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Thursday, 21 November 1974
Page: 2643


Senator BUTTON (Victoria) -I rise to oppose this amendment. In doing so I should perhaps point out to Senator Sir Kenneth Anderson that I think Senator Everett referred to the long title of the Bill in the context of saying that that really reflected the use of the constitutional power. The definition proposed by Senator Sir Kenneth Anderson is the first attempt to insert in any legislation in Australia a definition of marriage. If one examines the State Marriage Acts I think one will find that there is no definition of marriage in any of those Acts- or there was not any definition of marriage in any of those Acts. There was no definition of marriage in the Commonwealth Marriage Act of 1 96 1 , either.

The definition which Senator Sir Kenneth Anderson would like to insert in the Bill is essentially an ecclesiastical definition of marriage. While one would not necessarily oppose it for that reason, it does not really seem to reflect the realities of our society in any way. For example, if one reads the definition clearly, it would seem implicit that for the first time in Australian legislation adultery would be contrary to law. That has never been the position.


Senator Sir Kenneth Anderson - I am sorry, I was diverted and I was not with the honourable senator on that point.


Senator BUTTON -The point I make is that if one reads the definition-


Senator Carrick - How can you have adultery to the exclusion of all others?


Senator BUTTON -Senator Carrick, if I could finish my point you might be able to follow it. The point I was trying to make is that by inserting what is essentially an ecclesiastical definition- of course, under ecclesiastical law adultery is an offence- you are effectively making adultery contrary to law in the definition of marriage in this Bill. The other point I make is that to have this definition of marriage in the legislation is not consistent with other provisions of the Bill. It is not even correct. For example, if one looks at clause 6 which deals with polygamous marriages it will be seen that it states:

For the purpose of proceedings under this Act, a union in the nature of marriage . . . polygamous . . . shall be deemed to be a marriage.


Senator Davidson - But that is outside Australia, is it not?


Senator BUTTON - No. For the purpose of obtaining a dissolution of marriage under this Bill a polygamous marriage would be a marriage within the meaning of the Bill. That is contrary to the definition which Senator Sir Kenneth Anderson proposes. Of course, the fact of the matter is that under this legislation as under the matrimonial causes legislation currently in existence, dissolutions are made of marriages which do not fall within Senator Sir Kenneth Anderson's definition. I follow the point which the honourable senator is trying to make by this amendment, but I say that it is really inappropriate having regard to the terminology and purpose of this Bill and of the existing matrimonial causes legislation. For that reason the definition should not be included. I oppose the amendment for those reasons.







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