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Thursday, 18 August 1960


Mr CLEAVER (Swan) .- It is true that many of the points in which other honorable members and I are interested could best be dealt with at the committee stage of this bill, but before the second-reading debate is concluded I take this opportunity very gladly to bring forward some observations on the proposed legislation. At the very outset, let me say that I for one do not appreciate the levity which the honorable member for Parkes (Mr. Haylen) brought into his speech. We are dealing, as we were, with the uniform divorce legislation, with proposed legislation which, because of its content and purpose, should be discussed on the very highest level. I want to pay a tribute to the outstanding work of the Attorney-General (Sir Garfield Barwick). Some months ago we had the experience in this chamber of listening to a magnificent presentation of that previous legislation dealing with our social life, namely, the Matrimonial Causes Bill. We paid our tributes to him then, and those of us who did so expected that when this complementary legislation was presented, the Attorney-General would, in like manner, have something to put before us that would be well worth our consideration. That expectation was confirmed when we listened to his second-reading speech. In his speech on the bill now before the House, we have material which is well worth world-wide study.

Unlike the honorable member for Parkes, I believe that in all these matters there must, of necessity, be a uniform approach. Apparently the honorable member does not believe in the rule of law, but of course, in certain respects there must be a uniform law. We have in Australia different marriage laws in virtually every State. Ministers of religion who are transferred from one State to another find to their amazement that they must comply with a local law which is altogether different from that to which they were accustomed for so many years in the State from which they came. They find that the age limits are different, that the form of registration is different, and that there are also differences in other respects. If the bill before us sought to do no more than to remove those anomalies it would be an excellent piece of legislation which ministers of religion throughout Australia would accept with gratitude.

I did not rise with any thought that I could contribute to the debate as an expert in this field. I am merely a layman, but during the winter recess I took the precaution of saying to a cross-section of ministers of religion, " Here is a copy of the Marriage Bill and here is a copy of the Attorney-General's second-reading speech. I would value your comments, so that any contribution I make during the debate in the House may be related to your observations from your vast experience." A number of those ministers evidently appreciated that invitation. What I shall say now is not my original thinking; I am conveying points which are well worthy of consideration and are taken from this cross-section of opinion. While I have conveyed these points to the Attorney-General, I propose to make them public now in the hope that, at the committee stage of this debate, we may have them amplified.

One particular group of ministers, meeting in fraternal, gave this measure detailed study. Might I point out at this stage that they said they noted with satisfaction this proposal for a uniform law for the Commonwealth, and commended the measure. They also commend the high level on which the subject is approached. They recognize it as a social advance which should assist in promoting the stability of marriage, on which the well-being of the community so largely depends.

The ministers say that they particularly desire to commend the provisions dealing with the legitimating of children born out of wedlock. These are ministers of religion. Some of them are marriage counsellors. They are men whose very calling enables them to be advisors in this field of social life, and out of their wealth of experience they see advantages in a uniform law and in the high level on which the legislation has been designed by the AttorneyGeneral. However, the members of this group, despite that spirit of favorable reaction to the proposals, have found several points that give them concern; but obviously, it would be an amazing piece of legislation that pleased everybody.

It was delightful to witness the flexibility of our eminent Attorney-General when the Matrimonial Causes Bill was discussed in this chamber. Many sound points were raised during that debate. Not only were many of them considered sympathetically and thoughtfully, but many of them also were taken up and adopted by the AttorneyGeneral as amendments. In like manner, it is highly probable that during the discussion on this bill at the committee stage amendments to this bill will be accepted. Some of them may come from the Minister himself after further consideration; others may be suggested by honorable members.

The group of ministers of religion to whom I have referred questioned, first, whether consideration had been given to the practice that is followed in Europe, where the marriage is celebrated before a civil official and the church ceremony or blessing follows only when that is sought. I think we are clear on that point. Here we have a uniform law. We are dealing with this matter on the basis that a marriage must be in line with the civil law.

There are many ministers of religion who quite justly view with concern the convenience that is made of the church only because of the social aspect of marriage. There are parties to marriages who, unfortunately, go into the church to-day with little thought and little preparation. Their conduct before, during and after the marriage ceremony lends nothing at all to the solemnity with which we would expect them to approach the church for God's blessing on the matrimonial union. So one can sympathize with many ministers of religion who ask, " Why should this not be a civil ceremony of necessity, with a certificate supplied by the civil authority to the minister, freeing him from so much of the clerical duty? " People who desire the blessing of the church on the marriage could have it, and then the contract would be complete. The churches and ministers of religion would be free of the embarrassment of people who go to the church with no feeling for the religious element of union in matrimony.

It is also felt that ministers of religion should be freed as much as possible from the clerical and legal obligations that are laid down in the proposed legislation, for this calls upon them virtually to act as assistants to the registrar. That would enable ministers of religion who perform marriages to give their undivided attention to what is distinctly their duty according to their vocation - the religious guidance and the counselling for marriage.

Here, as an aside, let me associate myself with my colleague, the honorable member for Moreton (Mr. Killen) who, speaking in this debate several days ago, said he felt that the solemnity of the marriage ceremony in the registrar's office could well be lifted to a higher level. I agree with him. I listened intently to his recitation of the wording which a registrar in the United Kingdom is called upon to use before a couple who are to be married. I believe there could well be an amendment along the lines that were recommended by the honorable member.

In connexion with relieving ministers of religion of legal responsibility, it is suggested that the registrar's staff should attend to the preparation of all the necessary documents, including the sighting of consents and birth certificates, and the issue of a certificate or other authority for a marriage to take place. It is suggested that these formalities should be dealt with according to the practice followed in Scotland. Of course, it is realized that in remote parts of the country this procedure might involve some difficulty. The parties to a marriage could have difficulty in preparing for their marriage by the date they had in mind. In such cases, perhaps a limited number of persons such as ministers or public officials could be enlisted as representatives of the official registrar.

Several other points have been mentioned to me.One criticism is this: It is contended that, if both parents consent to the marriage, surely any person on the electoral roll should suffice as a witness. Further, it is proposed that, as it stands, clause 28 gives a civil servant - the registrar - the right to determine for a church the number of ministers that it may have for the celebration of marriages. It is suggested to me that that is undesirable. Surely the church should have the right to indicate whom it would recommend, and the number of persons who would be so designated. It is suggested that any limitation could well affect or embarrass a minister with his own congregation.

The requirement in the legislation to produce a birth certificate has been questioned by some of these reverend gentlemen. Their thought is this: While there are administrative advantages in establishing the identity a nd age of persons in doubtful cases, does the provision as to identity place a serious obstacle in the path of a person who is set on obscuring his identity? How easily can copies of birth certificates be obtained? Would not a person who wants to obscure his identity simply say that a certificate was not obtainable?

It has also been suggested to me that it seems a little absurd to have to establish the age of a person by means of a certificate when the person is obviously well over the age of, say, 30 years. Moreover, if the certificate should reveal a person's illegitimacy, would not that be a cause of unnecessary suffering? The proposal, therefore, is this: Why not require a birth certificate only in such cases where there is any doubt in the mind of the celebrant that one of the parties is under 21?


Mr Bandidt - What States require certificates to show illegitimacy? It is not necessary in Queensland.


Mr CLEAVER - We will leave that to the Attorney-General to answer. I think, Mr. Speaker, that with this contribution I can conclude by saying, again very genuinely, that the uniformity in so many aspects to be achieved by this legislation is well overdue. Here is another piece of legislation drafted on a very high level. There was no levity in the AttorneyGeneral's second-reading speech. We are dealing with something which can stand to the credit of this Parliament as a piece of social service legislation of the finest quality and with the best intent. I hope that in the spirit displayed by the AttorneyGeneral, and the spirit in which I speak now in supporting the measure, we shall come to the committee stages and consider this piece of legislation before us in detail. As we deal with it clause by clause may we be under the guidance of Divine Power because we are considering something here that deals with men and women, and so often young men and women. Let this be a piece of social legislation which will stand to the credit of this Parliament, having been dealt with in this sensible way as a nonparty measure.







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