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Tuesday, 17 November 1959


Mr J R FRASER . - I have, perhaps understandably, no present personal interest in this measure. I suppose that none of us dealing with the bill now before the House imagines that ever he will have recourse to its provisions, or expects that the provisions will be exercised against him. However, following the Treasurer (Mr. Harold Holt) in this debate, I feel that I should say that, in my view, his speech hardly enhanced his reputation. He was careful to say that there had been no element of pressure on honorable members on the Government side to vote either in one way or another. Indeed, he made a most vehement denial that there had been any such pressure. I may be completely mistaken, but to me the whole tenor of the right honorable gentleman's remarks was that he was seeking, by his own speech, to persuade a vote in favour of the bill. That, of course, is the right of any member of the Parliament who rises to express his view on this bill, which is a non-party measure.

The right honorable gentleman, however, speaks as the Leader of the House, and he spoke of the leisurely way in which this bill had been treated, seeming to convey, by implication, the idea that the Parliament had ample time to discuss it and that there was no suggestion that the bill was being rushed through this chamber. He mentioned that it had been introduced in May and that ample time had been given for all sections of the community to study its provisions and to express their viewpoint to members of this Parliament. So, he says, there has been ample time for consideration of the bill.

I support the honorable member for Chisholm (Sir Wilfrid Kent Hughes), who said this afternoon that the bill should not be rushed through the Parliament at this stage and that the Parliament should be given more time to study and debate the measure's provisions. I do not, however, support the honorable member's suggestion that means should be found to revive the bill in the next session of this Parliament. I believe that we should continue this session and debate the measure fully. 1 understand that the Parliament is to rise for the Christmas recess on 26th November. That is an early date. It is not unusual for the Parliament to sit well into December, and I believe that this session should continue so that every clause of the bill and every amendment that has been foreshadowed may be thoroughly debated, first in this chamber, and later in another place. The honorable member for Chisholm has pointed out that there are 116 clauses in the bill, and, if I remember correctly, some 56 amendments have been foreshadowed.


Mr Luchetti - Sixty-five amendments.


Mr J R FRASER - Sixty-five amendments, including those of the honorable member and one or two others of which notice has been given. I do not believe that it is possible, as the notice-paper stands at present, for this bill to be given ample consideration and debated thoroughly in the time that is left in this session if the House is to rise, as we have been told, on the 26th of this month. That falls at the end of next week, and is scarcely more than a week away. I believe, as I have said, that the Parliament should remain in session and that this bill should be more thoroughly debated than at present seems likely. .

Because I believe that the Parliament could easily sit for the extra period required to give the bill the consideration it deserves, 1 cannot support the amendment moved by the honorable member for Macquarie (Mr. Luchetti), who has proposed that the bill be referred to a select committee. I believe that it is the right of this Parliament to sit and debate a measure of this kind without limitation of the opportunities for all members of the Parliament to express their views and subsequently, where they have the power, to vote as their consciences and their views direct.

The Treasurer indicated that the Government had taken a brave course in introducing a measure such as this. He agreed with the honorable member for Chisholm, who had said that such a measure waspolitical dynamite, and said that the subject of matrimonial causes was a delicate and dangerous matter and that the Government was risking the wrath of the electors by bringing such legislation before Parliament. I fail to see it. We have State legislatures which have introduced and maintained legislation on this subject of matrimonial causes. How, then, does the Commonwealth Government become particularly brave in bringing forward a measure such as this, particularly when it is recalled that power to legislate on this subject was given to this Parliament in th* Australian Constitution, that, within the first year of the Federal Parliament, action was taken to introduce some form of uniformity in the laws relating to marriage and divorce, and that, as the Treasurer recalled, 23 years ago he seconded a motion on this very subject proposed by the late Honorable Maurice Blackburn? The right honorable gentleman has not, of course, always agreed with the views of the Honorable Maurice Blackburn. He has expressed himself very strongly on what is known as the Blackburn interpretation of the socialist pledge of the Australian Labour Party. f believe, Mr. Speaker, that the honorable member for Chisholm was justified in his gentle rebuke of the Attorney-General (Sir Garfield Barwick) for the tenor of his reply to the criticism of this measure expressed by the bishops. The Attorney-General, in his second-reading speech, said he hoped there would be an expression of public opinion. I believe that if an expression of public opinion goes against the views of the Minister he should not become testy in his reply. I think it is most important that this Parliament should give weight to the considered views of the Churches of this country. We in this Parliament should take great care that we do nothing to weaken the Churches in this country. I suggest that the bishops of two major communions and the leaders of other Churches in the community who have expressed very grave doubts as to certain provisions of the bill are speaking for the people of their Churches, and their views must be given the greatest weight and the greatest respect by this Parliament.

I believe very strongly that there is a need for uniformity in the laws relating to matrimonial causes and that the Commonwealth should legislate in this field. I know of cases in which parties have been considerably disadvantaged by the differences existing in the laws relating to matrimonial causes as between one State and another or as between one State and a Territory of the Commonwealth. In relation to paragraph (m) of clause 27 - probably the most controversial provision in the bill - I have received something over 100 letters expressing grave concern.


Mr Chaney - Where from?


Mr J R FRASER - From individual constituents in my electorate and from organizations within the electorate.


Mr Chaney - They would not know what it was all about.


Mr J R FRASER - All the letters are on my files. The honorable member, who comes from Western Australia, perhaps is an authority on these matters.


Mr Chaney - I know how that kind of provision has worked.


Mr J R FRASER - There are many separationists in Western Australia, as we all know but I do not think that the views of the honorable member are such as to set aside the written expressions of the views of people who have very strongly held opinions on this matter, and who have the right to have their opinions expressed in this place. I point out that I have received from individual constituents and from organizations within my electorate more than 100 letters protesting against the provisions of clause 27 (m). In order to obtain an expression of public opinion, in a radio session which has a considerable listening public in this area I referred to the provisions of the bill, quoted the objections that were stated in the letters I had received, and invited constituents to send me their views on the measure. No one has written in favour of the bill. Every letter that 1 have received has opposed the provisions of clause 27 (m) on the basis that it makes possible divorce by mutual consent. That view is very strongly held, Mr. Speaker.


Mr MALCOLM FRASER (WANNON, VICTORIA) - That has nothing to do with the clause.


Mr J R FRASER - Clause 27 states-

.   . a petition . . . may be based on one or more of the following grounds: -

(m)   that, since the marriage, the parties to the marriage have been separated (whether by agreement, decree or otherwise) for a continuous period of not less than five years immediately preceding the date of the petition and there is no reasonable likelihood of cohabitation being resumed;

I know that the Attorney-General has suggested that this provision must be read in conjunction with clause 33, which sets out the safeguards against divorce by mutual consent, which it is feared that the terms of clause 27 (m) will make possible. But the petitioner could be, in fact if not in law, the person at fault in the breaking up of the marriage, and the respondent - the wife, we shall say - would have to bear the stigma of being the divorced person, having been the respondent. I believe that that, in itself, carries a stigma in the public mind. That provision could be exercised against a party to a marriage who herself believes and hopes that reconciliation is possible and it could be left to the court to decide whether there is any reasonable likelihood of cohabitation being resumed.

As you know, Mr. Speaker, as the member for the Australian Capital Territory my voting rights are restricted. I am precluded from voting on this bill by the legislation concerning the Australian Capital Territory electorate. The present Government has refused to vary the legislation, so I will not have the right to support my views on this matter by vote. Had I the right to vote on the bill I would certainly vote against clause 27. I may have the opportunity to speak further on that at the committee stage.


Mr Howse - Have you not a vote on this matter?


Mr J R FRASER - If the honorable member would like it in words of one syllable I will give it to him afterwards.

I would also like to refer to clause 27 (1), to which the honorable member for Watson (Mr. Cope) made some reference this afternoon. Clause 27(1) provides for dissolution on the ground that either party to the marriage is, at the date of petition, of unsound mind and unlikely to recover. The honorable member for Watson pointed out that that provision does not exist in New South Wales. He expressed himself as opposed to its inclusion in the bill. But that provision is one that I would vote for if I had the right to vote. I know of individual cases in which it would enable justice to be done and happiness to be restored to people whose lives have been upset by the mental illness of a partner in marriage. It is true, of course, that mental disease is an illness like any other form of ailment, but it is not so in the legal sense. The person suffering from mental illness does not have the rights enjoyed by other people under the law. I can find nothing exceptional in this clause.

I wish to refer particularly to clause 6 which relates to certain children to be deemed to be children of the marriage. The wording of the clause is -

For the purposes of the application of this Act in relation to a marriage -

(a)   a child adopted since the marriage by the husband and wife or by either of them with the consent of the other;

(b)   a child of the husband and wife born before the marriage, whether legitimated by the marriage or not; and

(c)   a child of either the husband or wife (including an illegitimate child of either of them and a child adopted by either of them) if, at the relevant time, the child was ordinarily a member of the household of the husband and wife, shall be deemed to be a child of the marriage, and a child of the husband and wife (including a child born before the marriage, whether legitimated by the marriage or not) who has been adopted by another person or other persons shall be deemed not to be a child of the marriage.

I should like the Attorney-General to have a further look at part (c) of that clause because it has been suggested to me that it could create a particular difficulty in a case in which the remarriage occurred of a divorced woman having the custody of children in respect of whom the former husband had a responsibility to provide maintenance. As I read this provision, if that woman remarried, the second husband would have to assume responsibility for those children although a court had previously decided that their maintenance was the responsibility of the former husband. A provision such as that could lead, I suggest, to the continuation of a de facto alliance between a man and a woman who had had children by a previous marriage, because of the man's reluctance to accept the responsibility for those children. I believe that the Attorney-General should have a look at that clause and I should be glad if, in replying, he would refer to it.

Mr. Speaker,I do not wish to traverse any other portion of the bill. I wish only to return to clause 27 (m) to say that the Attorney-General, in his second-reading speech, anticipated that this clause would provoke some disagreement and discussion in the community. He said -

There remains for mention a ground upon which there may centre a good deal of attention and discussion.

Later he said, in dealing with this provision -

I am conscious, however, that this ground could be subject to abuse.

The people who have protested against this clause and the implications of it see the possibility of that abuse. I believe that these views must carry a great deal of weight, particularly when they are expressed by bishops of leading Churches and the leaders of other church communities. If I had the opportunity to vote on this measure I would vote against clause 27.

In concluding, I repeat that I think this Parliament should be given the opportunity to debate this measure without limit. There should be no pressure of time and no disadvantage should be imposed by reason of the hours of the day at which it is debated. It might very well be said to honorable members that they can debate this for as long as they like provided that they debate it at three or four o'clock in the morning. I suggest that no measure of this kind can be adequately debated under those conditions. Parliament should be kept here for another week or a fortnight so that every member, during the debate on the bill and in committee, may express a view on every clause if he so desires.







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