Reg v L

[1991] HCATrans 238

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A3 of 1991

B e t w e e n -

THE QUEEN

Petitioner

and

MARK LORD

Respondent

Cause removed pursuant to

section 40 of the Judiciary Act

1903

MASON CJ
BRENNAN J
DEANE J
DAWSON J

Lord(2) 1 2/9/91

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 2 SEPTEMBER 1991, AT 3.07 PM

Copyright in the High Court of Australia

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with MS C.F. SARRE,

for the Attorney-General. (instructed by the Crown

Solicitor for South Australia)

MR G.D. WENDLER: If the Court pleases, I appear with my

learned friends, MR N.J. RAINFORD and

MR S.H. MacFARLANE, for the respondent.

(instructed by the Legal Services Commission.

MR L.S. KATZ, Acting Solicitor-General for the State of New South Wales: If Your Honours please, I appear for

the Attorney-General for New South Wales who

intervenes in the interest of South Australia.

(instructed by the Crown Solicitor for New South

Wales)

MR W.J.N. WELLS, QC: If the Court pleases, I appear for the

Attorney-General for the Commonwealth, with
MR E. WILHEIM, intervening. (instructed by the

Australian Government Solicitor)

MASON CJ: In what interest?

MR WELLS:  In the interests of the State of South Australia.

MASON CJ: Thank you. Yes, Mr Solicitor.

MR DOYLE:	If the Court pleases, I wonder if the Court might find it convenient to call on my friend first as he
is making the challenge to the legislation and,
although in a general way we understand the
grounds, our argument may be a good deal shorter if
it came afterwards.

MASON CJ: Yes, that is agreed, Mr Doyle, unless you have

some objection, Mr Wendler?

MR WENDLER:  No, Your Honours, I do not have any objection.

I am happy to commence the argument. I invite

Your Honours to an outline of contention for the

respondent. If the Court pleases, I also invite

Your Honours to some photocopies of legislation

which I propose to refer to.

Your Honours, the Attorney-General for the

State of South Australia removes this high authority to answer the question formulated in the

notice of motion in the negative. That question

which appears on page 2 of the application book is

formulated in this way:

Is section 73(3) of the Criminal Law

Consolidation Act, 1935 (SA) invalid by reason
of inconsistency with section 114(2) of the

Family Law Act 1975 or by reason of

Lord(2) 2 2/9/91

inconsistency with any other provision of the

Family Law Act or of the Marriage Act -

of the Commonwealth?

Can I commence then, Your Honours, by inviting

Your Honours to section 73(3) of the Criminal Law

Consolidation Act. That page is reproduced in the

legislation that I have just presented to

Your Honours. I propose to read it out in its

entirety. Section 73(3), under the heading

Procedure in Sexual Offences, reads in this way:

(3) No person shall, by reason only of the

fact that he is married to some other person,

be presumed to have consented to sexual

intercourse with that other person.

That section has abolished the common law

presumption that there is an obligation to consent
to sexual intercourse as a legal consequence of

marriage. There is no doubt about that, in my

respectful submission.

TOOHEY J:  Why do you express it, Mr Wendler, as a

presumption of an obligation as opposed to an

obligation?

MR WENDLER:  I express it in that way as a presumption of

law, is what I mean, and it can only be removed by

an operation of law.

TOOHEY J: 

And what is the presumption of law?

MR WENDLER: 

The presumption is that a legal consequence of

to sexual intercourse. Section 73(3) of the

marriage is that there is an obligation to consent submission, recognizes that that common law

principle exists and then proceeds to abolish it

across the board for all persons married in the

State of South Australia. 

Before I move to consider the relationship in

law between section 73(3) and the relevant

provisions of the Family Law Act, it is perhaps

useful for me to invite Your Honours to

section 73(5). Section 73(5) is, in many ways, a

strange piece of legislation because what it

appears to do, it appears to revive the common law

principle that there is an obligation to consent to

sexual intercourse as a result of marriage. It

appears to revive it but apply it in a limited way.

In other words, in the way that is indicated in

paragraphs a, b, c and d of subsection (5).

Lord(2) 2/9/91

Section 114(1) and (2) of the Family Law

Act - those sections are reproduced on page 3 of

the bundle of legislation that Your Honours have. section 114 of the Family Law Act, in my respectful

submission, I propose to invite Your Honours to

section 43 of the same piece of legislation as
that, in my respectful submission, sets the
legislative flavour for any consideration of the
legal nature of section 114(1) and (2).

Section 43 of the Family Law Act is not an

empowering section but acts as a sort of
legislative signpost, as it were, to the Family

Court and other courts that when it makes any

decision about the rights and obligations arising from the status of marriage, the court is obliged

to take into consideration subsections (a),

(b), (c) and (d). Subsection (a) says:

the need to preserve and protect the

institution of marriage -

describes marriage as an institution -

as the union of a man and a woman to the

exclusion of all others voluntarily entered

into for life.

In subsection (b), it uses the expression:

the family as the natural and fundamental

group unit of society -

as a sociological concept concerning the idea of family. That section sets the background, in my

respectful submission, to any consideration of the

legal effect of section 114 and I invite

Your Honours now to that section.

BRENNAN J: Before you go to that section, can you give us a

reference to the cases in which it is laid down

that at common law there is some such presumption

or obligation of that to which you referred.

MR WENDLER:  Your Honours, I propose to move to that. If

Your Honours will just bear with me for a moment, I

just want to make some submissions concerning the

legal nature of section 114. From there, I will

proceed .to the fairly recent Victorian decision of

Reg v McMinn. In that case, I will be making a

submission that at least the Victorian Full Court

implicitly recognized the idea that I have already

spoken about, that there is an obligation to

consent arising out of the status of marriage.	I
propose to say something about the question that

Your Honour Justice Brennan has put to me, but can

Lord(2) 2/9/91

I just do that after making a submission concerning

section 114.

Section 114(1) and section 114(2) are

Section 114(1) empowers the Family Court of

intimately connected, in my respectful submission. any of the six areas mentioned. It is a broad jurisdiction. It is intimately connected, in my

respectful submission - that is section 114(1) - to

section 114(2). This is the section that the

respondents respectfully submit implicitly
recognizes that the status of marriage has with it

certain legal rights and obligations that arise

from the civil contract of marriage.

Subsection (2) reads in this way:

In exercising its powers under

sub-section (1), the court may make an order

relieving a party to a marriage from any

obligation to perform marital services or

render conjugal rights.

On the face of it, if the Court pleases, it

would appear that there are two authorities

attempting to deal in one area, namely, the legal

rights that arise from a marriage. The expression:

relieving a party to a marriage from any

obligation to perform marital services or

render conjugal rights -

is an expression which recognizes that marriage is

a special relationship that activates or carries

with it special rights, special reciprocal rights.

Your Honours, I have photocopies of the places

that I propose to either read from or refer to in

some detail. Perhaps it is convenient that I

invite Your Honours to those now. The last case

amongst the photocopy of cases is the decision of

the Victorian Full Court, sitting as a Court of

Criminal Appeal, in Reg v McMinn. That was a
decision of that court reported in the Victorian

Reports of 1982 at page 53.

The decision in Reg v McMinn implicitly

recognized, in my respectful submission, the common

law idea that marriage activates an obligation to

consent to sexual intercourse as a legal

consequence of marriage. That is why the

submission was made in that case by the applicant

that the conviction was bad in law - the conviction

for rape was bad in law - because of the undoubted

existence of that common law concept. The

Victorian Full Court, if the Court pleases, did not

in its decision consider the relationship between

Lord(2) 2/9/91

the Victorian Crimes (Sexual Offences) Act, an Act of the Parliament of Victoria, and the Family Law Act, because that piece of legislation in Victoria

had not been in existence at the time of the

offence.

What the Victorian Full Court did do was

consider the ambit of section 114(1) and its legal

effect. It also considered the relationship

between section 114(1) and section 114(2). It

resolved the issue by refusing leave to appeal in
the end to the applicant by construing
section 114(1) in such a way that the orders made
by the Family Court in the circumstances of that
case implicitly resulted in the applicant not being

able to sustain in law the legal effect of the

principle that a husband cannot rape his wife

because the orders granted under section 114(1)

were wide enough to read in "non consent" in the

circumstances of that case.

It is implicit, in my respectful submission,

from the judgments of all of Their Honours sitting

in that case that this common law idea that a

husband cannot rape his wife was in existence.

There is no doubt that all of Their Honours

considered the idea as to whether or not it is

morally correct for such a rule to have any place

in modern times. There is no doubt that all of

Their Honours considered that it was morally

reprehensible that such a law could have any

existence in modern times, but that is not the
point of this case.

The point of this case is to answer the

question, "Who has the legal authority to control
the area of law which concerns the legal rights and
obligations that arise from marriage?", that is the
essence of this case.

DEANE J:  Is that so, though? I mean, what if one were to

take the view that the proposition that a wife

cannot, as a matter of law, withdraw consent to

intercourse with her husband is so out of accord

with modern society that it simply cannot be part

of the law of this country.	Is that not the end of
this case?

MR WENDLER: 

No, it is not, if the Court pleases, because in

the end this case will depend on the construction
in law that is placed on section 114(2), but the

respondent is not here to try and convince this

high authority of the moral correctness or

otherwise of the principle that a husband in law

cannot rape his wife.  The respondents simply say

that the appropriate authority to deal in law with

the principle that a husband cannot rape his wife

Lord(2) 6 2/9/91

belongs to the Commonwealth because in the

end - - -

DEANE J:  But have you not got to face up to the details of

this case, and that is, if there be no such rule of

law, I presume under the law of South Australia,

the Crown has to prove absence of consent beyond

reasonable doubt?

MR WENDLER: That is right, yes.

DEANE J: Well, the whole question just disappears, does it

not?

MR WENDLER:  Not in my respectful submission.

DEANE J: Start with the proposition, for the sake of

argument, that the notion that the law precludes a

wife from withdrawing consent to sexual intercourse with her husband is simply wrong. In this case the Crown has to prove beyond reasonable doubt that the wife did not consent which means if there is simply

a factual presumption that a wife does consent, the

Crown has to prove beyond reasonable doubt that she

did not consent. I mean, what bearing has it got

on this case unless you make good the proposition

that a wife cannot withdraw her consent to sexual

intercourse? I might be missing something but it

seems to me it would have no relevance.

MR WENDLER:  No, Your Honour is correct. My rejoinder is

this, that the respondent is not here to argue the

moral correctness of that principle.

DEANE J:  I was not suggesting you were. I was questioning

the legal validity of the notion that a wife cannot

withdraw consent to sexual intercourse with her

husband.

MR WENDLER:  Your Honours, that would be a matter, in my

respectful submission, for the Commonwealth to

decide upon, not the State of South Australia, by

passing legislation that·the appeal was across the

board -

DEANE J:  What I was suggesting to you was that nobody has

to decide on it.

MR WENDLER:	If the Court pleases, it is implicit in section 114(2) that the Commonwealth recognizes
that that common law principle is in existence,
apart form the moral correctness of it.

TOOHEY J: But you say that, Mr Wendler, but I must say I am

having difficulty in finding it in section 114(2).

All the section appears to be saying, or the

Lord(2) 2/9/91

subsection, is that where, outside the Act, there

is an:

obligation to perform marital services or

render conjugal rights -

then the court may make an order relieving the
party to a marriage of that obligation, but it does

not purport to identify what those obligations are

and, certainly, so far as I am aware, the Act does

not seek to specify them.

MR WENDLER:  No, it does not specify them, but if the Court

pleases, it is the respondent's submission that the

words "marital services" or "conjugal rights" refer

to, amongst other things, the obligation to have

sexual intercourse, as one of the obligations and

rights of getting married. When the parties say

the magic words "I do", it is not a mindless
exchange; it is "I do" in relation to something. A

lot of people go along and say "I do" and they have

got no idea what they are saying most of the time.

What that means, in law, is that there are certain legal ramifications, and one of which is that there

is an obligation to render sexual society, and it

is implicit, in my respectful submission, in

section 114(2), that the Commonwealth recognizes

that, because it has empowered the Family Court to

make orders in that regard, and it is a head on

collision; it is direct inconsistency. You have

one authority, the Parliament of the State of South

Australia, saying "it is abolished across the

Board", everyone in the State of South Australia.

You have the Commonwealth empowering the Family Law

Court saying that "it remains in existence until in

our discretion on a case to case basis an order is

made by way of injunctive relief or by way of some

other order". That is the reality of the head-on

collision, in my respectful submission, between the

two pieces of legislation.

There is no doubt, if the Court pleases, that

recently the English Court of Appeal in the

R v R,
decision of which is reproduced for cases that Your Honours are in possession of, that the learned Chief Justice of England, Lord Lane,

described this concept that a husband cannot rape

his wife as a fiction, and an appalling fiction at

that, and that it had no place in modern

jurisprudence. I should add a rider, concerning

that authority because, as I read the report, that

decision is also the subject of a further appeal to

the House of Lords, as I understand it.

Your Honours, the respondent's submission is

simply this, that there is a direct inconsistency

Lord(2) 8 2/9/91

between the two pieces of legislation and the legal ramifications of that, in my respectful submission, bring into play section 109 of the Constitution.

TOOHEY J:  Mr Wendler, I am not clear as to how the argument

is being put. It seems to hover between two

propositions, one of which is that there is an

obligation which exists at common law which the Act

somehow recognizes, or at times it comes close to

obligation and at the same time giving the court a

saying that the proper construction to place upon

subsection (2) is that in some way or other

power to relieve from that obligation. If it is

the former, can you point to some authority that supports the proposition at common law for which

you contend.

MR WENDLER:	No I cannot, Your Honour, not in the federal context, if the Court pleases.
TOOHEY J:	I was not asking in the federal context; I was

asking in the context of the common law. I mean,

say for instance R v R had been decided by this

Court the year before the Family Law Act came into

operation; would you say that through subsection(2)

somehow Parliament was recognizing an obligation

which the court said did not exist?

MR WENDLER: Within the context of section 114(2), in my

respectful submission, I cannot see how this Court could abolish that principle of the common law, as

it were.

BRENNAN J: Is it a principle of the common law? The notion

is that it is common law and so that language goes,

but looking at R v R raises the problem, which I

must confess concerns me because of the profound ignorance of the problem, and it is this: I have always understood that it is not common law, but

ecclesiastical law, which is the basis of

there is a reference to a view that was taken in	family law. At page 260 in the report of R v R,
the ecclesiastical courts in the old case of Popkin
v Popkin, and then it goes on to deal with the
proposition as though that was somehow translated into an enduring principle of the common law at
line C. Now, I do not know whether the common law
ever had anything to say about this. Do you know?

MR WENDLER:  Yes, if the Court pleases. In fact it is, if

you want to take it right back historically, a

Biblical concept emerging out of the idea that

husband and wife were one; that crept in to the

area of ecclesiastical law and there was a time

when an ecclesiastical court could make an order

for restitution of conjugal rights. In fact such

Lord(2) 9 2/9/91

an order could be made in England up till and

including approximately 1865 when the Divorce Act
came into operation in England. Until then an

ecclesiastical court could make an order for

restitution of conjugal rights. The Act which

replaced the Family Law Act, the Matrimonial

Causes Act, by virtue of section 16, had a section

where a party could seek a decree for the

restitution of conjugal rights. All that

section 114(2) does is recognize that legal

consequence of marriage in the Family Law Act; that

is all it does. There is no doubt it was once the

province of an ecclesiastical court, to make those

special orders and that is how it, through legal

history, has crept into the common law, as it were.

In my respectful submission, all the

respondent submits is that there is a direct

inconsistency between what the Parliament of the State of South Australia is attempting to do, in section 73(3) and what is implicit in section 114.

TOOHEY J: Well could I ask you a question that I put to you

earlier; I will ask in a slightly different form.

At the time of the passing of the Family Law Act,

do you submit that there was, at law, independently

of the Act, an obligation on the part of a wife to

have sexual intercourse with her husband?

MR WENDLER:  Yes, if the Court pleases. I submit that and

that is implicit, if the Court pleases, by virtue

of the decision in R v McMinn, implicit in the

judgment. All of Their Honours, when they resolved

that case, did it on the basis that this common law

concept was still in existence. As I have

previously submitted to Your Honour, whether it is

morally correct or not, it is not what the

respondents are about in this matter.

TOOHEY J: Well then the headnote to McMinn must be

misleading in that event, because it reads:

Without deciding whether the principle that a

man cannot rape his wife remains part of the

common law -

You think the judgments go further than that, do

they?

MR WENDLER:  If the Court pleases, I did not say, with

respect, that the Full Court actually explicitly

decided once and for all whether it was part of the

common law. My submission was that implicit in the

way that they resolved the appeal before them or
the application for leave to appeal before them, it

was based on the assumption that the principle that a husband could not rape his wife was still part of

Lord(2) 10 2/9/91

the common law. They did not decide whether it was

correct or not; they implicitly, in my respectful

submission, suggested that it was still part of the

common law. That was the whole basis of the

application for leave to appeal in McMinn.

Your Honours, the submission in the

alternative that the respondents make is that, by

the combined operation of the Family Law Act and

the Marriage Act, Commonwealth, there is an

intention to, as the expression goes, cover the

field in the area of the legal rights arising from

marriage.

DEANE J:  Mr Wendler, can I just divert you for one moment.

Is rape a statutory offence in South Australia?

MR WENDLER:	Yes it is, if the Court pleases.
DEANE J:	What is the relevant statutory provision?
MR WENDLER:	Section 48, if my memory serves me correctly.

DEANE J: Section 48 of the Crimes Act?

MR WENDLER:  Of the Criminal Law Consolidation Act.

DEANE J: Thank you. So, if you fitted into the statutory

context, which is a person who has sexual
intercourse with another person without the consent

of that other person, the argument is that there is

an irrebuttable presumption of law that for the

purposes of section 48 a wife consents to sexual

intercourse with her husband.

MR WENDLER: That is right, if the Court pleases, and that

is why the Parliament enacted section 73(3).

Your Honours, the submission concerning whether or not, by the combined operation of the

Marriage Act and the Family Law Act, it is open to

hold that the Commonwealth Parliament has intended	to cover the field, as the expression goes, in
relation to the rights and the obligations that
arise out of marriage. The respondents identify
the field as being the rights and obligations that
those reciprocal duties arise out of marriage. A
scrutiny of both pieces of legislation reveals that they are comprehensive enactments concerning the
civil contract of marriage, and I do not propose to
go through every single section in the Marriage Act
or the Family Law Act. My submission is that both
pieces of legislation, taken together, suggest an
intention to comprehensively control the activity
or the rights and obligations arising from the
activity, marriage. Indeed, there are, at least in
the Family Law Act, sections which, as it were,

Lord(2) 11 2/9/91

save various State provisions concerning keeping

the peace, for instance, which can be applied to a

domestic situation; they are areas which the

Commonwealth has saved or activities which the
Commonwealth has saved for the States. That

suggests further the omnipotence of the

Commonwealth in this area. By finding it

appropriate to save certain areas of activity for
the States suggest that the Commonwealth, at least,
considered that those areas would be inconsistent
on the face of it with its own jurisdiction in the

area, in this case, of marriage.

Your Honours, the scrutiny of both pieces of

legislation, first the Family Law Act, sets up this

massive infrastructure in this country of a special

court to deal not just with the dissolution of

marriage, but with other rights and liabilities

that result when two people decide to get married;

in other words, the legal ramifications of

marriage. There are areas which concern children
of the marriage; the Marriage Act abolishes the old marital torts; the Act picks up the criminal law in the area of bigamy; it concerns areas in relation

to the maintenance and maintenance agreements in

relation to a spouse. In short, both pieces of

legislation take over a very important area of

human relations. How inconvenient would it be to

have laws which were not uniform in relation to

marriage. And that is the thrust of the

respondent's submission in relation to the second
head of challenge, that it is useful, indeed

important, for the orderly progression of

Australian society, that there be one authority

that regulate all the rights and obligations that

arise when two people decide to get married, and

one of those obligations, if the Court pleases, is
the obligation to consent to sexual intercourse;

one of many rights. So, if the Court pleases, the

respondent's submission in the alternative is that

the Marriage Act and the Family Law Act

comprehensively cover the field - the field being

identified as the rights and obligations that arise

out of marriage - in such a way that inconsistency

between State legislation naturally emerges. They

are the two heads of challenge which the respondent

pursues in this Court.

The case is about the appropriate authority that is empowered by law to operate in the area of

the rights and obligations in relation to marriage.

The respondent's respectful submission is that it

is the Commonwealth and not the States and it is

ultimately for the Commonwealth to pass the

appropriate legislation in relation to this

particular area of marriage law.

Lord(2) 12 2/9/91

Your Honours, I am not sure whether I can pursue it much further.

BRENNAN J:  Does your argument go to the extent of saying

that the prohibition in section 48 is itself

inconsistent with the provisions of the

Marriage Act?

MR WENDLER:  In so far as it is intimately connected to

section 73(3), yes, it is. But, Your Honours,

section 73(3) could be severed from section 48.

Section 73(3), in my respectful submission, was

enacted for the one reason, and for the one reason
only, because the Parliament in the State of

South Australia recognized the common law anachronism, if you like, that a husband cannot rape his wife; that is why it exists,

section 73(3).

BRENNAN J: Well, that is what I wonder about.

Section 73(3) deals with a presumption of consent; section 48 deals with having intercourse without consent; now absent 73(3), could whatever

presumption that there might be be rebutted on a

charge under section 48 or is the nature of

marriage such that sexual intercourse with a spouse

is itself permissible, so that the prohibition of

it in section 48 is, on your argument,

inconsistent?

MR WENDLER:  Your Honour is correct. That prohibition could

still be read into section 48, in my respectful

submission, irrespective of section 73(3).

BRENNAN J: Well, it depends on what you contend for as the

content of the marriage obligation or liability and

the Commonwealth, as it were, subsumption of those

rules within its legislative power in enacting the

Marriage Act and that requires us to have some

precise idea of what it is that you say the status

of marriage produces.

MR WENDLER:  In my respectful submission, the status which

is implicit in section 114(2), amongst other
things, is a status which involves reciprocal

expectations, as it were, in law by the parties,

one of which is an obligation to consent to sexual

society. That can be read into section 48, in my

respectful submission. The only reason why

section 73(3) came into operation was precisely to

remove any attempt to read in to section 48 the

common law immunity, if that is the right

expression. If the Court pleases, I am not sure

whether I can pursue it much further. My

submission is that there is a conflict of

authorities; when I say that I mean between the

Parliament of the State of South Australia and the

Lord(2) 13 2/9/91

Commonwealth in the area of marriage. Indeed, it

is a direct conflict; it activates provisions of

section 109 of the Constitution. In my respectful

submission section 73(3) is invalid. I do not

propose to say anything; unless there is anything

else Your Honours want me to say.

MASON CJ: Yes, thank you, Mr Wendler.

MR DOYLE:  I think the Court has our outline of submissions.

MASON CJ: Yes, we have read them.

MR DOYLE: If Your Honours please, in a nutshell our

submissions are these, that first of all the Court
should take the opportunity to reject the view of
the common law declared by Lord Hale, although the
Court may take the view that in light of
legislative changes there is little point in the

Court declaring or stating the common law.

The second submission is that neither the

Family Law Act nor the Marriage Act cover

comprehensively the field of rights and obligations

of spouses in such a manner as to indicate any

intention on the part of the Commonwealth

Parliament to exclude State law from that area and,

subsidiary to that, nor is there any indication in

those pieces of legislation of an intention to

preserve - I suppose it would have to be by

implication - the common law.

Thirdly, that when one looks specifically at

section 114(1) of the Family Law Act, that that

merely provides civil remedies, some of which when

granted might terminate the implied consent to

intercourse which, it is suggested, flowed from

marriage at common law. That is merely a secondary

effect of such orders and section 114(1) cannot be

seen as preserving that implied consent, if it

existed.

Finally, as to section 114(2), that again,

while that enables the court to make orders which

may have certain effects as between husband and

wife, it in no sense preserves any common law

doctrine or other principle of consent attributable

to marriage.

DEANE J:  Mr Solicitor, does not one need to be a little

more precise, in the sense that - get away from

sexual intercourse and say one turns to cohabit,

apart from the sexual intercourse, it is one thing

to say that a wife has an obligation to cohabit

with her husband; it is another thing to say that

if the wife does not cohabit with the husband, the

husband is entitled to go and take her by the hair

Lord(2) 14 2/9/91

and pull her back to the house and lock the door

and lock her in.

MR DOYLE:	Yes.
DEANE J:	Now, when you say we should look again at the

common law, what are you talking about? Are you

saying we should say that marriage does not involve

an obligation in relation to sexual intercourse, or are you saying that the fact that a wife refuses to

observe that obligation, if it does exist, does not

mean that the husband is entitled to disregard her

factual lack of consent and force her to have

intercourse? I am not trying to suggest what you

should be saying, but there are two different

propositions.

MR DOYLE:  Something closer to the second, Your Honour. As

to the first, our submission would be that in truth

it has never been a marital obligation, in fact, to

submit to intercourse; that, insofar as the law has

from time to time recognized the concept of

conjugal rights - and Your Honours will notice I

use the plural term, there was the notion of

conjugal rights - that seemed to embrace the right

to cohabit. But the right, in a sense, took on its

content only from the fact that if the wife failed

to cohabit - I should not necessarily say the wife

- if the spouse failed to cohabit, then the other

spouse would be entitled to go to a court and

obtain what is called a matrimonial decree. It

might be a decree for restitution of rights; it

might be a decree of separation; it might be some

other type of decree.

But the only right was one which can be

expressed in those terms, namely, that if the

spouse did not do certain things then the innocent

spouse could go to a court and get certain orders

which would have an effect on the marriage

relationship, but it was never even part of the law

as between husband and wife that the husband had

the right to force his wife to submit, nor did any

of the decrees of the court aid any such right.

The decrees of the court did certain things then in

terms of the matrimonial relationship if the wife

chose not to cohabit or, as it was sometimes put,

render those conjugal rights.

DEANE J: Except, underlying the approach, there was the

notion that the wife did have some sort of

obligation to engage in sexual intercourse.

MR DOYLE:  Yes.

DEANE J: But if one looks at that, it could not, in a

modern context, be absolute. I mean, no court

Lord(2) 15 2/9/91

could say that in any sense of obligation the
obligation existed if, for example, the husband had

venereal disease or, in the modern context, AIDS.

MR DOYLE:  No, as Your Honour says, it was never an absolute

obligation and, I must admit, Your Honours, my

researches have not gone in detail into the law way

back in the mists of time, but certainly, in my

submission, for a long time, matrimonial law has

not given to a spouse any right other than a right

to obtain certain decrees against a spouse who

failed to render the so-called conjugal rights.

TOOHEY J:  Mr Solicitor, was there a standard form of decree

for restitution of conjugal rights?

MR DOYLE:  At what period, Your Honour, because the

difficulty is that the law, on my researches, seems

to have changed over the years and, of course, with

the move from the ecclesiastical courts to the

ordinary courts - - -

TOOHEY J:  I was thinking of the ordinary courts.

MR DOYLE: Well, Your Honour, I must say I have not looked

at the form of the decree but I know from the
cases, at least in relatively modern times, the
effect of the decree was a decree for restitution
of cohabitation, and then cohabitation was seen as

embracing a number of things, and what the cases

say is that a spouse who refused to have

intercourse might - and they seem to say "might" -

be guilty of a breach of that decree. But the

right which was secured by the decree was a right

to cohabitation, and then marital cohabitation was

seen as embracing a number of things, and

intercourse was one of them.

MASON CJ:  The cases in your paragraph 12 deal with this, do

they not?

MR DOYLE:  Yes, Your Honour.

MASON CJ:  Would this be a convenient time for you to take

us to these cases? Is there more in McDonough and

Hunt than there is in Bartlett, for example?

MR DOYLE:	If the Court pleases, as to the common law, the only case I wanted to read to the Court from is the
decision of this Court in Bartlett v Bartlett, and
just a couple of short passages from that,
Your Honours. That is in the materials we have
provided to the Court, and it is at page 12 of that
book.

Lord(2) 16 2/9/91

Your Honours, I do not think I need read all

of the headnote but, in particular, the second

paragraph:

Compliance with a decree for restitution of conjugal rights is the aggregate effect of a

great number of acts and consists in a course of behaviour, and the acts and conduct of the

spouse bound to obey must not be opposed or

repugnant to the maintenance of the
matrimonial relationship. Sexual intercourse

is not necessary to obedience, but its refusal

is a matter material to be considered.

And it is probably fair to say, Your Honours, that

extracting a clear and precise ratio from this case

is not altogether easy but, if I could just go to

the two passages I had in mind in particular to

invite Your Honours' attention to. First of all, Mr Justice Dixon at page 15 of the report and, as

it happens, page 16 of the book. At the bottom

right of the page:

For the most part these cases illustrate

rather than resolve the difficulty of

determining what amounts to compliance with a

decree of restitution. But so long as that

remedy is retained it must be treated as an

independent process imposing an obligation the
performance, or non-performance, of which is

ascertainable. On the one hand, it is clear that the obligation requires cohabitation, a

physical dwelling together. On the other

hand, it is clear that it does not require the

resumption of sexual intercourse. It cannot,

in fact, and in principle ought not to be

understood as attempting to, control motives,

feelings, emotions, sentiment or states of

mind. Its operation must be limited to overt

acts and conduct. The fact that an attempt to

comply with the decree is actuated by a desire

to avoid a divorce cannot operate to make

compliance impossible.

And I do not think I need to read further,

Your Honours.

Contrast with that - and it is really a

contrast of emphasis - the judgment of

Mr Justice Evatt, turning over to page 22 of the

extract, page 17 of the book, and His Honour had

gone through a number of the cases and then, at the

bottom of page 22 said this:

This analysis of some of the leading

cases shows that it is not correct to assert
that a deliberate and continued refusal of

Lord(2) 17 2/9/91

sexual intercourse can never be relied upon by

the other spouse for the purpose of evidencing

failure in the duty to "render conjugal

rights". On the contrary, such wilful refusal

may in all the circumstances prove or tend to
prove that one of the spouses is according
merely nominal and not real adherence to the

decree requiring restitution. It follows that

the persistent and wilful refusal of sexual

intercourse cannot always be treated as an

irrelevant part of the inquiry in these cases.

And that might be said to be a rather masterful use

of a series of negatives, leaving one wondering

just what the affirmative proposition is. But,

Your Honours, I rely upon Bartlett v Bartlett

really, I suppose, to support the submission that

it cannot be said, in the light of that authority,

that there is, as it were, a definite right to

intercourse as between spouses. Under certain

circumstances the refusal by one spouse to submit

to intercourse with the other might give what I

will call the innocent one a right to relief from a

matrimonial court, but it went no further than

that, and there is no suggestion in any of the

cases - and in fact, denials in the authorities -

that this was in any sense a process whereby the

Court was even attempting to compel intercourse.

The Court was merely giving to the innocent spouse

certain matrimonial remedies, if that was not

rendered by the other spouse, and that is - - -

BRENNAN J: That says that it is not a curially enforceable

right. That really does not take it all the way

you need to take it, though, does it? For example,

if there were proof, under the old system at all

events, of an intention never to have intercourse

at the time of marriage, that might have been a

ground for avoiding the marriage, for a decree of

nullity. Now, none the less, you would never have

got a decree for restitution of conjugal rights to

compel a spouse to have intercourse.

MR DOYLE:	No.
BRENNAN J:	So this case, in a sense, does not quite take it

to the extent to which you need to take it, seems

to me.

MR DOYLE: Well, Your Honour, it may be I have not made it

clear enough what my submission is, and it is

simply the negative one that, at common law, there

was no - if I can perhaps call it - specific right

on the part of one spouse to require the other to

submit to intercourse, let alone a right to use

compulsion to effect that right. In other words,

that when we talk of rights in this area we are

Lord(2) 18 2/9/91

talking merely of entitlements to decrees by

courts, but in no sense are we talking of an
entitlement to seek the aid of a court to compel

the other spouse to render the relevant conjugal

rights. I am not sure I have answered Your Honour.

BRENNAN J: Well, take the extreme example I put to you a

moment ago. Was it implicit in the formation of

the marriage that each party agreed and consented
to intercourse with the other party, at least for

the purpose of consummation?

MR DOYLE:  I would think so, yes, Your Honour.

BRENNAN J: Well, then, to some extent, at all events, it is

right to say that the status of marriage carries

with it an obligation to consent to intercourse, at

least for the purpose of consummation. Now, for

any other purpose as well? I do not know. I just

do not know what the answer to these questions is.

MR DOYLE: Well, Your Honour, I have no difficulty agreeing

with Your Honour's proposition because Your Honour

yourself prefaced it with the words, I think, "to

some extent it would be right to say", and we

accept that also. But, in our submission, the

argument for Mr Lord appears to be that there was a

specific right to require the wife to submit to

intercourse and that this right, presumably, as I

would understand the argument, has a content such

that the husband may use force to require the wife
to submit and that any sanction on that use of

force is in some way inconsistent with the right.

And our submission is that, if one talks of

rights in this area, that there is no support in

the common law for the view that it was a right so

specific, let alone a right which could be

implemented or exercised by use of force, and

indeed, the only authority supporting that view is

really attributable to the remarks of Lord Hale,

that the right, such as it is - and I share

Your Honour's difficulty in expressing it with a

satisfactory precision - but the right, such as it

is, is a rather indefinite right which finds its

expression in the end always in what I will

callmatrimonial relief, that is, decrees from

matrimonial courts. That is the only sense in

which one can give content to the notion of a right

in this ~rea.

Whereas my learned friend wants to, as it

were, disengage the right he talks about from the

area of matrimonial relief and say there is a quite

definite and specific right to intercourse and

then, as I understand him, to suggest that if there

is such a right it would then be inconsistent to

Lord(2) 19 2/9/91

make the use of force criminal. Our argument, if I

can just put it slightly differently again, is:

first of all, the only right that exists is one

that can be defined in terms of matrimonial relief

and, under the present Commonwealth law, the

content that used to be given to it seems to have

been gone because you cannot get restitution of

conjugal rights any more, you cannot get a decree

of judicial separation.

But even if one says that still, behind the

Family Law Act, there exists some notion of a

right, that it is a right such that it is not

inconsistent to say, "Well, you have a right, in a

sense, for the purpose of matrimonial law, but if

you use force to effect it you can be found guilty

of a crime"; that there is not an inconsistency
between those two notions because of the limited

nature of the right.

BRENNAN J:  You put the right simply as being something

which sounds, in terms, of ecclesiastical or civil

sanctions?

MR DOYLE:  Yes, Your Honour.

BRENNAN J: But no intrusion on the personal integrity of

the parties.

MR DOYLE:  Yes, Your Honour. Our submission is that, apart

from Lord Hale's view, if I can call it that, that

was clearly the law, and that cases such as

Bartlett v Bartlett show that, even as recently as

1933 when, one might say, almost the full panoply

of matrimonial remedies still existed, even then it

was very difficult to express with any precision

the content of this right. In the view of

His Honour Mr Justice Dixon, it would seem that the

refusal of intercourse was relatively

insignificant; Mr Justice Evatt was prepared to

give it a little more weight but still said only

that it could not be treated as irrelevant. But I

would not deny for a moment that there are various

other ways - and Your Honour Justice Brennan put

one of them to me - in which it can be expressed,

so that one can see, "Well, in a different context
it looks as if there is or was some sort of right",

but our point is, it is a right that was expressed

in terms of curial remedies.

DEANE J: But, Mr Solicitor, whatever modern views might be,

would it not, on your researches, be to deny the

absolute obvious to deny that up until the end of
the 19th century at least the universal perception

of the common law was that a man could not rape his

wife?

Lord(2) 20 2/9/91

MR DOYLE: It would be, Your Honour, and I -

DEANE J: There has been no case, has there, where anyone

was ever convicted of raping his wife? One only

needs to read 19th century romantic fiction to know

what a constant theme it was.

MR DOYLE:	Quite so, Your Honour, and it is not part of our submissions for a moment to suggest anything other
than Lord Hale's view was the commonly accepted view, one could say, in a way, until the decision
of the English Court of Appeal earlier this year.
And it is part of our submission that the Court
should reject Lord Hale's view.  But the point I am
seeking to make is that even if one acknowledges
the concept of a relevant conjugal right, that when one really analyses it, there is in truth no necessary inconsistency between saying, "You have the conjugal right, but if you use force to make
your wife submit, you will be guilty of a crime",
because when one tried to put, as it were, an
affirmative content to the right, then it is all in
terms of curial remedies except - and this is where
one comes back to the same point - for Lord Hale,
who says, "Well, there is this further aspect to it, an immunity for the purpose of the criminal
law".

But my submission is, as I have perhaps said

ad nausearn, that there is no necessary

inconsistency between saying a spouse has a right

to intercourse with his or her spouse but, if he

uses force to make her submit, he can be guilty of

a crime; that those two propositions can stand together as long as you understand that in the former proposition, asserting the right, you are

referring to the formerly existing body of

matrimonial law.

BRENNAN J:  Was anything said about this in the case of

infecting the wife with gonorrhea - Clarence, was

it?

MR DOYLE:  Yes, the implied consent was deemed or held not

to extend to situations such as that, Your Honour.

BRENNAN J:  Was any analysis done of the implied consent

there?

MR DOYLE: 

Your ~onour, not that I recall, except of the

broadest type to say, "Well, it is not a consent
under circumstances such as this where, by

submitting, the wife is at risk of infection with
disease". Your Honours, the narrowness of the so-

called matrimonial right is perhaps illustrated by

Reg v Jackson, which is referred to in paragraph 13

of our outline.  I will not read from it, although

Lord(2) 21 2/9/91

we have provided Your Honours, I think, with a copy

of the case.

But that case really threw up into very sharp

focus the narrowness of the right because there the
husband had obtained a decree for restitution of

conjugal rights and, assisted by others, he seized

his wife and carried her off to her home. And it

does, Your Honours, read rather like a Victorian

melodrama. One of Their Lordships refers,

seemingly disapprovingly, to the fact that it was a

solicitor's articled clerk who assisted to bundle

her into the carriage to carry her off.

But the point was that the return to the writ

of habeas corpus was that the husband was detaining
his wife in the house, but giving her the run of

the house, with a view to enforcing the right which

had been given to him by the decree for restitution

of conjugal rights. Perhaps I should just read one

short passage. It is Reg v Jackson, (1891)

1 QB 671 at page 18 of the book of materials and,

in particular - and could I just mention, Your

Honours will notice that at page 675 of the report,

page 20 of the materials, reference is made there

to Lord Hale's view, at about the middle of the

page.

But in the judgment of the Lord Chancellor,

Lord Halsbury, at page 680, His Lordship says, at

about the middle of the page:

The return -

referring to the return to the writ -

seems to me to be based on the broad

proposition that it is the right of the

husband, where his wife has wilfully absented

herself from him, to seize the person of his

wife by force and detain her in his house

until she shall be willing to restore to him

his conjugal rights. I am not prepared to

assent to such a proposition. The legislature

has deprived the Matrimonial Causes Court of

the power to imprison for refusal to obey a
decree for the restitution of conjugal rights.

So I interpolate, it can be said against me that,

at an earlier time, there was that compulsive

force.

The husband's contention is that, whereas the

Court never had the power to seize and hand
over the wife to the husband, but only the
power to imprison her as for a contempt for

disobedience of the decree for restitution of

Lord(2) 22 2/9/91

conjugal rights, and even that power has been

now taken away, the husband may himself of his

own motion, if she withdraws from the conjugal

consortium, seize and imprison her person

until she consents to restore conjugal rights.

I am of opinion that no such right exists or

ever did exist.

And so His Lordship rejected the return as a good

return in law and, in our submission, that simply

illustrates that then, again, the right was seen in

that very narrow sense as not carrying with it any

ability on the part of the husband to use force.

And so that was on that basis I put the submission

that there is not any inconsistency between saying, if one wants to talk of it in terms of areas of law for the purposes of matrimonial law, you may have a

right to intercourse as a conjugal right but, one

can say consistently for the purposes of the

criminal law, if you use force to effect it you

will be guilty of a crime, just as here, the Court

said, for the purposes of the civil law, if you use

this indirect force, confinement, to effect it, you

will be committing a civil wrong.

So our submission begins, Your Honours, on

that basis that, as we have put in paragraph 14,

that all that can be said is that under the

previously existing law a refusal of intercourse

might entitle a husband to relief in the
matrimonial jurisdiction in certain circumstances.

Your Honours, in that context then, coming back to the main issues - and perhaps I could leave

to last the question of the English Court of Appeal

decision - if I could start then with the

Commonwealth legislation. Our submission is that

it needs only a glance at the table of contents, to

begin with, of the Marriage Act, for one to

conclude that in no sense is that Act

comprehensively or exhaustively regulating rights
as between husband and wife.	And no covering the

field argument could be based on the Marriage Act.

BRENNAN J: Well, that is an interesting argument. If you

say all matters between husband and wife, certainly

I would imagine it does not extend to questions of

their rights, inter se, as shareholders of a public

company, but it does relate, does it not, to the

incidence of the marriage state? Marriage as an

institution carries incidence, and by speaking of

marriage in the Act and exercising the marriage

power, the Commonwealth Parliament does deal with

everything which includes that which makes up the

institution of marriage.

MR DOYLE:  Yes.

Lord(2) 23 2/9/91

BRENNAN J: Well, does this fall in one side or the other of

those?

MR DOYLE:  Your Honours, in our submission, the most that

could be put against our argument there is that under the law prior to the Family Law Act there

were certain particular decrees available under the

Matrimonial Causes Act which might be said, as it

were, to reflect this right to intercourse. But

still that right was of the very qualified type

which I have put to the Court and that even

assuming that - and let us assume for the moment

that the Matrimonial Causes Act was still there -

even in that environment, in our submission, one

could still say that there is no inconsistency

between the concept of marriage as adopted or

assumed by the Marriage Act and the rendering

criminal of the forcible exercise of the right.

BRENNAN J: But if, on the other hand, and contrary to your

submissions, it were an incident of the marriage

state that the spouses had rights to access to the

person of the other - and I am putting it in the extreme case - then it seems to me that once you defined that as an incident of marriage, it would

be impossible to maintain the full operation of the definition of rape in the South Australian Criminal

Law Consolidation Act.

MR DOYLE:  Yes, Your Honour. I accept that would have to

follow provided, of course, that one - as I think

Your Honour intended to - postulates for the

purpose of that example that part of the concept of

marriage on which the Act operates is a concept in
which the spouse has the right to exercise the

marital right by force if necessary.

BRENNAN J:  And is that not what we all come back to?

Because if it is an incident of the marriage, then

the South Australian Act must fail. If it is not,

then the South Australian Act has full room for

operation because the Commonwealth simply does not

apply.

MR DOYLE:  Yes, Your Honour. If that particular right is

seen as an incident of the institution of marriage,

of which the Marriage Act is speaking, then I think

I must accept that to remove by State law what would be regarded as undoubtedly a significant

incident of the marriage relationship would be

inconsistent, because it would be endeavouring to

turn the marriage relationship into something other

than that upon which the Commonwealth Act operated,

and I would accept that, Your Honour.

So, Your Honours, we submit that one would not

say, examining the table of contents of the

Lord(2) 24 2/9/91

Marriage Act, that that exhibits - perhaps I should put it a little differently - an intention so to

regulate relationships between husband and wife

that that field is closed off from State

legislatures, although I make the qualification

which Your Honour Justice Brennan was putting to

me, that is, intrusions by State legislatures which

alter the nature of the institution on which the

Act operates.

If one looks at the Family Law Act, again, in

our respectful submission, putting aside just for

the moment section 114, a broadly similar

proposition can be put, that the Family Law Act

deals with certain of the rights and duties and

powers and liabilities as between spouses and as

between parents and children, mainly in the area of
property, rights of support and welfare of

children; that secondly, it provides means for the

enforcement and alteration of those rights; and

thirdly, deals with dissolution of marriages and

adjustments of mutual rights and obligations.	And
then, of course, the Act does other things: it

establishes the Family Court and other bodies, and

makes a number of ancillary provisions. But, in

our submission, a perusal of the contents of the
Family Law Act again does not convey any notion

that it contains a code on a relationship between spouses, either itself or in conjunction with the

Marriage Act.

DAWSON J:  I was wondering about that. Does that mean that

it does not either define, redefine or even affirm

a lot of the common law incidents of marriage, or

ecclesiastical incidents of marriage and, that

being so, does that preclude the States, whenever

they attempt to alter those incidents?

MR DOYLE:  Your Honour, first of all, where, of course, the

Act has specifically defined or redefined or

affirmed one of the common law incidents then,

clearly, that is that. But, in our submission,

when one looks through the Act - and it is partly a

matter of impression - but one, in my submission, is not led to any conclusion, to begin with, that

this Act is, in effect, saying to the States, "The

area of relationship between spouses is an excluded

area". So that is my first submission, that it

does not manifest any intention that that area

shall be wholly excluded to the States.

Secondly, in my submission, there is nothing about the Act which suggests that it is codifying,

and codifying in an exclusive sense, what might be

called the marital or matrimonial rights. Clearly,

as Justice Brennan put to me, a husband and wife

may be shareholders in a company and it would be,

Lord(2) 2/9/91

one would think, an impossible suggestion to argue

that the Family Law Act excludes any State law that

mght affect their position as shareholders.	But
even more narrowly, in my submission, when one
looks through the Family Law Act one finds no

indication that it is intending to be the

exhaustive statement of those rights which - - -

DAWSON J: That is what I had in mind. For instance, I do

not know, but I suspect that at one time there was

thought to be a right for the husband to chastise

his wife in some manner. If the common law then

characterized that as an assault, there is no
inconsistency in the context of the Family Law Act

or the Marriage Act.

MR DOYLE:  No. That would be my submission, and my

submission is, that one has to bear in mind the

origin of this legislation, or its historical

origins, of coming from the realms of matrimonial

relief and those forms of matrimonial relief

operating in the context of - in the Commonwealth

system one cannot truly say "other bodies of law" -

but rules of law which tend to be put under other
rubrics and, in my respectful submission, one

Family under those other rubrics merely because they then

should be rather slow to conclude that the

have an effect on the relationship between husband

and wife.

DAWSON J: Well, I mean there are many other laws which

would intrude, not necessarily criminal laws,

certainly laws which intrude on the rights to

custody of children, laws which deal with the child

in such a way as to be inconsistent with it. You

have got to read something like the Family Law Act

against the background of many other laws, common

and statute.

MR DOYLE: Yes, I accept that, Your Honour, and that,

indeed, is part of our submission, that it is

intended to operate against that background of laws

enacted by the States and that one would be slow to

conclude that a law in this area was inconsistent

merely because, in some way, it affected the

relationship between husband and wife. For that to

be so then, in our submission, one would not

readily draw that conclusion from the Family Law

Act, that it discloses no intent to codify the

relationships.

DAWSON J:	Or to provide exhaustively.
MR DOYLE:	No.  It makes selective provisions and in some

areas of its provisions one may say, "Well, in that area it is making exhaustive provision", and it may

Lord(2) 26 2/9/91

then be necessary to define the area but it is a

matter, perhaps, of defining areas within the Act

where one might conclude that it is making

exhaustive provision. One, in my submission, does

not conclude from the Act that generally, as

between husband and wife, such provision as it

makes is to be the only legal relationship and

legal rights and obligations as between spouses.

So, Your Honours, we make those submissions

generally on the Family Law Act. When one comes to

section 114(1) - I think Your Honours have been

referred to that already - Your Honours will see

that that empowers the court to make orders as

between the spouses generally of a protective

nature. And it is clear enough, in our submission,

that if there is an implied consent to intercourse

at common law, that orders of a number of the types

referred to in section 114(1) would operate to

terminate that implied consent and I simply refer

Your Honours back to the cases in paragraph 2 of
our outline and those cases illustrate a number of
the restrictions on the doctrine of implied

consent.

In our submission, that effect of an order

under section 114(1) is a purely incidental or

consequential effect. One cannot, in our

respectful submission, reason that because the

draftsman made provision for orders primarily

directed at, what I will call, personal protection

one cannot reason that because the consequential

effect of the making of such an order would be to
terminate the implied consent. But in some way the

draftsman was saying either, "By implication the implied consent is preserved" or, alternatively,

that he was saying, "This is to be the only way of
terminating the implied consent". In our

respectful submission, there is simply no reason so

to read section 114(1). So, if State law were to -

as it does here on one view of the common law -

remove the basis for one of the consequential

effects of such an order, that is neither here nor

there; there is no inconsistency.

As to section 114(2), we make a similar

submission, Your Honours, but just one or two

points about that subsection. First of all,

Your Honours will note that it says that:

In exercising its powers under

sub-section (1), the court may make an order

relieving a party to a marriage from any

obligation to perform marital services or

render conjugal rights.

Lord(2) 27 2/9/91

In our respectful submission, the use of that

wording does not support a submission that, by

implication again, the subsection is preserving

certain conjugal rights or marital services. The

section is merely saying: to the extent that there
is an obligation to perform marital services or to
render conjugal rights, then the court may relieve
against that obligation. In our submission, the

section should not be read as preserving them.

Secondly, in our respectful submission, it is

not altogether easy to see the precise purport of

this subsection. Your Honours will note, to begin

with, that it appears the powers under
subsection (2) can only be exercised when the court

is exercising its powers under subsection (1). The

other point which should be borne in mind is that

the subsection, in our submission, appears to be

intended to preserve something akin to a decree of

judicial separation, although Your Honours probably

know that such decrees are, in fact, done away with

by section 8(2) of the Act which provides that:

Proceedings for a decree of restitution of conjugal rights, of jactitation of marriage or of judicial separation shall not be instituted or continued after the commencement of this

Act.

There is a definition of "separation order" in

the definition section. So, Your Honours, in a
slightly curious fashion, having abolished those
particular forms of matrimonial relief, Parliament,

in section 114(2), appears to have contemplated an

order which would have some of the flavour of those

abolished forms of relief. In our respectful

submission, one can readily understand that it

might have been desired, particularly in the light

of the linking between subsection (2) and
subsection (1), to make it clear, when an order of

the particular type referred to in subsection (1)

was being made, that that order did, in fact, put an end any obligation to perform marital services or render conjugal rights.

So, in our submission, no argument likewise

can be based on subsection (2) and the most one can

say about it is that to the extent that there may

be such rights, or an obligation to perform such

services, the court has power to relieve them, it

does not follow that in some other way the

particular obligations cannot be dealt with.

Your Honours, on that basis, we submit that no

inconsistency can be found between the Commonwealth

legislation and the State legislation on the broad

basis that the Commonwealth legislation cannot be

Lord(2) 2/9/91

seen as exclusively covering the field; that when

one looks at section 114 it does not, in any sense,

preserve any rights or obligations, it merely gives

the court power to make protective orders. And

then, our further submission is that, to the extent

in any event that one can say that matrimonial
rights or obligations are preserved, the relevant

right or obligation is a highly qualified one and

does not carry with it any right to use force.

Your Honours, the final submission is that it

would be appropriate for the Court to consider

dealing with the fundamental question of common

law, although Your Honours may take the view that

as all States in Australia now have legislated

specifically on the position, that it becomes a

little academic to do so.

However, in relation to the common law

principle we would urge upon Your Honours the views

expressed by the Court of Appeal in England in the

decision in R v R. I do not propose to read from

it, Your Honours. It is relatively short and it

really speaks for itself and, in a nutshell,

Their Lordships have made two points: first of

all, that Lord Hale's view of the common law has

never been accepted authoritatively by any court of

completely anachronistic and we would made the same

high authority in England - and the same applies in

submission.

Your Honours, in paragraph 5 of the outline,

we have referred the Court to cases in which the

Court has dealt with the circumstances in which it

is appropriate for this Court to alter common law

principles. Could I just invite Your Honours'
attention in particular, without reading from it,

to the passages we have referred to in SGIC v

Trigwell. But, in our submission, here, the

factors would be in favour of the Court taking the

step we have urged to these.

First of all, it is not simply a case of

saying it is a common law rule which is somewhat

out of date. In our respectful submission, it is completely inconsistent with present day views as

to rights and liberties of individuals. Secondly,

the legal basis of the rule is somewhat doubtful,

as is demonstrated by the judgment of the Court of

Appeal. Thirdly, the rule has not been endorsed on

any occasion by the Court of high authority in this

country. Fourthly, abolition of the rule would not

seem to have any consequences in other areas of the

law or other legal principles and for those

reasons, in our respectful submission, it would be

appropriate for the Court to act.

Lord(2) 29 2/9/91

However, as we note in paragraph 5 of the

outline, even if the Court takes the view that the

common law should be declared in accordance with

the views expressed by the Court of Appeal, it does

seem necessary still to deal with the inconsistency

argument because if the argument is that this is an

area into which the States cannot intrude, then it

does not depend in any sense on the content of the

law.

DAWSON J:  You say this is an area, what area?

MR DOYLE: Well, the area - and it depends a little bit on

how my friend puts it, of course - but if the

argument against us is that - and it can be, I

suppose, narrowed progressively - first of all,

that rights as between husband and wife is an area

into which the States cannot intrude at all and

because this law affects a suggested right, then it
cannot validly intrude. If the argument is as

broad as that and it has nothing to do with the

content of the law then, clearly, the inconsistency

argument has to be dealt with, whatever the common

law is.

On the other hand, I suppose it could be said,

submissions, that "common law is preserved by the

"Well, if the common law is as declared by

Commonwealth legislation" then, clearly, for the State law to alter it would be inconsistent with

it. If, on the other hand, the Court declares the

common law in accordance with the judgment of the

Court of Appeal in England, then it would seem that

probably because section 73(5) restricts the

circumstances in which a prosecution can be brought

then still there is an issue of inconsistency if

the common law as declared by the Court of Appeal

in England is again preserved or in some way

excluded from State reach by Commonwealth law.

They are our submissions, if the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr Katz.
MR KATZ:	If Your Honours please, may I hand to the Court a

copy of my outline together with some attachments.

MASON CJ:	Mr Katz, how long will your submissions take?
MR KATZ:	I think, Your Honour, Parkinson's law might

operate. If Your Honour wished me to do nothing

more than simply summarize them in a moment, I

could do them in 10 minutes.

MASON CJ: What I had in mind was this: that we shall take

your written submissions away and I will ascertain

whether Mr Wells has written submissions as well,

Lord(2) 30 2/9/91

and if we have the opportunity of reading his as

well as yours, then it may be that would have the

effect of shortening the argument tomorrow morning.

MR KATZ:	Yes, Your Honour.
MASON CJ:	Yes, Mr Wells?
MR WELLS:	We also have some submissions to put.
MASON CJ:	Would it be convenient to hand them in now?
MR WELLS:	By all means, if it please the Court.
MASON CJ:	We shall receive these written submissions and we

will read them and we will resume at 9.30 tomorrow

morning.

AT 4.48 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 3 SEPTEMBER 1991

Lord(2) 31 2/9/91