be greatly strengthened by Parliament. That criticism is jointly signed by the Director of Social Services, Brotherhood of St. Laurence, Fitzroy, Victoria; Reverend Father E. G. Perkins, Director, Catholic Family Welfare Bureau, East Melbourne, Victoria; Leonard J. Tierney, Director of Social Work and Research, Citizens' Welfare Service, East

Melbourne; and the Director, Red Cross Welfare Service, Melbourne. Those bodies are jointly concerned with marriage guidance councils and family welfare bureaux.

I hope that the Attorney-General will take notice of the representations that have been made to me in regard to this bill because we know that reconciliation is the essence of the bill. Church guidance bureaux are the mainstay for bringing about reconciliation. Prevention is better than cure as far as divorce is concerned. It is better to try to eradicate the cause of divorce rather than to cure a broken marriage by divorcing the parties. There should be no ignorance about the importance of the marriage state. I believe in the sanctity of marriage. It is supremely important to our way of life. Its prime and most sacred purpose is the propagation of the human race. Maladjustment is one of the primary causes of divorce. The activities of marriage guidance councils should be extended. Nobody should enter into marriage without some proper knowledge of his or her responsibilities. The church has a great responsibility in this regard. The Attorney-General should do everything in his power to strengthen the position of marriage guidance councils and family welfare bureaux.

I want to refer now to one or two other matters. I have made a careful study of the various criticisms of the bill. I have read some of those criticisms to the House. The objections to the bill centre mainly around clause 27 (m), which provides for divorce after five years separation. Under that clause an innocent wife may be sued for divorce by an erring husband, and vice versa. A divorce is not obtained automatically under this clause. An application must be made to a court, and I do not think any court would grant a divorce on a phony application, nor would it tolerate cases that were not genuine. Perhaps certain people have become overalarmed about clause 27 (m). Even if this bill is defeated in this House we will still have divorce laws. It is not a question of being in favour of divorce or not. I could vote against the bill and the bill could be defeated, but that would not do away with divorce. We would still have divorce laws. For instance, wealthy people could establish domicile in Western Australia and obtain the benefits of clause 27 (m) there. So, to vote against the bill will not get rid of clause 27 (m). Even if the bill is defeated here that clause will still be applicable in Western Australia.

Looking at the bill from another angle, I think it will be economical to have a uniform divorce law. We will not need to appoint extra judges. We do not need to build extra divorce courts. The bill, if passed, will be administered through the same State divorce jurisdictions that exist now but it will mean that we have a common Australian law, and that will be a good thing. I repeat that I respect the views of Church dignitaries and lay churchmen who have criticised this bill. I agree with them that marriage is a sacrament and should not be considered lightly. I consider that the road to the end they have in mind of outlawing divorce is first to get a uniform law. Once that has been attained in this Parliament we can gradually perfect the law in the way that the churches want to perfect it. But I do not think there will be any hope of perfecting it unless first we get it into the laws of this Parliament. I believe that whilst the power to make laws in respect of this sacred and important matter is retained by and divided among six State houses of assembly, as well as five upper houses, the Commonwealth in respect of the Australian Capita] Territory, and the Legislative Council of the Northern Territory, the law will always remain as bad as it is. I intend, when the vote on the second reading is taken, to vote for the bill.







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