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Wednesday, 22 March 1961

Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - The honorable member for Wills (Mr. Bryant) has touched on a very difficult area in relation to this subject. Under clause 6, the bill is said not to exclude the operation of the law of a State or of a Territory making special provision for the welfare of aboriginal natives of Australia or other persons insofar as that law makes provision for or in relation to requiring the consent of an officer or authority of the State or Territory to the marriage of any person who has attained the age of 21 years.

Except for that provision there are surely no exclusive words which would exclude from the operation of this bill the aboriginal natives of Australia. If they marry before an authorized celebrant, of course, the registration provision will work. This bill is built around a fairly well-known pattern in that you have an authorized celebrant who is registered with the Government as being authorized to solemnize marriages. The marriages that he celebrates must be of a monogamous character. " Marriage " is not defined in this bill, as such, but it is quite plain from the legislation, particularly from the inclusion of a provision against bigamy, that marriage is a union of one man and one woman for life to the exclusion of others. The honorable member for Wills will recall that when we last discussed this subject on the second reading of the earlier bill it was suggested that I might provide that in a civil ceremony, where there is no minister of religion present, the registrar should shortly remind the people concerned of what marriage really involves. You will find that provision in this bill. I was indebted to the honorable member for Moreton (Mr. Killen) for the suggestion.

Mr Whitlam - Under the Constitution, we could pass bills on monogamous marriages only, could we not?

Sir GARFIELD BARWICK - That is right. We are probably compelled constitutionally to confine ourselves to monogamous marriages. I made some inquiries about natives from the Minister for Territories (Mr. Hasluck). Of course, those who are still living in a tribal state have their own marriage customs, which are not uniform, and they do not confine themselves to monogamy. From their point of view, the principal consequences of a marriage would probably be its effect on the devolution of property and the rights of succession in their tribal ways. That is a matter which the States and the Territories can regulate, not by making marriage laws, but by carrying into statutory provision a tribal arrangement so as to formalize tribal marriages for these people.

I considered for some time whether I would endeavour, in this bill, to make some special provision for aboriginal native customs as to marriage. I felt, in the long run, that I could not. The bill leaves the matter in this position: Natives who desire to have the full benefit of marriage under this legislation will need to go before an authorized celebrant - there will be plenty of those people - and then their marriage will be registered. But any provision for the registration of their tribal arrangements or for the devolution of their property on marriage or for otherwise entering into their tribal customs is left apart from the bill. Does that answer the honorable member?

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