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Wednesday, 18 November 1959


Mr KILLEN (Moreton) (1:39 AM) .The Attorney-General has, with great vigour and very lucidly, defended clause 27 (m). In the course of his defence he has enumerated a number of conclusions which he has formulated precisely and clearly. Before I refer to those conclusions, may I refer to his stricture upon the Anglican bishops? If the bishops, in error, circulated a submission which was likely to promote a false view of what the honorable gentleman said, then, of course, the position would be completely understood, and I feel sure that no ill feeling would be felt by the bishops.

I should like now to make a few fleeting remarks on the Morton report because I think they are of some relevance. The honorable gentleman said that what was stated in the Morton report was the minority view. That may be perfectly true - no doubt it is - but, at the same time, the honorable gentleman said that the best you can make out of it, or, looking at it from the other point of view, the worst you can make out of it, would be that ten were for the British proposal, and nine were against it. I am speaking now of the British proposal as distinct from the Australian proposal. But in time, one person changed his view. Am I to understand from that remark that the impropriety was changed with the change in the view of one person? I think it is of singular significance that the United Kingdom Government did not legislate on that particular ground.


Sir Garfield Barwick - But they did not accept the other proposition.


Mr KILLEN - Admittedly, but I mention this because some people may have been persuaded to the view that the majority report of the Morton committee on this ground attracted to it some measure of propriety to which, in my view, it is not entitled.

Having said that, I point out that the honorable gentleman has maintained throughout that this should be a debate in which there is a great measure of secularism. In other words, to take his own view, the secular authority - the State - has regarded marriage as dissoluble. I should be indebted to the honorable gentleman if he would refer me to an identifiable authority in support of his assertion that the secular authority has regarded marriage as being dissoluble.


Sir Garfield Barwick - It has been dissoluble for 100 years.


Mr KILLEN - That is so, but let me quote this important passage from Joske's " Laws of Marriage and Divorce " -

In order to constitute marriage as it is understood in English matrimonial case law, it must be shown that the relationship contemplated is the voluntary union of a man and woman for life to the exclusion of all others.

That, of course, was the conclusion reached two years after the introduction of the State authority in divorce in the United Kingdom.

But if the honorable gentleman wants to maintain that there must be a clear-cut and isolated secular approach to this problem, I think that the committee would do well to notice that the Attorney-General himself recognizes the historical role of the Church in this legislation. I refer the committee to clause 112, which says in clear and precise terms that no minister of religion shall or can be compelled to solemnize a marriage where there has been a broken marriage preceding. I simply cite that as an illustration that you cannot divorce this thing completely from spiritual and ecclesiastical considerations.

Some reference has been made to the fact that this ground, or a ground approximating it, has operated successfully in Western Australia. Let that be conceded. But I venture to suggest that an impropriety does not acquire virtue by dint of practice. There is, of course, a distinct difference between this ground and the Western Australian ground. In the Western Australian ground, there is a complete bar, whereas, in the provision which the committee is considering, there is a discretionary bar. In the course of his defence of clause 27 (m), the Attorney-General said that we have to provide, by way of amendment, a power for the court to determine financial settlement upon a respondent. That is perfectly true. If you take away that financial settlement, we have two other ingredients left. We have the ingredient that is identified in terms of status, and we have the other ingredient which comes under the description of social, and possibly religious conviction. I know that those two remaining ingredients will be identified - and they have been - and described as sheer sentiment.

I do not want to misquote the AttorneyGeneral, but I am sure that the effect of what he said in formulating his conclusions was that the court, in the exercise of its discretion in this matter, if it is sure that an illicit union has proved to be a sound union, will, in effect, overbear sentiment. As I see it, it is tantamount to a choice. On the one hand, you have sentiment compounded out of social and religious convictions and, on the other hand, you have the recognition and virtual approval of an illicit union.

Running on social and religious convictions, you will undoubtedly have, as the Attorney-General himself has admitted to-night, complete innocence in some instances. As has been pointed out this evening, this introduces to the legislature an entirely new approach in its manner of legislating. At this moment, we are considering whether we will place on the statute-book a measure whereby, in a given set of circumstances, a completely innocent person may suffer. I challenge the honorable gentleman to deny that there would exist a set of circumstances in which there would be one individual at least who would be completely innocent. We are being asked to disadvantage that innocent person in favour of the guilty person. That is, in effect, the proposal submitted to us.

Reference has been made to the safeguards provided in the bill. Take the case in which a respondent says to the judge, " Your Honor, I hold very solemn religious convictions ". If the judge says, " But, madam, we are quite prepared to arrange an appropriate financial settlement ", and the respondent replies, " I am not interested in that; I am interested in maintaining the vows that I took.", it is possible that the judge will say, " That, madam, is sheer sentiment ". There is a distinct possibility of that developing, and the innocent person would be disadvantaged. I ask the Attorney-General to point to any other statute passed by this Parliament which contains anything of that nature.


The CHAIRMAN - Order! The honorable gentleman's time has expired.







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