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Thursday, 18 August 1960


Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - in reply - The House has given a sufficient indication of general approval of the principle of this bill, that it does not seem that I need to take up its time for very long at this second-reading stage. However, I should like to make one comment about the question of a minimum marriageable age. Those who have addressed their minds to this question appear to have done so without having fully recognized the terms of the existing law. According to the Matrimonial Causes Act, a marriage under the marriageable age is void. This means that a boy and a girl who marry under the respective ages of eighteen and sixteen years, in what I shall call the western States are not married, but those in the eastern States whose ages go down as low as fourteen and twelve years are married. That is an intolerable situation and it is necessary, therefore, that some uniform age be chosen. I do not fail for one moment to see the difficulties which surround the choice. I know that there are pros and cons. This is a matter upon which the experience of individuals will differ, their social theories will differ and their philosophies will differ.

I included in my second-reading speech reasons why it seemed to me that the ages chosen in the western States - Western Australia, South Australia and Tasmania - were the ages which ought to be chosen by this House and made uniform throughout Australia. The poet and the writer, who has stumbled into this House by some chance, or mischance, took some time to say that this was very wrong and that we should not insist on conformity but, like poets, we should prefer disconformity. He said, in effect, that we should leave things alone, but he did not bother at any stage to condescend to particularity. In his view, if a lad of ten years went sporting with Amaryllis in the shade, if the lad was big enough it was good enough. That attitude condemns itself in the world of practicality. Various reasons, which I do not propose to give in detail, have been advanced for choosing the ages which have been set down. 1 am sure that honorable members who have not spoken during the secondreading debate will wish to speak on that point at the committee stage, and I shall deal with the ages in detail then.

The statement has been made that there has been no attempt to define marriage in this bill. It is not defined in the Constitution, either. That is because we in this community recognize a marriage as monogamous and a voluntary union for life of two people to the exclusion of all others, as the honorable member for Moreton (Mr. Killen) has said. In this bill, I have sought to ensure that our conception of marriage is maintained by providing for the recognition of religious bodies. In the course of that process of recognition, they will need to present their marriage services and their marriage ritual so that we can ensure that they are performing the marriage ceremony with the consequences which we recognize as marriage. I have found already that it will be necessary to depart from that procedure with some religious bodies because, for the purposes of the bill, I could not recognize them as such. I shall have to take a slightly different form of recognition. I shall mention this aspect later at the committee stage.

I am attracted - and, indeed I considered this aspect before the debate began - by the suggestion of the honorable member for Moreton that in a civil service - a service before a registrar - there should be some mark of solemnity and something said which called the attention of the parties to the nature of the relationship into which they were moving. Already I have paid so much attention to this aspect as to have drafted a form of words. I shall show them later to the honorable member for Moreton - perhaps they will find acceptance with him.

Some mention was made of the insistence in this bill on formality and the responsibility of the celebrant. The policy behind the bill was decided quite deliberately, lt is to make marriage a solemn occasion and, as far as possible, to make sure e that people marry before celebrants to whom they are known. I have not felt that it is an undue burden on the clergyman to require that he be satisfied that those who stand before him are the people mentioned in the documents which he will have. If he cannot be satisfied on that score, it would be better for the parties to go to a clergyman who knows them or to whom they are sufficiently vouched. I do not feel - and I am sure that in the long run honorable members will not feel - that that is an undue burden.

The honorable member for Darebin (Mr. Courtnay) said that this bill was having a a smoother passage than the matrimonial causes legislation had because I had changed my tactics and had consulted the churches before I introduced it, whereas on the former occasion which, in the honorable member's mind, was a sad one, I had not done so. Truth to tell, I cannot flatter him by saying that he had good prescience because, in fact, I did not consult the churches before this bill was introduced. However, since its introduction I have done so. I have seen representatives of a number of churches and I have received many letters from others. I want to say, particularly for the information of the poet and the writer, that I have not heard a single dissenting voice from any church, from any body of women or from any Social worker as to the choice of the minimum age. On the contrary, every person or body who has chosen to write to me - and there have been very many - has been in full agreement with the choice and has had a great deal of commendation for it.

In the interim, I have seen also State officials with a view to accommodating these provisions to the various State systems. Honorable members will recall that this bill does not provide for the registration of marriages. That is left with the States. In addition, it gives certain functions to judges and magistrates. One honorable member mentioned that I could force these functions upon the State bodies and perhaps vary them from the form now in the bill. That is not so. The Commonwealth cannot force on the State courts duties that are not judicial duties - duties of giving consent and of deciding whether a marriageable age should be lowered in a particular case. These matters must be. arranged with the States and I have taken time in the interim to effect those arrangements. As a result of my meetings with representatives of the churches, judges, social workers and representatives of the States, I will seek certain changes in the bill at the committee stage. I will not go into these changes in detail now but I will indicate broadly to the House the kind of changes that I will propose. The details will be circulated in sufficient time for honorable members to see why the changes are being proposed and the actual expressions in which they will be made.

Some States have felt that judges of the Supreme Court should not be burdened with the functions I have mentioned - that it would be better for County Court judges or magistrates to do this work. I propose to make the provision flexible to enable the Attorney-General of the time to provide that in Western Australia, for example, if required, a County Court judge could act but a Supreme Court judge in another State.


Mr Whitlam - They will have to appoint one in Western Australia.


Sir GARFIELD BARWICK - The honorable member is quite right. There is no County Court in Western Australia. It may have to be done there by a magistrate.

The honorable member for Moreton directed attention to the fact that under this bill there was no reciprocal right of appeal - if I may use that expression - where consent is given to a marriage by a magistrate against the wish of a parent. The bill does provide for an appeal by an infant if consent is withheld by a magistrate, but makes no provision for an appeal by a parent should consent be granted. I must confess that in my first consideration of this point it seemed to me that if a magistrate, having heard the facts of a case, decided that a marriage should proceed, it would be rather difficult to delay the marriage while an appeal was being made, particularly as time would have to be allowed to the parents to decide whether there should be an appeal. On reflection, however, I am content to provide for an appeal by a parent but the time in which the parent must make up his or her mind whether to appeal will have to be short.

It is proposed to make some change in connexion with the production of a birth certificate to the celebrant of a marriage. The point raised by the honorable member for Swan (Mr. Cleaver) has been brought to my attention. It has been pointed out by child welfare authorities and by some ministers of religion that it may be hurtful to some young people who are being married to learn for the first time that they are illegitimate or adopted. The view has been expressed that it would be preferable not to force this knowledge upon them. I am not sure that this is a valid point but there is no need to take a risk in respect of it. Therefore, instead of insisting on all the particulars on the birth certificate being produced to the celebrant, I am prepared to provide that an extract only be produced, stating the date of birth and giving some indication of identity. That may remove the possibility of hurt to some individual.

Two other provisions of a substantial nature must be considered. Honorable members will know that the prohibited degrees of consanguinity and affinity that are to be found in the schedule to the Matrimonial Causes Act make no provision with respect to adopted children. There is a great need to consider how to integrate into the ordinary conception of consanguinity and affinity the case of adopted children. I find, on a little research, that there is quite a variation in the treatment of this subject in different countries. I will be proposing a provision that, for example, an adopted girl cannot marry the adoptive father and that an adopted female child cannot marry the natural son. These things need a little consideration and I have given a good deal of thought to them. At the committee stage I will have specific proposals available for honorable members.

Although the poet and the writer on the Opposition side may think that I have been emulating the Lord, the fact is that in this field some proposal has to be made to the House and it must be a proposal which to the best of one's ability has good sense and is not idyllic or too poetic.

The last thing that I want to say about the changes that may be coming is that there will be need to be provision for cases in which there is a second ceremony of marriage. I have found in my discussions since the bill was introduced that on some occasions there may be serious doubt as to the validity of a first marriage ceremony. The proxy marriages which migrants enter into are a case in point. It will be necessary to provide that a second ceremony of marriage may be gone through but there will have to be safeguards to see that there is some particularity of the former ceremony in case it was good, because that may have legal consequences in another day. Also, we have in the community Buddhists and Muslims who, of course, by their beliefs may not be bound to monogamous marriage.


Mr Whitlam - And Mormons.


Sir GARFIELD BARWICK - Yes. Polygamy is too expensive to practise in most cases. However, it seemed to me right to provide for a ceremony under our act which ensured monogamy, and then say to the parties, " If you want to go through a ceremony in your own faith, which we cannot recognize for the purposes of the act, you may but you cannot issue a certificate of marriage in respect of the second ceremony and you must recite the first marriage and regard it as the valid one ".

This matter has a deal of complication in it but it will be before honorable members with particularity by the time the committee stage is reached.

I am content at this point to leave the measure in the hands of the House, feeling as I do that all honorable members who have spoken on it have recognized the need for onelaw of marriage for Australians. That is what the bill provides in clear terms.

Question' resolved in the affirmative.

Bill read a second time, and committed pro forma; progress reported.







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