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Thursday, 9 March 1972
Page: 636

Senator GREENWOOD (VictoriaAttorneyGeneral) - This is an area in which the law is less important than one's approach to social questions. That is the way I view the position. The view one takes on this matter depends largely on whether one takes the view that the sanctity of the marriage is as real these days as it was in more mediaeval times when this rule was initiated. I sense that a very real problem exists in regard to what ought to be the limits to which a person should be required to give evidence. Yet, once one embarks on an inquiry into the truth and what are the facts of a given situation, it is hard to draw a line somewhere along the process. I believe that this is what is involved in Senator Murphy's proposition. Let us look firstly at what the legislation proposes. It proposes that in civil proceedings a person who has instituted the proceedings is entitled to call his wife to give evidence. His opponent is entitled to call the wife of the plaintiff in order that she may be examined and possibly give evidence which will be destructive of the case which is being made by the plaintiff. I do not know that that arouses in me a feeling that it is a situation that ought not to be allowed to arise because the rules under which evidence is to be given preclude it from happening.

Senator Murphy - Under the Opposition's proposed new clause, she can come if she wants to. but the exising clause forces her against her will.

Senator GREENWOOD - It does. She can be compelled to give evidence. It is a question of how one approaches this matter in terms of social policy and morality. Senator Murphy takes the point that it is wrong to compel her to come. I suppose that if it is wrong to compel her to come it is wrong to compel her to answer any questions related to the matter whatsoever. I think that proposition contains the very real problem that injustice can occur because one party who knows the true facts and who is known by the person who is being sued in the civil proceedings to know the true facts is not enabled to call that person to prove, for example, that the story told by her husband is a complete lie. I sense that a very real problem arises in solving that. Yet to make a person compellable and to give some sanctity to communications which may have passed between spouses during the marriage is, in fact, to compel a person to come to the court to give evidence on some matters but to enable that person to refuse to answer questions on other matters because he could be asked questions relating to matters which were not communications made during the marriage. Once a person sought to probe into what were communications between the parties during the marriage which could alter the whole impact of the evidence otherwise given, a person could object to answer and that objection must be upheld. That again could cause injustice and it could lead unquestionably to weight of an entirely improper kind being given to untested evidence.

I do not doubt that Senator Murphy appreciates that these problems exist. I sense that they are there. It is a question of whether one comes down, as a matter of judgment, in making the choice. I believe that the committee which proposed this provision for this legislation made the appropriate choice. In these days, I believe that if there are civil proceedings in which a party wants to call the spouse then that party ought to be able to call that spouse if thereby the court will be given more material from which to gauge, the truth. I think that any lesser approach is an approach which is unsustainable. But I do not know how one can argue this point in a way any different from that which I have advanced.

I raise for Senator Murphy's consideration the point that it would seem to be the position that the expression 'the wife or husband of the party' includes the divorced wife, or husband of the party or any person who previously had been married to the party and whose marriage has been annulled. That would seem to be the case law on the subject. No point has to be made in clause 54 as it is drafted because the making of the husband or wife of a party competent and compellable applies to the existing spouses as well as to the divorced spouses. But if the amendment which Senator Murphy has proposed were adopted I sense that different considerations would apply as to whether a divorced spouse may be called to give evidence and to disclose communications between the divorcee and his or her wife or husband as the case may be when they were married. I should think that different considerations ought to apply there.

It may be that the view which Senator Murphy holds is one which would preclude even divorced parties from being compellable to give evidence. If that is the. case no further amendment is required. But this would have widespread ramifications if, once having been married to a particular person, one could not thereafter be compelled to give evidence in any proceedings in which one's ex-spouse was engaged - certainly not evidence as to what had passed between the parties. I suppose it is again a matter of social policy, but I think that that is taking things too far. That is how those matters appear to me on their face value, but I would be interested to hear Senator Murphy's reaction to my own impression that what the. committee has decided in this instance is justifiable, prudent and in accordance with what ought to be facilitated in the ends of justice in the society in which we now live.

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