WWDA Systemic Advocacy on the Unlawful Sterilisation of Minors with Disabilities – Responses from Politicians
In late 2006 and early 2007, Women With Disabilities Australia (WWDA) wrote to a wide range of stakeholders (including all politicians) seeking support for WWDA’s call to the Federal and State/Territory Governments to develop universal legislation which prohibits sterilisation of children except in those circumstances which amount to those that are a serious threat to health or life. Below are copies of the responses WWDA received from Australian politicians.
Prime Minister, John Howard
Dear Ms Parkinson,
Thank you for your correspondence of 2 November 2006 to the Prime Minister about the sterilisation of minors with a decision-making disability. The Prime Minister has asked me to reply on his behalf and I apologise for the delay in doing so. I understand that the Attorney-General, the Hon Philip Ruddock MP, who has policy responsibility for this issue, responded to your letter on 5 December 2006.
Your letter outlines WWDA’s position that sterilisation can be justified only in circumstances where it is necessary to save life or preserve the health of the individual. All levels of government in Australia consider illegal sterilisation to be an extremely serious matter. The Australian Government believes that developing a nationally consistent approach to the authorisation procedures is the most effective way to safeguard and meet the needs of minors with a decision-making disability.
In an attempt to deal with the complex issues surrounding sterilisation, the draft ‘Children with Intellectual Disabilities (Regulation of Sterilisation) Bill’ (“the draft Model Bill”) clearly identifies guidelines under which important decisions should be made. The draft Model Bill provides that a sterilisation procedure may not be authorised unless the procedure is in the best interests of the child.
Your letter appears to suggest that the Australian Government has developed the draft Model Bill. As you have indicated, the draft Model Bill was prepared by a Working Group of the Standing Committee of Attorneys-General (SCAG).
You also express concern in your letter that the draft Model Bill conflicts with the objects of the United nations Convention of the Right of Persons with Disabilities, which was adopted by the United Nations Assembly on 13 December 2006. The Australian Government considers the draft Model Bill to be consistent with the draft Disability Convention and will continue to monitor this issue.
As you are aware, the draft Model Bill has been sent to stakeholders for consultation. Once the consultation process is complete, it is expected that the issue will be the subject of further discussion at the SCAG meeting secheduled for April 2007.
Thank you again for bringing your views to the Prime Minister’s attention.
Senior Adviser (Justice and Legal)
5 March 2007
Federal Attorney-General, Philip Ruddock
Dear Ms Parkinson,
Thank you for your letter dated 2 November 2006 regarding the sterilisation of minors with a decision-making disability. Thank you also for your email dated 7 November 2006 on the same issue to my colleague, Senator the Hon Christopher Ellison. I am also responding on behalf of Senator Ellison as the issues you raise fall within my portfolio responsibilities.
The Australian Government considers illegal sterilisation to be an extremely serious matter. The Government believes that developing a nationally consistent approach to the authorisation procedures is the most effective way to safeguard and meet the needs of minors with a decision-making disability.
I note Women With Disability Australia’s (WWDA) position that sterilisation can be justified only in circumstances where it is necessary to save life or preserve the health of the individual.
The draft ‘Children with Intellectual Disabilities (Regulation of Sterilisation) Bill’ (the draft Model Bill) attempts to deal with the complexity of issues surrounding sterilisation by clearly identifying guidelines under which important decisions should be made. The draft Model Bill provides that a sterilisation procedure may not be authorised unless the procedure is in the best interests of the child. I note that the draft Model Bill does not represent a settled policy position at this time.
Your letter implies that the draft Model Bill has been developed by the Australian Government. The draft Model Bill was prepared by a Working Group of the Standing Committee of Attorneys-General (SCAG). While the Australian Government plays a consultative role, it is not a member of the Working Group as the draft Model Bill is designed to form the basis of uniform State and Territory legislation.
You also express concern in your letter that the draft Model Bill conflicts with the objects of the draft United Nations Convention of the Right of Persons with Disabilities (draft Disability Convention). The Government considers the draft Model Bill to be consistent with the draft Disability Convention and will continue to monitor this issue.
As you are aware, the draft Model Bill has been sent to stakeholders for consultation. Once the consultation process is complete, it is expected that the issue will be the subject of further discussion at the SCAG meeting scheduled for April 2007.
Thank you for bringing your concerns to the Government’s attention. I trust this information is of assistance to you.
5 Dec 2006
Dr Brendan Nelson MP, Federal Member for Bradfield
Dear Ms Parkinson,
Thank you for your recent letter and information regarding the troubling issue of the sterilisation of children with intellectual disabilities. Rest assured that I am supportive of your position and views on this issue.
I agree that it is disturbing that there is no universal legislation prohibiting this practice. I also agree that we as a nation must respect the fundamental human rights of all Australians, regardless of their physical or intellectual standing.
I would like to thank you for all the work that you and your organisation have done to bring attention to this issue. It is unfortunate that such pressing issues often go unnoticed in our community, and it is through organisations such as Women With Disabilities Australia that they are given the attention they deserve.
Again, thank you for all of your hard work and know that I share your concerns over this disconcerting matter.
If there is anything I can do for you now, or in the future, please do not hesitate to contact me.
Dr Brendan Nelson MP
Federal Member for Bradfield
Hon Bob Debus, New South Wales Attorney-General
Dear Ms Parkinson,
Thank you for your correspondence concerning the Standing Committee of Attorneys General (SCAG) draft model provisions setting out the circumstances in which a State or Territory tribunal may authorise the sterilisation of a young person with an intellectual disability.
Other members of the NSW Parliament have referred your comments to me for response, including the Hon. Morris Iemma MP, Premier; the Hon. John Hatzistergos MLC, Minister for Health; the Hon. Ian MacDonald, Minister for Natural Resources; and Ms Marie Andrews MP.
I also recently received another letter from you attaching the views of the United Nations Children’s Fund.
I wish to emphasise that the SCAG draft model provisions are not settled policy. They were prepared so that stakeholders could provide direct feedback on their efficacy. There are a considerable number of other stakeholders that share your views.
SCAG will be considering the results of consultations at its April meeting. In light of the feedback received, I will request that SCAG explores alternative solutions to those contained in the consultation draft.
Thank you for informing me of your views and for your contribution to the wider public policy debate on this matter.
New South Wales Attorney-General
20 Feb 2007
Hon Michael Atkinson MP, South Australia Attorney-General
Dear Mrs Parkinson,
Thank you for your letters of 27 January 2007, addressed to me and to the Chief Executive of my Department, about the draft Children with Disabilities (Regulation of Sterilisation) Bill 2006.
You express concern that the draft Bill is not consistent with the Convention on the Rights of the Child and, in support, you attach a letter from UNICEF dated 4 January 2007. In that letter, UNICEF says that several articles of the Convention amount to a prohibition on the sterilisation of children on the grounds of their disability alone. UNICEF mentions Article 23 (1), calling upon States parties to ensure that disabled children retain their fertility on an equal basis with others. UNICEF syas that the best interests of the child should be the primary consideration and it urges respect for children’s rights and dignity as human beings.
As you know, the draft Bill arises from a current project of the Standing Committee of Attorneys-General and was published for comment last year. Many interested people and groups took that opportunity, as you did, and the comment received is now being carefully examined. No decision has yet been taken about the draft Bill. As you note, Attorneys-General are next meeting in April 2007, and the matter remains on our agenda. We will make our decision having regard to all the comment received, including yours. At this stage, it is too soon to say what the result will be.
Speaking for myself, I will bear in mind the comments that you and UNICEF have offered. I can assure you that my decision in this matter will not be taken lightly.
27 Feb 2007
Hon Steven Kons LLB, MHA, Tasmanian Attorney-General
Dear Ms Parkinson,
Thank you for your letter dated 2 November 2006 in relation to the draft Bill concerning the sterilisation of children with intellectual disabilities. I am also responding on behalf of my parliamentary colleagues to whom you also sent your letter.
The draft model Bill to which you refer does not represent a settled policy position at this time. It has been circulated in all Australian jurisdictions for comment, after which the Standing Committee of Attorneys General will give consideration to a number of outstanding policy matters.
The views of WWDA, as expressed in your letter and attached submissions, will be taken into consideration as part of this process.
Thank you for bringing your concerns to our attention.
Steven Kons LLB MHA
1 Dec 2006
Hon Kerry Shine MP, Queensland Attorney-General
Dear Ms Parkinson,
Thank you for your email sent on 7 November 2006 in relation to the draft model Bill and issues paper to regulate the sterilisation of children with an intellectual disability. The materila was released by the Standing Committee of Attorneys-General (SCAG) for public consultation and comment.
SCAG has established an inter-jurisdictional Working Group to review the submissions received, and your views, and those of other stakeholders, will be considered as part of that process. Once the consultation process is complete, it is expected that the issue will be the subject of further discussion at the SCAG meeting scheduled for April 2007. I confirm that the draft model bill provisions that you have commented on do not represent a settled State/Territory/Commonwealth government policy position at this time.
You may be aware that Queensland has already responded to the need to have strict regulation in place to protect children with intellectual disabilities from unauthorised sterilisations. In late 2003, the Guardianship and Administration Act 2000 (Qld) was amended to give the Guardianship and Administration Tribunal (the Tribunal) the power to consent to the sterilisation of a child with an intellectual or congnitive impairment. This is an extension of the Tribunal’s existing jurisdiction to authorise the sterilisation of adults with impaired capacity. The legislative scheme is detailed and provides the specifics of the factors the Tribunal must take into account when considering whether to consent to the sterilisation, and sets out who can apply, who can be a party (with appeal rights) and the details of the content of the application. The legislation can be found at www.legislation.qld.gov.au
The Queensland scheme both protects the human rights of children with an intellectual or cognitive impairment and also provides for an accessible and cost-effective process to authorise sterilisations only if they have been proven in the best interests of the child.
I am currently undertaking broad consultation on the SCAG material with Queensland stakeholders, including disability and advocacy groups, carer and family peak bodies, government departments and hospitals, churches and ethicists.
Thank you for taking the time to prepare and submit a proposal.
Hon Kerry Shine MP
15 Dec 2006
Hon Jim McGinty Attorney General for Western Australia
Dear Ms Parkinson
Thank you for your letter of 2 November 2006 and your attached May 2004 submission to the Standing Committee of Attorney General (SCAG) (prepared by Ms Carolyn Frohmader): “Non-Therapeutic Sterilisation of Minors with a Decision-Making Disability”.
I have noted the matters in your letter and the attachment and, in particular, the recommendation to SCAG made by the Women With Disabilities Australia: “that the Federal Government develop universal legislation which prohibits sterilization of children except in those circumstances which amount to those that are a serious threat to health or life. In the case of adults, WWDA also strongly recommends that sterilization be prohibited in the absence of the informed consent of the individual concerned, except in those circumstances where there is a serious threat to health or life”. In relation to these matters, the following comments are provided.
First, as you may be aware, there has been a good deal of consultation regarding this issue and, it is especially important to note, there is no settled or agreed policy position in relation to authorization procedures for the lawful sterilization of minors with a decision making disability. For your information, the background to this SCAG agenda item is that:
- in August 2003, SCAG agreed that a nationally consistent approach to the authorisation procedures required for the lawful sterilization of minors with a decision making disability is appropriate. SCAG subsequently released an Issues Paper seeking comments about this issue;
- a Working Group reporting to SCAG has reviewed the submissions and prepared a draft model Bill (referred to above) to assist Ministers resolve a number of outstanding policy issues and the provisions do not represent a settled policy position at this time;
- SCAG has released the draft Bill, together with a September 2006 Issues Paper, to stakeholders as the basis for further discussion and consultation; and
- when the consultation process on that September 2006 Issues Paper and draft Bill has been completed, it is proposed that this issue will be the subject of further discussion at SCAG, possibly in April 2007.
Secondly, the draft Bill expressly indicates that its objects are:
“(a) to protect children with intellectual disabilities from unauthorised sterilization procedures being carried out on them: and
(b) to facilitate a nationally consistent approach to authorizing sterilization procedures to be carried out on children with intellectual disabilities in certain circumstances.”
It is also important to note that the definition of “intellectual disability” in clause 4 of the Bill has not been settled. For example, pages 3 and 4 of the Issues Paper discuss “what is an intellectual disability’?” In particular, the Issues Paper states:
“The Working Group suggests that any definition of intellectual disability not cover disabilities that are solely physical or sensory. The Working Group is considering what types of disabilities should be included in the definition of intellectual disability e.g. psychiatric disabilities. The Working Group is interested in stakeholders’ views on this point. It is also intended that the definition of intellectual disability should not refer to the child’s capacity to give informed consent to the sterilization procedure: see draft clause 4. This is because it is not intended that applications be made only on behalf of children who, because of their intellectual disability, are incapable of giving informed consent to the sterilization procedure. Rather, it is suggested that an application be made on behalf of an intellectually disabled child and the Tribunal would decide whether or not, because of the Child’s intellectual disability, the child is incapable of giving informed consent to the sterilization procedure and is unlikely to regain or attain the capacity to give informed consent: see draft clauses 9(a) and (b).”
As you may be aware, jurisdiction to authorize sterilization procedures on minors with a decision-making disability is vested in the Family Court of Australia and Federal Magistrates’ Service as part of the Federal jurisdiction over children of a marriage; State Guardianship Tribunals and Guardianship Boards where this jurisdiction has been conferred on these bodies (eg. NSW, SA and TAS); and State Supreme Courts’ parens patriae jurisdiction to make orders and directions in matters affecting children’s custody, guardianship and welfare. In WA the Guardianship and Administration Board did not have jurisdiction over minors. It could only authorize sterilization of adults for whom a guardianship order has been made under section 57 of the Guardianship and Administration Act 1990 (WA). The State Administrative Tribunal now has the jurisdiction previously exercised by the Guardianship and Administration Board.
Thirdly, the WWDA’s recommendations is that “the Federal Government [should] develop universal legislation which prohibits sterilization of children except in those circumstances which amount to those that are a serious threat to health or life”. Even if that proposal were to be accepted, it may raise constitutional issues as to whether the Commonwealth Parliament has legislative power to enact such legislation, for example, so far as it may relate to ex-nuptial children. That is, any legislation in relation to these issues may, because of constitutional law issues, have to involve State legislation. Indeed, that is why the above draft Bill has been drafted in terms of State, not commonwealth, legislation.
Fourthly, WWDA’s view is “that sterilization can be justified only in circumstances where it is necessary to save life or preserve the health of the individual”. The Bill does not deal with adults, but only relates to children as defined in clause 4 as being “a person under 18 years of age”. However, the Bill does, to a limited extent (which is subject to strict and narrow criteria), enable a court or tribunal to authorize sterilization event though it may not be necessary to save the child’s life or preserve the child’s health. Of course, as indicated below in relation to clauses 9 and 10, this cannot occur unless the sterilization procedure is in the best interests of the child.
Specifically, the Bill, in clause 5 creates an offence of sterilising a child with an intellectual disability. The only exceptions are where the circumstances outlined in clauses 5(3), 5(4) or 5(5) apply. The latter provision indicates that person does not commit an offence “�f the sterilization procedure is directed at treating an organic malfunction or disease of the child� that is likely to cause serious or irreversible damage to the child’s physical health or is directed at relieving the child’s pain, discomfort or distress when an organic malfunction or disease of the child that is likely to be terminal has reached the phase when there is no real prospect of recovery or remission on a permanent or temporary basis”.
In relation to clause 5(3) of the draft Bill, clauses 9 and 10 outline the matters about which the tribunal must be satisfied before it can authorise a clause 5(3) sterilization procedure. Specifically, clause 9 provides that a court or tribunal must no authorize a sterilization procedure unless three criteria are met, including that the sterilization is in the best interests of the child.
Subsequently, clause 10 mandates factors that court or tribunal must take into account when determining whether the sterilization would be in the child’s best interests. These factors include the child’s wellbeing, the likely consequences for the child if the sterilization procedure is not carried out and whether the sterilization procedure is not carried out and whether the sterilization procedure is necessary to enable the child to lead a life in keeping with the child’s needs and capacities: clause 10(2)(e).
In addition, the Bill includes specific safeguards including a mandatory requirement for separate legal representation of the child (clause 15) and specifically precludes sterilization only for eugenic reasons or to remove the risk of pregnancy resulting from sexual abuse or because sterilization is a convenient contraceptive or menstruation management measure (clause 10(4)).
Again, may I reiterate that there is no settled or agreed policy position in relation to these issues. Consequently, I shall, of course, keep in mind the views of WWDA when these matters are considered at SCAG.
I understand that you have written a similar letter to and forwarded your submission to several other person in this State. Therefore, I have forwarded a copy of this letter to the persons noted below.
Thank you for taking the time and effort to inform me of your views on this important issue.
Cc: Hon Alan Carpenter; Hon Margaret Quirk; Hon David Templeman; Hon John Bowler
27 Nov 2006
John Watkins MP, Deputy Premier, Member for Ryde (NSW)
Dear Ms Frohmader,
Thank you for your detailed correspondence regarding sterilisation of children with intellectual disabilities. Your comments have been carefully noted.
I note that you are aware of the Attorney-General’s comments that NSW will not adopt any uniform legislation unless the Government is sure that sterilisation is prohibited except where there is a serious and immediate threat to health or life.
As the Attorney-General is the most appropriate authority on this matter, I have forwarded a copy of your letter to him for his attention.
John Watkins MP
Member for Ryde
12 Jan 2007
Lindsay Simmons MP, Member for Morialta (SA)
Dear Ms Parkinson,
Thank you for your email dated 1 February 2007.
I fully support the Convention of the Rights of the Child (CRC) and am in agreement with the recommendation of the UN Committee on the Rights of the Child. I believe that Australia is obliged to uphold United Nation’s articles to which it is a signatory and I find it worrying that the federal Standing Committee of Attorney’s General is considering legislation which contravenes the CRC.
Please be assured that you have my full suport in urging for a redrafting of the proposed universal legislation to reflect Australia’s committment to the CRC.
Lindsay Simmons MP
Member for Morialta
16 Feb 2007
Hon Tony McRae MLA, Minister for Disability Services Western Australia
Dear Ms Parkinson,
Thank you for your letter dated 2 November 2006 seeking my support for a ban on the sterilization of minors other than as a life saving measure or in a medical emergency. I have noted your enclosed submission on this matter dated May 2004 and the variance between your position and that adopted by the Standing Committee of Attorney-General in the provisions of the draft Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006.
The draft bill is currently the subject of further consultation and no doubt a range of views is likely to be offered on this difficult and complex legal issue.
I am aware that the need for such legislation arises from a long legal history which includes four separate Family Court decisions, two of which authorised parents to make sterilization decisions and two of which found that only a court could authorize such a procedure. The Full Court of the Family Court on a 2/1 decision decided that parents could authorize such procedures and finally the High Court in the ‘Marion Decision’ reversed this position.
The history of contested decisions coupled with the evidence of the report commissioned by the Disability Discrimination Commissioner in 1997 that a large number of sterilizations had been conducted that did not comply with the High Court Decision, makes some form of uniform legislation imperative.
The draft bill does provide protection from unauthorised procedures, while providing parents with an appropriate process in which to present a case.
The bill, as you will have noted, does require the High Court principle arising from the ‘Marion Decision’ that the best interests of the child be the only criteria on which a sterilization may be authorized, other than circumstances likely to cause serious or irreversible damage to the child’s physical health. There are, in addition, a number of procedural safeguards including a requirement for separate representation of the child. The bill also precludes sterilization only for eugenic reasons, or to remove the risk of pregnancy resulting from sexual abuse or because it is a convenient contraceptive or menstrual management measure.
Granting families an opportunity for informed consideration of a proposed sterilization may lead to the provision of alternative courses of action including counseling, education, training, supervision or other forms of personal assistance.
Given the complexity of the issues and the diversity of public opinion on this matter, a court process with appropriate safeguards for the interests of the child has much to commend it.
Thank you for raising your concerns with me. Your continued advocacy for protection for people with disabilities who may be vulnerable is appreciated.
Hon Tony McRae
24 Nov 2006
Rachel Siewert, Australian Greens Senator for Western Australia
I enjoyed meeting with you on the 9 November and would just like to follow up on some of the issues raised.
I have grave concerns about the Standing Committee of Attorney’s General draft “Children with Intellectual Disabilities (regulation of Sterilisation) Bill 2006. Please let me know any way in which I can support your campaign.
I have also written to the Minister for Health and Ageing regarding the United Nations Convention on the Rights of Persons with Disabilities urging the Federal Government to be a party to the treaty and commit to its implementation.
WWDA is to be commended for the great advocacy work it’s doing for women with disabilities.
29 November 2006
Dr Graham Jacobs MLA, Member for Roe (WA)
Thank you for your letter of 2 November which was passed to me through the Leader as Disability Services Shadow Minister.
Congratulations on your great work in upholding the Rights of Women With Disabilities.
As a practicing doctor (now very much part time) I would defend the Right of Women not to be sterilized (young or adult) unless serious threat to health and life.
More today than ever, as practitioners we have to be aware of the imperative for informed consent in everything we do to people!
We will be supporting your recommendation and encouraging our Federal colleagues to do so also.
Regards and Best Wishes
Dr Graham Jacobs
13 December 2006
Morris Iemma, Premier of NSW
Dear Ms Parkinson
Thank you for your letter concerning the Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006.
Your views have been noted and I appreciate the reasons which prompted you to write to me on this occasion.
I understand the Standing Committee of Attorneys General (SCAG) has agreed to use this Bill for consultation with stakeholders. However, the NSW Government has made no commitment to adopt the draft Bill, and has no plans to consider any policy changes in this area.
I trust this information is of assistance.
23 February 2007
Hon Julie Bishop, [Federal] Minister for Education, Science and Training, Minister Assisting the Prime Minister for Women’s Issues
Dear Ms Parkinson
Thank you for your letter of 2 November 2006 to the Hon Julie Bishop MP, Minister Assisting the Prime Minister for Women’s Issues, about sterilization of minors with a decision-making disability. The Minister has asked me to reply to your letter of her behalf. I understand that you have also written to the Attorney-General on this matter, who has portfolio responsibility for these issues.
I note your concerns regarding national uniform legislation on this issue and thank you for providing a copy of your submission of May 2004 to the Australian Government and state/territory governments regarding non-therapeutic sterilization of minors with a decision-making disability.
The Australian Government considers the illegal sterilisation of women and girls to be a very serious matter and believes that developing a nationally consistent approach to sterilisation will be the most effective way to safeguard and meet the needs of women and girls with a decision-making disability. It is important that this legislation is consistent with Australian human rights and anti-discrimination, as well as Australia’s international obligations, for example under the Convention on the Elimination of All Forms of Discrimination Against Women and the draft United Nations Convention of the Rights of persons with Disabilities.
As you are aware, the draft model bill which has been prepared by a working group of the Standing Committee of Attorney-Generals (SCAG) has been sent to stakeholders for consultation. I understand that once the consultation process is complete the issue will be the subject of further discussion at the SCAG meeting scheduled for April 2007.
15 December 2006
Simon Corbell, Attorney General for the Australian Capital Territory
Dear Ms Parkinson,
Thank you for your letter of 29 January 2007 regarding the Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006.
While I note your concerns, and those expressed by UNICEF, in relation to the issues raised in the draft Bill and accompanying Issues Paper, no final policy decisions have been made by the ACT Government regarding the development of legislation.
Please be assured that your organisation’s views, and the views expressed by UNICEF, will be taken into account in preparation of an ACT Government response on the draft Bill to the Standing Committee of Attorneys General.
Thank you for taking the time to write to me on this issue.
Simon Corbell MLA
16 Feb 07
Alan Carpenter, Premier Western Australia
Dear Ms Parkinson,
Thank you for your further letter dated 29 January enclosing a copy of correspondence addressed to you from UNICEF about protection of the rights of children, and more specifically, on the issue of sterilisation of children with disabilities.
I note that you have also made your organisation’s position quite clear to the Australian Government and the Standing Committee of Attorneys General.
A copy of your latest correspondence, together with the enclosure fro UNICEF, have been forwarded to relevant State Ministers, and your assistance in making the information available to the Western Australian Government is appreciated.
Alan Carpenter MLA
8 Feb 07
Senator Eric Abetz – Minister for Fisheries, Forestry and Conservation
Dear Ms Parkinson,
Thank you for the email forwarded to me by Carolyn Frohmader about draft legislation on Sterilisation of Children with Intellectual Disabilities.
Your letter and attached paper are a commendable presentation of the case against the proposed legislation which I read with interest. Your concern is entirely understandable and I am confident that the matter will be examined and debated in detail and trust that the right outcome will prevail.
I have taken the liberty of forwarding your correspondence to the Hon Philip Ruddock, MP, Attorney-General for his consideration and comment. I will contact you when there is a reply from him.
Thank you for the opportunity to represent your fine Association in this regard.
If you consider that I can be of any further assistance on this or any other matter, please do not hesitate to contact me.
8 December 2006
Dorothy Pratt MLA – Independent Member For Nanango
Thank you for your e-mail and I apologise for not being able to respond earlier.
I have mixed feelings about the subject of sterilisation of children with intellectual disabilities. I know we talk about their ‘rights’, but my opinion is that a person’s rights are only theirs if those rights don’t impact negatively on someone else’s rights. Just recently I spoke to an American nurse who attended the delivery of a baby from a 16 year old girl who had the intellectual age of a 9 year old. She said it was the most awful thing she’d seen because the girl had no idea what had happened, or was happening to her and was crying out for a mother that wasn’t there through the whole ordeal. There was no way she could care for a baby and that baby went straight in foster/adoption homes. Is that a ‘right’ and if so, what possible satisfaction did that poor child get from that ‘right’ I wonder? If this is what you are campaigning to be allowed to happen, then I’m afraid I can’t agree and believe each case would have to be assessed individually. However in the above mentioned case, I would support it.
Every case must be taken on it’s merits but I can’t say I’m totally opposed to the sterilisation in certain instances.
9 February 2007
Hon Lara Giddings – Minister for Health and Human Services (TAS)
Dear Ms Parkinson
Thank you for your letter of 2 November 2006 regarding the draft Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006.
The Department of Health and Human Services recognizes the implications of the draft bill will need to be considered carefully to determine the best approach to protect children with a disability. Consideration is required to protect against any potential for differential or discriminatory treatment on the basis of disability or gender as well as account for broader human rights obligations.
The Department of Health and Human Services has recommended serious consideration of your organsiation’s submission in developing the Tasmanian Government response to the Draft Bill Consultation Process.
Thank you once again for raising this issue.
8 December 2006
Hon Stephen Robertson – Minister for Health (QLD)
Dear Ms Parkinson
Thank you for your email dated 6 November 2006, regarding the recently released draft legislation by the Australian Government, Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006. The Department of Justice and Attorney General is coordinating the submission from the Queensland Government on this Bill and Queensland health will participate in this process.
As you have stated, this is a very complex issue requiring careful consideration of the human rights principles that underpin ethical decision making. I am aware there are general and ehalth care principles that guide ethical substitute decision making on behalf of a child about issues such as sterilisation. Such principles include ensuring that this child has the same human rights a s a person who has the capacity to make decisions; valuing the individual and their views and wishes; and using the least restrictive or invasive alternative tha is necessary and appropriate to maintain or promote the child’s health or well-being and is in all circumstances in their best interest.
In Queensland, the issue of sterilisation of people under the age of 18 years with limited decision making capacity is covered by the Queensland Guardianship and Administration Act 2000. The Department takes very seriously its obligations under the Act. I understand that the intention of including such a provision is to provide further safeguards for people with impaired capacity through the use of the Guardianship and Administration Tribunal.
Departmental clinicians are trained in counseling and are aware that at times the burden of the decision is so great, that families are emotionally unable to consider all aspects of the decision. Clinicians work with the child and their families to consider all options to ensure the health and welfare of the child is always considered utmost. Queensland’s performance in diverting people away from invasive procedures has been acknowledged by The Human Rights and Equal Opportunity Commission.
Should you have any queries regarding my advice to you, Ms Kelly Fiedler, Policy Advisor, will be pleased to assist you and can be contacted on telephone 32341191.
15 December 2006
Hon Michael Hodgman – Shadow Attorney-General (TAS)
Thank you so much for your detailed Submission of 29 January. I have read it carefully and find myself in sympathy with your views.
7 February 2007
Hon Margaret Keech – Minister for Tourism, Fair Trading, Wine Industry Development and Women (QLD)
Dear Ms Parkinson
Thank you for your letter of 2 November 2006 regarding the Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006 (the Bill). As Minister for Women, I commend your organization for consistently providing valuable insight into the hardship and discrimination that women with disabilities often encounter in a number of areas.
The Department of Justice and Attorney-General (JAG) has lead responsibility for coordinating the Queensland Government’s response to the Bill and considering its implementation. The Office for Women (OFW) has liaised with JAG on this matter which has advised that Queensland’s Guardianship and Administration Act 2000 provides both greater procedural detail and protection for minors with decision-making disabilities than the proposed Bill. I understand the Attorney-General will be reviewing the documents and consulting with stakeholders in finalizing the Government’s response to the Standing Committee of Attorneys-General and should be in a position to deliver Queensland’s final decision in early January 2007. In the meantime, the OFW will continue to liaise with JAG and raise the issues of girls with decision-making disabilities as a potentially disadvantaged and vulnerable group.
You may be interested to know that the OFW has recently collaborated with Legal Aid Queensland on a project and report, People with Intellectual Disabilities and Cognitive Impairments in the Justice System, which addressed the legal needs of women with an intellectual disability or cognitive impairment within the criminal system.
Thank you for bringing your concerns to my attention.
14 December 2006
Senator Jan McLucas – Shadow Minister for Ageing, Disabilities and Carers
Dear Ms Parkinson
Thank you for your correspondence regarding the draft national legislation “Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006”.
We understand that at the July 2006 Standing Committee of Attorneys General meeting, Ministers approved in principle draft model provisions, subject to being settled with the Parliamentary Counsel’s Committee, as the basis for further discussion and targeted consultation with stakeholders in relation to the criteria and procedures that jurisdictions could adopt in authorizing the sterilisation of children with a decision making disability.
Subsequent to the July meeting, Parliamentary Counsel’s Committee approved the draft provisions and they have been sent to targeted stakeholders for comment, along with an Issues Paper prepared by the Working Group. Stakeholders were asked to provide comments by early November 2006.
Once the comments have been received, we will be in a stronger position to respond to your concerns.
Senator Jan McLucas
18 December 2006
Hon Judi Moylan MP – Member For Pearce
Dear Ms Frohmader
Thank you for your email of the 6th November with regard to the recently released Draft Legislation on the Sterilisation of Children with Intellectual Disabilities.
I have sought advice from the Attorney General and understand that the Australian Government (SCAG) considers illegal sterilisation to be an extremely serious matter and supports the development of a nationally consistent approach to authorizing the sterilisation of minors with a decision-making disability.
It is my understanding that the issues paper released by the Standing Committee of Attorneys-General in March 2004 was considered by national peak bodies, including WWDA, Australian Government Departments, federal courts, the Human Rights and Equal Opportunity Commission, the Australian Law Reform Commission, as well as State and Territory based public advocacy centres, human rights and disability organizations.
The working group reviewed submissions received and developed a draft Model Bill Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006 (the draft Model Bill) to assist Ministers to resolve a number of outstanding policy issues.
The draft Model Bill is designed to confer jurisdiction on guardianship tribunals, or similar tribunals, to authorize sterilisation procedures on minors with a decision making disability. This jurisdiction would operation concurrently with that of the Family Court of Australia and the Federal Magistrates Court.
Further, the draft provisions do not represent a settled policy position at this time. I understand that your organization had an opportunity to comment on the draft Model Bill and the Issues Paper summarizing the key features of the Bill. I will certainly bear your comments in mind during any future discussion on this Bill.
19 December 2006
Tony Windsor – Federal Member For New England
Dear Ms Frohmader
Thank you for your email of 3 November 2006, on behalf of Women with Disabilities Australia, concerning the Governments recently released draft legislation on the sterilisation of children with intellectual disabilities.
I have noted your comments and appreciate receiving your feedback in relation to this issue.
You may be assured I will take your comments on board, together with the feedback I receive from residents within the New England Electorate, when dealing with this matter within the Parliament.
In the meantime, I have written to the Hon Philip Ruddock MP, for his consideration of the concerns you have raised and for his advices.
When I have received a response from Mr Ruddock, I will contact you again.
28 November 2006
Sue Boyce – Senator for Queensland
Mr Laurie Glanfield AM
Secretary to the Standing Committee of Attorney-General
NSW Attorney General’s Department
GPO Box 6
SYDNEY NSW 2000
Dear Mr Glanfield
Re: Draft Legislation on Sterilisation of Children with a Disability
I understand from Women with Disabilities Australia that there is a SCAG Working Group currently reassessing model legislation relating to the sterilization of children with an intellectual disability.
As the parent of a young women with an intellectual disability, I have been involved in a number of forums and reports produced by disability groups on the general topic of sterilization of people with disabilities including ones by STAR Victoria in the 1990’s and Queensland Advocacy Inc in 2005.
I have been shocked by the accounts I have heard of children and adults with a disability being treated as less than human-girls being sterilized because of menstruation “might” be a problem, boys being sterilized because of inappropriate masturbation.
I support completely WWDA’s view that sterilization of children with disabilities must only be undertaken for serious health or life-saving reasons. The only criteria must be “would the procedure be carried out if the child did not have a disability?”
It would not be acceptable to have any test relating to the “best interests of the child” because of the probability of this being interpreted too broadly.
A very large number of people from the disability community claim that illegal sterilizations are still conducted in Australia. They have the view that this situation is being tolerated/ignored by State Governments.
Both the legislation itself, and the actions of the States’ Attorneys-General, must make it very clear that all parties to such an action will be pursued and prosecuted.
I’d be very pleased to receive an update on the Working Group’s progress.
Liberal Senator for Queensland
3 September 2007
Responses acknowledging receipt of WWDA’s correspondence have also been received from many politicians.
Many responses thanked WWDA for our correspondence and stated that our letter would be referred to the poitician with the ‘relevant’ portfolio responsibility for the issues we raised.