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Thursday, 18 August 1960

Mr COURTNAY (Darebin) .- This is a bill for an act relating to marriages, which purports to regulate certain aspects of marriage on a uniform basis for Australian nationals not only within Australia but also, in some respects, Australians overseas. It has been declared a non-party measure so that all may speak to it according to their consciences and according to their concepts of marriage and what the regulations relating to marriage ought to be. It has been said - quite properly too, I think - that the reason for that is that it is generally conceded that marriage is an important, perhaps the most important institution, and is in fact the basis of our social order.

To some extent this measure is complementary to the Matrimonial Causes Act, and it is difficult to discuss it without making some reference to that act. Indeed, considerable reference has already been made to the Matrimonial Causes Act. Strangely enough, by a process of reasoning that I do not understand, this bill dealing with the tying of the marriage knot is submitted to us after the enactment of a measure relating to the untying of the marriage knot. The reason for that isobscure. It has been suggested to me as a probable reason that the law is based on precedent, and so lawyers always think backwards. But lawyers have not always thought backwards. For instance, some 60 years ago, the framers of the Constitution did think forward to the extent that they incorporated in the Constitution provision enabling us to bring down a uniform bill relating to marriage. They are to be complimented upon at least that one instance in which they did not think backwards.

The further this debate proceeds the happier the Attorney-General (Sir Garfield Barwick) appears to be. I do not altogether approve of that state of affairs, although I can well understand it, because all through the debate it has been obvious that there is no great objection to the measure. Some honorable members have suggested ways by which, they feel, the bill could be improved, but there have been no great objections to it. However, I propose to add to the suggestions already made by these honorable members.

The Attorney-General has received many compliments for this bill. He has been complimented by a number of honorable members who are members of the legal profession. They have gone into great detail to point out the advantages that will accrue from the bill. As professional men themselves, they have not been very critical of it, and 1 have been rather more intrigued about that aspect than anything else.

I have said that this measure is really complementary to the Matrimonial Causes Act and that some reference might have to be made to that act if we were to deal thoroughly with all phases of the bill. I am greatly intrigued by the fact that although the Matrimonial Causes Act gave rise to a great deal of controversy throughout the community, which has not ended yet, because some sections of the community still propose to contest the measure bitterly, those same sections of the community seem to offer little resistance to the bill under discussion. To my way of thinking the reason for this lack of opposition to the measure has been the change of approach by the Attorney-General in drafting and presenting it. It would seem that, when drafting the Matrimonial Causes Bill, provisions were taken from the various State measures covering divorce and simply lumped together in a bill which was presented to us for consideration. It would seem that those whom one might expect to be most expressive in their opinions relating to the measure - the social workers and the clergy - were not consulted by the Government before the Matrimonial Causes Bill was drafted. If they were, then it would seem that, their opinions were given little or no weight, if we are to judge from the consternation they expressed when that legislation was enacted. But in this case it is evident that a different approach was made. In this instance it is evident that those who would be most likely to express their opinions vociferously - the social workers and the clergy - were fully consulted. It is evident from their present conduct that the opinions expressed by those people were taken deeply into account when the bill before us was being drafted. That is the proper way in which to approach these matters. I feel that it is because of this approach by the AttorneyGeneral that this measure is receiving such an easy passage. It is probable that it will receive unanimous support.

I have already said that in my opinion the reason for that is that the people most concerned were fully consulted. In short, the provisions of the previous bill were arrived at arbitrarily. I believe that on this occasion the Attorney-General is enjoying the benefits of what may well be his first attempt at collective bargaining. A little more of that kind of thing would be very helpful in our legislation. I would welcome the promotion of more discussion with parties such as trade unions, before legislation affecting them is brought down. Be that as it may, I think I am on safe ground in saying that the reason for the support this bill has received is that the right thing was done at the outset. As I did with the Matrimonial Causes Bill on receipt of this bill I went to the various bodies which I thought might be concerned with it and, in the main, they were appreciative of the measure. I gave them copies of the bill and also copies of the introductory speech by the Attorney-General. I believe they are well satisfied with the measure and consider it to be a step forward.

I notice that the honorable member for Wilmot (Mr. Duthie) is not present at the moment to hear me say that in the course of this debate one clergyman and an ex-clergyman have expressed satisfaction with the measure. So also have members of the legal fraternity. The bill is very satisfactory to me as a layman because it contains what I consider to be the most important ingredient of uniformity. I should like to see much more uniform legislation introduced. I know the difficulties that exist. The fathers of the Constitution possibly did not have enough vision with respect to certain matters, but in this particular instance they did and we are now reaping the benefit of it. I regret that although the matter of uniformity was pressed very hard in connexion with the Matrimonial Causes Bill the Attorney-General is somewhat apologetic about the uniformity on this occasion, for he said -

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.

I have contemplated this question and have been unable to see any area of legislation or human endeavour where uniformity would really be a bad thing or would be bad for the Australian people. I believe that we must think on a national basis. I make my stand clear in regard to uniformity. The bill is to be commended on its ingredient of uniformity and the people who are mainly concerned with it are supporting the measure for that reason. The honorable member for Wilmot, an ex-clergyman, said that this measure was 60 years overdue and I hope that the talk about uniformity on this occasion will bring some members to the point where they will give consideration to the reforms recommended by the all-party committee on constitutional reform. I repeat that the bill has been carefully and favorably analysed in this chamber by many members of the legal fraternity and I know that it is pleasing to members of the religious fraternity, although they do express some reservations in regard to it.

The clergymen with whom I have discussed the bill were satisfied that it did impose upon them some obligations that were probably not imposed on them previously, but they feel that it is worth the imposition of those obligations which are not very tedious for them. The main objection raised to the measure relates to the Government's proposal to set the age of consent for marriage at sixteen years for a girl and eighteen years for a boy. Perhaps I should refer to them as a woman and a man because quite often at sixteen years of age a girl is a woman and at eighteen years of age a boy is a man. I know that the bill contains provisions whereby this limitation may be overcome, but apart from that it forbids the marriage of men and women under the ages that I have mentioned. I feel that the provisions of the bill are not quite satisfactory, but it deals with a very difficult matter. Under the measure, parents have not many rights because the bill forbids marriage, except under certain conditions, if the parties are below the ages mentioned and the parents have not the right to consent to the marriage where the parties are under those ages, even if they want to. The AttorneyGeneral said -

Mr. Speaker,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.

You will notice, Sir, that the AttorneyGeneral says " On what I have been able to glean ". I would be more satisfied if he were to tell us what he has been able to glean and put it forward in such a manner that it would carry some weight. I do not know whether it is the right and proper thing to forbid the marriage of a girl who is an. expectant mother. You will recollect, Sir, that during the debate on the contentious Matrimonial Causes Bill it was pointed out to us that one of the best features of clause 28 (m), as it was then numbered, was that a guilty person in the case of a broken marriage would be able to contract another marriage in order to legitimatize a child, although the innocent party to the marriage may not want that to happen. That provision related to a guilty person. I suggest that the child of such a union as that is of no more importance than the child of a girl who may be only one day under 16 years of age. Let me make clear that both children are important, but I say that one child is no more important than the other. I should imagine also that in those circumstances one mother is no more important than another. I think that the mother who is a day under 16 years of age should have some say as to whether her child should or should not be a legitimate child, provided, of course, that the father of the child is willing to marry her.

I therefore have very grave misgivings regarding that provision. I think that it should not be left entirely, to a magistrate to decide these matters. I cite a comment of the honorable member for Wide Bay (Mr. Bandidt) to support my view in that regard. He was speaking about the forms of marriage and the accompanying ceremony. Incidentally, many church folk are not quite happy about one form that is contained in the bill, though I have no objection to it. The honorable member for Wide Bay drew attention to the fact that some judges and magistrates are grouchy; that was his term. I thoroughly agree with him. I hope that I never come before a grouchy judge or magistrate, although I have appeared before many of them in the Commonwealth Arbitration Court.

It could so happen that the question of consent as to whether a child should be legitimatized or otherwise would come before a magistrate who was grouchy. The matter would be left to his discretion entirely. He might have a daughter of his own and, lo and behold, because he has particular views on the matter, the child who is to be born has to be illegitimate. I say that he has no right to make that decision. In my view, the parents - not only the unmarried parents, but also the parents of the boy and the girl - have some rights in regard to the matter. Let the adult parents get together with the children and thrash it .out. If they can come to an arrangement, let the young people get married. That course is to be preferred to leaving the matter to a grouchy old magistrate. I do not say that all magistrates are grouchy. Sometimes I go before one, and I would not like him to think that I thought they were all grouchy.

Before going to a magistrate, the parents - both the adult parents and the child parents - are entitled to see whether they can straighten the matter out. If they can do so, it is not right, in my view, for a magistrate, because of some little whim, to be able to say, " I will not allow it to happen ". I know that there are not very many of these cases, but nature being what it is, moonlight nights - warm summer nights at that - will produce more of these cases in the future. Whether the AttorneyGeneral likes it or not, they will occur. The best rule is that which we adopt when dealing with apprentices. Those honorable members who are or have been on apprenticeship boards will agree that the best rule to adopt is one that is best for the apprentice. Likewise, in relation to the matter before us, what is best for the two children who are the parents - for after all the parents are only children - is the best rule to adopt. I think that the parents would have more persuasive powers in this matter than magistrates.

The bill contains another good provision in that it does permit the legitimization of children. That is all to the good. I hope that the Attorney-General has realized from experience with the Matrimonial Causes Act that consultation with those who should be most experienced in these matters is to be preferred before bringing down a bill. If we get some more of that approach to legislation, other legislation will probably go through in the same amicable manner as that in which this bill is being considered.

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