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

Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source

I move:

That the Senate take not of the document.

We appreciate that the minister has tabled these responses today. It actually gives you faith that only one week ago in Senate estimates we asked a question about when these reports were going to be tabled and were told imminently. So, now, for the first time we actually seem to have a real reflection of what imminent means. We have been trying to get that. We could not get that a week ago but we now we have it.

This has been long-awaited. Only last week the Human Rights Commission brought down a very interesting report on issues around gender in Australia, and one of the key recommendations of that human rights report was that the particular issues raised in these two Community Affairs Committee inquiries—one on the involuntary or coerced sterilisation of intersex people in Australia and the other one on the issue around intersex in Australia—was that these recommendations be taken up and that there be consideration of these issues in our community, and it noted the work of the Senate committee.

In terms of the response we received from the minister today, we do appreciate that the government has acknowledged that it is really important that these issues, particularly to do with issues of discrimination around women—particularly women but not only women—and people with disabilities who have been subject to sterilisation without consent or against their wishes was wrong. We understand that we need to have some consideration in our community and in our governance about this process. One of the core things is that it is important that there is consistency around jurisdictions. This came out in a number of the recommendations in both reports. I will look at the involuntary or coerced sterilisation issues first.

I turn first to the report on involuntary or coerced sterilisation of people with disabilities. There were a number of recommendations put forward by the committee, but I am a little bit confused about the responses from the government to those recommendations. While the government consistently acknowledge the issues, they also consistently say that, largely, sterilisation, legal support and the health of people with disabilities—in particular, those who have been subject to sterilisation—are a state or territory responsibility. But our committee knew that. We consistently said that during the hearings we had, when we listened to the gut-wrenching evidence from people and families who have been subject to this medical process and abuse over the years.

What we were seeking from the government was not just an acknowledgement that something needs to be done about it, and they do say that. We wanted some leadership on this from the federal government—that, whilst it was not their primary responsibility, they would talk to the states and territories and they would put this on the agenda so that there could be real efforts towards consistency across things as straightforward as definitions and how people should be handled through the difficult process—and it is not easy area—of looking at whether a decision about sterilisation should be taken. We did not get that.

There were a range of verbs used in the government's response. There was 'noting'; the federal government 'noted' many of the recommendations. The high point of the responses, using 'raise', was:

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

That was specifically around recommendation 6, which said:

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.

It also concerned recommendation 28:

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.

This is a horrifying action which we know, from the evidence we received, is not rare. With many people who currently cannot receive this particular medical intervention legally at the state level in Australia because of their needs, the decision by their families or carers is to take them overseas to where this procedure can be carried out.

Now, we know that does not meet any requirements of due care. We know it does not meet any requirements under international obligations. But what we have not been able to get from the federal government is a clear indication that they think this is something that should be taken up in serious discussions with the states and territories, and that permeates the government's response. There is acknowledgement of the issue, but then they say:

This is a matter for state and territory governments.

They say:

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.

The federal government say they acknowledge it is important that they look at having wraparound services and multicultural teams taking into account the range of issues that are important in such decision making. They acknowledge that is important; they say states and territories should do something about it. But nowhere do we actually see agreement from the federal government that this is so important—despite the evidence of these people who have been brave enough to come to a Senate committee inquiry and expose the pain that they have experienced in the past, or the evidence from advocacy groups who fear what could continue to happen in the future—that they will take leadership on this issue and put on the agenda for any of their intergovernmental meetings the importance of getting standardisation of definitions, standardisation of support and encouragement of best practice both legally and medically. That is what our committee hoped would be the response from the government.

One of the valuable things, though, is that the government have said in their response:

… the question of capacity is a threshold question in the regulation of sterilisation for people with disability.

Indeed, that applies to any decision making about people with disabilities or where there is concern about capacity to make decisions. The response also talks about the report put out by the Australian Law Reform Commission—a really good report—called Equality, capacity and disability in Commonwealth laws, which was tabled in this parliament in November 2014. The government response says:

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 …

The report—which is well worth reading, Madam Acting Deputy President O'Neill—made 55 recommendations about providing people with the best possible support to ensure they have the clear ability to make decisions in any situation that impacts on them. The government response says:

The Government is currently considering the recommendations in the report.

So we look forward to seeing the government report on that issue.

The second report, which was supplementary to our review of involuntary or coerced sterilisation of people with disabilities, was on the particular issues for the involuntary or coerced sterilisation of people who identify as intersex in our community. The government has made much the same kind of response to that report. They have acknowledged that this is a reality, they have acknowledged the importance of having services that respond effectively to intersex people, who are not great in number but who are very great in need. Our report actually looked at the history—quite a shameful history, in many ways—in our country and internationally of the desire for people to seem and be considered 'normal' rather than to meet their particular needs. There was strong evidence heard in our inquiry. Again, the government response is:

The Australian Government supports the principle of multidisciplinary and coordinated care for people who are intersex. However, service provision is generally a state and territory responsibility.

They say the Australian government 'cannot mandate the language used by health professionals and organisations' because this is a state and territory, and private sector, responsibility.

But we knew that when the recommendations were put to us by the people who gave evidence and when we wrote our report. Again, what we wanted was for the government to say, 'Yes, this is important; we know there is variation across the states and territories, and there should not be. No matter where you live, if you are seeking support, you should have an expectation of effective, professional and compassionate service.' That is what people who identify as intersex want in terms of service delivery from their professionals.

We would hope that the government would actually follow through on the acknowledgement they have made in their response that this is important—that they will not just say that this should be done and that the states and territories have prime responsibility but that they will engage with the state and territories proactively, put it on the agenda and have consultation meetings across governments to ensure that things such as definitions are standardised. (Time expired)

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I too rise to take note of the government's response to the report Involuntary or coerced sterilisation of people with disabilities in Australia and, our second report, Involuntary or coerced sterilisation of intersex people in Australia. I chaired this committee inquiry—in fact, it was two inquiries in one, because we did the second report on coerced sterilisation of intersex people in Australia. At this point, I want to note former senator Louise Pratt, who very strongly worked on this issue—and, in fact, urged the committee to make a separate report on involuntary or coerced sterilisation of intersex people in Australia. So I would like to note—

Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source

And Sue Boyce.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

And Sue Boyce as well. Former senator Sue Boyce was also part of the committee and was very interested in both of these inquiries. In fact, she very strongly drove this inquiry. As we know, she had a very deep commitment to disabilities while she was in the Senate. I know damn well she still has that very deep interest.

As with many of the community affairs inquiries, this was a deeply emotional inquiry. I think that is very important to note. In fact, we heard the voices of, in particular, women with disabilities. We went to great lengths to organise hearings in a manner that enabled women to talk to us about their personal—deeply personal—and distressing experiences. I would like to place on record again our thanks to those women for sharing their accounts.

I am very disappointed in the government's response. In the introduction, they say some nice words such as: 'The 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.' But if you skip through to one of the key recommendations of the committee, it states:

…that the Council of Australian Governments oversee the development of uniform model legislation to regulate the sterilisation of persons with disabilities. Based on this model, a new division of the Family Law Act 1975 (Cth) should be created.

The government has not accepted this recommendation.

We are talking about model legislation. The government talks about talking to the states and territories. One of the reasons we had this inquiry was that the states and territories were not doing the right thing. They are not doing the right thing in many cases. So it was very clear from the evidence that we needed this model legislation. When the government says it will talk to the states and territories, how about actually doing something? How about actually taking the leadership and working up this legislation?

We got some very powerful evidence about the need, in particular, for people's representation and people's relationship with the court and legal process to be supported. Where the government says on a number of recommendations, 'Yes, noted, and we will take it up with states and territories,' in particular they reject the issues around people being able to get better representation and to feel more comfortable with the legal system. In one of the recommendations the government has rejected in the first report, Involuntary or coerced sterilisation of people with disabilities in Australia, where the committee recommends that legal aid should be provided to cover the costs incurred by the parents or guardians in child sterilisation cases and the legal aid grant should not be subject to capping or to a means or merits tests, it is not supported. This is a big blow to those parents who are addressing, dealing with and coming to terms with the issues associated with helping young people and around sterilisation. It is deeply concerning that the government is saying it does not support that recommendation.

The government also does not support the establishment of a special medical procedures advisory committee to provide expert advice to the Family Court upon request in relation to specific cases. The recommendation goes on to say:

…other statutory decision-makers and government as appropriate on best practice in relation to sterilisation and related procedures for people with disability; and that the committee must include non-medical disability expertise as well as medical expertise.

These recommendations were very carefully thought out based on the evidence that we received. The evidence clearly said there needs to be more support in the Family Court. It is in the Family Court where people are struggling to deal with these issues and need better support. Also, better support is needed for children in this process. The committee recommended:

…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.

Again, the evidence was overwhelming that that sort of representation and advocacy was needed. Government has fallen down again in terms of supporting people with disability.

Then there is the recommendation that recommends that in the development of participant plans, particularly for participants approaching puberty and in their teens—this is for the NDIS—the participant work with any person assisting them with the plan development. The government has accepted this in principle but has pushed it through to the NDIA. Again, I would have hoped for a lot better support for that in terms of a commitment to making sure it happens. We want a commitment to make sure that particular recommendation happens.

I want to spend some time also on our second report, Involuntary or coerced sterilisation of intersex people in Australia. I will put on the record—and without unduly boasting of the community affairs committee's work—this report has been noted internationally. It is now seen to be a seminal report in terms of dealing with issues of involuntary or coerced sterilisation of intersex people around the world. I would like to put on record that our report is, I would hope, having not only broader Australian influence but also international influence. I am pleased that the government has accepted and supports in principle our first recommendation:

The committee recommends that governments and other organisations use the term 'intersex' and not use the term 'disorders of sexual development'.

I want the government to take this beyond supporting it in principle and actually doing something about it. We were given some very important and sensitive evidence, and again I thank the people that so generously shared with the committee their personal accounts of their experiences.

I am extremely disappointed again to see that, where the government could be showing essential leadership on some key legal and medical issues, they are balking and not supporting some of our key recommendations, such as recommendation 4:

The committee recommends that the Commonwealth government provide funding to ensure that multidisciplinary teams are established for intersex medical care that have dedicated coordination, record-keeping and research support capacity, and comprehensive membership from the various medical and non-medical specialisms. All intersex people should have access to a multidisciplinary team.

The issues around multidisciplinary teams were considered absolutely essential by people giving evidence to the inquiry.

Other areas not supported related to special medical procedures. Our recommendation 9 states:

The committee recommends that the special medical procedures advisory committee draft guidelines for the treatment of common intersex conditions based on medical management, ethical, human rights and legal principles. These guidelines should be reviewed on an annual basis.

That is not supported by the government, and I am extremely disappointed about that. Nor will the government support recommendation 10:

The committee recommends that complex intersex medical interventions be referred to the special medical procedures advisory committee for consideration and report to whichever body is considering the case.

We will continue to work with organisations to pursue these recommendations, because they are based on the evidence that was given to the committee. We will also pursue the government to follow this up in a very purposeful manner with the states and territories. I do acknowledge, and we say in our committee report, that the states and territories need to be taking more action. The Commonwealth needs to show some leadership, in particular with the model legislation I was referring to earlier. I do appreciate and thank the government for their response. It has taken a little while but I am glad it is there now. We will continue to pursue these recommendations and we urge the government to show leadership on these issues.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I too wish to say a few words on the government's response to the report of the Community Affairs References Committee. I thank the government for its response on what is essentially a state government matter. The government in its response has addressed the issues and has treated the Senate committee's report seriously and with some respect.

I am interested to hear of the worldwide recognition this Senate committee report has received. Over a long period of time, Senate committee reports have been treated seriously, because by and large Senate committees operate well and are part of government. Contrast this with a farcical situation we had today, where the Senate Legal and Constitutional Affairs Legislation Committee had, by request of Labor and Greens senators, set down a Senate estimates spillover hearing dealing with a particular matter. That was on the books of the legislation committee.

Yesterday the Senate decided, with the Greens-Labor majority, to refer the same matter to the Senate Legal and Constitutional Affairs References Committee, on which the Greens and the Labor Party have a majority. In fact, that committee is chaired by a Greens senator and it has a four to two Labor-Greens majority. Madam Acting Deputy President, you may ask whether this is relevant to the debate before the chamber.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

That is very astute of you, Senator.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

The point I am making is that Senate reports are well received. They have a certain standing. But when the sort of action that has occurred in relation to this other matter happens yet again— following along the line of the Senate abuse committee set up by the Palmer United Party into the investigation of a political matter in Queensland, with one government member—Senate committees start to lose respect. A report as good as this will shortly be seen to be just another Senate report.

My concern is that all Senate committees are being thrown into disrepute by the actions of the Greens and the Labor Party in ramming through political inquiries without any reference to the normal courtesies and in fact the democracy of the chamber. The matter I talk about was referred to the references committee just today. They held an urgent meeting this afternoon and they have proposed that the committee sit this Friday, with one day's notice. The two government members on that committee, Senator Reynolds and I, both have longstanding commitments on that day. Everyone would know of my passion for northern Australia. The newspapers are reporting that the government's northern Australian white paper is to be released in Cairns this Friday. Clearly there is no place in the world I am going to be apart from Cairns this Friday, and that is fairly well known. Senator Reynolds, a very hardworking member of many Senate and joint committees, is precommitted to Amberley for a hearing of the Senate defence committee. So the two government members on the committee clearly have longstanding commitments on Friday. Did that worry the majority of the committee, chaired by Senator Wright? Of course not. Labor and the Greens just slam through this inquiry for Friday, knowing that the government, which has the most senators, simply will be unable to be represented—no consultation, none of the usual courtesies of 'Bring your diary. Will you be available this day? Or perhaps there is some other day we could do this?'

Anne Urquhart (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

On a point of order, Madam Acting Deputy President, of relevance. The report that is referred to in the documentation is the Community Affairs References Committee's Involuntary or coerced sterilisation of people with disabilities in Australia. We seem to be hearing about a Legal and Constitutional Affairs meeting that is held on Friday. I would draw the chair's attention to that.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Macdonald, I do draw your attention to the title of the report under discussion and ask you to bring your remarks back to that report.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

The motion before the chamber, I understood, was to note the government's response to a particular committee report.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

That is right.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

As part of the debate, Senator Siewert indicated this was a report of a Senate committee that has received wide acclaim. My point is that reports of Senate committees, even this one, will not achieve any sort of acclaim if they are seen to be the work of a chamber of the parliament that for political reasons rams through the sort of Palmer United Party inquiry into the Queensland government and appoints one government member to it. Similarly, the reference for Friday will go ahead without government representation. Once you start doing that, this very good report, which the government has responded to today, will suffer the fate of everything that comes out of the Senate, if the Labor party and the Greens continue to abuse the processes of the Senate committee system. I get very angry about this. It happened in that Queensland committee, which was an absolute and abject farce; it was a committee that was set up by the Labor Party and the Greens in support of a ridiculous motion by the then Palmer United Party—I do not think the party exists any more.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Mental Health) Share this | Link to this | Hansard source

On a point of order, Madam Acting Deputy President. Usually in these sorts of debates we do allow a fair bit of latitude, but I do think that Senator Macdonald has a particular issue he wants to prosecute, and this is not the time to do it. We should be talking about the government's response to the Community Affairs Report—that is the issue on the table at the moment. I do not disagree that Senator Macdonald has a right to ventilate these views, but now is not the time.

Scott Ryan (Victoria, Liberal Party, Parliamentary Secretary to the Minister for Education and Training) Share this | Link to this | Hansard source

On that point of order, Madam Acting Deputy President. When you drew Senator Macdonald's attention to the question before the chair earlier, I think he directly addressed it. He was also responding to some other contributions to the motion before the chair that highlighted the standing of Senate committee processes and the regard in which this particular report was held. I was listening to Senator Macdonald actually respond directly to your previous request. So I think, with respect, Senator Macdonald responded to the previous request quite promptly.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Thank you for that, but I will remind you, Senator Macdonald, the reports for discussion this afternoon are Involuntary or coerced sterilisation of people with disabilities in Australia and Involuntary or coerced sterilisation of intersex people in Australia. I draw your attention to the need to make relevant comments with regard to those reports.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

As you would have heard me say at the outset, I thanked the government for its response, which is the motion before the chair and not the committee's report—but the government's response to it. I did want to acknowledge the work that my former Senate colleague and friend, Senator Sue Boyce, made to that. The point I am making, Madam Acting Deputy President, is that it is a good report, and the government has acknowledged that in its response, which we are debating. But Senator Siewert is indicating that it is a report that has received wide acclaim. What I am saying is: if the Labor Party and the Greens continue to abuse the processes of the Senate committees in the way they are doing, and I have mentioned a couple of instances, then this committee report will not have the same standing, because people will say: 'Oh, that's a Senate committee report; that's a Senate that puts on one government member when the government has the largest number of senators in the chamber on a committee.'

My point is, and it is germane to this particular report: it was well received but it will not be well received if people start to say: 'Senate committee reports are just things that the Greens and the Labor Party play with.' They set them up just to advance their political interest, rather than what has been the time honoured use of Senate committee inquiries to consider good things, as this committee has done, reported on and come up with a set of recommendations. That sort of respect with which Senate committee reports are treated will not be there if the Greens and the Labor Party continue to abuse the processes of the committee system in this Senate for their own political purposes. People will say: 'Well, is this committee just another Labor-Green political shambles—another Green-union political slam through inquiry that we should take no notice of?' Or will they ask whether it is a serious report like this one.

I would like to make it clear to Senator Siewert, who did chair this committee: it is her political group that gives Labor the support that they need to bring forward these political inquiries, which bring the Senate into disrepute. I do not mind being on a committee where I am outvoted, but when you have one government member out of five or when you set up an inquiry knowing that the two government members will not be available and you give them one day's notice. That brings the whole process into disrepute. The regard we have for this committee report will not be there in the future, if Labor and the Greens continue—(Time expired)

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

I rise to make a contribution, following on from Senator Macdonald, to thank the government for their response to these reports. These reports, of course, have been a long time in the making and they deal with a number of significant issues. The government have provided a timely and wise response.

In responding to some of the points that Senator Macdonald made, I have to say that I concur with him. I think there is a risk if we diminish the cooperation of the committee system. We can all count. We know that if you have the majority of members you can do whatever you want, basically. You can have a vote and call private meetings and push through whatever agenda you want. But to do that in the manner which Senator Macdonald has reflected on and that some of us have experienced in recent times really does diminish the credibility and authority, I would say, of what hitherto has been an unbelievable system within the Senate.

I say that for two reasons. The first is that when an inquiry is being conducted there are always going to be political differences and some of us strive on some issues to reach a consensus and, at other times, we accept the fact that the government is going to put forward a particular majority view of the committee and there are going to be dissenting reports. However, that time-honoured principle is undermined when inquiries are called at very short notice knowing that regular contributing members of a committee cannot attend. Senator Macdonald highlighted that inquiry that has been pushed through and called for this Friday. It is a very important inquiry that reflects—

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Mental Health) Share this | Link to this | Hansard source

Madam Acting Deputy President, I rise on a point of order. Again, I want to raise the question of relevance. I want to make the same point of order I made during Senator Macdonald's contribution, which is to suggest that Senator Bernardi find a better time to prosecute this argument. You have a right, Senator Bernardi, to—

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

I don't need a lecture from you, thanks. You've made your point of order, now sit down.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Bernardi, please contain your remarks. Senator McLucas has the call. Please, Senator McLucas, complete your point of order.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Mental Health) Share this | Link to this | Hansard source

Senator Bernardi has the right to make these points, but not in response to the government response to committee reports that are absolutely not related in any way to what he is prosecuting at this time. I suggest that if the senator does not address the matter in front of the chamber it is disrespectful to the chamber and that he should be shut down.

Scott Ryan (Victoria, Liberal Party, Parliamentary Secretary to the Minister for Education and Training) Share this | Link to this | Hansard source

Madam Acting Deputy President, I rise on a point of order. I reiterate what I said earlier. I think Senator Bernardi is responding to debate in the chamber. He is well within order because he is commenting on the regard of Senate reports, which has been raised by numerous other contributors to this debate, and on the regard of the government's response. I think, to be fair, the chamber has traditionally allowed quite a lot of latitude on this. I have myself sat here and listened to debates where there was a much less clear link between the topic before the chamber and the contribution being made.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I call Senator Bernardi, but I do remind him of the nature of the discussion this afternoon—the government response to two reports with a very specific focus.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

I need no reminder because I was absolutely relevant to the government's response. What concerns me is that these very important government responses to what hitherto have been incredible inquiries led by senators could be compromised. I do not want to see any more politicisation of the system than we currently have. Quite often you can get consensus on reports, and governments respond to that in a very positive and favourable manner. I think this positive response from the government reflects that.

I want to come back to the point that you can undermine the system of integrity, as Senator Macdonald highlighted in his contribution before, by having very important inquiries called at short notice knowing that government members cannot be in attendance. You might have the technical right to do that, you might have the numbers to do it, but there is no positive contribution to the overwhelming good of the Senate in that respect. I have seen this happen with other committees as well and I think it risks diminishing the potential for positive responses such as the government's response to the report on the involuntary or coercive sterilisation of people with disabilities in Australia.

Committees such as the Nauru committee, of which I am a part of, I regret unfortunately continually call meeting after meeting after I have indicated that I am unavailable on that particular day. To reflect on Senator Macdonald's concerns, the two government senators were not available for a particular period of time and there was an arrangement for the committee to be extended to allow a further hearing with our participation. That was unilaterally changed. How can a government expect to respond positively to a Senate committee report when in many ways, shapes and forms there have been barriers put up to the participation of government senators? No-one is more concerned about the rights and the good of refugees in this place than government senators; I can assure you of that. But instead of having a Senate committee operate as it is meant to, with a bit of politics, to get good responses, such as the government's response that I keep coming back to—

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I appreciate that, Senator Bernardi.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

I keep coming back to this because it is about reprehensible behaviour—involuntary and coercive behaviour. Those are two of the first words—'involuntary' and 'coerced'—in these responses from the government to the reports of the Senate.

What is worse is when there is contrived and confected outrage about Senate committees when they are being undermined from within. The fifth columnists are at work in the Senate. They are seeking to undermine the integrity of the committee system for base political reasons. If you want meaningful responses and respectful reports—understanding that we have political disagreements and understanding that we are always going to have different views on any number of matters—it will require cooperation. It required cooperation when I was in opposition. I tried to work well with members of the government to initiate inquiries and to get outcomes—say, for men's health. I remember the minister at the time, Minister Roxon, was very receptive to the committee's recommendations because they were bipartisan and they were genuinely an attempt to get some men's health outcomes. The government responded to them.

The government has responded in a positive manner to the report, a very important report, that we are discussing today. But how can we logically expect the government to positively respond to committee inquiries that have been hijacked and had raw numbers used against them, limiting the participation—and deliberately and wilfully so—of members of the Senate who have a genuine interest in the subject matter at hand. It does not matter whether they are on that side or on this side or on the third side or the fifth wheel or wherever they want to be. It is about the right and the responsibility of every senator to be able to participate fully.

There are circumstances where we have to accommodate people's absences and to rejig things, but that is generally done with consultation. I can say that consultation on some of these committees has been woeful. In fact, it has been worse than woeful. It seems to me that on some committees the majority—the ruling clique, if you will—will go out of their way to inconvenience other senators, whether it is in their quest for media exposure, their determination to have the limelight all to themselves or to just shut down a dissenting point of view. It is wrong, and it will undermine the reports and the responses from government such as we are discussing here.

Do any of us really want to undermine important inquiries like the involuntary or coerced sterilisation of people with disabilities in Australia? I know people are concerned about that. The government has been concerned about that, and that is why they have responded to this report. But how can we expect this Senate to operate to the best of its ability when there is no concern for the overwhelming good of the Senate and little or no concern for anything else other than base political survival? The institution is bigger than any one of us. If you think that is not the case, just look around at any one of your colleagues who has left. They are all pretty much forgotten as soon as they go—not you, Madam Acting Deputy President O'Neill. I am sure you will be remembered for a very long time.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

You are very kind, Senator. That might be gilding the lily somewhat, though.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

The institution is important; tradition is important; convention is important; courtesy is important. They are the things that determine how this place functions. Without that history, that convention and that cooperation, we lose something very special here. That is why I think this place is much better equipped than the other place to handle these sorts of inquiries. When we put together a report, there will be occasions when it is going to be unanimous and we are going to say, 'Yes, we have to fix this grievous injustice,' or 'We have to sort something out'—and the government can respond. But how can we do that in the face of committee chairs and collusion to get the raw base numbers that almost limits people from participating in the committee system? There is something wrong about it. Senator Macdonald was absolutely spot-on when he gave his example earlier today. I have lived through a very similar example myself. It is something that should be of concern to all of us in this place who are concerned not only about the involuntary or coerced sterilisation of people with disabilities in Australia but about the wellbeing of this general organ of government.

Question agreed to.