Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Thursday, 12 November 1959


Mr WARD (East Sydney) .- I enter this debate with some trepidation. I expect that the speech which I am about to make will most likely be one of the shortest that I have ever made in this Parliament, that is, of course, if I am not provoked by interjections. This proposal has been before us now for some considerable time, and I have to admit frankly that there was a time when I believed that there would be very little opposition to the proposal that was brought forward by the honorable member for Balaclava (Mr. Joske), which appeared to me to be a reasonable advance on the existing situation in this country. I think that very few people would not agree that it is wrong in principle to have six - or eight, counting the two Territories - differing laws in divorce. I agree entirely with my colleague, the honorable member for Banks (Mr. Costa), that we are not now determining whether we shall have divorce laws in Australia because we already have them, but we are determining whether we shall have uniformity in our divorce laws. However, I do not agree that even for the sake of uniformity we should grab and endorse any bill that is presented to us. We should examine it very closely. There is no need for great urgency in a measure of this description. I think that it is the first measure of its kind that we have had to discuss in the Federal Parliament. We have been able to get along in some way for quite a period, I agree with the honorable member for Mitchell (Mr. Wheeler) that there are many other matters to which we could have been directing our attention in preference to this measure.

Let us examine the existing situation. This is a. most unusual experience for every member of this Parliament, because never in my recollection have I known both sides of the House to declare a bill to be a nonparty measure thus; permitting every member to make his own decision as to the way in which he will vote. I should imagine that, many honorable members who are not particularly interested in many of the matters that come before us are satisfied to vote as a majority of their party decides, on. the advice of party members who have made a close study of the. subjects and know something about them. On this occasion we cannot" do that because, in my. opinion, every honorable member is. obliged now to express his viewpoint and to indicate the reason why he will vote in a certain way.

I believe that even now, after the period that has elapsed since the bill of the honorable member for Balaclava was introduced: there is still need for further investigation. I say that not merely because it may change my view or the views of other members of the Parliament - if they have considered the bill they probably have fixed opinions on it - but because we do not know whether any one will produce an argument on a particular aspect which has not occurred to any member of Parliament, and which is worthy of consideration.

I have heard some honorable members say that this is a lawyer's bill. Largely it is, but as it affects also human relationships, I think that it is much more than a lawyer's bill. The Attorney-General (Sir Garfield Barwick) has indicated that he has considered representations that have been made to him by a number of persons and organizations, but that does not appear to me to be sufficient to dispose of any arguments that have been advanced. I should imagine that if any responsible organization in this country has a viewpoint to place before this Parliament, it is far better to hear that viewpoint and to consider it before we finally determine the matter in the form of legislation. There is no reason why this important bill cannot be referred to a select committee or to a royal commission as was done in England, if somebody prefers that method, so that all aspects of it can be considered and the viewpoints of those who are interested in if placed before the Parliament.

I say without hesitation,, and. I- am sure every member of the Parliament will agree, that this legislation contains a. number of good provisions. Undoubtedly the provisions dealing, with reconciliation, which have been commended by the various speakers in the debate, are worthy of support.

However, as a member of the Australian Labour Party, I believe that the Government is disposed more to deal with the result of the situation rather than with the cause of it. Every honorable member has referred to the tragedy of so many broken marriages in this country, and we should face up to the fact that many such marriages result from inadequate housing, the low wages of the husband, which obliges the wife to go into industry, and the general poverty in the community. Honorable members, particularly those on the Government side, have continually referred to the growth of child delinquency. I believe that economic factors lead to the conditions which result in broken marriages. It is all very well to have legislation relating to divorce itself, but the Government has not been sufficiently active in removing the economic evils that bring about a state of affairs which leads to separation and divorce.

Let me: turn for a few moments to some of the provisions of the bill to which strong exception has been taken. I believe that if we had before us the bill that was proposed by the honorable member for Balaclava, we might not have had a division on it. All the arguments appear to have arisen as a result of the Government's action in including what most members - and I find myself in this classification - find objectionable, namely clause 27 (m). which introduces quite a change in divorce law in this country. I think it was the honorable member for Bruce (Mr. Snedden) who, in commenting on the provision of this clause, said it can operate both ways and that the husband or the wife can initiate the action for divorce. That is perfectly true, but I, and I am sure other honorable members, would like to know where in Australia, with the exception of Western Australia where a provision along these lines now exists, there is provision fnr the guilty party to take the initiative. In every other legislation it is the innocent party who must move the law.I believe that sympathetic consideration should be given to a woman's application for release from a worthless man who has deserted her without making proper provision for his family and who has remained away for five years, but the situation in this case is different: In Western Australia, the action for divorce can be taken by the guilty party.


Mr Snedden - May I interrupt you?' I think that a self-petition by a bankrupt is a case in point where the status of a person is involved. He can go to the court himself and say, " I have not enough money to meet my debts "'.

Mc WARD. - That is a different kind of law from the one that we are now considering. I do not intend to argue law with th« honorable gentleman or with any other legal man. in this chamber. I understand the human problem that is involved in this divorce legislation, and I say that under the Western Australian provision which has been adopted by the Government, with some variation to which I shall refer in a moment, the woman or the man may be completely innocent. That person could be the innocent party, and a separation occurs.


Mr Snedden - It could be both.


Mr WARD - I am dealing with the situation where either is completely innocent of any offence. It could be the wife or the husband. Let us assume that it is the husband for the sake of the argument. After five years, not the aggrieved party, but the guilty party, initiates an action to secure a divorce. The husband is able to say thereafter, at any time the subject is raised, " I divorced my wife ". Immediately he says that, he puts a stigma on his former wife, because the general impression would be that she was the- offending party, although, in fact, she was completely innocent of any offence.

I believe that those are considerations that ought to be taken into account. In Western Australia when a person is able to prove that during the period of separation, or before, some matrimonial offence was committed, then, if the guilty party initiated the action, the court is obliged to reject the petition. But not so in the provision before us. Under this Commonwealth provision offences- can be proved before the court but if, in the opinion of the- court; there- is> some- public interest which surmounts the other considerations, it completely disregards the factors brought forward by the innocent party. It seems to me to be completely wrong to say that this is a good provision.

Ihave; heard honorable members say - and I would agree - that it appears that the bill' contains better provision for the protection of a wife who may be deserted, and for the protection: of the children of the marriage. But it does, not go far enough because, in my opinion, merely to provide that the court can grant, a maintenance order,, and order the garnisheeing of the wages- of the husband for not complying with the order, is insufficient. In order to give proper protection, the. obligation to see that the: order is observed should, not lie on. the person who has obtained the order, but should lie upon the court.

Take the: situation in New South Wales to-day. Some, of the poor devils who have been deserted would be better off if they had. never obtained a maintenance order. There, are. many- cases in which the maintenance, order has, not been observed and, under the social services legislation, a period of six months must elapse before the Department of Social Services will give the party who has obtained an order which has not. been observed any relief at all. The department argues that even if the maintenance order is not being observed, the amount provided for in the order is income. It is. easy to see the unfortunate situation that exists.

So it is not sufficient to say that a court can make a maintenance order. Responsibility has to be accepted by the court, having made the order, to' see that it is observed. In my opinion, it ought not be left to the unfortunate person concerned to initiate action to see that the order is observed.

Now let us have a look at some of the statements made in regard to clause 27 (m). Even the Attorney-General himself is in extreme doubt about whether this provision will work out successfully. He said in his speech that he had some doubt about how it was going to operate. He said -

This ground, (m) is the result of that course, not requiring a matrimonial, offence to have- been committed, nor regarding the- commission of such an. offence, as necessarily preventing relief to the. wrong-doing party.

He continued -

Nor is the existing capacity of an innocent party to withhold dissolution indefinitely seen as necessarily just or conformable to the public interest.

After having said that the public interest had to come first, he said -

Cases might arise, too, where gross and outrageous conduct on the part of a petitioner may so offend our sense of decency that we could not in the public interest, or without grievous injustice to the innocent party, allow such a petitioner to profit by his or her conduct.

This is in complete conflict with the view earlier expressed, because if it means that public interest does not count where the petitioner is going to profit by his or her conduct, it should be necessary only to prove that the petitioner has offended. At what point does public interest supersede those other considerations to which the Attorney-General has referred?

Referring to the Western Australia measure and the provision contained in clause 27 (m) in the present bill he said -

But neither measure seems to me altogether satisfactory.

If the Attorney-General is in doubt, why should clause 27 (m) be contained in this legislation? There are other people who have doubts about it. We have heard some of their statements quoted here during this debate.

So I come back to my earlier point, and I believe I am not alone in my attitude. That is, that at this stage I want to know more about those provisions. I want to listen to, and hear more of, the arguments of honorable members and of interested people outside this Parliament before I am called upon to record a vote on this important legislation. But if the Government is determined to proceed without giving me this opportunity, I indicate now what I propose to do. I propose to support the proposal of the honorable member for Macquarie that the bill be referred to a select committee. If this proposal is defeated then I propose, when the bill is at the committee stage, to vote against clause 27 (m). If 27 (m) is retained in the legislation thereafter, I propose, finally, to vote against the third reading.







Suggest corrections