Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Hansard source

I present a government response to the report of the inquiry of the Community Affairs References Committee into involuntary or coerced sterilisation of people with disabilities in Australia and involuntary or coerced sterilisation of intersex people in Australia, as listed at item 15 on today's Order of Business. In accordance with the usual practice, I seek leave to incorporate the document in Hansard.

Leave granted.

The document read as follows—

Australian Government response to the Senate Community Affairs References Committee reports:

Involuntary or coerced sterilisation of people with disabilities in Australia

Involuntary or coerced sterilisation of intersex people in Australia

May 2015

Introduction

The Australian Government welcomes the Senate Community Affairs References Committee report on the involuntary or coerced sterilisation of people with disability and the report on the involuntary or coerced sterilisation of intersex people in Australia.

The Australian Government recognises people with disability have historically been subjected to sterilisation without their consent or against their wishes, the majority of whom have been women. The Committee's report includes the testimony of women who have been irreparably affected by these procedures.

Over the past two decades, the regulation of sterilisation of people with disability has been subject to a number of inquiries and reviews and state and territory law regulating sterilisation has been significantly reformed. These laws now provide better protection for people with disability than has historically been the case across Australia.

The majority of the recommendations in the report on the involuntary or coerced sterilisation of people with disability are directed to ensuring a more consistent approach to the regulation of sterilisation. The regulation of sterilisation of adults with disability is primarily a state and territory issue. The Commonwealth's jurisdiction in sterilisation cases exists only under the Family Law Act 1975 and is confined to matters involving children. However, the Australian Government supports increased consistency across jurisdictions and will raise the Committee's recommendations regarding the legal framework regulating sterilisation for people with disability with state and territory governments.

As the Committee identified, the question of capacity is a threshold question in the regulation of sterilisation for people with disability. A report by the Australian Law Reform Commission on Equality, Capacity and Disability in Commonwealth Laws was tabled in November 2014. The report examined Commonwealth laws that deny or diminish the equal recognition of people with disability as persons before the law and their ability to exercise legal capacity, and made 55 recommendations for reform. The Government is currently considering the recommendations in the report.

The Senate Committee report also makes a number of recommendations to improve sexual health and family planning education for people with disability. The Australian Government encourages state and territory governments to review sexual and reproductive health education programs including specific funding or support for programs or materials for people with disability and the disability sector. The report also includes recommendations to improve medical workforce training and the Australian Government similarly encourages National Health Boards and specialist medical colleges to review the Senate Committee's findings as regards education for medical practitioners.

While available data suggests the numbers of sterilisations of people with disability is quite low, the inconsistency of data collection practices remains a cause of concern. For this reason, the Australian Government, through the Attorney-General's Department, has provided funding to the Office of the Public Advocate Victoria representing the Australian Guardianship and Administration Council to develop indicators to standardise the collection of data across jurisdictions.

The report on the involuntary or coerced sterilisation of intersex people outlines a broad range of views regarding the appropriate treatment of infants born with intersex variations. As with the report on people with disability, it includes testimony from people whose adult lives have been shaped by the medical treatment that began when they were infants or children.

The Committee recommends the treatment of intersex infants is best managed by multidisciplinary teams and this is well supported by evidence from medical experts and advocates. In this regard, the Government understands a number of major hospitals have formed multidisciplinary teams to coordinate the treatment of intersex infants.

The Committee has recommended significant law reform so that the authorisation of civil and administrative tribunals or the Family Court of Australia would be required for all proposed intersex medical interventions for children and adults without the capacity to consent. A variety of views on the desirability or benefit of legal authorisation to medical treatment were submitted to the Committee during the Inquiry. The question of whether or not bringing the medical treatment of intersex variations into the jurisdictions of guardianship tribunals would lead to better outcomes for intersex people is one that would benefit from further research and consideration. However at this time the Government does not support amendment of the Family Law Act to expand the role of the Family Court of Australia.

There is increasing recognition of the needs of people who are intersex in Commonwealth law and policy. In 2013, the Sex Discrimination Act 1984 was amended to introduce protections from discrimination on the grounds of intersex status. Australia is one of the first jurisdictions to provide specific protection from discrimination for people who are intersex. The Australian Government Guidelines on the Recognition of Sex and Gender (2013) clearly define intersex as a biological condition and provide an avenue for people who are intersex to establish or change their gender in Australian Government records. Over time, these reforms should support greater social acceptance of variations in gender identity and sex characteristics.

The Government thanks the Senate Committee for their reports.

1. Involuntary or coerced sterilisation of people with disability

Recommendation 1:

The committee recommends that, in education programs relating to disability and in sex education and family planning information targeted to the disability sector, education about relationships and sexuality for people with disability should be prioritised, with an emphasis on the reasonable and normal aspirations of people with a disability regarding their sexuality and relationships.

Response: Noted.

Sex education programs in Australia are largely the responsibility of state and territory governments. The Australian Government encourages state and territory governments to ensure the funding of sexual and reproductive health education programs includes specific funding for programs or materials for people with disability and the disability sector.

Recommendation 2:

The committee recommends that medical workforce training with respect to sexual and reproductive health includes content on supporting sexual relationships and sexual and reproductive health needs for people with a disability.

Response: Noted.

The requirements for undergraduate education and training of health professionals in Australia, including medical practitioners, is determined by the relevant National Board for that profession.

The Australian Government understands that all accredited undergraduate health professional degrees include content on supporting sexual relationships and the sexual and reproductive health needs for people with a disability.

The Australian Government encourages National Health Boards and specialist medical colleges to review the Senate Committee's findings and to take action to support appropriate medical workforce training in relation to the sexual and reproductive health needs of people with disability.

Recommendation 3:

The committee recommends that medical workforce training include training with respect to the ethical and legal aspects of informed consent, substitute and supported decision making and fertility control.

Response: Noted.

As noted above, the requirements for undergraduate education and training of health professionals in Australia, including medical practitioners, is determined by the relevant National Board for that profession.

The Australian Government understands that all accredited undergraduate health professional degrees include the ethical and legal aspects of informed consent, substitute and supported decision making and fertility control. The Australian Medical Council accreditations standards for Primary Medical Education Providers notes as part of Domain 4 that Australian medical graduates must be able to demonstrate professional values including a commitment to high quality clinical standards, compassion, empathy and respect for all patients. Further information regarding the accreditation standards can be found at <www.medicalboard.gov.au/Accreditation/Medical-schools.aspx>.

The Australian Government encourages National Health Boards and specialist medical colleges to review the Senate Committee's findings and to take action to support appropriate medical workforce training in relation to informed consent and substituted and supported decision making for people with disability.

Recommendation 4:

The committee recommends that, in the development of participant plans (particularly for participants approaching puberty and in their teens), the participant work with any person assisting them with plan development, and with Disability Care Australia, to cover the need for understanding of sexuality and sexual relationships, support for relationships and sex education that meets the participants ' needs, and covers appropriate support for menstrual management for girls and women with disabilities.

Response: Accepted in principle.

The Australian Government agrees with this recommendation in principle, but notes this is a matter for the National Disability Insurance Agency (the Agency). The Agency has informed the Australian Government that its current practices for developing individual plans with participants include discussion of the participant's goals and aspirations.

The Agency has also advised that it will ensure that future training for Agency planning staff includes a component on identifying where participants may need support to understand sexual relationships and menstrual management.

Governments have agreed the respective roles of the National Disability Insurance Scheme (NDIS) and other service systems, including the health system. In this agreement, the Agency can fund general capacity building and skills development for people with disability. The NDIS will not fund clinical services as these activities remain the responsibility of other parties within the health system.

Recommendation 5:

The committee abhors the suggestion that sterilisation ever be used as a means of managing the pregnancy risks associated with sexual abuse and strongly recommends that this must never be a factor in approval of sterilisation.

Response: Accepted.

The Australian Government has a zero tolerance approach to violence against all women and notes women with disability experience higher rates of sexual violence than the general population.

The National Plan to Reduce Violence against Women and their Children 2010-2022 (the National Plan) brings together the efforts of governments across the nation to make a real and sustained reduction in the levels of violence against women.

The Australian Government shares the Committee's view that sterilisation should never be viewed as a response to mitigate the risk of pregnancy as the result of sexual assault.

The Government will raise this issue with state and territory governments that do not explicitly proscribe sterilisation on these grounds. The Government recommends these jurisdictions consider amending relevant legislation to provide that sterilisation should not be approved by a Guardianship Tribunal or equivalent if the sterilisation is to remove the risk of pregnancy resulting from sexual abuse.

Recommendation 6:

The committee recommends that, for a person with a disability who has the capacity to consent, or to consent where provided with appropriate decision-making support, sterilisation should be banned unless undertaken with that consent.

Recommendation 28:

The committee recommends that each jurisdiction enact legislation prohibiting the performance or procurement of unauthorised sterilisation procedures. State and territory legislation should also make it an offence to take, attempt to take, or to knowingly assist a person to take, a child or an adult with a disability oversees for the purpose of obtaining a sterilisation procedure.

Response: Noted.

Almost all state and territory legislation regulating sterilisation creates an offence where a person carries out a sterilisation procedure without the consent of a Guardianship Board, Tribunal or Court.

The Australian Government will raise this issue with state and territory governments whose legislation does not create such an offence.

Recommendation 7:

The committee recommends that, for a person with a disability for whom it may reasonably be held that they may develop the future capacity to consent, irreversible sterilisation should be banned until either the capacity to consent exists, or it becomes reasonably held that the capacity to consent will never develop.

Response: Noted.

A number of state and territories prevent Guardianship Boards or their equivalent from consenting to a sterilisation procedure for a person unless they are satisfied it is unlikely the person will acquire the capacity to give an effective consent at any time, or anytime in the foreseeable future.

The Australian Government will raise this issue with those state and territory governments that do not provide this protection and encourage these jurisdictions to consider introducing such provisions as appropriate.

The Government is of the view that the Family Law Rules, which require the Family Court to consider the future capacity to consent in sterilisation cases (see rule 4.09(1)(h)), provide adequate protection to allow the Court to defer sterilisation where appropriate.

Recommendation 8:

The committee recommends that state and territory legislation regulating the sterilisation of adults with disabilities be amended to explicitly state that it is presumed that persons with disabilities have the capacity to make their own decisions unless objectively assessed otherwise. The legislation should be amended to specify that it cannot be presumed that persons are without legal capacity in relation to the proposed special medical procedure, including a sterilisation procedure, even where there is an existing guardianship order in place.

Response: Noted.

This is a matter for state and territory governments. The Australian Government encourages state and territory governments to ensure guardianship law evolves to ensure the highest possible standard of support for people with disability.

Recommendation 9:

The committee recommends that Commonwealth, state and territory legislation regulating the sterilisation of adults with disabilities be amended to explicitly state that a court or tribunal does not have authority to hear an application for an order approving a proposed special medical procedure, including a sterilisation procedure, where the person with a disability has legal capacity.

Response: Noted.

This is a matter for state and territory governments. The Family Court's jurisdiction in sterilisation cases under the Family Law Act is limited to matters involving children.

Recommendation 10:

The committee recommends that each Australian jurisdiction use the same definition of capacity, to ensure that a person ' s rights to autonomy and bodily integrity do not vary according to, and are not dependent on, the jurisdiction in which they live.

Response: Noted.

This is a matter for state and territory governments.

Recommendation 11:

The committee recommends that all jurisdictions adopt in law a uniform ' best protection of rights ' test, replacing current ' best interests ' tests, that makes explicit reference to the protection of the individual ' s rights; and the maintenance of future options and choices.

Recommendation 12:

The committee recommends that, in those cases where the need for supports has a bearing on the assessment of interests, regard should be had to best support services available, rather than the deficit in services provided in the past.

Response: Noted.

The Australian Government is of the view that the 'best interests' tests as articulated and applied in Australia in relation to children is consistent with Australia's international obligations. A key principle underlying decision-making in relation to children, including in courts, administrative authorities and legislative bodies under the Convention on the Rights of the Child is that a child's best interests be a primary consideration.

The principle of 'best interests' is well established in the context of family law. The best interest test allows the court to make an objective decision about what is best for a child in the particular circumstances of each case. This could include, but is not limited to, the consideration of the rights of the child. It could also include the availability of support services. The Australian Government believes a shift away from this principle is not desirable, or necessary.

However, the Australian Government encourages state and territory governments to review the articulation of the test in relevant legislation to ensure a person's rights are considered in determining their best interests. This may also include an assessment of the best support services available.

Recommendation 13:

The committee recommends that the states and territories ensure that independent representation is provided for people with disabilities. Representation should be independent; while family or guardians should have a right to be involved, an independent representative should not be a member of the person ' s family or a caregiver.

Response: Noted.

This is a matter for state and territory governments.

Recommendation 14:

The committee recommends that the costs of legal representation for adults should be covered by the relevant legal aid commission. State and territory governments should review legal aid funding arrangements to ensure that there are adequate funds to meet the costs of providing a legal representative for persons with disabilities in special medical procedure cases, including sterilisation cases.

Response: Noted.

This is a matter for state and territory governments.

The Australian Government encourages state and territory governments to consider the level of assistance available for people with disability requiring legal representation in special medical procedure matters.

Recommendation 15:

The committee recommends that a legal representative be appointed in each child sterilisation case regardless of the jurisdiction in which the matter is heard. Commonwealth, state and territory legislation should be amended as necessary to ensure that the appointment of a legal representative of the child is mandatory in each sterilisation case.

Response: Not supported.

Under the Family Law Act, the Family Court of Australia has the power to appoint an independent children's lawyer in particularly complex cases.1 Independent children's lawyers act as a 'best interests' advocate for children on behalf of the Court.

The appointment of an independent children's lawyer is not mandatory, but made by a court depending on the circumstances of the case. Independent representation may be ordered on the courts' own initiative, on the application of a party, the child themselves, or an organisation concerned with the welfare of children (Family Law Act, section 68L).

Independent children's lawyers are primarily funded by the Australian Government through Legal Aid Commissions. Legal Aid Commissions are responsible for appointing independent children's lawyers following an order from the Court.

The Australian Government considers the appointment of a legal representative for children in sterilisation cases should remain a matter for the Court, rather than establishing a mandatory legislative requirement. This allows the Court to decide whether the appointment of an independent children's lawyer is appropriate in the individual circumstances of each case.

Guidance for the appointment of an independent children's lawyer is set out by the Full Court of the Family Court of Australia in the case of Re: K (1994) FLC 92-46. This Guidance provides that an independent children's lawyer should normally be appointed where applications are made to the Court's welfare jurisdiction relating to the medical treatment of children where the child's interests are not adequately represented by one of the parties.

If an independent children's lawyer is appointed by the Court, their role includes representing the child's best interests, ensuring all relevant information is provided to the Court about the child's welfare, and informing the Court about any views expressed by the child (section 68LA Family Law Act).

A number of states already require or allow the appointment of an independent legal representative for children. The Australian Government will raise this issue with those state and territory governments that do not include any provision for the appointment of an independent children's lawyer and encourage these jurisdictions to consider whether their legislation should be amended to allow for their appointment.

Recommendation 16:

The committee recommends that legal aid be provided to cover the costs incurred by the child ' s legal representative. The committee recognises that governments may need to revise current legal aid funding arrangements to ensure that there are sufficient funds to meet the costs of children ' s representatives in sterilisation cases.

Response: Noted.

The Australian Government believes the Commonwealth's current legal aid funding arrangements are adequate to meet the costs of child sterilisation matters heard by a federal court because of the small number of cases and the priority they are afforded.

The National Partnership Agreement on Legal Assistance Services is the agreement between the Commonwealth Government and each state and territory government to fund legal aid commissions for Commonwealth service priorities. Under the Agreement, family law matters involving children, including the appointment of a court appointed independent children's lawyer, are listed as a Commonwealth legal aid service priority. The agreement expires on 30 June 2015.

Legal assistance funding for sterilisation matters in state jurisdictions is an issue for state and territory governments. The Australian Government encourages state and territory governments to consider the level of assistance available for representing children in proceedings regarding sterilisation procedures.

Recommendation 17:

The committee recommends that Commonwealth, state and territory governments work with legal aid commissions and relevant law societies to develop training courses for legal practitioners about children ' s legal capacity, techniques to communicate, and the varying effects and nature of disability. Successful completion of such courses should be mandatory before being appointed to represent a child.

Response: Supported in principle.

Independent children's lawyers are managed by state and territory legal aid commissions. It is a national prerequisite that all lawyers who conduct independent children's matters must have completed the Independent Children's Lawyer Training Program.

In 2013, the Australian Institute of Family Studies released a report examining the use and efficacy of independent children's lawyers in the family law system. This report was commissioned by the Commonwealth Attorney-General's Department. The report noted some concerns about the adequacy of accreditation, training and ongoing professional development arrangements in equipping independent children's lawyers to deal directly with children and perform optimally in matters involving family violence and child abuse.

The Australian Government has been working with the Law Council of Australia and National Legal Aid to address the Institute's findings so that training and professional development can be improved to better equip independent children's lawyers to deal directly with children, especially in matters involving family violence and child abuse.

The Australian Government also encourages the Law Council of Australia to review the Independent Children's Lawyer Training Program to ensure it provides adequate guidance on the legal capacity of children with disability.

Recommendation 18:

The committee recommends that Commonwealth, state and territory legislation be amended to provide the right to public advocates, such as the Office of the Public Advocate, to be a party to child or adult sterilisation cases.

Response: Not accepted.

The Australian Government believes a public advocate or equivalent can make an important contribution in proceedings related to sterilisation.

Under the Commonwealth's jurisdiction, a public advocate is able to request the Family Court of Australia allow them to join proceedings.2 The Australian Government considers the decision to allow a public advocate to join sterilisation cases in the Family Court of Australia should remain a matter for the Court, rather than establish a right for public advocates to be a party. This allows the Court to decide whether the appointment of a public advocate is appropriate in the individual circumstances of each case.

The Australian Government notes the Family Court of Australia has a range of mechanisms available to it to ensure it has sufficient evidence before it to make decisions which are in the best interests of children in sterilisation cases, in addition to allowing a public advocate to join proceedings. The evidence must include evidence from a medical, psychological or other relevant expert witness.

The Court is also able to:

In most states and territories, the public advocate has standing to appear before the Tribunal or Board. The Australian Government encourages state and territory governments to review relevant legislation and consider inserting provisions to ensure, at a minimum, a public advocate is able to seek leave of a court to join sterilisation cases.

Recommendation 19:

The committee recommends courts and tribunals develop information packs and questionnaires to provide guidance for medical experts in sterilisation cases. The information packs should specify the factors that courts and tribunals consider under the relevant legislation, and should also note issues that the courts and tribunals are not authorised to consider such as outdated and paternalistic attitudes to disability, eugenic arguments or assessments of the person ' s current or hypothetical capacity to care for children. Questionnaires should seek the medical expert ' s advice about the procedures that could usefully be adopted in the particular case to facilitate both a robust medical assessment and the person ' s participation in proceedings.

Response: Supported in principle.

The development of supporting or guiding material for experts appearing before courts or tribunals is a matter for consideration by the individual courts and tribunals. Federal courts and tribunals are independent of government and each responsible for their own operation and management, including what guidance they provide to court and tribunal users.

Recommendation 20:

The committee recommends that the Family Court of Australia gives strong consideration to the evidence gathered by this inquiry about the absolute necessity of ensuring that judicial officers participating in special medical procedure cases have appropriate skills and expertise in disability matters. The committee urges the Family Court of Australia to develop training courses about disability matters and to ensure that such courses are completed by any judicial officer who may hear cases concerning special medical procedures.

Response: Supported in principle.

Participation by federal judges in professional development and training opportunities is voluntary. However, ongoing professional development of the judiciary is encouraged and supported through the courts' own programmes, the National Judiciary College of Australia and the Australasian Institute of Judicial Administration.

The Family Court of Australia has published resources, available on its website www.familycourt.gov.au, to assist court users to understand processes of the Court and facilitate the resolution of special medical procedure matters.

The Australian Government notes the federal family law courts (the Family Court of Australia and the Federal Circuit Court of Australia (Family Division)) are specialised courts that deal with family law matters. Paragraph 22(2)(b) of the Family Law Act 1975 also provides a person shall not be appointed as a Judge of the Family Court of Australia unless, by reason of training, experience and personality, the person is a suitable person to deal with matters of family law.

Recommendation 21:

The committee recommends that the Commonwealth government establish a special medical procedures advisory committee, to provide expert opinion to the Family Court upon request in relation to specific c