The government notes the inquiry into the bill by the Legal and Constitutional Affairs Legislation Committee. The government acknowledges the evidence provided to the committee through submissions and public hearing, including the impact that stripsearching has on children and young people. The committee found that existing protections in Commonwealth legislation are sufficient to preserve the rights of the child and recommended the government engage with states and territories to address the concerns identified in the report, including training, accountability and transparency.

The government acknowledges the important issues raised in the Crimes Amendment (Prohibiting Shackling During Childbirth) Bill. This includes the harm suffered by the mother and child when subjected to such restraints. We are concerned by the appalling stories raised about the practice of shackling pregnant women who give birth under custodial sentences. The government recognises the importance of strong safeguards and oversight in relation to the exercise of restrictive practices, including those used on vulnerable individuals, such as those in labour.

This bill seeks to ban the shackling of pregnant women who give birth while under custodial sentences. The bill does this by inserting a section 87A into the Crimes Act to prohibit restraint of people while they are giving birth. The bill includes a broad definition as to what is considered a restraint, which includes physical, mechanical, environmental and chemical restraints. As the bill states, the proposed section applies to a person who is detained in prison or a hospital or is otherwise in custody. Laws and policies related to this fall within the remit of the criminal justice system of the state or territory in which this person is held. The responsibility of the criminal justice system is one that predominantly sits with state and territory governments. It's on this basis that the government does not support the bill.

The government notes the inquiry into the bill by the Legal and Constitutional Affairs Legislation Committee. The committee considered two main questions in relation to the bill: firstly, whether the use of restraints during childbirth is a serious concern; and, secondly, when the bill provides an appropriate, effective and legally sound means of addressing that concern across states and territories. The government acknowledges the evidence provided to the committee through submissions and through public hearings. This evidence raised serious concerns about the practice of restraining women while giving birth in custody. Anecdotal evidence demonstrated the use of this practice in different jurisdictions and the personal impact it has on the health of a mother and a child. Several submitters highlighted the specific impact the practice of shackling during childbirth has on Aboriginal and Torres Strait Islander women.

The committee also heard about the lack of reliable statistical data on the use of shackles during childbirth in Australian correctional facilities. It was highlighted that the lack of uniform data collection has resulted in a gap in understanding about how often this practice is used and how it applies across different jurisdictions. When assessing whether the bill is the appropriate vehicle to address what is a very serious issue, the committee concluded that these issues are most appropriately addressed by states and territories through their corrective services legislation, policies and accountability frameworks. The committee ultimately made two recommendations: first, that the Commonwealth consider appropriate pathways to engage with states and territories to address issues raised by the bill, and, second, that the Australian government work with the Australian Institute of Health and Welfare and the states and territories to collect data around how many women are pregnant and give birth while in custody in Australia each year. The government will consider these recommendations in detail.

In November 2023, the Department of Health, Disability and Ageing commissioned the Nous Group to undertake the National review of First Nations healthcare in prisons on behalf of the Aboriginal and Torres Strait Islander Health Collaboration, which comprised Commonwealth, state and territory government health officials and First Nations health sector representatives. The review noted the shackling of women during childbirth for the safety of health staff as an example of where interactions with custodial staff and security requirements can inhibit access, quality or delivery of health care. In December 2024, Commonwealth state and territory health ministers jointly endorsed this review. They committed to developing a national approach to implementation of its six recommendations for reform. This included a recommendation for health and justice ministers to investigate evidence and take steps to cease any practices that violate prisoners' rights. The development of—