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Wednesday, 18 November 1959

Mr STEWART (Lang) (2:50 AM) .- I wish to place before the committee a summary of the recommendations that were made by the United Kingdom royal commission because, on a number of occasions during this debate, the Attorney-General has seen fit to criticise the bishops for the letter which they circulated to all members of Parliament. He said that there were nine members against the proposal that divorce by mutual separation - divorce by consent - should be included. There were nine in favour and there was one who, while he had certain convictions, was inclined a bit each way. The Attorney-General also criticises the recommendations of the bishops because the proposal that they were discussing was not in line with the proposal before the committee. If one were to compare the two word for word, one might be obliged to agree that the Attorney-General was correct, but if one looks at the question from the viewpoint of separation by mutual consent for a certain time, one sees that the bishops' remarks are indeed pertinent. The Attorney-General, by claiming that nine were in favour of his proposal and nine were against it, has misled the House. Let me quote the conclusions of the royal commission, as set out on page 310. They are -

(1)   (Eighteen members in favour, one against.) The present law of divorce based on the doctrine of the matrimonial offence should be retained (paragraph 65).

(2)   (Nine members in favour.) The principle that a marriage should be dissolved if it has irretrievably broken down (as exemplified by divorce by consent, divorce at the option of either spouse after a period of separation, or divorce on a comprehensive ground of breakdown of marriage) should not be introduced into the law (paragraphs 66 and 69).

(3)   (Nine members in favour.) There should be provision for divorce in cases where, quite apart from the commission of a matrimonial offence, the marriage has broken down completely; accordingly, where husband and wife have lived separate and apart for a period of at least seven years immediately preceding the application, it should be possible for either spouse to obtain a decree dissolving the marriage, provided that the other spouse does not object (paragraphs 67 and 70). Note. - Four of these nine members, although supporting this proposal, would prefer that either spouse should be able to obtain a dissolution of marriage on this ground, notwithstanding the other spouse's objection, if he or she could satisfy the court that the separation was in part due to the unreasonable conduct of the other spouse (paragraphs 68 and 71).

So I submit that, in fact, only four members of that commission were willing to support, to any degree, the proposal that is embodied in clause 27 (m). I quote further from the recommendations -

(4)   (One member in favour.) A marriage should be indissoluble unless, the spouses having lived apart for not less than three years, either spouse shows that the facts and circumstances affecting the lives of the parties adversely to one another are such that it is improbable that an ordinary husband and wife would ever resume cohabitation (pages 340-341).

Note. - Failing the adoption of this proposal, this member considers that the need for some principle requires that the doctrine of the matrimonial offence should be retained without the new grounds of divorce proposed in (3).

So it turns out that, in the final analysis, ten members of the commission said that the matrimonial offence should be the basis for divorce, and that there should not be any divorce by consent, whether after a period of separation or not. Nine members said that it should be possible for either spouse to obtain a decree dissolving the marriage, provided the other spouse did not object. Four members supported, to some extent, the provision embodied in 27 (m). For the Attorney-General to rise and, not once, but two or three times, criticize the bishops, and say that they failed to say that nine members supported the proposal is wrong. I propose to quote from the bishops' letter -

We write now to expand our statement on what is called " the Western Australian Clause " - 27 (m) - and especially to draw your attention to the views on this matter expressed in the report of the Royal Commission on Marriage and Divorce, 1951-55.

They did not say that it was a majority report; they did not say that it was a minority report. They merely drew attention to the views expressed in it.

To include this provision in the bill means that the Attorney-General is taking a provision similar to that which exists in Western Australia and is making it applicable throughout the whole of Australia. He claimed, in his second-reading speech, that the paramount aim of the bill was the preservation of marriage and the safeguarding of the family. There is an everpresent tendency in the community - both here and elsewhere - to play up the man who is continually breaking away from one partner and taking up with another. Time and time again one finds those people being given the utmost publicity. The honorable member for Fremantle (Mr. Beazley) gave an example of that this evening. The manner in which that particular individual is publicized would tend to indicate that he was public hero No. 1 whereas, in fact, he has been involved in a divorce. He certainly should not be held up as a good example - rather as one whose example should not be followed. When we introduce legislation which tampers with the sanctity of marriage and adversely affects the welfare of the family, we are instrumental in fostering that tendency.

Though, in many instances, the AttorneyGeneral has made a laudable attempt to produce a bill which will preserve the family, and marriage, he has not always taken as his guide what he has himself described as the paramount aim of the bill. Having spoken to this bill half a dozen times, I know that he has no intention of listening to any of the arguments that may be placed before him - whether they come from Church leaders or from honorable members, or are to be found in the recommendations of the United Kingdom royal commission. The recommendations that suit him are in the bill; the others are not. Surely if he accepts some of the recommendations he should be prepared to accept also those which run counter to his personal preference. If this provision is allowed to remain in the bill it will be used, not only by genuine people, but by other people also.

The CHAIRMAN - Order! The honorable member's time has expired. I would advise the committee that the AttorneyGeneral has moved an amendment to omit paragraph (m) and insert a new paragraph in its place. For the information of honorable members, I would explain that in this case two questions will be necessary. The first is, " That the paragraph proposed to be omitted stand part of the clause ". If this is negatived, a second question will be put, namely - " That the paragraph proposed to be inserted be so inserted ". I now put the question -

That the paragraph proposed to be omitted (Sir Garfield Barwick's amendment) stand part of the clause.

Question resolved in the negative.

The CHAIRMAN - I now put the question -

That the paragraph proposed to be inserted (Sir Garfield Barwick's amendment) be so inserted.

Those of that opinion say, "Aye", of the contrary, " No ". I think the " Ayes " have it. (Calls of " No " being audible)-

The CHAIRMAN - The committee will divide. (The bells having been rung, and the tellers having been appointed) -

The CHAIRMAN - Order! The honorable member for Reid has crossed the floor. He will return to where he came from.

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