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Friday, 19 November 1965

Mr SPEAKER - Order! The Deputy Leader of the Opposition has been very helpful. I suggest that the honorable member for Hindmarsh allow him to make his speech uninterrupted. I am afraid that I, too, know nothing about polygamy.

Mr WHITLAM - There are difficulties in devising methods of relief in a monogamous country for marriages which are contracted in countries where polygamy is lawful. A second ceremony during the subsistence of a previous marriage would be bigamy in this country and give cause for relief. If, however, a second marriage were contracted, although the wife did not know it was a second marriage, in a country where polygamy was legal, no relief would be possible even if the parties by that time were living in a monogamous country. These are problems which can arise. The probability of marriages between men and Australian women is increasing in countries where polygamy is lawful. The probability that Australian women who marry in such countries will come to live in Australia with their husbands is increasing. It is true that no cases are known where a man has brought one of his wives to Australia and has left the others behind; the immigration authorities are not likely knowingly to permit such cases. Such situations, however, could arise. They would be dealt with, I hope, if they did arise. I do not propose to move any motion to deal with them now, because they are speculative. Nevertheless, I want to encourage honorable members and members of the community generally to contemplate the situations that could arise with greater mobility of populations and the greater international responsibilities which Australia is undertaking.

I wish now to raise three general matters in relation to the subject matter of the principal Act. First of all, I would think that reforms under the Act are of the kind which could appropriately be dealt with by a standing committee on law reform comprising members of both Houses. Any government would feel diffident about setting up standing committees to determine matters of policy, particularly in ideological or controversial fields. Clearly, governments have to take decisions on matters of law reform in the fiscal field. I would think, however, that there would be a real prospect of fruitful discussion and better laws if private members from both sides of both Houses of the Parliament discussed matters such as this, which are of social importance. It is significant that standing committees which have been set up to deal with matters such as the voting and land rights of Aborigines, for example, have produced prompt, well-informed and unanimous reports. I believe this could happen also in the fields of domestic law, succession law, industrial property law and court procedures.

The second suggestion I make is that polygamy, a matter which has arisen under this Bill, might well be the subject of an international convention. Only thus can any country make effective laws concerning its citizens who are resident or touring outside its own jurisdiction. In recent years, three conventions dealing with cognate matters have been drawn up in the General Assembly of the United Nations and have now come into force. On 20th June 1956 the General Assembly agreed to a Convention on the Recovery Abroad of Maintenance. Mr. Justice Joske, when the honorable member for Balaclava, on 29th May 1956 asked why Australia was not represented at the drafting conference. For a while, the Government adopted the attitude that bilateral agreements were more appropriate than action on a multilateral basis in this field. Four years ago, however, after the Matrimonial Causes Act become law the Government decided to examine the Convention further and it is still giving it consideration. On 20th February 1957 the General Assembly agreed to a Convention on the Nationality of Married Women. Australia is now a party to that Convention. On 10th December 1962 the General Assembly agreed to a Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages. Australia is not a party to that Convention.

It will be seen that all these matters concern domestic relations and rights that arise in different countries. These Conventions give and will give residents of other countries rights in this country which they would not otherwise have. They give or would give residents of this country rights in other countries which they would not otherwise have. The questions of status, property and custody which arise between monogamous societies and polygamous or potentially polygamous societies might also be appropriate subjects for an international convention.

Sitting suspended from 12.45 to 2.15 p.m.

Mr WHITLAM - Before the suspension of the sitting I had made the first and second of three general suggestions on the law of domestic relations. The first was that such matters would appropriately be brought for consideration before a standing committee of both Houses of the Parliament. The second was that they could also be made the subject of an international convention such as already exists in respect of maintenance, marriageability and nationality. The third general matter I wish to mention concerns the judges. I am, of course, not wishing to deal with judges in the more contentious fashion which characterised the debate this morning. My only contribution along those lines would be twofold. The first part would be this: When the Parliament decides the salaries of Federal judges it should do so at the same time as it decides the salaries of parliamentarians and First Division public servants.

Mr SPEAKER - Order!

Mr WHITLAM - This is in passing, Sir.

Mr SPEAKER - It had better be.

Mr Snedden - It is not just in passing, it is passant - it has passed.

Mr WHITLAM - Perhaps passe. I merely suggest that the Parliament should decide the salaries of the Federal judges at the same time as it decides the salaries of parliamentarians and First Division public servants, because the decisions are made during the same period, the increases are made from the same dates, and the same considerations are said to apply. Also somewhat en passant I would say that the arguments for relativity between Federal and State judges would best be resolved if, as I suggested five years ago, the heads of government, Commonwealth and State, took some measures to decide such issues in concert.

Mr SPEAKER - Order! I suggest the honorable member return to the subject matter before the House.

Mr WHITLAM - If we do not approve of the performances of the States we should not use them as a basis for our own. This unseemly leap-frogging between New South Wales, Victoria and the Commonwealth does neither the two States nor the Commonwealth any credit.

Mr SPEAKER - Order! The honorable member is reviving a debate that has been concluded. I ask him to return to the subject matter before the Chair and I suggest that other honorable members remain silent.

Mr WHITLAM - Honorable members opposite are setting a very bad example to their supporters in the gallery, Sir. I was about to urge a third approach to the problem - that the jurisdiction under this Act should now be given to the Federal superior court about which there has been quite some debate over the last few years. I appreciate that the former Attorney-General rejected the concept of such a court and distinguished his own attitude towards it from that of Mr. Justice Joske who had, in his Bill, urged the establishment of a Federal court. One of the reasons that the former AttorneyGeneral gave for not supporting it was that the High Court would have to hear appeals from the Federal judges by whom cases under this Act were heard in first instance. This objection, I should think, would be readily met if an appellate division of the Federal superior court were established, and I understand that this is what is now generally contemplated.

I believe the experience over the last five years has shown that it is desirable that there should now be a Federal court to determine cases under this Federal Act. The former Attorney-General had hoped that there would be regular consultations between judges of the State Supreme Courts who exercised jurisdiction under this Act. In fact there have never been such consultations between all the divorce judges of the Supreme Courts. On one occasion only, judges from New South Wales, South Australia, Queensland and Tasmania conferred. The conference was incidental to a law conference that they were attending. Furthermore, there have been cases in which the full courts of the Supreme Courts, on appeals from the judges of first instance, have interpreted the Act in different ways. I also believe - 'although I have not checked this - that in South Australia officials - not judicial officers, not judges - still determine interlocutory matters under this Act. Finally the Commonwealth has found great difficulty in drafting regulations under the Act which could apply to the six diverse State jurisdictions.

I know that the former Attorney-General, in his article in the " Federal Law Review ", the journal of the Faculty of Law in the School of General Studies at the Australian National University, published in June last year, repeated the greater part of the views he had expressed on this matter in introducing the Matrimonial Causes Bill 1959. I should think, however, that the case for having Federal judges determining matters which arise under this Act has become increasingly compelling.

Sir, Iconclude as I commenced, by complimenting the Attorney-General for having initiated bold and relevant steps to deal with human problems in the proper tradition set by Mr. Justice Joske and the present Chief Justice of Australia.

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