I am not suggesting the Senator did, but that is the impression some of us give when we talk about reforms and when we attack existing legislation in areas of this kind and deplore the fact that after 50 years of nationhood we are still in such-and-such a situation. I am speaking as one who has spent most of his political life in opposition, speaking from Opposition benches on legislation. By and large it is true that our legislation, by whatever Government introduced, was a fair reflection of the consensus thinking at the time of the introduction of the legislation. This holds true for most social questions. It is true generally for our legislation. It may be that, as times change, thinking also changes and new thinking by those in Government will produce a different type of legislation. It is right that legislation should reflect the consensus thinking of the people.
I find it a lot easier to accept the broad principle of this Bill—the need to amend the law—than to accept some of the arguments that have been advanced in support of the Bill. Virtually all societies have the marriage structure or institution which is recognised and supported by law. It constitutes a stable and in most cases actually, and always hopefully, a permanent union, which affords the greatest protection and safeguard for the children of the union. It is true to say that the institution of marriage —the stable union of which I speak—is and has been through the years invariably supported not merely by being accorded recognition by law but by the support of legislation. Unions outside the recognised institution have been discouraged not merely by society but by law reflecting the views of society. I suppose legislation either to discourage such unions or in support of the institution of marriage was enacted because of what was regarded as a threat to the marriage institution.
I will go further than that and say that the commendable desire to protect the marriage institution has probably resulted accidentally in imposing legal sanctions on the wrong person, the offspring of the union occurring outside of marriage. I do not think this has ever been motivated by ill will towards the illegitimate child. It was out of a desire, reflected by consensus thinking in society, to protect the marriage institution. In Article 41 of our Constitution we specifically bind ourselves to upholding marriage and the family. Article 41 starts by saying that the State recognises the family as the natural, primary and fundamental unit group of society and as a moral institution possessing inalienable and imprescriptible rights superior to all positive law. It goes on to say that the State therefore guarantees to protect the family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the nation and the State.
Later on in subparagraph (3) the State pledges itself to guard with special care the institution of marriage on which the family is founded and to protect it against attack. That is the approach adopted in the Constitution. I think it was a right approach and an approach which then reflected and still does reflect public opinion.
Although I have said that and referred to the Article in the Constitution, in my view it is possible fully to subscribe to and support the view, of lawful marriage being permanent and being entitled to the kind of constitutional safeguards which appear in our Constitution, while at the same time looking very closely into and examining the law and any question of discrimination against the children of unions which neither have the sanction of law nor of public opinion as reflected by society generally.
Whatever sanctions may be imposed by the law or by social attitudes to protect the marriage institution and to protect society by supporting, upholding and protecting the family unit, which our Constitution does, they should not discriminate against the one person who is always, without exception, wholly innocent, the child of the union. It should be possible to have adequate regard to the responsibility of the father as well as the mother. This is a point which was adverted to by Senator West and by other speakers. It is an important point and one that merits our attention and the attention of the Government. I believe it is true that the policy of the law in this country—up to comparatively recent times the same could be said of the law in England—over the years has been to place most of the responsibility on the mother of an illegitimate child. The mother is obliged by statute—I think it is section 27 of the Public Assistance Act of 1939—to maintain the child whether the child is illegitimate or legitimate. The father's obligations under that Act, as far as I know, extend only to his legitimate children and to the children of his wife.
I know that there is the affiliation procedure under the 1930 Act. A number of what are now probably rightly, seen as defects of that procedure have been referred to: the fact that proceedings must be brought in the short space of six months and the fact that, even with recent increases, the maximum amount which the court can order to be paid by the father is an amount which nowadays would be regarded as largely nominal.
Those are matters which should be examined and which should be rectified and amended. I understand that the historical reason for the six months' time limit was to protect an innocent—let me use the term "accused", although I do not think that would be the term used in an affiliation proceedings—person from an allegation so long afterwards that he might be put in difficulties with his defence. While I believe that is historically the reason for the short time limit, it is not one that should stand up, because the procedure, so far as I am aware—let me admit straight away that I have not been a great practitioner in this field—requires the mother of the child to bring some corroborative evidence in a material particular. Consequently, so long as that requirement still remains, the gentleman against whom the allegation is made is not put into serious difficulties in relation to his defence. Therefore there is a strong case, nearly an unanswerable case, for extending the time within which proceedings might be brought.
It is interesting to note that, while the procedure under the 1930 Act contains these defects and contains the limit on the amount that can be awarded, there is a procedure whereby proceedings may be brought in the High Court, and there is no limit, under these proceedings, to the amount which might be awarded. That might not be a particularly valuable right on account of the burden of High Court costs, but it should be noted that it does exist.
All of the speakers so far have emphasised the lack of succession rights for illegitimate children. Again this is an apparent injustice, an apparent discrimination against one who is always wholly innocent. This obviously is a matter which must receive very careful, sympathetic examination. Senator Robinson referred to the position under the Succession Act of 1965. Under Part VI of that Act legitimate and adopted children have the right to specific shares in the event of the intestacies of their parents. Illegitimate children have not got that right. Under the provisions of the Legitimacy Act of 1931 the position of the illegitimate child is that he or she has the right, in the case of the mother's intestacy, to inherit the mother's estate but only if the mother has not been survived by legitimate children. Illegitimate children have no statutory claim whatever on the father's estate.
I think I have put the position correctly. I followed on the other speakers in doing that. We cannot simply look at that situation and say that it must be reversed immediately. It is a situation where one has to give a lot of thought to what the correct remedy is, how the scales can be righted so that they balance out reasonably evenly both for the illegitimate child and the legitimate child. We do not want to evolve out of this discussion a recommendation which might result in remedying an injustice on the one hand and creating one on the other hand.
The following example is a good one. Take the case where there is an illegitimate child who has been reared and brought up by the mother, has reached the stage where he is earning his own living and possibly has succeeded by his own efforts and his mother's efforts in establishing himself in business. Side by side with that the father of that child is running a family business which he has established and operated with the help of his legitimate children. Here is a situation where, if the law was simply to be radically altered in one swoop so that the illegitimate child would be entitled to an equal share of the inheritance of the father with the legitimate children, it would certainly seem that an injustice was being done to the legitimate children who had assisted the father and contributed to the establishment and running of the family business. Because of that kind of situation—and it probably is not a far-fetched situation—this aspect of succession rights is one that deserves much careful study before a decision is made on it.
Emotively, it would seem to anyone that the question of succession rights of illegitimate children is the most important part of the complaint that can be made on their behalf, but I am not sure that that is necessarily so. As a general rule, when the question of succession occurs, the children— legitimate or illegitimate—have probably reached adulthood. If the illegitimate children are self-supporting, it might be less important to them than a number of the other aspects which have been referred to by other speakers. Possibly they would be far more interested at that stage if the law regarding the legitimation were to be amended in a way which would remove from them the stigma of illegitimacy.
There are a number of other detailed matters that I do not intend to go into but which were rightly referred to by other speakers such as the position of the children where a marriage thought to be valid was found to be invalid; where a marriage has been annulled and where by reason of these events children thought to be perfectly legitimate have been rendered illegitimate. The law in that area should be altered so as to protect those children.
I have given fairly briefly my general reaction to this Bill. It is a Bill that warrants the fullest discussion and consideration. Any of us might be tempted to talk for hours on it because there are hours of talk in it. I would be tempted to follow the arguments that have been made but I will resist that temptation as there are a number of other speakers wishing to participate. I feel that the broad idea enshrined in this Bill is one that should commend itself to the House. I would have reservations regarding the details of the Bill if the Government were contemplating introducing their own Bill in this matter.
I should like to express my gratitude to Senator Robinson, Senator Lenihan and the other Senators concerned who agreed that, while we should continue this discussion in the unfortunate absence of the Minister, we should hold the debate open without concluding the Second Stage in order to enable the Minister to contribute. I will do my best to arrange that that will be as early as we can manage it.
