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Thursday, 9 March 1972
Page: 639

Senator DURACK (Western Australia) - As I expressed in my speech at the second reading stage, I am concerned now as I was then about the feature of clause 54 sub-clause (2.) which takes away a privilege which has existed for more than 100 years, I think-

Senator Murphy - 1 think that it goes back into some of the ancient laws as well.

Senator DURACK - Well, it does not. This privilege in relation to communication between spouses was created by statute in 1851, I think.

Senator Murphy - I am talking of ancient civilisations which had similar rules.

Senator DURACK -], do not know about that. I think that we will confine ourselves to our civilisation - at least I will confine my thought to it. This Bill, in extending the provisions in relation to compellability, may be extending the law as it applies in New South Wales. I gather from re-reading the second reading speech delivered by the Attorney-General (Senator Greenwood) that the position in New South Wales has been one of competence and not of compellability. However, in other States and in England, it has been the rule all through this period that the spouse of a party as well as the party may be compellable to give evidence. For that reason, I could not support the proposition as contained in the amendment. It seeks to confine the spouse to being a competent witness only and not a compellable witness.

The problem that I have with clause 54 is purely in relation to communications between husband and wife. Although the statutory privilege from disclosing such communications does apply to people provided they are still married, regardless of whether they are living together, nevertheless there does seem to be no particular purpose in the privilege once the marriage relationship has broken up. For that reason also I could not support Senator Murphy's amendment in relation to the privilege of communication because it seems to extend, as the Attorney-General has pointed out, very much wider than the existing provision. It would cover the case where in fact the other spouse was dead or if a couple were divorced, apart altogether from whether they were separated. Therefore, my view is that the amendment is far too wide. T could not support it.

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