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Thursday, 19 November 1959

Mr WENTWORTH (Mackellar) . - I move -

After clause 32a, insert the following clause: - " 32b. A decree of dissolution of marriage shall not be made up on the grounds specified in paragraph (m) of section twenty-seven of this Act where the suit is defended.".

I foreshadowed this proposed new clause last night and 1 do not intend to re-traverse all the grounds of my argument. There are some other points that I should like to make. I point out to the committee that clause 27 (m), in the form in which it was before us, broke new ground in two respects. First, to a certain limited extent and in certain circumstances, it recognized the principle of divorce by consent. I agree that that is something which must be expressed with the appropriate limitation. Secondly, it went further and recognized divorce by compulsion in certain circumstances as a possibility against the innocent party. I regard this new principle as repugnant, not only to this legislation but also to the general principles of law. Therefore, it should be opposed.

In doing so, I want to appeal to what is known as the Morton report on marriage and divorce in Great Britain. Many references have been made to it. In the first place, reference has been made to the extracts from the report that were circulated by the bishops of the Anglican Church. I have those extracts In my hand. It is perfectly true, as the Attorney-General has pointed out, that the quotations made were not statements which were endorsed by all members of the Morton commission. So far as 1 can understand it, the circular does not say that they were so endorsed. It would have been preferable if this had been pointed out earlier. However, I now point out to honorable members that against each quotation is given a reference to a page, a section and a sub-section so that any honorable member who had looked up the references, as he should have, would know precisely what was intended.

It may well be, in the words of the Attorney-General, that these quotations were cited, not for the authority which they had but for the way in which they expressed the views of the members of the commission. I agree with the Attorney-General that perhaps it would have been preferable if, in place of those references which we all should have looked up, the headings had been quoted in full. However, in general I think that the strictures that have been passed on this report by some honorable members are not entirely justified. But there is a rather more important point. I feel that the Attorney-General has seriously mis-quoted to honorable members the impact of that report, perhaps more by omission than by commission although, in certain respects, by commission also. It is less easy for him to be excused in such a case than it is for the bishops to be excused.

I want to bring specific points to the attention of the committee. I hope that the Attorney-General will answer them, not in the way that he might address a jury, by an appeal to uninformed prejudice - he had an unexampled facility for pleading - but in the way in which questions in this chamber should be answered, namely, by an appeal to reason, as my learned friend, if I may call him that, would appeal to reason when appearing, not before a jury but before the High Court where I know he is much more at home.

Let me come now to these misrepresentations of the Morton report. I direct the attention of honorable members to the remarks of the Attorney-General which appear on page 2772 of "Hansard" of 17th November. He said this when describing the views of Lord Walker -

The tenth member of the commission - he was a Scotsman - thought that the ground similar to that contained in our clause 27 (m) should be the the only ground, but the other nine thought that they should have the traditional grounds plus a prototype of clause 27 (m).

Let me now read what Lord Walker, in fact, said. His remarks, which are not the remarks that have been attributed to him by the Attorney-General, appear on page 341 of the Morton report. He said -

My view accordingly is that the doctrine of the matrimonial offence ought to be abandoned as the basis for divorce.

He suggested that we should have something else instead, not quite the same as clause 27 (m) but, I woud agree, something similar to that clause. However - and this is the point - he said that if there is not to be this wholesale new doctrine, then the new ground of separation should not be included. His exact words as they appear on page 341 are -

Should that view not be adopted the need for some principle - even though, as I think, it is not the best principle - requires that the doctrine of the matrimonial offence should be adhered to as closely as may be, and without the new grounds of divorce proposed by some of the members in paragraphs 70 and 71.

In point of fact, he said exactly the opposite to what the Attorney-General has put before us. Lord Walker said that if there was not a complete basic new doctrine setting aside the matrimonial offence in all respects as the basis for divorce, then we should not admit this ground of separation at all. So my honorable friend, if he is honest, must range Lord Walker on the side opposite to his own on all these matters, because Lord Walker's statement is different from the statement that the Attorney-General attributed to him.

Let me come now to a much more serious matter - the views of the other nine members of the commission. The committee will recall that there were nineteen reporting members on the commission. Of those,

I have mentioned Lord Walker. Nine said that separation should not be a ground for divorce. What of the other nine? Their views are set out on pages 24 and 25 of the report, and they are germane to the argument which I am bringing forward. Five of those nine said that unless the suit was undefended the ground of separation should not be used. Therefore, of the nineteen reporting members of the Morton commission, fifteen are " on side " with the amendment that I have proposed. What of the other four? They go part of the way with the nine and subscribe to the view that the nine expressed, but they go a little further and state that, even in a defended suit, a divorce on the ground of separation can be granted if the applicant has satisfied the court that the separation was, in part, due to the unreasonable conduct of the other spouse. If the amendment that I have now proposed fails, I intend to put forward a further amendment to clause 33 (1.) to the effect that even in a defended suit a decree should not be pronounced unless there has been evidence to satisfy the court of unreasonable conduct on the part of the other spouse.

Let me summarize the position for the committee: Ten members of the commission would have voted against clause 27 (m). Fifteen, on their printed word, would have voted for the amendment which I have moved, and the nineteen would have voted for the amendment which I project if this present amendment is rejected by the committee.

Mr Roberton - And they would all be wrong.

Mr WENTWORTH -" They would all be wrong", says my honorable friend, another Scotsman. I appeal to the reason of the committee. I point out that the AttorneyGeneral seriously misquoted the impact of the Morton commission report when he said, as appears on page 2772 of " Hansard "-

There were ten on one side and nine on the other.

He had the ten and the nine wrong. He even had the nine, of whom he was entitled to speak, wrong because they said the opposite to what he attributed to them.

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

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