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Wednesday, 18 November 1959

Mr WENTWORTH (Mackellar) (1:22 AM) . - This clause breaks new ground, not in one but in two directions. In the first place, whatever may be said to the contrary it does in certain circumstances - I emphasize " in certain circumstances " - make it possible to get divorce by consent without perjury and within the law. That is breaking new ground. The second way in which it breaks new ground is that it does produce a case in which a party who has had nothing proved in court against him or her may suffer by the verdict of the court. That is a new principle not merely in matrimonial law. It is a novel principle, I think, as far as the general law is concerned.

Even if we stomach the first breaking of new ground - and I think something is to be said for the point of view put forward by the Attorney-General (Sir Garfield Barwick) and the honorable member for Hume (Mr. Anderson) - we should not, I believe, consent to the second. It is largely because of that second aspect that certain other undesirable consequences flow. The Attorney-General has, I think very rightly and properly, explained the safeguards that are in clause 33. But that clause itself does break rather new ground in another direction, because it places in the hands of the court responsibility for making the law, in a way that very few other statutes - perhaps none - do. The court is asked to declare public policy, without any direction from this Parliament or from established custom as to where the public interest lies in this class of novel case. We abdicate our law-making function and place the responsibility on the court. This also is a bad principle. May I read to the committee some remarks made by Mr. Justice Crawford on this matter at the eleventh legal convention of the Law Council of Australia. Referring to clause 33, from which he cited, he said - i imagine that would be subject to great varia tion in interpretation by judges, although appeal to the High Court is only by leave. i think the High Court will be hard pressed frequently. i can think of cases which will be hard.

He went on to describe a particular case. I have cited the opinion of Mr. Justice Crawford, because I think it is incontestable that we are placing on the court a responsibility that is properly a law-making responsibility that we ourselves should carry. We do not give the court either guidance of statute or guidance of custom as to what is the public interest in a matter of this character. I know that it is quite right to say that a principle of the common law is to extend the law by making fringe judgments all the time. I know that that is part of the principle of law. Here we do so rather beyond - perhaps only a little way beyond - the established concept.I do not think a phrase like this occurs in any other statute. I asked the AttorneyGeneral's Department to find out whether it did. The department was unable to give me a completely parallel case.

It does seem to me that if we pass this clause we shall be doing something to at least remove the case where an innocent party - I agree that it is not always easy to determine innocence - who has had nothing proved against him or her, suffers by a verdict of the court. We should at least not stomach that principle, which is new not only to matrimonial law but to British law generally. If clause 27 (m) is passed in its present form, I shall be proposing a new clause 32b to provide that a decree shall not be pronounced under this clause in defended cases. That will meet all of the cases raised, for example, by the honorable member for Hume, because it would be possible to specify every one of the classes of case he adduced.I agree that it will not cover the whole of these cases that are in the Attorney-General's mind, because I do not think that class of case should be thus covered. I conclude by once again directing the attention of the committee to the vital difference between this provision and the provision in the Western Australian legislation that is cited as being parallel.

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