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Wednesday, 18 November 1959

Mr WARD (East Sydney) (2:15 AM)

Earlier in the debate the Attorney-General took me to task for what he alleged was a misquotation by me of what he had said. I have had the opportunity of reading the relevant portion of the Minister's speech, and 1 agree with him that 1 had misunderstood what he said and that when 1 said neither measure seemed to me altogether satisfactory, I referred to the Western Australian legislation and the New Zealand legislation. But let me say that in my opinion this was only a lawyer's quibble on the part of the Attorney-General, and that it did not alter the situation one iota. I also quoted another portion of the Minister's speech, and it may be noteworthy that the Attorney-General did not make any reference to this, and did not say that this quotation was inaccurate.

Mr Turnbull - What are you referring to now?

Mr WARD - I am referring to page 25 of the typed copy of the Minister's second-reading speech. He said -

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

He was referring, of course, to this clause of this legislation.

Sir Garfield Barwick - No, not at all. I was referring to the clause in the absence of safeguards. Read on.

Mr WARD - Well, I will read on. The Minister said -

I am conscious, however, that this ground could be subject to abuse. It may be said that, knowing of its existence, one party to the marriage may, without conscience and with deliberation, set out on a course which flouts the marriage obligation and insults the feelings of the other partner. Cases might arise, too, where gross and outrageous conduct on the part of a petitioner may so offend our sense of decency that we could not in the public interest, or without grievous injustice to the innocent party, allow such a petitioner to profit by his or her conduct.

How much more does the AttorneyGeneral want me to quote before he admits that that reference was to this bill, this piece of legislation that is before us, and this clause?

Here is a rather interesting point, lt will be noted that the only occasions on which the Attorney-General and this Government believe that a petitioner should not profit by his or her conduct are when the innocent party has suffered grievous injustice. Why the qualification about injustice? Evidently the Attorney-General and the Government admit that under this clause injustice can be done to the innocent party as long as it does not constitute grievous injustice. There is no doubt in the world as to what is intended.

I was rather interested in some of the remarks made by certain honorable members during this debate. I am quite satisfied that those honorable members have nol appreciated what is intended in this clause.

Mr MALCOLM FRASER (WANNON, VICTORIA) - You quite obviously have not.

Mr WARD - You are too young to know anything about this subject-matter. The honorable member for Wills (Mr. Bryant) has said that there are two people only who can decide whether a marriage has failed and should be dissolved, but what this clause does is to give one party the opportunity to decide that the marriage will end. Strangely enough, the party who can decide whether the marriage is to end is the guilty party.

Let us examine the situation that could arise. I was mentioning it when my time expired on the previous occasion on which I spoke. Take the case of a couple who marry when they are very young. They remain happily married for three or four years and have two or three children. The male partner has been a good husband and father until that time, but then he becomes infatuated with another woman and leaves the home. He may be a working man, as was pointed out by the honorable member for Fremantle (Mr. Beazley), without the financial resources to maintain his new home and the home that he has deserted. His wife regarded him, when they were together, as a good husband and father, and still clings to the idea that the marriage is not completely lost. She hopes that the infatuation will wear off and that he will return to his home.

Some honorable members may ask, "What is the possibility of that happening after five years? " The point is this: Who is to determine that the woman, or the man, as the case may be, should not have the right to exercise her or his own judgment in the matter? Should the law say that there is no possibility of this marriage being redeemed? This matter directly affects the individual. If the wife is still of the opinion that the marriage can be repaired, no law should take away from her the right to try to repair it. Therefore, I am of the opinion that this is a completely obnoxious provision. If it is not defeated here, I hope that it will be defeated when it goes to another place, where better judgment may be exercised than evidently has been exercised in this chamber.

The honorable member for Corangamite (Mr. Mackinnon) raised a point which I thought was rather good. It was that, if a man or a woman is able to move out into the community and say, " I divorced my wife " or " I divorced my husband ", a stigma is placed on the other party because the impression gained by everybody is that the person who initiated the action and obtained the divorce was, in effect, the innocent party. The point raised by the honorable member for Corangamite should be considered. Even the Attorney-General admits that the provision could be abused and, therefore, the bill provides that the court shall be able to exercise its discretion. This is rather a contradiction of the earlier argument that, if a marriage is irretrievably lost and there is no hope of redeeming it, then a divorce ought to be granted in the public interest. The Government, however, has had second thoughts about this and now says that, if there are special circumstances and if the petitioner is proved to have been guilty of some particularly gross and outrageous act - that is the term that was used by the Attorney-General - the court can refuse the petition. That argument is completely different from the argument originally advanced, and it is rather interesting. We are concerned, for the sake of public morality and in the public interest, to see that where the parties to a marriage have lived apart for five years, a divorce should' be granted.

I notice that, although the AttorneyGeneral gave a number of reasons why marriages should be dissolved, he declared' that artificial insemination, where the husband has not been the donor and has objected to the act, is not to be a ground for divorce. All the Attorney-General says is that this matter has been examined elsewhere. I understand that a case was decided by a court in the United Kingdom, which held that an act of artificial insemination where the husband was not the donor constituted adultery. Under this legislation, adultery is a matrimonial offence for which a divorce may be granted. But artificial insemination against the wishes of the husband and where the husband is not the donor, is not a ground for divorce.

Here is a most amusing point. We have been told that, if two people are living under the one roof but are not living as a married couple, that ought to be considered as a ground for ending the marriage. But the Attorney-General stated that, if the husband undergoes an operation to change his sex, that is not to be a ground for divorce. Consider the case of a woman living with an individual who had previously been a man and had undergone an operation to change his sex. Under this legislation they cannot get relief because this is not a ground for divorce. How ridiculous!

This is far from being the perfect measure that it was represented to me by the Attorney-General and his supporters. Why are we now sitting here, in the early hours of the morning, with half the members asleep in the chamber and unable to appreciate the arguments that are advanced? 1 will tell the Attorney-General why this is done. He knows as well as other members of the Parliament know that this is regarded not only by honorable members but by large sections of the community and by responsible people as a most objectionable feature of the legislation. But what does the Attorney-General do?

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

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