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Tuesday, 17 November 1959

Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - in reply - When I presented this bill, I said that I was very anxious that it should be the subject of very full and free discussion in the community and in this House. I then said that I would hold myself available to honorable members, to societies, organizations and individuals over the long recess from May to August. I honoured that promise, and I have seen a large number of people who have come to me for explanations. Notable in their absence were the honorable members for Grayndler (Mr. Daly) and Kingston (Mr. Galvin). I have not heard them, or seen them near my room, nor have I received any letters from them. All I can say, without wanting unduly to criticize the honorable gentlemen, is that if the thought they have given to this important question between May and the present time has yielded no more than we have heard from them to date, then if we gave them an eternity they would not produce an idea on the subject. It is very easy to say, " If we had more time we would do better ". It is a common human frailty to make such an excuse, but we all know that the fellow who makes it will do no better no matter how much time you give him.

This bill has been very much discussed publicly and privately. I have received a very large volume of correspondence on it. I have not been so unfortunate as the honorable member for the Australian Capital Territory (Mr. J. R. Fraser), who said he had received only letters opposing the bill. The preponderance of the letters I have received have very much favoured it. The only letters I have received against the bill have been organized letters, in identical terms. They have come from various parts of the Commonwealth, perhaps written in different handwriting, but in identical language, even to the commas and other punctuation marks.

Mr J R FRASER - Does that destroy their value?

Sir GARFIELD BARWICK - Well, of course, this is a new form of pressure that is brought to bear - letters being distributed all over the Commonwealth to be signed and forwarded on. Apart from those, the only letters I have received in opposition to the bill I could count on one hand, while I could produce a large sheaf of letters in favour of it.

I took some pains also, Mr. Speaker, to address any meetings which desired to be addressed. I saw members of the various churches and their officers dealing with social welfare work, and from them I heard points of view. In addition, as this bill is full of what I might call legal techniques, 1 listened to lawyers, both those who are in practice and those who are on the bench administering the divorce laws.

Mr Cope - Did you talk to yourself?

Sir GARFIELD BARWICK - And I talked to myself, if you want to know. I can always be pretty sure that in that way I will get some good advice. I could have taken the easy course and avoided the cheap political jibe that I have introduced a lot of amendments. I could have said, " Let the lawyers make a few shillings out of these ambiguous phrases; I will not worry about that ". But I did not take that course. By removing the ambiguities and trying toexpress the provisions in as precise terms- as I possibly could, I endeavoured to ensure that the lawyers would not make any money out of this bill unnecessarily. I approached the bill in this way: The Government had taken a very courageous step, before ever I came here, in deciding that it would introduce a uniform divorce bill. It knew the contentious nature of the subject and it knew the great, difficulty of getting, in any community, or even in a House relatively as small as this, a firm view one way or the other on issues that touch people's lives so closely and about which it is difficult for people to think in an objective fashion. I realized the courage of the Government and I realized that if this bill was passed it would not be touched in a hurry for a long time. I believed, therefore, that it behoved me, and those with me, to make as certain as we could that it was well expressed.

The amendments that I have proposed - and we have heard, how many there are of them - were circulated about a month ago. I took the trouble to give a small explanation with each one of them, and any honorable member who has chosen to read the amendments, and those explanations, will see that by far the greatest number of them are no more than matters of expression, involving no change at all in the policy or the principles of the bill. I made it very plain, in a letter which I sent to honorable members concerning the amendments, just where there were any significant differences from the legislation originally proposed. The bill has, therefore, been the subject of a great deal of discussion. I have had considerable assistance from those to whom I have listened. They have put points of view to me, and, as technicians, have suggested various changes in the language.

Every one seems agreed, Mr. Speaker, that there is a case for a uniform law of divorce. Every one realizes that there is need for one single Australian domicile. We all realize that we are one people so far as our family life is concerned, that there are no variations in this respect from State to State, and that it is very proper that we should establish a uniform basis for our family life. I have not heard any valid objections to uniformity, although once or twice I was told that I should leave the matter to the rivalry of the States, in which case the States would be competing for custom in divorce. Beyond that sort of remark I have heard no opposition at any time, and, as 1 understand it, there is none in this House. Once we decide that there is a case for uniformity of divorce law in Australia, we immediately face a very difficult problem. This emerges with respect to clause 27 (m) and also clause 27 (1), which provides the ground of insanity. Let me explain how it arises.

We do not come to this bill in a vacuum and, for the first time, try to write out a divorce law. We come to it in a situation in which there are already at least six sets of laws in Australia. The citizens of the States are already living under and having the benefits or disadvantages of those laws. When you find that a particular State has a ground that is working well and has not caused any social evil, and with which the people of the State are satisfied, you carry a very heavy burden if you say, " In my uniform law I am going to cast that ground over. This may be good enough for you but it is not good for the rest of Australia, so out it goes." That is the very considerable responsibility that rests on any one who seeks to unify the laws, and it is particularly true, as I will demonstrate in a moment, with respect to paragraphs (m) and (1) of clause 27. Anticipating myself for a moment, Western Australia has had fourteen years of satisfactory experience of the ground that is the prototype of clause 27 (m). In all those years, so far as I can ascertain, no churchman has raised his voice to say that the ground was working ill.

Mr Beazley - Quite wrong!

Sir GARFIELD BARWICK - The honorable member need not say it is quite wrong, because it is quite right. No churchman has raised his voice to say that this ground for divorce has caused people to enter upon marriage lightly and irresponsibly. Faced with that situation, when we begin to draw a uniform bill, we need some very cogent reason for jettisoning the ground that has proved satisfactory amongst Australians, because the people of Western Australia are the same as all other Australians are, as good and as bad. One other point to be remembered in considering grounds that already exist in the States is that the people of Australia are mobile; they can move from one State to another, and a ground that is in operation in Western Australia can be used by people from other States if they go to Western Australia for a relatively short time and, for instance, take a job there. This does happen. So, the fact that a ground is established in this continent is a very potent factor to be borne in mind when we try to get uniformity.

Dr Evatt - The Attorney-General means that it may happen to-day under the amended laws of 1945 and subsequent laws.

Sir GARFIELD BARWICK - Yes, exactly, as it is now. I am reminded by the right honorable gentleman that, when the Commonwealth intervened to protect women who had been deserted and who had lost their domicile because the husband had gone to another State-

Dr Evatt - Or another country.

Sir GARFIELD BARWICK - It may happen that a New South Wales court would be called on to enforce the law of Western Australia by granting a divorce on the ground that is now clause 27 (m). In Australia at this moment, without any intervention of the Commonwealth Parliament, a ground for divorce comparable with 27 (m) is available to more people than may happen to be in Western Australia at any particular time.

Mr Stewart - Would it not be the guilty party who would travel to Western Australia to obtain a divorce on this ground?

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