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Thursday, 12 November 1959


Mr CALWELL (Melbourne) .- This is the first divorce bill introduced into this Parliament with the blessing of a government, in the whole 57 years of federation. The Leader of the Opposition (Dr. Evatt), when Attorney-General, did give consideration to the question of the introduction of a uniform divorce law and appointed a committee which consisted of Mr. Justice Toose of New South Wales, the honorable member for Balaclava, Mr. Joske, K.C. - as he then was, and Q.C. as he now is - and Mr. H. G. Alderman, Q.C, of South Australia. That committee made certain recommendations, but nothing was done about its report until the honorable member for Balaclava himself brought down a bill which, I understand, was based largely upon the recommendation of the committee.

That particular bill was read to this House and passed its second reading, but was not proceeded with. When it was under consideration, the honorable member for Werriwa (Mr. Whitlam) moved the following amendment to the motion for the second reading: -

That all words after " That " be omitted with a view to inserting the following words in place thereof: - " the Bill be referred to a Joint Select Committee of both Houses of Parliament because of its great importance, its far-reaching implications to all sections of the community, and the necessity for the widest possible prior consultation with child welfare and marriage guidance councils, churches, and social institutions vitally interested in the matters covered by the Bill ".

If my recollection is correct, that proposal was voted upon and although the bill was supposed to be a non-party measure, the only people who voted for the reference of it to a select committee were members of the Australian Labour Party. All members on the Government side, voting at that time, voted against that proposition. When the amendment was defeated, the second reading of the bill passed on the voices. There the matter ended until the present AttorneyGeneral (Sir Garfield Barwick) happened into the Parliament and became AttorneyGeneral following the transfer of his predecessor to the high post of Australian Ambassador to Washington. I think there are many people in the churches throughout Australia to-day who now wish that the Honorable Howard Beale did not seek or accept that appointment. I think they would have been much better satisfied if the bill produced by the honorable member for Balaclava had been proceeded with.

As the Attorney-General has claimed, the bill we are now considering has received a great deal of attention at his hands. It has received so much consideration that, as the honorable member for Mitchell (Mr. Wheeler) just remarked, the AttorneyGeneral has circulated no fewer than 56 amendments to it. That must be a record for a bill which is simple enough in many ways, particularly for a bill of this sort. Of course, there have been other pieces of legislation before the Parliament which have been amended in many ways by various governments, but this particular measure has received much treatment at the hands of its author.

We live in a pluralistic society, and I think it is true to say that 75 per cent. of the Australian people approve of a uniform divorce law. All leading churchmen and very many church people are opposed to divorce. By " church people " I do not mean just nominal Christians or nominal Jewish religious people. I think that the generality of the people, even many church attendants, do approve of divorce. They have shown their opinion in that regard in various gallup polls. One was taken in July of this year which showed that 83 per cent. of the people would rather have a Federal divorce law than State laws.

It must not be assumed from this that people really relish divorce. I suppose no couple goes to the altar to be married, or to a registry office for that matter, with the thought in their minds that their marriage will fail. They do not want it to fail; they hope it will not fail. The great majority of them want to be faithful to their marriage vows. But, human nature being what it is, many marriages break up, and that is the tragedy we and every generation has to face.

Over many years the various States of Australia - and, before federation, as colonies - have passed various divorce laws. When the honorable member for Balaclava (Mr. Joske) sought to secure a uniform divorce law, and I think I am doing him justice in saying that he did not take the most liberal views - if I may use the term " liberal " in this connexion - that were held in some States. He rather felt that divorce should be made more difficult. But the present Attorney-General (Sir Garfield Barwick) is under fire to-day from church people throughout Australia who believe that the bill will make divorce easier. The Minister has been attacked on that ground by quite a number of very reputable church people. The church people do not say that the bill is wholly bad. Most of them say that it is good in parts. If I may use a well-known expression, they consider that in that respect it is like the curate's egg. They also think that, while being good in parts, it is also bad in parts, but I am sure that if the Attorney-General would delete sub-section (m) from proposed section 27 he would have no difficulty in passing the legislation through both Houses of Parliament. It is at this proposed sub-section that most of the criticism is being levelled to-day.

The new Primate of Australia, the Most Reverend Hugh Gough, forwarded a letter to me the other day. I presume that he has forwarded a similar letter to all members of this Parliament. I agree with what he has written, and I have communicated with him to that effect. He includes in his letter a statement of policy of the bishops of the Anglican Church of Australia, made in June of this year, before he had reached Australia. This is what the bishops of the Anglican Church, who met in Brisbane, said about the proposed Matrimonial Causes Bill which was then before the Parliament -

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.

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

(5)   The Bishops deplore every provision which would make divorce easier than it is at present, and they draw attention to the danger of the following clauses: -

(a)   Clause 27 (k) of the bill which would allow divorce on the ground of refusal to comply with an order for the restitution of conjugal rights, which might invite collusion and so undermine the safeguards contained in other clauses.

(b)   Clause 27 (b) allowing divorce after desertion after a period of only two years.

(6)   These, and other provisions, in the proposed bill are to receive careful study both by the Bishops and by church lawyers. On such technical points the Bishops expect to submit detailed suggestions to Her Majesty's Government in the near future.

That statement continued in force until the bishops met in Sydney late in October last to elect their new Primate and further consider this matter. The result of that consideration is contained in a statement issued by the Primate and forwarded, I presume, to all members of the Parliament, but certainly to me. This is what it says -

The Bishops of the Church of England in Australia reaffirm the declaration on the Matrimonial Causes Bill issued by them in June, 1959.

We write now to expand our statement on what is called the "Western Australian Clause" (27 (m)) and especially to draw your attention to the views on this matter expressed in the Report of the Royal Commission on Marriage and Divorce, 1951-1955.

We wish to emphasize our objections to the proposal that a divorce shall be granted to a petitioner on the grounds of separation by mutual consent for a period: -

(1)   A principle would thereby be introduced new to all divorce legislation in the United Kingdom and Australia (except Western Australia), namely that the law can give release to the marriage contract without proof of any matrimonial offence.

This is the gravamen of the charge against this provision.

This "would introduce into the law a principle which would have even more damaging consequences for the institution of marriage than divorce by consent, since it would mean that either spouse would be free to terminate the marriage at pleasure.

Again I interpolate that this is what the Attorney-General has to answer, and what he has not answered as yet.

In other words, people would enter marriage knowing that no matter what they did or how their partners felt, they could always get free."

(ii)   "Not only would this clause make possible divorce by consent; it would make possible the grave injustice of vesting "in a husband or wife the right to divorce a spouse who, ex hypothesi, had committed no recognised matrimonial offence, and who did not want a divorce."

(iii)   The acceptance of this ground would further undermine the sanctity of marriage in that far fromdiscouraging illicit unions-- and that is one of the claims the AttorneyGeneral has made for the retention of this clause - it would encourage them, since those who entered into them would be " secure in the knowledge that, after the required number of years had passed, they would be free to marry."

(iv)   Legislation should uphold the cause of law and order, but the passing of this clause would undermine them. "It would "be primarily those husbands and wives who took their marriages more lightly, and those persons who sought to break up a home . . . who would benefit."

All the quoted passages in the statement are from various sections of the report of the Royal Commission on Marriage and Divorce which is referred to in the statement. The Primate concludes with the following comment: -

For these reasons we hope that Members of Parliament will delete this clause even if this would endanger the bill as a whole. We believe that a unified divorce code of legislation is much needed in Australia, and that there are other commendable aspects of the bill: but we cannot support the bill as a whole if, as we fear, its total effect would be to undermine yet further the institution of marriage.

How did the Attorney-General react to the criticism of the bishops? He said, according to a press statement -

The community had much more decency and a much higher sense of responsibility than the Anglican bishops seemed to concede.

With due respect to him as a legal luminary, I think a body of church leaders, concerned as they are - and properly so - with the preservation of faith and morals, is in a much better position to gauge the sense of decency, high or low, of the community than is my honorable friend. The honorable gentleman tried to lock horns with the bishops, but he failed. He failed for the simple reason that he was the only one doing the work of the Prince of Darkness, in the opinion of the bishops. He has continued on his wilful way despite the criticism of the Anglican church, and despite some very firm opposition expressed on behalf of the Presbyterian church by the Reverend Gordon Powell. Thisis what the Reverend Gordon Powell said from his pulpit in St. Stephen's Presbyterian Church in Sydney -

Australian society is based on the sanctity and strength of marriage on monogamy, not on " chronological polygamy ".

Easy divorce is not a sign of progress, it is a return to the jungle.

Never had divorce been so easy as it is to-day in the United States.

The United States has never had so much delinquency and mental disease.

If divorce is made easy people treat marriage lightly and rush into it.

If divorce is hard they take longer to decide and have more chance of finding out their mistake before it is too late.

Sir GarfieldBarwick has yet to prove that the price he is asking us to pay for uniform divorce laws is worth it.

The Methodist Church had an opinion also, and I understand that the Attorney-General is a very distinguished member of that Church. The Methodist Church, according to a Sydney report, said -

The " Divorce by consent " clause appeared to be a weak point in the new Divorce Bill.

The president of the church, the Rev. A. Robens said: " Although the five-year separation clause- has not been discussed by my assembly, I will say it appears to be a weak point in an otherwise commendable bill. " The Church could not support, anything which would weaken the sanctity of marriage and make divorce easier."

The Reverend Gordon Powell made a further observation in the same vein, as did the Reverend Alan Walker. I quote the opinions of Church leaders because the Attorney-General and his supporters are determined to disregard entirely everything that every Church leader has said in criticism of. clause 27. I refuse to help to raise the palsied arm of this Government as it seeks to bestow a benediction on promiscuity. I refuse to join the Attorney-General in giving some sort of smelly, secular san.tification to barnyard, morality; and that is what clause 27 (m) does..


Mr Bowden - The honorable gentleman is the only one who thinks so.


Mr CALWELL - And the honorable member, being. Chairman of" Committtees, has no right to interject. I shall vote for the amendment, of the honorable member for Fremantle (Mr.. Beazley) on, this, particular issue.


Mr Turnbull - Of course you will.


Mr CALWELL - Because I believe in standing on the side of the angels sometimes. Speaking facetiously, I want to say that it is not often that I am able to do that in recent years, but at least on this particular issue, as it vitally affects the fundamental life of the community, I will not cast a vote to make divorce easier. The easier we make divorce the more this country will pay in juvenile delinquency, broken homes, unhappiness and in other ways in the coming years. Divorce in Reno in the United States of America can be secured almost on application, but I am sure that the United States is none the better for that.

Having, said that much, I want to deaf with what I regard as some of the good features of the bill. I think the establishment of marriage guidance councils is a very good thing. If that provision was not in the bill I doubt whether the bill would have very many supporters. Of course, the Attorney-General, in one of his amend' ments., proposes to avoid certain obligations" that he was ready to accept at an earlier stage..


Sir Garfield Barwick - That is not right The honorable gentleman has not read the bill.


Mr CALWELL - I have read the bill and the amendments, and I have read the criticism levelled at the bill by the Brotherhood of St. Laurence in Melbourne, the Catholic Welfare Society in Melbourne, the Red Cross organization and one other body. Those organizations have considered this matter, and they say that in one of his amendments the Attorney-General now seeks to weaken the original provision.


Sir Garfield Barwick - That is just not right.


Mr CALWELL - The Attorney-General says that is not right. He has given judgment already. We shall be glad to listen to his explanation. I' hope that we will have some adjournment- of the debate so that we may ascertain whether these people who are trying; to save wrecked' marriages are being disadvantaged, as they claim, as compared with what was originally proposed. Financial assistance should be given to the volunteer organizations as well as to the governmental1 agencies which the brit in its' present form seeks to* help.

The good clauses of the bill have been summarized in a statement by another group called the National Catholic Welfare Committee. That committee was presided over by the Bishop of Wollongong, New South Wales, Bishop McCabe, and associated with him were a number of distinguished clerics who have had a great deal of experience in divorce legislation. These are what they say are the good provisions in the bill -

The expressed endeavour " to maintain marriage and protect the family".

The emphasis on marriage guidance and reconciliation.

Preservation of the right to sue for judicial separation.

Procedure for enforcing maintenance orders by means of " attachment of earnings orders ". Restriction of press publicity.

I do not agree with the honorable member for Mitchell (Mr. Wheeler) that restriction of press publicity is a bad thing. I think it is a good thing. It has been in operation in Victoria for a number of years and I think it has had beneficial results. I think it is dreadful when newspapers can increase their sales by printing salacious news or exposing to the morbid curiosity of sections of the public the unfortunate marital experiences of citizens.

The National Catholic Welfare Committee considered the aspects of the bill that were undesirable, and they were fivefold. In particular the committee found undesirable the extension throughout the Commonwealth of the -

Western Australian provision for divorce after five years' separation.

Tasmanian ground enabling divorce proceedings to be initiated after two years' desertion.

N.S.W. provisions covering failure to comply with a decree of restitution of conjugal rights, even though the Federal bill lengthened the period from 21 days to one year.

The Attorney-General has gathered together all those provisions that are peculiar to various States and proposes to make them uniform throughout the Commonwealth. Well, I agree with the National Catholic Welfare Committee on this particular issue.

I disagree with the Attorney-General on a matter that has not been raised, as far as I can recollect, in the debate to-day. I do not like the idea of empowering State judges to deal with this legislation. If we are to have a uniform Commonwealth, law let us have Commonwealth courts in which decisions will be uniform, or nearly so. Let us have one Commonwealth judicial system that will deal with this particular matter. I think the time has long since passed. when we should be relying on State supreme court judges to interpret federal laws. We have a Judge in Bankruptcy, and we have other federal judges. We have a judge of the Supreme Court of the Australian Capital Territory and we have judges in the Northern Territory and in the Territory of Papua and New Guinea. I think there have been other federal judges who have dealt with various matters from time to time. Last session I think we passed some amending legislation to permit certain federal judges to act in the Australian Capital Territory during the unfortunate illness of the present judge of the Australian Capital Territory Supreme Court, Mr. Justice Simpson.

I think we should have a federal judicial system and as much of the work that is going to the State Supreme Courts to-day as can be brought under the federal authority should be transferred to that jurisdiction. We should have a federal court that would deal, not only with divorce, but with taxation matters and with offences against immigration laws. We should follow the American pattern.

I did hope to see federal judges appointed in the various States of the Commonwealth with the High Court sitting in its own particular jurisdiction, original and appellant, in Canberra. The Attorney-General, for some extraordinary reason, will not entertain that idea. I am sure that most Supreme Court judges would be glad to be relieved of a lot of the work that they are doing to-day. A rumour is current in some quarters that the Attorney-General proposes to pay a special allowance to State Supreme Court judges for the work that they will do in this regard. I believe that some of them may have hoped that that would be so. I trust that the AttorneyGeneral will not mind my repeating that he has told me privately that he has no such intention. I do not think that the State position in these things should be strengthened.


Mr Hasluck - That is not the reason for the rush of candidates to the court.


Mr CALWELL - Is there any rush? I do not know. State courts have been complaining for a long time about the amount of work they have to do.

I am sorry that I have not with me the protest that was sent to me by people who are in a position to know about the treatment which marriage guidance councils fear the bill will mete out to them. Mr. D. Selby, who is president of the Marriage Guidance Council in New South Wales, has complained that clause 27 of the bill is not acceptable to him or to his council. They fear that it will have ill effects. I could quote other distinguished people whose opinions the Government either does not want to hear or about which it is not concerned. The very able coadjutor Bishop in Melbourne, Bishop John McKie, who has been appointed to an assistant bishopric in England, has also complained about this bill. He said -

I should have thought that if a certain ground for divorce applied in only one State it showed it had not much validity.

He said further -

All citizens should be deeply concerned to see that divorce grounds are not extended too far. As citizens we must all strive to uphold the sanctity of marriage as the first consideration, A clearer conception of the objects and principles of marriage would take much more emphasis off divorce legislation.

I commend that sentiment to the House and I hope that even now the Attorney-General will reconsider his obstinacy. I hope that he will not retain certain clauses and will not continue to be as obdurate as he has been to date.

It is possible that a move will be made to give the bishops and other church leaders an opportunity of stating a case before a select committee of the Senate. I cannot foretell what the other House will do. This is" a non-party bill and we are all expressing our own points of view. I am not applying duress nor attempting to influence any body, but I think that if this bill gets to another place a select committee might be appointed to give the matter the further consideration that it deserves. I shall vote against clause 27 (m) of the bill and I shall consider, at a later stage, whether or not I should vote against the third reading of the bill if that clause is not removed.

Debate (on motion by Mr. Snedden) adjourned.







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