New South Wales Council for Intellectual Disability: Submission on the Draft Model Bill to regulate the sterilisation of children with an intellectual disability


In late 2006, the Standing Committee of Attorney’s General (SCAG) released for consultation, draft national, uniform legislation ‘Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006’, which sets out the procedures that jurisdictions could adopt in authorising the sterilisation of children who have an intellectual disability. The Standing Committee of Attorneys-General (SCAG), is the national ministerial council made up of the Australian Attorney-General and the State and Territory Attorneys-General. SCAG provides a forum for Attorneys-General to discuss and progress matters of mutual interest. It seeks to achieve uniform or harmonised action within the portfolio responsibilities of its members. A number of organisations provided submissions in response to the Draft Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006, and some provided Women With Disabilities Australia (WWDA) with a copy of their Submission for our records. This Submission is from the New South Wales (NSW) Council for Intellectual Disability. Copyright 2006.


 

A Submission from the New South Wales Council for Intellectual Disability on the ‘Sterilisation of Minors with Intellectual Disabilities’. 15 November 2006.

Ms Edwina Cowdery
Senior Policy Adviser
NSW Attorney-General’s Department
via email

Dear Ms Cowdery

Sterilisation of Minors with Intellectual Disabilities

We write to express our grave concern with the draft bill and accompanying issues paper produced by the Standing Committee of Attorneys General. We are alarmed that it is proposed that only non-therapeutic sterilisations would require court or tribunal approval and that this be on the basis of a non-rights based “best interests” decision making process.

We applaud the pisition taken by the NSW Government on this issue in 2004, when Attorney General Bob Debus stated:

…….The [NSW] Government supports the submission from Women With Disabilities Australia that sterilisation of minors with a decision-making disability should be prohibited except where there is a threat to life or health. Sterilisation is a matter for adulthood and should only be carried out in children for immediately needed therapeutic purposes……..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.’ (Hon Bob Debus, NSW Attorney General, 2004).

This approach is in line with existing NSW legislation which requires Guardianship Tribunal approval for any sterilisation of a child and the Tribunal to be satisfied that the operation is needed to prevent serious damage to the child’s health.

NSW legislation imposes the same restrictions on sterilisation of adults with a decision-making disability. We are not advocating any change to that legislation. However, the argument for non-therapeutic sterilisation being prohibited applies all the more strongly to children whose future wants and needs are particularly difficult to predict.

We also believe the Tribunal approval of therapeutic sterilisation is vital becuase there is no clear dividing line between what is therapeutic and what is non-therapeutic. Further, a safeguard is needed against going to sterilisation to meet a medical condition that could be met in a less drastic way.

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Any legislation in relation to sterilisation of children should also include the following features:

1. The legislation should have guiding principles including the principle of least restrictive alternative and a starting point of procreation being a right which should not be interfered with except in very narrowly defined circumstances.

2. Tribunal members and legal representatives should be required to have a demonstrated committment to the principles in the Act.

3. Eugenics should be an absolutely irrelevant factor rather than just an issufficient justification for sterilisation.

4. Any jurisdiction would preferably be exclusive to Guardianship Tribunals, rather than also the courts. The informal, investigative, expert and multidisciplinary nature of Tribunals makes them better suited to this sensitive jurisdiction.

5. If the courts are to retain a jurisdiction, they need similar rights based guidelines as tribunals are to have.

6. It should be made clear that tubal occlusions and vasectomies are covered, as is done in the NSW legislation. Otherwise, the fairly high reversibility potential of these could be used as an argument that the operation is not “intended or reasonably likely to have the effect” of permanent infertility.

Yours faithfully
Jim Simpson
Senior Advocate
jcsimpson@optusnet.com.au
02 9345 5504