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Wednesday, 18 November 1959

Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - I move -

After clause 19, insert the following new clause: - " 19a. - (1.) Where two persons who are within the prohibited degrees of affinity wish to marry one another, they may apply, in writing, to a Judge for permission to do so. " (2.) If the Judge is satisfied that the circumstances of the particular case are so exceptional as to justify the granting of the permission sought, he may, by order, permit the applicants to marry one another. " (3.) Where persons marry in pursance of permission granted under this section, the validity of their marriage is not affected by the fact that they are within the prohibited degrees of affinity. " (4.) The Governor-General may arrange with the Governor of a State for the performance by Judges of the Supreme Court of that State of functions under this section. " (5.) In this section, ' Judge ' means -

(a)   a Judge in respect of whom an arrangement made under the last preceding sub-section is applicable; or

(b)   a Judge of the Supreme Court of a Territory to which this Act applies. " (6.) The Governor-General may make regulations making provision for or in relation to the practice and procedure in and in connexion with applications under this section, including provision for or in relation to the summoning of witnesses, the production of documents, the taking of evidence on oath or affirmation and the payment of expenses of witnesses.".

This proposed new clause is represented by amendment No. 8 as circulated. It is designed to give a judge power, in special circumstances, to grant permission for a marriage within the degrees of affinity. It also has machinery provisions which involve various constitutional aspects to enable arrangements to be made for judges of the supreme courts to perform these functions. This is not a function which I could vest in a supreme court as invested judicial jurisdiction. In this provision I have made arrangements for a judge to be able to perform what is really a ministerial function.

Proposed new clause agreed to.

Clauses 20 and 21 - by leave - taken together.

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