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Thursday, 19 May 1960

Sir GARFIELD BARWICK (Parramatta) (Acting Minister for External Affairs and Attorney-General) . - by leave - I move -

That the bill be now read a second time.

Mr. Speaker,I think I should say at the outset that for some time past the Government has been conscious of the fact that this bill could not be prepared in time to allow its discussion in this sitting. The Government proposes, therefore, to allow the second-reading debate to await the Budget session later in the year. The interval will be employed in making with the States the several administrative arrangements which the bill contemplates. The interval will also enable the Attorneys-General of the States and other interested organizations and persons to make such representations as they see fit with respect to its provisions. Further, Mr. Speaker, whilst the

Government takes, of course, the full responsibility for having made these proposals, which it will support as a government, the measure will not be treated as a party measure and as in the case of the Matrimonial Causes Bill last year, members will be free to adopt their own attitudes and to express them by their vote, freely.

Last May - on the 14th to be precise - I moved in this House the second reading of the Matrimonial Causes Bill which is now the Matrimonial Causes Act 1959. I was conscious at that time that I was making proposals which were very fundamental to the life of this people. I foreshadowed that I would attempt a bill to place the law with respect to marriage on an Australia-wide basis, so that we might have an Australian marriage evidenced by documents which were common to all marriages throughout the whole of the country.

To a degree, such a law is a necessary complement to the Matrimonial Causes Act. Indeed, honorable members will remember that I then mentioned that some portions of that bill might appropriately find a place in a law of marriage. In this connexion I refer in particular to Part IV. of the Matrimonial Causes Act. Mr. Speaker, I do not believe that there is any necessary virtue in uniformity. Indeed, in many areas of human endeavour variety may bring strength. But the relationship of husband and wife, parent and child, is common to all of us, whether we derive from one State or from another. Also I think it is particularly proper that, as this country increases in international stature, it should have one uniform law of marriage applicable throughout the Commonwealth and at least some of its territories. As I mentioned in the second-reading speech to which I have made reference, the founding fathers of the Commonwealth were of a like mind; they thought that these fundamental relationships should be governed by a national law; for in a list of subjects, not notable for its length, which were to be conceded to the National Parliament, marriage was included. Consequently, Mr. Speaker, the bill whose second reading I move is designed to operate as a law of marriage over the whole of the Commonwealth and Norfolk Island. The Commonwealth here includes the mainland

Territories of the Australian Capital Territory and the Northern Territory.

It will be readily appreciated why the bill does not attempt a law to operate in its entirety in the Territories of Papua and New Guinea and the other external territories of the Commonwealth. A law which is suitable for the mainland and the Territory of Norfolk Island, would probably prove inapt in the other external territories. However, may I mention, in passing, that, although the act will not operate in its entirety in those external territories, the marriages which it enables and the legitimation of children which it effects will have validity not only in the Commonwealth and the Territory of Norfolk Island but also throughout all the other external territories. Clause 105 of the bill works this result.

Mr. Speaker,an endeavour has been made to make this bill as comprehensive as possible. Consequently, the provisions of the Marriage (Overseas) Act 1955-1958 have been incorporated in it with some procedural alterations to make the operation of the substantial provisions consonant with the other portions of the bill. The Marriage (Overseas) Act provides for the marriage abroad of an Australian national, whether with another Australian national or with a national of another country before an Australian diplomatic or consular officer or a chaplain. Opportunity has also been taken in this bill to enable diplomatic and consular representatives of foreign countries to this country, to marry nationals of countries other than Australia according to the rights and observances of a foreign country but, subject to certain qualifications to which I shall later refer and to the existence of reciprocal arrangements with the country whose diplomatic or consular representative celebrates the marriage.

Mr. Speaker,one other field has been explored by the bill. It is that of the legitimation of children born out of wedlock. When I mention the details of that part of the bill, honorable members will realize that the Government has approached this question with great width of mind and deep human understanding. I feel sure that when honorable members have studied the provisions they will espouse them without cavil and with much satisfaction.

At the present time, the marriage laws of the several States and of the Territories to which this bill applies are diverse. The recognition in one State of the marriage status acquired in another rests entirely upon the rules of private international law worked out over many generations to regulate such questions as between independent and, in relation to each other, foreign States. The bill would replace this diverse body of statutory law and render unnecessary any resort to the rules of private international law to determine, in the Commonwealth or in any Territory, the efficacy and validity of a marriage solemnized or a legitimation effected within the Commonwealth and the Territories to which the bill applies, or indeed outside the Commonwealth if the marriage is celebrated under Part IV.

Laws of marriage, in the very nature of things, deal largely with matters of procedure and with the capacity of parties to enter the married state. This has been the characteristic of such legislation ever since the passage in 1753 by the English Parliament of 26 Geo. II C. 33, commonly referred to as Lord Hardwicke's Act, a measure which might fairly be described as the first marriage act in the current sense.

Though largely procedural, a basic endeavour of a law of marriage, as I conceive it, is to ensure that the parties have sufficient maturity to comprehend and perform its responsible obligations. The public nature of the ceremony, the precision with which the fact of marriage is evidenced, and the ensurance that marriages are not rendered invalid by failure to observe procedural steps, or by errors or omissions in relevant documents, are all important aspects of a law of marriage. A feature of such laws throughout Australia, and indeed also in Great Britain, is that provision is made both for marriages with religious ceremony and observances, and for marriages before officials, without any such ceremonies or observances. This bill pays attention to all these matters and maintains these alternative forms of marriage ceremony. It is very significant to remark that, notwithstanding provisions of the latter kind in the existing laws, the proportion of marriages in Australia which take place with religious ceremony and observances is very high. The precise figures, if I may pause to mention them, are that out of 74,363 marriages recorded in Australia last year, 65,885 or 88.6 per cent., were celebrated according to a religious faith, and but 8,478, or 11.4 per cent., were celebrated before an official without religious ceremony or observances.

Before turning to a brief description of the salient points of the bill, may I briefly describe some of the significant features of the existing State laws? First of all, the States separately register ministers of religion as authorized celebrants of marriage. All States do not recognize all the religious denominations in the Australian community, and the registration of a celebrant in one State has no validity in another State. Each State maintains its own system of registration of marriage, these systems differing one from another in respect of many of the technical details. The States vary in the prescription .of the marriageable age, that age which is set as the minimum age at which the young should be able to marry. Herein there is much diversity, for in the eastern, and most populous, part of Australia, the traditions of the common law, which in turn followed those of the Roman law, are maintained. A marriage of a lad of fourteen to a girl of twelve is acceptable in these States and a marriage below those ages down to the age of seven years is but voidable, so that cohabitation after fourteen or twelve years of age, as the case may be, makes a good marriage. It is only a marriage under the age of seven years which is struck with invalidity. New South Wales, Victoria and Queensland have been content with these provisions.

The Commonwealth Statistician has supplied me with the figures for 1959. In that year, in the three eastern States combined, 2 girls aged thirteen, 36 girls aged fourteen, and 245 girls aged fifteen were married, whilst 36 boys aged sixteen and 184 boys aged seventeen were married. In the other three States fairly recent amendments of the law have altered this position so as to set the minimum age at eighteen years for the male and sixteen years for the female with, in some States, a relaxing power vested in a magistrate where special circumstances exist. The precise dates of these amendments are: Tasmania. 1942; Western Australia, 1956; South Australia, 1957.

Mr. Speaker,the question of what is the proper marriageable age to set for the Aus-tralian people has given the Government great concern. It is of course, not being asked, nor is this House being asked, to express a view on what is the desirable age; we are but directing ourselves to setting the minimum age. I frankly confess that probably most of us would think the minimum desirable age much higher than that which this bill sets. There is no doubt, abroad in the world, a noticeable tendency to raise the marriageable age. By way of demonstration of that statement, I refer to a publication of the United Nations entided " Consent to Marriage and Age of Marriage ", from which I have compiled a table which, with the concurrence of honorable members, I shall incorporate in "Hansard" thereby obviating the tedium of reading it line for line. The table is as follows: -

I can sum up the table by saying that the preponderant experience of the twenty countries mentioned therein seems to set the marriageable age at eighteen years for the male and sixteen years for the female or, indeed, perhaps a trifle higher.

The Government proposes in this bill that this Parliament should set for the people of Australia a minimum marriageable age of eighteen years for males and sixteen years for females. The consequence of this, Mr. Speaker, is that by dint of the provisions of the Matrimonial Causes Act a marriage under these ages is void. The bill adopts the view that a marriage of immature people solely to ensure that an expectant child is born within wedlock is not in the real interests of the child or of the parents or, for that matter, of the community. Consequently, it has been felt that to render a marriage under the marriageable age invalid would remove what might be an instrument of pressure to enter what is commonly called a forced marriage, which, on what I have been able to glean, the social workers would say is unlikely to be permanent and more likely to cause misery and to wreck more lives than one.

I would like to mention, Mr. Speaker - perhaps a little out of order to this recital - several circumstances which are relevant to what I have just said. First, the bill provides machinery whereby a marriage may be permitted where one of the parties is under the marriageable age. For this purpose a Judge of a Supreme Court of a State or of a Territory, if satisfied that the circumstances of the case are so exceptional and unusual as to justify it, may make an order in brief allowing the marriage. The words, " so exceptional and unusual " have been chosen, Mr. Speaker, to mark the intention that it will be a rare case in which this power can properly be exercised and that the mere expectancy of a child will be insufficient to warrant an order allowing the marriage of a party under the marriageable age. It may be, of course, that pregnancy of one of the parties coupled with other circumstances of a compelling kind would move a judge to make the order. I do not pause here to illustrate what might well be such circumstances, but in committee I will do so purely by way of illustration of the operation of the particular provisions.

Mr. Speaker,I have prepared a short statement which recounts the substantial provisions of the laws of the three States, which of recent years have raised the marriageable age, and which, with the concurrence of honorable members, I will incorporate in " Hansard ". The statement reads -

In Tasmania, since 1942, no marriage may be celebrated if either of the intending parties thereto is under the age of eighteen years in the case of a male, or sixteen years in the case of a female, unless the Registrar-General or a Police Magistrate, after inquiry, is satisfied that for some special reason it should be celebrated. A marriage in contravention of this provision may nevertheless be valid.

In Western Australia, in 1956, the age of marriage was similarly raised to eighteen for males and sixteen for females. A Magistrate may make an order permitting a marriage below that age if, after inquiry, he is satisfied: -

(a)   that the intended wife is pregnant;

(b)   that the proper consents to the marriage have been given; and

(c)   that the order should be made in the interests of the parties to the intended marriage, and of the unborn child. A marriage in breach of this provision is not to be void by reason only of the breach, though it is a ground of dissolution under section 15 of the Matrimonial Causes and Personal Status Code 1948.

In South Australia, in 1957, the age of marriage was also raised to eighteen for males and sixteen for females. A marriage under that age is void. In the case of a boy over fourteen years and a girl over twelve years, the Minister administering the act may make an order permitting the marriage " if he is satisfied that it is desirable that they should marry ".

In the United Kingdom, since the Age of Marriage Act, 1929, a marriage between persons either of whom is under the age of sixteen years is void. In New Zealand, the Marriage Act 1955 prohibits the marriage of a person under the age of sixteen years, but a marriage in contravention of the section is not void on that account only.

The other matter I wish to mention in this connexion is that this bill attacks the problem of the legitimation of children in what I can fairly say is a comprehensive manner. At this point, I will merely mention two aspects of the provisions as to legitimation which are to be found in Part V. of the bill. In the first place, this bill legitimates a child born out of wedlock upon and by the marriage of the parents whether or not there was any impediment at the date of the birth of the child to their marriage. This situation does not now obtain throughout Australia. If this bill becomes law, a child born out of wedlock to immature parents - and by that I mean parents who are both or of whom one is under the marriageable age - may be legitimated by the subsequent marriage of those parents which they may do after they attain marriageable age. But there is a further aspect of the provisions as to legitimation which bears on this matter.

This bill provides that the children of a void marriage will be legitimate if one of the parents believed, on reasonable grounds, at the time of conception or of the marriage ceremony, whichever is the later, that the marriage ceremony through which the parties went was effective and that a marriage eventuated. Whilst this provision Covers other cases, it could, of course, cover a case of a marriage under the marriageable age where one of the parties, with honesty and on reasonable grounds, believed that he or she, as the case may be, was, by reason of the ceremony, married.

The result of all this is that people may not validly marry under the ages of eighteen for a male and sixteen for a female, but if they subsequently marry any child born out of wedlock will be legitimated. Moreover, if two parties go through a ceremony of marriage when one of them is under marriageable age, their offspring will be legitimate if one of them believed the marriage to be good, that is to say, believed at the conception of the child or the date of the marriage ceremony, whichever is the later, that both were over marriageable age. There is also the general proviso that in very exceptional and unusual circumstances a marriage may be permitted on the order of a judge if one of the parties is under marriageable age.

May I now turn briefly to the provisions of the bill which deal with the celebration of marriage? Provision is made to recognize religious bodies and organizations for the purposes of the act. Because of the considerable variation in the nomenclature and organization of the churches, allembracing expressions have had to be used to describe them. The expressions " religious bodies " and " religious organizations " have been chosen. At the moment, the bill provides for those by proclamation, but I would hope that by the time the committee stages are reached, I will be able, after consultation with all the religious bodies and denominations, to provide a schedule of them to be placed in the bill with provision for that schedule to be augmented by proclamation. Ministers of religion nominated by a denomination, scheduled or proclaimed as the case may be, will be registered as celebrants. The existing State lists of registered celebrants will become the foundation of the Commonwealth register of ministers of religion and additions to the list will be made in the State of residence of the minister by the State officials acting for the Commonwealth in this respect. My department will publish an annual list that will comprise all the State lists and the additions thereto and will, from time to time, after receipt of notice of the additions in each State area, notify those additions to the other States. Each State register of ministers of religion will thus be kept up to date as to the persons who, throughout Australia, are authorized to celebrate marriages. A registered celebrant will be able to celebrate a marriage in any part of Australia, but will be required, if he changes his address, to notify such change so that his name may be removed from one State list and placed on the list of another State, but a failure to do so will not invalidate his registration. By this means many, if not all, of the inconveniences which are possible now with the separate State registers will be obviated.

The bill provides for notice of marriage to be given, the notice to contain a substantial amount of relevant information. The periods of notice which are presently required in the several States are set out in a short statement which, with the concurrence of honorable members, I shall incorporate in " Hansard ". The statement is as follows: -


The periods of notice of intended marriage prescribed by the various State Acts are: New South Wales and Queensland, none; Victoria, three days; Tasmania, seven days; South Australia, ten days. In Western Australia, where a marriage is to be celebrated in a church under banns, banns must be published three Sundays, or, if under notice, a notice must be affixed to the church for fourteen days; seven days' notice must be given if the marriage is to be performed by a district registrar.

After a good deal of consideration, the Government proposes that there should be a period of notice and that it should be a period of seven days. It will be possible for a marriage registrar, as distinct from a minister of religion, to abbreviate this time both for a marriage before himself or for a marriage to take place before a minister of religion. But the bill makes it perfectly clear by clause 44 that nothing in it requires a minister of religion to solemnize a marriage or prevents him from insisting on a longer period of notice or on the observance of any additional requirements. Thus the churches will be free to fix their own periods of notice, being seven days or more, and to maintain their own observances. The Government has felt that this solution will be found satisfactory. There must be a notice in any event; in normal circumstances it must be a seven days notice.

I mentioned earlier that the bill maintains provision for alternative ceremonies of marriage, lt provides that a marriage performed by a minister of religion according to the form and ceremony followed by the religious body or organization to which the minister belongs is sufficient. The bill also provides for a form of marriage before a marriage registrar who is an official. In connexion with the solemnization of a marriage wherever it takes place, the bill places on the parties and the celebrant the need to have in hand a birth certificate, or in default of it a statutory declaration explaining its absence and verifying the particulars which would be expected to be found in the birth certificate. The celebrant is placed under an obligation to satisfy himself as to the identity of the parties and to refrain from solemnizing the marriage if he has reason to believe that the relevant documents contain false statements or contain an error or are defective.

Mr. Speaker,these provisions ought to render it extremely difficult for persons to be married under the marriageable age or under a mistake as to identity or in the false belief as to the age or condition of the other.

Where a minor desires to marry, the consent of the appropriate person - parent, guardian, or person who has the custody of the minor - duly authenticated, must be forthcoming. The first schedule to the bill sets out the persons whose consent should be given according to the particular circumstances of the minor. However, sometimes the consent of the appropriate person cannot be obtained or cannot be obtained without undue delay. In such cases, the bill provides machinery whereby a prescribed authority can dispense with the need for such consent. If that authority refuses to dispense with the consent, the minor may apply to a magistrate who can give the consent in lieu of the appropriate person. Also occasions arise where the consent of the appropriate person is unreasonably refused. In that event the minor may apply to a magistrate to give such consent and appeal to a Supreme Court judge against a magistrate's order.

Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) - Can the minor do that in his own name?


I need not trouble the House with the detailed provisions as to the presence of witnesses, the contents of the certificate of marriage or the duty of the celebrant to forward a duplicate original of the certificate to the appropriate registrar of marriages. But I should inform the House that the bill does not provide for the registration by the Commonwealth of the marriages which may be effected under its provisions. This function has been left to the States and the necessary arrangements will be sought with them to this end, preliminary conversations on this matter having already been had with the AttorneysGeneral of the States.

The bill clearly sets out that failure to comply with certain of the requirements of the bill will not invalidate a marriage. Compliance with these provisions is secured by the offence provisions. Certainty of the status of marriage requires that such a course be taken.

I need not refer to the provisions of that part in the bill which deals with marriages overseas of Australian nationals before Australian diplomatic or consular officers or before chaplains. The law in this respect is not significantly altered by the bill, and remains as it is now under the Marriage Overseas Act 1955-1958, which this bill will repeal and replace. However, I should inform honorable members of a new feature which this bill introduces. The bill generally prohibits any person who is not an authorized celebrant from solemnizing marriages. But Division 3 of Part III. relaxes this prohibition in the case of a diplomatic or consular officer of a foreign power accredited to this country where the law or custom of his country allows that officer to solemnize marriages outside the confines of its own territory and where there are reciprocal arrangements which allow, in the country which accredits him, the celebration of marriages of Australian nationals by Australian diplomatic or consular officers. But the diplomatic or consular officer cannot perform a marriage in

Australia unless neither of the parties is an Australian citizen or an Australian protected person, or is under marriageable age, or has a relationship to the other within the prohibited degrees of consanguinity, or is already married. If these requirements are satisfied, then marriage of persons who are not Australian citizens may be celebrated by the diplomatic or consular officer and may be registered in the registry for which the bill provides, and will be recognized as valid throughout Australia and all its territories.

Mr. Speaker,it will be observed that there is no attempt to define marriage in this bill. None of the marriage laws to which I have referred contains any such definition. But insistence on its monogamous quality is indicated by, on the one hand, the provisions of the Matrimonial Causes Act, which render a marriage void where one of the parties is already married, and by a provision in this bill making bigamy an offence. I should like to mention in passing that a federal offence of bigamy was felt to be necessary in order to facilitate prosecution for such an offence and to obviate difficulties which might now arise if reliance in this respect was placed upon the State laws.

There will be found in the bill a number of offences which are designed to secure observance of the actual requirements of the bill and thus ensure as far as possible the utmost regularity in the solemnization of marriage. The bill contains a number of transitional provisions designed to provide for the period of change-over from the existing laws to those of this bill upon its commencement, if it should become an act. With the detail of these technical provisions there is no need for me to deal at this stage.

I come lastly, so far as the description of the bill is concerned, to a subject upon which I have already touched in another connexion - that is to say, that part of the measure which deals with the legitimation of children. It will have been gathered by honorable members, I think, that in some parts of Australia the subsequent marriage of parents of a child born out of wedlock will be ineffective to legitimate the child if on the date of its birth the parents could not have validly contracted a marriage. This bill, in clause 84, in wide and emphatic language, provides that if, at the time of the marriage of the parents, the father was domiciled in Australia or the marriage of the parents took place in Australia, or outside Australia under the existing provisions as to marriages overseas or under those of this bill, a child will by virtue of the marriage for all purposes be the legitimate child of the parents as from birth or the commencement of this act whichever is the later. It is made quite clear by sub-clause (2.) of clause 84 that the fact that there was a legal impediment to the marriage of the parents at the time of the birth will not prevent the legitimation. The effect .of marriage in this respect will operate whether the marriage took place before or after the commencement of the act, whether the .child was born before or after the commencement of the act or, indeed, whether or not the child was alive at the date of the marriage or at the commencement of the act. That provides for descendants in some circumstances.

By sub-clause (4.) of clause 84, the bill provides that it does not render ineffective any legitimation which has already taken place under the law of a State or Territory and such laws will continue to operate in relation to such a legitimation. This clause, coupled with the width of the substantive provisions as to legitimation, will work on the one hand to preserve the status of a child in a State under the laws of .which he is already legitimate. But if that legitimation is not recognized in other States, this Federal bill will legitimate him in relation to the other States and the Territories of the Commonwealth. It is important, however, that accrued rights of property should not be disturbed by this provision, which to an extent has a retrospective operation. Thus, it is provided by subclause (1 .) of clause 88 that nothing in Part V. " shall be taken to operate so as to affect any estate, right or interest in real or personal property to which a person has become, or may become, entitled, either mediately or immediately, in possession or expectancy, by virtue of a disposition that took effect before the commencement of this Act or bv devolution by law on the death of a Demon before the commencement of this Act ".

I have already mentioned the provisions as to legitimating children of a void marriage and do not repeat them, but I call attention to the provisions of clause 85. The provisions of this clause complement those of the preceding clause and legitimate children of parents who marry after the birth of the child in a place outside Australia if, by the law of the place where the father was domiciled at the time of the marriage, the child became legitimated by virtue of that marriage.

This recital, necessarily brief and sketchy, is nonetheless sufficient to indicate to honorable members that the bill attempts to cover a very wide field and to legitimate a child born out of wedlock to what one might think is the utmost admissible extent. I think that the status of legitimacy must be retained. But I think, also, that it is desirable that the area of the distinction between the legitimate and the illegitimate child should be reduced as far as possible. After all, the child is innocent of any complicity in bringing about the situation which, as things now are, results in illegitimacy. The Government feels confident that these provisions mark a very distinct social advance in Australia, and that, in the succeeding years, the operation of the act which I hope will result from this bill will give comfort and satisfaction to many people.

Mr. Speaker,the bill is a lengthy one. lt has 111 clauses. Its preparation has involved a great deal of detailed examination of the technical aspects of the subject. The decisions as to the policy which the Government proposes in it have involved the consideration of many and varied human situations. I ought to say that the Government is much indebted to the officers of the Attorney-General's Department who have devoted a great deal of time, much of it out of ordinary hours of duty, and much anxious consideration, to the many difficult technical and human problems which have arisen in the preparation of this bill. The Government feels that the bill not merely places the regulation of marriage on a uniform footing throughout Australia, but also is a contribution towards the stability of marriage which, as I said in an earlier speech, will make for the well-being of this country throughout its great future. The bill goes a long way in this direction and endeavours to ensure that our people - particularly our young people - enter into marriage, in the familiar and eloquent words, not lightly but advisedly.

Mr. Speaker,I commend this bill to honorable members.

Debate (on motion by Mr. Whitlam) adjourned.

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