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Thursday, 18 August 1960


Mr HAYLEN (Parkes) .- I have listened to the debate to-day with very great interest, because it has conveyed to me the impression that a challenge is being made in this House that we are not, perhaps, capable of sustaining. I remember our long and discursive attack upon the uniform divorce law last year, and I wonder whether we are not trying to seek a legal formula for something that is outside any legal formulary in any case. I pay the greatest tribute to the intelligence and the audacity of the AttorneyGeneral (Sir Garfield Barwick), but I must say he reminds me of Alphonsus the Learned, who flourished in about 1512. It was said that he once remarked, " Had I been present at the creation I would have given some useful hints for the better ordering of the universe ". The Attorney-General is present now at a virtual creation, and I ask him to walk very warily indeed.

This bill has to do with marriage, but marriage is not denned in the bill. The Attorney-General has a habit of omitting these definitions. It was a habit also of my revered former leader, now Chief Justice of the Supreme Court of New South Wales, who, after having found a formula, did not care where it applied so long as it was a formula. I think this is a defect shared by the Attorney-General. Having found the formula he does not define marriage. In this connexion I visited the library, and, being something of a poet and a writer, I read a lot of lyrical things about marriage, and I found that many of those things applied to my own marriage. However. I do not think the House would like me to send a cheerio call to my family. I found from my reading that there is a beauty in marriage transcending this cold-blooded, analytical approach to it.

Because of the difficulties in getting uniformity in marriage I think we must apply the test which the Attorney-General applied. But never, as long as I live, will anybody sell me on uniformity, least of all a LiberalCountry Party Government which hates the very word " uniformity ". Government supporters charge us, year after year, with being numbers on a plaque, with being a unit and! being dumb, driven cattle. Yet, in every plea they make to us on this vast social' problem of marriage they say, " Let us haveuniformity ". To be temporarily vulgar, if you have a pain in the neck at Cooktown and a pain in the neck at Hobart, you have uniformity. What good is it to you?

The uniformity of legislation and law isonly a figment. We need to give some sortof value to the marriage laws and the divorcelaws of this country. I do not think that you create a marriage law by saying what you cannot do, because, straight away, the people will do what they think right or they will do what they do, whether it is right or wrong in relation to marriage or divorce. There are a lot of warnings that should be issued to the Minister and I issue a few of them in great humility because of hiseminence as a lawyer. I am not concerned so much about the question of legitimation because I have never believed that there areillegitimate children, but only illegitimate parents. The Attorney-General has cleverly contrived to make it possible in all States and under all circumstances to legitimatize the children whom illegal unions - or illicitunions, to use the funny old legal term - create. There are young pulsating humanbeings in the country who might bear the scar of illegitimacy and anything that the Government can do to help in this matter has my full and heartfelt support. But when you divide the world into three areas, asCaesar divided Gaul, into good, bad and suspect, you will have a great deal of trouble.

The thing that worries me about this bill' is the age limit for marriage. As the Minister said, there have been conferences with Church and other organizations. They consider that the minimum age at which a-, young man should marry is eighteen yearsand the minimum age for the marriage of a girl is sixteen years. All the evidence is against that being a useful proposition to apply to the Australian people. The Deputy Leader of the Opposition (Mr. Whitlam) made this point clearly in his speech when he said that, in 1959, when this idea was mooted, there were 283 girls and 220 boys who would have breached that provision in all the mainland States for which we have statistics, or would have to go to a magistrate and ask for permission to marry.

Take Mary and Jack, living in Hillcreststreet in some Sydney suburb as an instance. Normally, if they have some domestic or marital problem it is resolved within the family. They go to the church and are married. There is legitimation and the young baby is cared for in due course. Under this bill such a case becomes a case for the court. The most drastic and fantastic suggestion is that the very reason they want the marriage becomes the reason why they should not marry - that pregnancy should not in itself be the reason why the judge or magistrate should make an order allowing them to marry. How will that work out in practice? Is it not a piece of legal nonsense? Is it not a piece of high falutin' jiggery-pook that does not mean anything? You have to apply this thing to human beings in certain circumstances, and you have to abide by the result as every welfare worker knows. The honorable member for Wilmot (Mr. Duthie), the revered Whip of this party and a former clergyman, told me that in Tasmania, years ago, they instituted a minimum age of eighteen years for the marriage of males and of sixteen years for girls, but the magistrates in that State have come down to a common denominator and if a young male goes along to a magistrate and says, " My girl is pregnant", permission to many is given almost automatically. So, why hang this silly provision on our marriage laws?

Of course, we are exploring this problem. I have no fixed ideas on the matter, "but I have some rather worried feelings about it. Devoted women connected with the Commission on the Status of Women, year in and year out, have ploughed through statistics in all parts of the world in relation to young people, delinquents, early marriages, and the problems of life generally. In Peru, Bolivia, the States of North America, Britain, France, Greenland, Den mark and in other countries these women have i come to a- unanimous decision that fifteen years seems to be an agreeable minimum age for marriage in the colder countries of Europe. They suggested that would be reasonable and would make for a minimum of interference; and their various laws indicate how they look at this problem. The Commission on the Status of Women has been most earnest in considering this question of child marriage. They do not like it, and neither do we.

The Minister is disturbed that boys of eighteen and girls of sixteen years of age should marry; but it is not true to say that these marriages do not stick. The honorable member for Bradfield (Mr. Turner) spoke of an illicit union. He lives in a vastly different electorate to mine if, in using that term, he means that these unions break up. In the working class districts they stick. I do not want to go into that to provide headlines for the newspapers, but if such unions break up at Gordon they certainly do not at Burwood.

The honorable member for Ryan (Mr. Drury) said, in effect, that migrants are likely to have forced marriages because of the existing permissible age for marriage in some States being fourteen years for males and twelve years for females. I thought that we brought migrants to this country to assimilate them and teach them our way of life. If they wish to run willynilly and refuse to be naturalized and if they want their child marriages they have to be dealt with. But I do not think that marriage among the children of migrants at fourteen and twelve years exists as an important factor. We have to see whether we are doing a good or bad thing in relation to the Australian in setting a minimum marriage age of eighteen years for males and sixteen years for females. I feel, as we have pointed out, that there is a lot to be said for leaving the case alone.

I do not believe that you can make everything conform. I do not think that in anything, least of all in the difficulties of marriage and sex, you can get an absolute formula which works in every way. If there are cases of young fellows marrying very early and if there are cases of aged men marrying very late, those are vagaries away from the normal and we should not get agitated about them. Certainly we should not make a law rigidly providing that a man of eighteen and a young woman of sixteen who are in love may not marry except by approach to a court. I think that is fair enough. In this terrible search for uniformity we do not want to be like ants. Do not the Communists complain that everybody marches side by side into the Ark? If we need some individuality of mind we leave it to the average normal Australian - or sometimes to the abnormal Australian - to work something out roughly which we can adjust afterwards. If we apply the rule of law to them we will make more chaos than already exists. Every church worker and welfare worker in our electorates will tell us of the extreme difficulties, the multiplicity of problems that exist and the devious ways in which the problem can be twisted one way and another. We should not come down on young people in the interests of conformity and cause a great deal of chaos where none previously existed. The statistics show that, because of the economic situation, not many young fellows get married at eighteen. So far as we have been able to ascertain from the research that our department has undertaken, those who do marry at that age make a fairly good do of it. The statistics for the whole of the country indicate that this matter is not terribly important. Apparently, somebody wants to organize somebody else; somebody wants to make it a sin to do such and such a thing. We have had an experience of that in another direction, to which I also object.

May I say, before concluding, that the whole basis of this Marriage Bill is a good one if it correlates marriage laws. It does not move my withers in any way. They are completely unwrung on all these aspects of how to be happy though married. I do not think that they have a great relevance in this House, but I do think that you start to get into deep water when you interfere with human relations at the level of the adolescent. You get into trouble, and I do not think that this Parliament is sufficiently experienced, either on this side or the other, to handle that matter properly and to keep it in its true perspective. So, in the circumstances, I think we could leave well alone.

Let me present a dramatized picture of what can happen. Suppose that a youngster of eighteen and a girl of sixteen who are associated find that the girl is about to have a child. The procedure to-day is to go to the families and have a conference, then go to the church and be married and have a party. In the process of time a baby is born and is assimilated into the community. There is no scandal and there is no harm done. But if you are going to make it a public scandal that in some suburb, in Palm-street or Hillcrest-avenue, Mary and John have had a liaison, that the magistrate will not agree to their marrying, that the Attorney-General in Canberra is wrath about it, and that everybody is stirred up about this completely normal action, you will get a reaction which is bad not only for the community, but also for the Parliament and for Australians generally.

I say to the Attorney-General that the legitimation provision is a fine thing. I congratulate him upon it. But I beg him to look at the surveys that have been made by the United Nations, to consider the general investigations made by devoted women serving on the United Nations Status of Women Committee. If he does so, he will see why they came down heavily on the side of a lower age than he has selected. They realized that there is a solution to be found for this problem, but that it is not to be found in strictures or in using the legalisms of a parliament or of a community to do the very thing that the Minister is doing in this House. Beyond that, I think that this measure is unexceptionable. It is very rare that the Labour Party discusses a matter in respect of which it has not been decided which way we should vote. Everybody in this House is free to express an opinion on this bill. I conclude by expressing my opinion. I feel that conformity is a joke. You will not get conformity, Sir. Because of that wonderful individuality that people possess, they do not conform - and thank God for that. So you cannot get a law to which everybody will conform, but you can attempt to get a law that does not harm anybody and which will ensure that if it is wrong to do a certain thing in a certain situation in one State, it also will be wrong in other States.

I congratulate the Attorney-General on his devotion to this matter, but when we get down to moving human pawns on the chessboard of politics and saying, "At eighteen you may not marry, and at sixteen you may not marry ", we must ask ourselves - and this is the serious point - " Are we right in doing this? Are we right in interfering? Have we enough knowledge? " I again refer to what the honorable member for Wilmot said in regard to the legislation which has existed in his State of Tasmania for fifteen or twenty years. They have found that it has not worked and that eventually it has been left to the good sense of the magistrates to do the right thing. People who are under age or who are subject to the law in relation to early marriage, but who wish to marry, go to a magistrate, and in most cases a benevolent, beneficent and common-sense magistrate says, " It is all right with me ". The reason he says that is because there is a child on the way. That is the essence of it. But we have approached the matter in the other way, in the cold-blooded, materialistic way that says, " It cannot be done. You should not do these things. They are crimes".

I can understand why the authorities, the welfare workers and the churches have said that they are shocked by child marriages and by marriages of people who have no jobs, usually young people; but in the main, I should say that, on investigation, a high percentage of such marriages would be found to have turned out all right. The horror is only where men marry too young and do not seem to be balanced enough to care for their families or provide for their wives. We in this House should try to approach this matter from the human angle, and that is the point that I rose to make.

So far as the rest of the legislation is concerned, it seems to be carefully thought out, as always, and to be useful for the community, but I cannot see that there is any warrant for the Minister's interference in regard to the marriageable age in the mainland States of Australia and the substitution of the ages of eighteen years for a male and sixteen years for a female. AH things considered, and having regard to the opportunities provided, I think there is very little reason for alarm or for cavilling at the -legislation. It seems, however, that because the -Attorney-General has thought it necessary to impose a degree of conformity the provisions relating to marriageable age also must go into the melting pot. I think that that is a mistake. I support the rest of the bill and marvel at the Minister's dedication to the question of divorce and marriage. I know that his name will stand high in the annals of this country for having made marriage safe and divorce stink. But I want him to be sure that he does not make it possible for human relations to be denied their proper place in the considerations of the Parliaments of this country. Therefore, at the committee stage, I shall oppose Part II. and clauses 10, 11 and 12, which relate to the marriage of minors and which seek to substitute in all States the ages of eighteen years for males and sixteen years for females.







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