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Thursday, 19 November 1959


Mr KILLEN (Moreton) .- I oppose this clause which involves a fundamental and vital principle. The provisions of the clause belong to a philosophy to which I certainly do not adhere and which, in my view, does not walk in company with the liberal tradition. I can think of no more illiberal - here I think of liberalism with a small " 1 " - expression in any part of this bill than is contained in this particular provision. Divorce is not simply a parental function. The court is not dealing with wards of the State, with children or with lunatics; it is administering justice. The provisions of this clause will, I believe, in a very real sense, turn a court of justice into an administrative tribunal. I know only too well the arguments that can be advanced in favour of restriction of publication of court proceedings. One argument is that divorce is a private matter. Another is that people do not want to hurt the children of a broken marriage by publishing evidence that is given in a divorce court. But that is not a principle that is involved. What is involved is that one particular form of justice will be singled out and a restriction will be placed upon publication of proceedings in that court.

May I refer the committee to bankruptcy proceedings which, in a sense, are comparable to divorce proceedings. The situation could well arise of one person saying to another, " There goes Jones. He is a bankrupt, you know". All of Jones' affairs have been brought out and displayed for all the world to see. Is there any vital distinction between those two circumstances? It is perfectly true that this provision does not make for in-camera proceedings, but I submit to the committee that there is a desperately thin line of distinction between what this clause proposes and in-camera proceedings.


Mr Chaney - Well, what do you want?


Mr KILLEN - I am capable of developing my own case, and if the honorable member disagrees with me, as he is entitled to do, he can develop his own case at the appropriate time. Let me deal with incamera proceedings. The following statement appears on page 584 of Joske's " Laws of Marriage and Divorce in Australia ": -

Usually justice can best be achieved by a public hearing, and the burden of establishing that a private hearing is necessary in a particular case lies on the person so contending.

That statement is pertinent to the matter that we are considering. Honorable members may ask, " What is the desperately thin line of distinction between what this clause proposes and in-camera proceedings? " In my view it is this: On one hand, there is a disturbance of the principle that justice shall be administered in open court, and on the other hand, the size of the court room must be taken into account. If there is a large court room, obviously quite a number of people can be accommodated, but if there is a small court room the attendance is restricted. You could reach the farcical situation of having divorce proceedings heard in very small court rooms and the number of people that can be accommodated considerably limited. A profound principle is involved. May I refer the committee to the points of view that have been expressed by some of the great figures in British justice. The Earl of Halsbury has said -

I am of opinion that every court of justice is open to every subject of the King.

Earl Loreburn had this to say -

The inveterate rule is that justice shall be administered in open court.

Lord Atkinson, who heard the well-known case of Scott v. Scott, stated -

The hearing of a case in public may be, and often is, no doubt, painful, humiliating or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.

Tn the same case, Lord Shaw quoted with approval the words of Bentham, who said -

In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in pro portion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.

What is involved in this, Mr. Chairman, is that you are placing a limited restriction on what is to be published. I submit to the committee that the language used in the clause is rather arresting language, because it uses the words " a concise statement of the nature and grounds of the proceedings ". Earlier to-day, the Attorney-General said that the courts would have great difficulty in interpreting what was unreasonableness. I put it to him that " conciseness ", like " unreasonableness ", is essentially an emotive word. It is very difficult to find out where is the reference. What is concise to one person is not necessarily concise to another. The Attorney-General may argue that the courts have been interpreting for many years the meaning of expressions such as " a concise statement ". That is perfectly true, but it is equally true to say there has been heavy division of the courts in the interpretation of words that involve emotive qualities.

I hope that the committee will realize what is involved here. This could well be but a beginning. This in an encroachment upon the domain of liberty, in my view. If we start with this provision, it could well stand as an undeserved and unwarranted precedent for the future. So I hope that the committee will not just lightly accept the clause as it stands, Sir. I believe that it involves a tremendously vital principle, and I invite the committee to examine it in that light.







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