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Tuesday, 19 March 1985
Page: 411

Senator GARETH EVANS (Minister for Resources and Energy)(5.09) — There once was a time when in a masochistic sort of way I would have enjoyed an ambling, discursive debate of the kind we have just had, wandering about various exotic legal highways and byways. Honourable senators will appreciate that these days I am very anxious to get back to my pipes and holes. I hope under those circumstances that we can now draw this debate to some sort of close. But let me endeavour to deal quickly with the points raised.

I come to the particular matters raised in the first instance by Senator Walters and by Senator Puplick. Senator Walters was concerned about the situation of persons with polygamous marriages coming to Australia. Senator Puplick, for whose industry as always I am indebted, drew her attention to page 361 of the Hansard and my attempt to meet that kind of point by referring to what precisely the Bill does on its face by way of not recognising polygamous marriages in terms of the statute but, nonetheless, allowing some room for the residual operation of the common law. As Senator Puplick says, it is a quite difficult business to identify precisely what the common law stands for in this situation. I note that in the case of Haque v. Haque, to which both he and I referred, there is a reference, among other things, to page 982 of Morris's work 'The Recognition of Polygamous Marriages in English Law'; so I think it will be appreciated that it is no matter that could be dashed off at mere journal article length to come to grips with exactly what the common law has to say on this subject. I think even Senator Walters will forgive me if I am a little more brisk than I might otherwise be in grappling with the substance of her question.

I was asked about the matter of recognising in some circumstances polygamous marriages and what we have to say about divorces in these cases. By virtue of the Family Law Act there can be no question of a divorce being conducted in Australia in accordance with the three clap principle, or whatever other exotic mechanism is available for disposing of unwanted relationships in other countries. However, there are circumstances in which, by virtue of section 104 of the Family Law Act, a divorce, achieved in accordance with the law of a particular country by parties having a connection with that country and involving procedures which are not contrary to natural justice, will be recognised. It is a matter for some interpretation as to what kind of natural justice might be involved in some of the procedures to which Senator Puplick adverted, but that is the technical answer to his question.

As to Senator Puplick's further question about whether other Ministers to whom I referred were actually grappling with large questions of principle so far as dealing with multiple spouses to a particular marriage in those circumstances where they arise in Australia, I think the short answer is that this is something that is being dealt with in the context of individual cases as they arise. Senator Grimes advises me that the practice in the social security context is to grant the appropriate spouse allowance for spouse number one, then to contemplate the application of supplementary benefit to others down the line. It is obviously a matter for nice judgment in the circumstances of a particular case as to how the ground rules are applied. It needs to be acknowledged that there are not too many harems in existence in South Yarra or anywhere else in the country at the moment, so it is likely to be a fairly fringe problem rather than one deserving--

Senator Grimes —It is common in Aboriginal communities.

Senator GARETH EVANS —Senator Grimes interjects that it is common enough in some Aboriginal communities, and that fact, I think, ought to be acknowledged too. As to the main subject matter of the Committee stage debate, Senator Durack's free market amendment, the background is simply that during 1983 it became apparent that some civil celebrants were charging parties substantially more than the fees prescribed. Early in 1984 the regulations were amended to require a statement of the prescribed fees under the Act to be provided to parties before the ceremony. This, together with the foreshadowed amendments, particularly the one in the original Bill in terms of a penalty being applied, seems to have had the desired practical effect, and overcharging is not a serious matter in practice at the moment. Nonetheless, the Government believes strongly that for all the community service rationales, which I spelt out earlier and will not repeat, there ought to be a ceiling placed upon this. It is not entirely a matter, as Senator Puplick would have it, of not trusting civil marriage celebrants not to get their heads together. I could make the obvious point that perhaps the respective governments might have different standards in the kind of people they appoint in the first instance, but Senator Withers demolished that argument by identifying himself as being a recipient of former Senator Murphy's beneficence in this respect. I make the point, rather-this ought to be familiar to a Liberal Party audience opposite-that lots of people who might otherwise have a claim to some integrity and worth are not all that averse to making a fast buck in the absence of some legislative direction to the contrary. Against the background that this is an area in which we, as a government-supported, I am glad to note, by Senator Haines and Senator Harradine-believe it is not appropriate for people to be making a fast buck in the commercial sense, we believe that it is inappropriate to go down the track mapped out by the new dry Senator Durack.

As to Senator Harradine's concerns about pre-marital education and whether there is anything in this particular provision which would actively discourage the provision of such services by a marriage celebrant, the short answer is no, there is not. To the extent that some other service is being performed, other than the conduct of the marriage ceremony a such, within the terms set out in the legislation, no prohibition is intended on the capacity to charge appropriate reasonable rates for that other service. If someone were misusing the system and inventing ancillary services which had no real substance but which were designed in practice simply to inflate the fee, this would be very much taken into account by the Government in considering whether or not it would be appropriate to revoke that person's licence-not for breach of this provision, but on the ground of that person being an inappropriate holder of the marriage celebrant's status.

That brings me to the final point about sanctions, which attracted some attention in the debate. Senator Durack made some interesting points which, had we more time and inclination, we could debate, about whether a common law offence might conceivably be created--

Senator Durack —You have really been corrupted, haven't you, by these changes.

Senator GARETH EVANS —I was inclined to refer the honourable senator to volume 44 of Halsbury, page 598, where the relevant principles and authorities are set out, but I will not pursue the matter any further at this stage, except to say that it really depends on the proper construction of the legislation. What we have here is something which I do not believe would be construed as creating a common law offence. It does not identify the behaviour in question as unlawful. A different form of words, 'not entitled to' is deliberately chosen. Equally, other parts of the legislation clearly and expressly create provisions for which penalties for their breach are payable, and the expressio unius principle which, no doubt, is still familiar to Senator Durack, would rather suggest that this is not a situation in which an offence is created. What, then, is the point of making a statutory prohibition, apart from simply clarifying the obligation, which I think is justification enough? The point is that it clearly establishes then a foundation on which a licence or permit to act as a marriage celebrant could properly be revoked in the event of a breach of that standard. That is the sanction which on balance we think is appropriate. As Senator Durack and others have pointed out, we originally contemplated actually creating an offence, with an associated pecuniary penalty. In all the circumstances, that seems to be somewhat of an overkill response. We believe that the balance which is struck in this form of words in this context is correct. Once again, I commend the Bill to the Senate in its unsullied form and hope that Senator Durack's amendment will be dealt with accordingly.