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Wednesday, 17 August 1960
Page: 114

Mr WHITLAM (Werriwa) .- Mr. Speaker,when the Attorney-General (Sir Garfield Barwick) made his second-reading speech on this bill, he announced that while the Government would take full responsibility for having made the proposals contained in the measure and would support them, as a government, the legislation would not be treated as a party measure, and honorable members would be free to adopt their own attitudes to it and express them freely by their votes. The Opposition has resolved to take the same course. The Opposition anticipates that this bill will be debated in more detail in the committee stage and that in the second-reading debate there will be comparatively little said.

There are two principal features of the bill upon which I wish to speak briefly. The first is the age of marriage and the second is the provision for legitimation. The bill produces a change in most of Australia concerning the age at which males and females can marry. Up till now, in the three eastern mainland States boys have been able to marry at fourteen years of age and girls at twelve years of age, as long as their parents or a magistrate permitted them to marry. That was also the position in the other three States until comparatively recent times. If this bill had been in operation during1959, in the three eastern States the marriages of 283 girls and of 220 boys would not have taken place, or would have been void if they had taken place.

Mr Bandidt - Except in special cases.

Mr WHITLAM - Except in exceptional and unusual circumstances - stricter circumstances under this bill than apply in any State at the moment. In the cases I have mentioned, the parents or a magistrate must have approved the marriage. Under this bill it will not be possible for parents to permit a marriage to take place and a magistrate will be able to permit it only if he is satisfied that the circumstances of the case are so exceptional and unusual as to justify it.

Mr Haylen - Pregnancy will not be a special circumstance.

Mr WHITLAM - It is- not necessarily one, although the Attorney-General has promised, in the committee stages, to give instances of what he thinks may be exceptional or unusual circumstances justifying parties being permitted to marry under the age of eighteen years in the case of a boy or sixteen years in the case of a girl. But these new provisions will be more severe than those at which at present apply in the three least populous States. In Tasmania since 1942 the Registrar-General or a police magistrate has been able to permit the marriage of parties under those ages if satisfied that for some special reason it should be celebrated. That might not be so different from the provisions of this bill.

In Western Australia since 1956 a magistrate has had power to permit a marriage below those ages if the intended wife is pregnant, if the proper consents to the marriage have been given and if he believes that an order should be made in the interests of the parties to the intended marriage and of the unborn child. In South Australia since 1957 the Minister has had power to permit a marriage below those ages, as long as the boy is over fourteen years of age and the girl over twelve years of age, and if he is satisfied that it is desirable that they should marry. You will notice, Sir, that in all those States permission to contract a marriage under the prescribed ages will in future be more difficult to secure.

The Attorney-General stated that there was a general trend towards the raising of the permissible age at which persons may marry. He made that statement last May. In March and April last, however, a meeting in Buenos Aires of the Commission on the Status of Women adopted a convention and a recommendation on this very matter. Six votes were cast in favour of fifteen years being the permissible age for boys and girls to marry, five in favour of sixteen years and three in favour of fourteen years. In the end the commission adopted the age of fifteen years. The convention and the recommendation will be submitted to the Economic and Social Council of the United Nations and, if it approves of them, to the General Assembly.

It is therefore exaggerating to say that there is any general support for an age of eighteen years for boys and sixteen years for girls. The general feeling in the world seems to be for a permissible age at somewhat lower figures. This is, of course, a matter upon which members can1 speak and vote according to their consciences. I do not think that the Attorney-General will be able to bear out the figures which he has chosen. If I may be pardoned for saying so, it appears that he takes, in social matters, a paternal attitude, as was illustrated in many features of the Matrimonial Causes Bill, in striking contrast to the laisser faire attitude he takes in economic matters.

The other feature that I want to mention concerns legitimation. The bill will undoubtedly effect a very great improvement in the position which at present obtains in Australia. There is no certainty that a legitimation acknowledged in one State will be acknowledged in every other State and Territory of Australia and, in fact, there are some States where legitimation is not granted unless the parents were free to marry at the time when the child was born. There is a thoroughly rational and humane amendment of the law here. As long as the parents of a child later marry, even if they were not able to marry at the time the child was born or conceived, that child is to be treated as legitimate throughout the Commonwealth. This is not an academic position. A situation can arise where a child is regarded as legitimate in one State and not in another and parents leave property in different States and no will. In those circumstances the property can go to different persons on the death of the parents. This is a thoroughly reasonable and overdue reform.

It is somewhat problematical whether the Commonwealth's legislative powers extend to matters of legitimation. I congratulate the Attorney-General on having taken the bold course of assuming that this Parliament can legislate on legitimation. One always approaches these matters from two points. First of all, is the legislation likely to be challenged and, secondly, is it likely to be challenged promptly? Let us hope that the Commonwealth's power as exercised in this legislation will not be challenged, or, if it is challenged, that it will not be for many years to come, by which time we shall have established a precedent which the courts will not feel disposed to upset.

The Commonwealth's power In the matter before us and in respect of divorce is set out in two placita of section 51 of the Constitution, placitum (xxi.) dealing with marriage, and placitum (xxii.), which is phrased in the following terms: -

Divorce and matrimonial causes, and in relation thereto parental rights and the custody and guardianship of infants.

With placitum (xxii.) we have the same trouble that we have with regard to every other exception and qualification stated in section 51 of the Constitution concerning the Commonwealth's powers, for example, bounties, fisheries, State banking, medical services and aborigines. I should certainly hope that those words " in relation thereto " could be omitted. It appears that this Parliament can legislate with regard to parental rights and the custody and guardianship of infants only if there is a divorce pending or if there is a matrimonial quarrel. If the parties are not proposing to take civil steps to dissolve their marriage there is nothing that this Parliament can do about those matters. There is, it follows, nothing that this Parliament can do about parental rights and the custody and guardianship of children who are born out of wedlock unless and until the parents marry. There have been several cases in recent years in which illegitimate children have been taken from one State to another in order to remove them from the jurisdiction of the Child Welfare Department of a State or from the custody of their mothers. The Constitutional Review Committee took evidence on this matter. The Institute of Public Affairs proposed that placitum (xxii.) should be re-phrased in the following terms: -

Domestic relations including divorce and matrimonial causes, parental rights and the maintenance, custody and guardianship of infants.

The learned counsel who appeared for the institute before the committee mentioned cases in which there had been litigation between husbands and wives, resident in different States, concerning custody of children. He told of particular instances in which proceedings by way of habeas corpus had been taken on three different occasions before three separate justices of the High Court. Mr. Justice Fullagar gave a decision one way; Mr. Justice Taylor gave a decision another way, and Mr. Justice Webbs after consultation with the Chief Justice, gave a decision a third way, It is obviously unsatisfactory that the issue of custody of children should be so uncertain that High Court justices, who can hear, in original jurisdiction, habeas corpus applications involving residents of different States, can arrive at various conclusions. There should be no uncertainty as to the law which is to apply, but it would seem that this Parliament cannot pass laws covering these matters unless they are incidental to divorce and matrimonial causes. I compliment the Attorney-General in regard to the provisions concerning legitimation, which may have some connexion with marriage, even if it is subsequent marriage, and on having taken this bold course of assuming that we have power in that connexion under placitum (xxi.).

There is an incidental matter to which I should direct attention, concerning the enforcement of maintenance orders. A question was asked on 29th May, 1956, by the former honorable and learned member for Balaclava, concerning the Commonwealth's acceding to the 1956 Convention on the Recognition and Enforcement Abroad of Maintenance Obligations. The Minister for External Affairs at that time said that Australia would not be acceding to that convention for two reasons. The first was that maintenance laws were a matter of State jurisdiction, and the second was that until that time there had always been bilateral instead of multilateral treaties dealing with the subject, between the Australian States and between particular States and other countries or provinces of other federations such as Canada. More recently, on 24th November, 1959, the Minister told me that bilateral agreements were considered more appropriate than multilateral ones. I ask the Attorney-General, now that we have passed a Matrimonial Causes Act, and now that we have a Marriage Bill which will apply to the whole of the Commonwealth, whether the time has not come for us to accede to this 1956 convention on the recognition and enforcement abroad of maintenance obligations. The Commonwealth Parliament will no longer have the excuse that these are matters of State jurisdiction when we have occupied the field completely. It would also appear that we could accede to the convention under the External Affairs power. I suggest that such action will help to round out, simplify and cheapen proceedings in respect of maintenance applications.

There is another incidental matter. The Marriage Bill defines a great number of things, but not marriage itself. It may be that marriage, so far as the bill is concerned, does not even have to be monogamous. It certainly would not have to be Christian, in the terms of this bill. I would like the Attorney-General to state specifically whether aboriginal marriages are covered by the bill. The bill covers the whole of the Commonwealth, the mainland and Tasmania, and Norfolk Island, and many honorable members have shown, by their questions on the notice-paper in this and previous sessional periods, that they are interested in this subject. We should know for certain whether aboriginal marriages are valid as far as the various features of this legislation are concerned. I refer to formalities, to consent, to permissible ages and to legitimation. 1 conclude, Sir, by saying that whatever views may be taken on individual provisions of this legislation, it is gratifying that this Parliament is now legislating on a subject which concerns all Australians. There are very few differences between Australians resulting from the fact that they live on different sides of State borders. I have been unable to discern any economic differences between Australians based solely on residence in different States, however much the Englishmen who laid down our State boundaries 100 years ago might have thought such differences existed. Nobody has asserted that there are differences between Australians on social matters resulting from their situations on different sides of State borders. This is a field in which the founding fathers themselves, with their very narrow and timid conceptions of the Commonwealth's powers, were agreed that this Parliament should be able to pass laws. In that respect our Commonwealth is different from the other English-speaking federations, the United States of America and Canada. We have power to pass laws on these subjects. I believe that everyone, whatever he may ' think of individual features of the bill, would agree that we should pass laws on this subject. As a result of this bill, Australian men and women and their children, wherever they live, will be able more readily and certainly to ascertain and establish their rights to marriage and arising from it.

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