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Friday, 19 November 1965


Mr WHITLAM (Werriwa) .-I have had occasion in the past to comment on the Government's reluctance or delay in sponsoring law reform within the Commonwealth's own legislative competence, and in spurring the States to co-ordinate law reform where they have a primary responsibility and the Commonwealth's primary responsibility is confined to the Territories. On this occasion I very cordially acknowledge that the Attorney-General (Mr. Snedden) is taking the initiative promptly and boldly in enabling this Parliament to discharge its responsibility to make laws for the peace, order and good government of the Commonwealth with respect to divorce and matrimonial causes.

The Bill is a technical one. Most of the provisions are procedural ones. There are, however, two bold innovations in relation to condonation and polygamy. The reasons that the Attorney-General has given are compelling. I do not recall anybody in the House having suggested that these reforms should be made. The fact that this action has been taken is all the more to be applauded because the Parliament and Governments and Ministers have been very reluctant to deal with this particular head of Commonwealth power.

We are all in debt - the whole community Is in debt - to Mr. Justice Joske, as he now is, who, when member for Balaclava, many times raised this matter and at last, in April 1957, was given leave to bring in a private member's bill. This has been, I believe, the only private member's bill which has borne fruit. The present Act, the most comprehensive and most contemporary that we could have hoped to have, flowed very largely from the fact that Mr. Justice Joske assiduously pressed his point of view here, and successfully defied the taboo which had hitherto attached to this subject in Australian Parliaments. The Attorney-General has now brought in further amendments. I hope that all members in the House will make it plain that regular, relevant reforms in this field are welcome.

The Bill is technical, as I say. There is only one clause of the Bill upon which I wish to speak - clause 3 which concerns potentially polygamous marriages. It is, in fact, in a very narrow compass. It will meet the situation on which Mr. Justice Gowans gave judgment on 14th November 1962. The reform will meet that situation. The situations which I am about to mention have not yet arisen but could arise. It is perfectly possible to contemplate them. Accordingly I mention them to indicate my view and that of my Party that private rights which depend on enunciation by this Parliament should be as promptly and boldly tackled when they arise as they have been on this occasion.

The situation which came before Mr. Justice Gowans concerned two persons domiciled in Australia who had contracted a potentially polygamous union in Pakistan at a time when both were domiciled there. Subsequently the husband committed a matrimonial offence when they were domiciled in Australia. As the monogamous laws of this country and of all common law countries stood, it was impossible for the innocent wife to secure relief. If this Bill had been in force she could have secured relief.


Mr Clyde Cameron - Will she be able to get relief now?


Mr WHITLAM - Yes.


Mr Clyde Cameron - Must she make a fresh application?


Mr Snedden - She will have to bring a fresh petition.


Mr WHITLAM - When this Bill is enacted she will be able to secure relief on the basis of the same evidence as she gave over three years ago. Australian women are likely to marry' overseas more, rather than less, frequently from now on. Quite often such marriages will take place in countries where polygamy is legal. There are many Australian women living and working under the Colombo Plan in countries where polygamy is lawful. There are some working with one of our allies under the South East Asia Treaty Organisation. It may be said that such a woman may secure her position by contracting her marriage before an Australian high commissioner, ambassador or consul. This, however, is asking the man she marries to contract his marriage under the laws of another country. It is asking him, in effect, to repudiate procedures and laws which are perfectly legal in his own country. This is an unreasonable proposition to make to him.

If such women were still domiciled in Australia, the Attorney-General states, by implication, that any such marriages they contracted overseas would be invalid. I concede that there is strong support for this view. The view has, however, sometimes been doubted in some books. It is not possible to be as dogmatic or as authoritative in expressing views in the field of private international law or in domestic questions in general because such matters do not often - in fact, very rarely - reach, say, the House of Lords, the Privy Council or the High Court. They are usually determined by judges of first instance. Nevertheless, the attitude which the Attorney-General, by implication, stated in his second reading speech is the commonly held view. It. would appear, therefore, unnecessary to have sub-clause (2.) of clause 3. The sub-clause reads -

This section does not apply to a union unless the law applicable to local marriages that was in force in the country, or each of the countries, of domicile of the parties at the time the union took place permitted polygamy on the part of the male party.

If the view which the Attorney-General has expressed, which is the stronger view expressed by the text books, is correct, sub-clause (2.) would appear to be superfluous. I merely state the position; I do not intend to move to delete the sub-clause.

Another situation that can arise is this: The amendment put by the AttorneyGeneral covers the situation which arose in the case decided by Mr. Justice Gowans, where at the time the marriage took place the husband had no subsisting marriage. The situation can arise, however, in all innocence, where a woman contracts a marriage which she knows to be potentially polygamous but where she believes that she is the first and only wife at the time the marriage is contracted. It would seem harsh if a wife who innocently and unknowingly contracted a marriage with a man who already had a wife were denied relief. If such a thing happened in Australia, a monogamous country, she could secure relief. If, however, such a union were contracted in a country where polygamy is legal, she could get no relief when she set up domicile or sufficient residence - three years - in Australia.


Mr Clyde Cameron - Would it not be a bigamous marriage according to our law if she married somebody who had already been married, even though in a polygamous country?


Mr WHITLAM - The marriage would be legal in the country where she contracted it unless she were domiciled in a monogamous country.


Mr Clyde Cameron - Once she returns to this country would not her marriage be considered bigamous?







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