WWDA Systemic Advocacy on the Unlawful Sterilisation of Minors with Disabilities – Responses from Government Departments/Agencies


In late 2006 and early 2007, Women With Disabilities Australia (WWDA) wrote to a wide range of stakeholders 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 responses to WWDA’S Correspondence from Government departments/agencies.


 

Department of Health and Ageing – Australian Government

Dear Ms Parkinson,

Thank you for your email of 6 November 2006 to the Minister for Health anhd Ageing, the Hon Tony Abbott MP, concerning the sterilisation of children with a decision-making disability. The Minister has asked me to reply on his behalf.

I have consulted with the Attorney-General’s Department who have been coordinating the Australian Government’s contribution on this issue. 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.

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 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 Australian Government considers the draft Model Bill to be consistent with the draft Disability Convention and will continue to monitor this issue.

Thank you for bringing your concerns to the Government’s attention.

Yours sincerely,
Damian Coburn
Acting Assistant Secretary
14 Dec 2006


Attorney General’s Department – New South Wales

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. I also appreciate you forwarding me the views of the United Nations Children’s Fund.

I wish to emphasise the the SCAG draft model provisions are not settled policy. They have been prepared so that key stakeholders can provide direct feedback on their efficacy.

Your feedback is clear and instructive and I will be taking your concerns to the next SCAG Senior Officers’ meeting to be held in March 2007.

Thank you for apprising me of your views and for your contribution to the wider public policy debate on this matter.

Yours faithfully
Laurie Glanfield
Director General
5 February 2007


Department of Ageing, Disability & Home Care – New South Wales

Dear Ms Parkinson,

I refer to your correspondence regarding the Standing Committee of Attorneys-General (SCAG) draft model provisions to develop a nationally consistent approach to the authorisation required for the lawful sterilisation of children with intellectual disabilities.

I acknowledge the position of Women With Disabilities Australia (WWDA) as it relates to the development of procedures to potentially authorise a sterilisation procedure for a child with an intellectual disability.

As you are aware, the Standing Committee of Attorneys-General (SCAG) has called for further discussion and consultation on the draft model Bill, which does not reflect a settled policy position at this time.

The Department of Ageing, Disability and Home Care would not support a draft Bill unless it includes the provision that sterilisation procedures are carried out only in order to save a child’s life or to prevent serious damage to a child’s health.

I trust this information is of assistance. Thank you for raising this matter with me.

Yours sincerely
Brendan O’Reilly
Director General
12 December 2006


Disability Services Commission – Westen Australia

Dear Ms Parkinson,

Thank you for your letter dated 29 January 2007 regarding the possible inconsistency of the provisions of the Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006 with Australia’s obligations under the Convention of the Rights of the Child.

The matters you raise are important and I have no doubt that the Standing Committee of Attorneys-General (SCAG) will consider this issue in depth. I am aware that the Western Australian Attorney General has corresponded with you at length on the provisions of the current exposure draft of the Bill which, as you know, does not represent a settled or agreed policy position at this time.

This is a matter that has been the subject of a High Court decision, a Human Rights and Equal Opportunity Report and considerable consultation which no doubt attests to its importance and the range of strongly held views on the subject. The Disability Services Commission will continue to take a keen interest in the development of the model legislation and any consequent State provisions.

Thank you for providing a copy of your correspondence from UNICEF; this will inform any Commission opinion on further drafts of the legislation.

Yours sincerely
Dr Ron Chalmers
Acting Director General
9 February 2007


Department of Health and Human Services – Tasmania

Dear Ms Parkinson,

Thank you for your letter of 2 November 2006 and the Women with Disabilities Australia (WWDA) Submission regarding the draft Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006.

The Department of Health and Human Services was recently asked to provide comment on the draft model provisions for regulation of sterilisation of children with a disability by the Tasmanian Legislative Development and Review office.

In my response to this request, I advised Mr Len Armsby (Director, Legislative Development and Review Office) that the Department of Health and Human Services believes that serious consideration by the Tasmanian Government of WWDA’s position in relation to sterilisation of children with a disability, and in particular the draft model provisions, is warranted.

Thank you once again for raising this issue with me.

Dr Martyn Forrest
Secretary
4 December 2006


Department of Justice and Attorney-General – Queensland

Dear Ms Parkinson,

Thank you for your letter dated 2 November 2006 in relation to the draft model Bill and issues paper on the regulation of sterilisation of children with an intellectual disability. The material was released by the Standing Committee of Attorneys-General (SCAG).

SCAG has established an inter-jurisdictional Working Group to review the submission 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 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 unathorised 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 cognitive impairment. This is an extension of the Tribunal’s existing jurisdiction to authorize 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 authorize sterilisations only if they have been proven in the best interests of the child.

The Honourable Kerry Shine MP, Attorney-General and Minister for Justice and Minister assisting the Premier in Western Queensland is currently undertaking wide spread consultation on the SCAG material with Queensland stakeholders. Groups consulted include 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 response to this proposal.

Should you have any further queries in relation to this matter, Natalie Parker, 07 30065996 would be pleased to assist.

Yours sincerely
Jim McGowan
Director General
15 December 2006


Premier’s Department – New South Wales

Dear Ms Parkinson,

Thank you for your letter regarding the Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006.

I note you have also sent copies of your letter to the Minister for Women, Office for Women and Premier’s Council for Women. As the Minister advised, the NSW Government does not support the Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006 in its current form.

A Working Group of the Standing Committee of Attorneys-General is currently reviewing submissions received in relation to the Bill. The views of Women With Disabilities Australia will be considered as part of that process.

Yours sincerely
Dr Elizabeth Coombs
Assistant Director General
16 February 2007