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Tuesday, 17 November 1959


Mr HAROLD HOLT (Higgins) (Treasurer) . - I do not propose to canvass the merits of this legislation in any great detail. That task has been made unnecessary for me and for other of my colleagues of the Cabinet because of the brilliant exposition of the contents of the bill, and the justification for its detail, given by my colleague, the Attorney-General (Sir Garfield Barwick). In making that presentation, the Attorney-General spoke for his Cabinet colleagues who had brought their judgment to bear on the matters of detail contained in the bill, and who had given their support to it in its broad terms. I feel that it is necessary to say that, and that is perhaps the principal reason I have chosen to intervene in this debate. As time has gone on, there has been a disposition in some quarters to represent the bill as the child of the Attorney-General, and to present him as being out on his own in his advocacy of some of the more controversial elements contained in the legislation. I stress that that is far from being the truth.

I felt I should speak in this debate, also, because there are those who would seek to create some mischief by developing abroad the impression that the Government, having told its supporters that they may regard this legislation as a non-party measure - a great social question on which they were free to vote as they chose, according to their conscience - has since attempted to put pressure upon them in order to regiment their vote along party lines. That is completely false. T repeat now what has been said to Government supporters at earlier times. Any member who, as a member of one of the Government parties, would normally support the Government is entirely free to exercise his vote on any section of the bill or on the bill as a whole according to the dictates of his conscience. He need feel no concern that his action will in any way jeopardize the respect which his colleagues would hold for him in any other circumstance.

I think it is well that that should be made clear. I have seen a suggestion in the press that the Prime Minister (Mr. Menzies), in announcing his support for the legislation, has done so as a friendly gesture to his colleague, the AttorneyGeneral. No question arises about the friendship of the Prime Minister for the AttorneyGeneral. But to suggest that the Prime Minister gives his support to legislation dealing with a major social problem that has exercised the minds of the nation's leaders since federation merely as a passing gesture of his goodwill is to do far less than justice to the right honorable gentleman.

The fact of the matter is that the Prime Minister, in common with his Cabinet colleagues, has been considering the principal items of the legislation for some years, and earlier in the history of the Parliament gave thought to special aspects of it. I listened today to my friend the honorable member for Chisholm (Sir Wilfrid Kent Hughes), appeal to the Parliament to take a little more time over this legislation and not to act with unnecessary haste. He rightly stressed the great social consequences of the measure with which we are dealing. He is right to make such a plea, but when we look at what has happened down through the years, it can hardly be said that the Parliament has been in any unreasonable haste to deal with a matter which the fathers of our Constitution confidently believed would be one of the first matters to be dealt with by the new Parliament of the federation. Indeed, the pre-federation debates show that the need to provide uniform treatment for such social questions as marriage and divorce was one of the compelling reasons in favour of federation. This power was brought into our Constitution for that purpose.

As the honorable member for Chisholm has cogently said, this is a delicate and dangerous matter; it is a great human and social question. He referred to it as political dynamite, and I think that would be the judgment ofmost parliamentarians, particularly if they felt I do not suggest that this is so in his case that they were to concern themselves merely with their own political salvation. Because this is such a sensitive matter, government after government has looked at it and has turned away rather than face the hazards and consequences political, social and spiritual that may arise from legislation to deal with it.

My mind goes back 23 years to a time in the history of this House when a motion was brought forward as a private member's motion by one of the most distinguished men the Australian Labour Party has produced and one of the most earnest, sincere and able of men. I refer to Maurice Blackburn, whose memory will still be respected, I think, by many members in this House. Maurice Blackburn brought forward a motion in these terms-


Mr Haylen - He would hate you to praise him, anyhow.


Mr HAROLD HOLT - I do not think so. He and I were very good friends and, I think, always respected each other. On the occasion I mentioned, the honorable member for Parkes will be interested to know, he introduced a motion from his side of the House, and I seconded it from my side of the House. We were both lawyers. I was a very young and inexperienced one, by comparison with him, but our legal experience had shown us that Australian citizens who had cause to seek relief in their marital difficulties were being thwarted because of the division of legislation amongst the six States, and because of the problem of establishing domicile when legal proceedings were commenced. He submitted a motion in these terms -

That, having regard to the fact that, by reason of the non-enactment of appropriate Commonwealth legislation, the Divorce Court of each State must deny relief to a petitioner who, though domiciled in Australia is not domiciled in that State, this House is of opinion that legislation should be forthwith introduced to provide for a Commonwealth matrimonial domical.

That was a very limited provision dealing only with the question of domicile and seeking to give relief in cases where, for example, a wife had been deserted by her husband in Brisbane, the husband had settled in Perth and the wife had sought matrimonial relief against him there, only to discover that in the legal proceedings taken in Perth her husband could raise the defence that he had not established a domicile in that State. We saw this as an injustice and as something to be remedied. We put that view - he from his side of the House and I from mine - to the Parliament; and the Parliament, voting on non-party lines, carried that resolution. I have waited 23 years to see matrimonial domicile on a Commonwealth basis as embodied in this legislation.

I repeat that it is true that earlier governments have measured this problem and decided that it was too difficult and too sensitive for them to handle. But here is a government that has been confirmed in office at election after election. It is now in its tenth year, and if ever a government had a responsibility resting upon it and was in a position to discharge that responsibility in this matter, it is this Government. We could not claim that we have to fear the wrath of the electorate even if we were so timid to do so; and I am proud of the fact that after almost 60 years of federation, having waited to examine this matter with great care and great patience - not for the first time, as I shall point out in a moment - we have come forward with the most comprehensive piece of legislation possible to conceive and one which I am confident will, in the judgment of the great majority of Australians, deal fairly, reasonably and humanely with this great social question.

I turn again to the question of whether this Parliament has had a reasonable time in which to consider this matter. I bring that point much more up to date than the earlier illustration I gave of only one aspect, important though it then was, of the general question. In April, 1957, my friend and colleague, the honorable member for Balaclava (Mr. Joske), a great deal of whose expert and able professional career had been devoted to the legal side of this question of divorce, brought to the Parliament a private member's bill seeking to have the Parliament adopt uniform matrimonial and divorce legislation. Later that year this Parliament unanimously supported to the second-reading stage the legislation he had brought forward. In other words, this Parliament, not voting on party lines but each member being free to vote according to his conscience, unanimously resolved that there should be uniform legislation for marriage and divorce carried through by this Parliament. It is two and one-half years since the honorable member for Balaclava introduced his bill. The Government, having seen the strength of support for this proposal and realizing that a great matter such as this should receive the kind of careful examination and expert attention in its drafting and its detail that the Attorney-General's Department and the resources of the Government could bring to it, decided that it should adopt the bill as a government measure and attempt to give a detailed effect to it, but at the same time making it clear that so far as individual members of the Parliament were concerned they were free to deal with the measure as they might choose.

I think it is necessary to stress these matters because on every matter of real controversy, and, indeed, on almost every matter of substantial consequence that I see in the legislation, detailed consideration had been given to it by Cabinet before the present Attorney-General came into this Parliament. It is therefore quite unreasonable and certainly unfair to try to present this measure as something that he has conceived and pressed forward against whatever opposition might be forthcoming. But we are indebted to him for the brilliance with which he has put the legislation together, his exposition of it and the careful, painstaking way in which he has gone around Australia wherever opportunity has offered in this long unhurried period that we set aside from May of this year until the present time. He has seen to it that the churches, the social organizations and the community as a whole had every opportunity to consider not only the broad provisions of this measure but also the detailed exposition that is contained in this legislation. The honorable gentleman will recall that earlier in this session it appeared that the Parliament might have adopted the second reading on one night towards the end of August. He and I discussed whether we should carry the second reading through at that stage. We agreed that in order to give more time for consideration of the matter we would let the second reading stand over for several weeks until later in the session when, in point of fact, it has been resumed. So I deny that either the country or this Parliament has not been given an adequate opportunity to consider the legislation and to weigh even the detail of it.

As the honorable member for Chisholm (Sir Wilfrid Kent Hughes) said earlier today, this is a very difficult matter for men accustomed to the problems and exchanges of political life in the Parliament to discuss. It is certainly not often that we are called upon to discuss questions of this farreaching significance in the kind of atmosphere that we have here to-day. But now that it is six months since my colleague introduced the legislation, I want to state again what I believe to be its essence as expressed in his own eloquent language. I propose to quote extensively from his speech because I believe it is well that any who now come to this question afresh should have his words implanted in their minds, as those words represent the general view of this Government. The AttorneyGeneral said -

Mr. Speaker,one of the great foundations of our national life is the family, and in turn the family is founded on marriage. National interest is best served and family life is best nurtured when marriage is truly life-long. The prevalence of broken marriages does threaten our strength and imperil our future. The ideal society would know no occasion for divorce.

But, Mr. Speaker, it is not given to us all, as humans, to choose, often in years of immaturity, a life-long partner with wisdom and an adequate appreciation of the personality - often itself immature - of our choice. Nor are we all able to bear with resignation and fortitude the maladjustment and torments of a faulty choice. Few indeed have the saintliness of Hosea, who forgave and embraced again his unfaithful wife.

Legislatures have thus long since come to the view that a point of breakdown in relationship may be reached where it is proper that one of the parties to the marriage should be given the right by the law of the land to make a second choice, and in accordance with that law and as far as it extends with regularity and honour, to enter a new marriage.

There are those of us who cannot be reconciled in doctrine or in conscience to this view. This we understand and profoundly respect. But nobody supposes that this Government is to-day, for the first time, introducing a system of divorce in Australian life. Such a system has been part of our civil law, part of the pattern of our community life, for a century. What the bill proposes in this respect is that the system shall treat people uniformly as citizens of Australia, and not diversely as citizens of the various States c Territories.

That, I believe, sums up the problem and the general approach which this Government has made to it. I believe that the Australian community is a responsible community. I was sorry to hear the Deputy Leader of the Opposition (Mr. Calwell) talk about " barnyard morality ". I do not believe that experience in Australia supports that charge. As I am able to analyse the statistics, not only is the incidence of divorce comparatively static, but also nine marriages out of ten remain permanent. If, in the kind of world in which we are living, there is no greater casualty rate than that, then it cannot be said that marriage as an institution has failed, nor can it be said that the great majority of our fellow Australians have failed to take their duties responsibly.

I have heard criticism directed against the legislation on the score that it tends to make divorce easier. But the critics, so far as I have understood them, have never mentioned the directions in which the legislation makes divorce rather harder to secure than it was previously. The bill deals fairly, reasonably and responsibly with this problem. If there are irresponsible elements which attempt to weave their way in and out of the legislation, then the provision that three years must elapse before action for divorce can be taken, is, I think, a reasonable precaution against that kind of irressponsibility. There are other directions in which divorce will be harder. The provision in New South Wales that failure to comply with an order for restitution of conjugal rights constitutes a ground for divorce, which in many cases has become a mere device, certainly has been tightened up. There has been a change so far as Victoria is concerned, which will produce an equity of treatment between men and women citizens of that State which had not existed previously. In other directions to which one could point there has been some tightening rather than some easing of the provisions which formerly existed.

When T hear people talk - rather glibly at times and on occasions, even unctuously - about easy divorce, I cannot help believing, from a wide experience of humanity, that they have little knowledge of just how difficult divorce is for people who feel that their marriage has been wrecked and that they must secure some rescue from the wreckage. Most people, I repeat, are responsible people. Most people who are parties to a marriage attempt to make the marriage work. It is not the first breakdown which produces the divorce in the overwhelming majority of cases. It is only after a succession of breakdowns; it is only after perhaps years of unhappiness in the marriage that the drastic step leading to divorce is taken. I do not speak of the exception; I speak of the great 'majority of people who are responsible people of normal instinct and normal decency.

That brings me to one point of detail to which I want to make some reference because it has proved to be the most controversial aspect of the legislation. Clause 27 (m) adopts in substance, although not in all its detail, a provision which has been in operation in Western Australia for some fourteen years. It meets the case where the parties have separated and where there is no reasonable likelihood of the marriage being resumed. At the expiration of five years one or other partner is then entitled to proceed to divorce. Arguments have been addressed to this clause, both for it and against it. We gave a great deal of thought to it when we had our Cabinet discussions about it. Quite clearly, there is a dilemma so far as the parties to the marriage are concerned. On one hand, there is the position of the partner who does not seek a divorce, who, never having committed any matrimonial offence, does not want to find himself or herself in the position of being regarded as a divorced person. We must respect the feelings of people in that situation who resent what could happen to them under the terms of this clause. On the other hand, there is the other partner to the marriage who has been denied the normal human companionshin and the normal human parental relationship to which his or her instincts would lead. Therefore, we have to weigh justice as evenly as we can between those partners to the marriage. Perhaps if we waver in our judgment - because there is a real dilemma presented to us here - then in my own view, having given this matter as much thought as I could, and with as much responsibility as I could bring to it, the scales must be heavily weighed by the situation of the children who will be the product of an irregular union unless relief of the kind proposed under the legislation is given.

If the marriage has been wrecked, then either we must accept that people will try to live an entirely unnatural life, of complete abstinence, alien to their instincts, or that they will enter into some irregular union. Such a union either will be childless - again a denial of their normal instincts - or there will be children who perhaps throughout their lives will live a twisted, embittered existence because of the stigma which they feel is attached to them. Faced with that kind of dilemma and that kind of problem, I come down in favour of the clause as it appears in the legislation. Once all the elements in the picture can be presented to the judgment of the Australian democracy, that Australian democracy will give its judgment in favour of the provision as it appears in the bill.

I close by expressing the view that this Parliament has faced up responsibly and soberly to an issue which the fathers of our federation entrusted to the National Parliament. I hope, now that literally years of consideration have been given to this question, that the House will proceed in an orderly way to complete its deliberations upon the legislation and place it into the law of this land.







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