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Wednesday, 18 November 1959


Mr STEWART (Lang) .- The Attorney-General has made the statement in this chamber, on a couple of occasions, that some honorable members are approaching this subject from the stand-point that marriage is indissoluble. I have listened attentively to the debate on this bill. I heard most of the speeches at the secondreading stage, and, so far, I have not heard any honorable member state that he believes that marriage is indissoluble. However, the Attorney-General, when speaking in reply to the second-reading debate yesterday, claimed! that some honorable members had approached the matter from that stand-point, and he has made the same claim again this evening. Those of us who oppose some of the clauses of this bill are certainly not opposing divorce, because it has been accepted in the community for 100 years. Regardless of my views or those of my religion, I realize that I am in this place not to represent my religion only, but to do what I can for the whole of the people of Australia.

The Attorney-General has claimed that paragraph (m) is a good provision, because certain of the commissioners who comprised the Royal Commission on Marriage and Divorce, in the United Kingdom, recommended such a provision. On the other hand, he has completely disregarded the unanimous opinion of those same commissioners on the principle embodied in paragraph (b) of this clause. This seems to me to indicate that the honorable gentleman, having investigated this problem in Australia and discussed it with a certain number of people, has decided that he is now in a position to decide contrary to the unanimous opinion expressed by the royal commissioners in the United Kingdom after they had taken evidence from a host of organizations and of individuals. They unanimously decided that it would be wrong to reduce to less than three years the period of desertion accepted as a ground for divorce.

As I said earlier, the Attorney-General has leaned heavily on the recommendations of the United Kingdom royal commissioners. The provisions for marriage guidance that he has embodied in this bill are taken almost directly from the recommendations of the royal commission, as are the provisions for reconciliation. The royal commissioners were evenly divided on paragraph (m) - the separation provision - although a similar provision has existed in New Zealand and Western Australia, and the Attorney-General has decided to give a casting vote on that and to include it in this bill. Having taken the recommendations of the United Kingdom royal commissioners in respect of two or three matters, he now completely brushes aside a unanimous recommendation by those royal commissioners because the Law Council of Australia has said that the period of desertion accepted as a ground for divorce ought to be reduced to two years.


Mr Freeth - The United Kingdom royal commission was not faced with the same pattern of other grounds as this Parliament has been faced with.


Mr STEWART - The royal commission's warrants and terms of reference were particularly wide. The only thing that the terms of reference did not take into account was the marriage rule. Practically everything that is mentioned in this bill was covered by the report of the United Kingdom royal commission.


Mr MALCOLM FRASER (WANNON, VICTORIA) - Did it ever examine Australian conditions?


Mr STEWART - Yes, it examined Australian conditions. Having looked at the names of some of the people who submitted written evidence, I suggest that most of those persons who occupied the post of Attorney-General or Minister for Justice in the Australian States gave written evidence before the United Kingdom royal commission. One of the names that struck me when I was looking through the list was that of the late Clarrie Martin, who was AttorneyGeneral in New South Wales. In the report of the United Kingdom royal commission, there are sections on adultery, cruelty, desertion, insanity, sodomy and bestiality, restrictions, bars to relief, judicial separation, restitution of conjugal rights, jactitation of marriage, and children in matrimonial proceedings. So I cannot understand why the Minister for the Interior (Mr. Freeth) has said that the inquiry made by the United Kingdom royal commission was not as wide as it ought to have been.


Mr Freeth - I did not say that at all. I said that the royal commission was not faced with the same pattern of conditions as we have here.


Mr STEWART - The point is that evidence was given by many organizations and many individuals, and the royal commissioners recommended unanimously against reduction of the period of desertion from three years to two years or less. The Minister says now that two years is sufficient. I feel that, on the arguments he has used, he is entitled to say that one year is sufficient. A period of one year has been stipulated in respect of restitution of conjugal rights, and if one year is sufficient in that instance, it should, on the arguments that the Minister has used, be sufficient for desertion. The reason why the Attorney-General does not want to accede to our request, and the reason why he will not accept the recommendation made by the United Kingdom royal commission, is that he realizes that the proposal would affect two or three other clauses and that the period stipulated in this bill in respect of restitution of conjugal rights and various other mattes would have to be extended. The Minister has acted upon the recommendations of the United Kingdom royal commission on a number of matters - three or four of them come readily to mind - but, in relation to a matter on which the royal commissioners were unanimous, he says, "I know better than all of them. I say that two years is sufficient." This indicates to me that the AttorneyGeneral believes that he is greater than anybody else in this Parliament and greater than the United Kingdom royal commissioners.







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