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Wednesday, 18 November 1959

Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - I only want to say, very shortly, Mr. Chairman, that I had not thought that the difference between three years and five years in prison was a trifling matter, as the honorable member for Mackellar (Mr. Wentworth) seems to suggest.

There are two factors in the ground provided for in this paragraph. First, the respondent must have been in prison for three years and must still be in prison at the date of the petition; and secondly, the offences must have been offences for which death or imprisonment for life or for a period of five years or more could be awarded. I only know that the honorable member has looked up the statutes of Tasmania and Victoria; I have not looked them up. But, if it be right that, in Victoria, the chopping down of a tree may earn a punishment of something like five years, the likelihood of a man being put in prison with an actual sentence of three years is very slight. So the committee may well agree that, as I would suggest to it, this paragraph ought not to be any stiffer than it is. At present, you are asking the innocent party to stand by for three years at least, because the respondent must have been in prison for not less than three years after conviction, and must still be in prison at the date of the petition.

Mr Thompson - The wife of a man so imprisoned could not get a divorce on the ground of desertion, could she?

Sir GARFIELD BARWICK - It could not be desertion, because he did not wilfully go away. The police took him; he did not go voluntarily. These are odd cases and, as I said last evening, they do not cover many actual instances.

I am not prepared to accept the suggestion made by the honorable member for Mackellar, and I ask the committee to allow the paragraph to stand as it is so that it shall provide that the respondent must have been in prison for a period of not less than three years after conviction and that he must be still there at the date of the petition. It is not terribly significant whether the offence for which he was convicted was an offence for which punishment greater than imprisonment for three years could be given. This is a traditional form of ground that has been picked up from existing grounds in the States.

Mr. WENTWORTH(Mackellar) T9.49]. - I am not happy about the position in respect of Tasmania, Sir. The paragraph, as it stands, means that anybody who is in prison in Tasmania for three years or more is liable to be divorced just on that ground, and that, in Tasmania, the crime need not be more serious than one for which a sentence of three years' imprisonment could be awarded. If that is so, what is the point of putting in the words " for a period of five years or more "? I put it to the Attorney-General that this provision has probably been lifted from the law of a State in which the criminal code is different from that of Tasmania. I respectfully ask the Minister to have another look at the matter and see whether it may not be in all respects just to increase the three years to five years.

Paragraph agreed to.

Paragraph (i).

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