The Victorian Bar: Submission in response to the September 2006 Standing Committee of Attorneys General (SCAG) Issues Paper ‘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 Victorian Bar Inc. Copyright 2007.


 

Submission of the Victorian Bar in response to the Standing Committee of Attorneys General (SCAG) Issues Paper ‘Sterilisation of Children with an Intellectual Disability’. February 2007.

General Comments

1. The proposed Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006 is designed to be beneficial legislation, protecting those with intellectual disabilities by limiting the circumstances in which approval can be given to non-therapeutic sterilisation of minors. As such, it is an extremely important enunciation of the principle that such irreversible and significant surgery should only be carried out on vulnerable persons when there is absolutely no other viable alternative.

2. Its characterization as such should have ramifications. The Victorian Bar has reservations about the fact that the Bill is confined to one category of persons with disabilities – namely young persons with intellectual disabilities. It does not regard the singling out of only this category as conceptually justified or justifiable when sterilisation of other categories of minors also needs to be regulated in their best interests. The result is the provision of inadequate protection.

3. The Victorian bar is of the view that sterilisation of minors should only occur where there is absolutely no alternative. It is concerned that the proposed legislation, as drafted, leaves undue leeway for the procedure to be carried out in circumstances when in reality there are other options in relation to the difficulties posed by issues such as menstrual management, the potential for sexual exploitation and the risks of pregnancy.

4. It is of the view that the underpinning and justification for the proposed legislation should be established in empirical evidence, including contemporary, specialist medical and psychological perspectives. As a matter of principle, where there is no serious organic disease or malfunction, sterilisation should only be permitted when no other alternative is feasible for the person concerned.

Definitional Issues

5. Further, the Victorian Bar is troubled by the absence of a definition in the proposed legislation of “intellectual disability”. It observes that a number of such definitions have been formulated for a variety of different legislative purposes. However, without propounding one such definition over and above others, the Victorian Bar contends that (assuming the Bill continues only to apply to persons with intellectual disabilities) the definition of “intellectual disability” in this context should be broad and widely inclusive so as to maximise the protection given by the legislation. Such protection should extend, for instance, to minors with autism spectrum disorder and brain injuries.

The Forum Shopping Risk

6. The Victorian Bar is concerned about the potential for forum shopping consequent upon vesting the jurisdiction for determining whether a child with an intellectual disability in three different jurisdictions – the Family Court, the Supreme Courts in their exercise of the parens patriae jurisdiction, and state administrative tribunals. Without a clear procedure for dealing with litigants who have previously been unsuccessful in an application in another jurisdiction, the addition of the administrative tribunal option has the potential for causing both confusion and the prospect of inconsistent approaches. It needs to be explicitly addressed.

Decision-making

7. The Victorian Bar observes that the requirements for specialist constitution of the administartive tribunals will be fundamental to securing the objective of decision-making that is at least the equal of that available from experienced judges of the Family Court. It is not aware of research which has evaluated the quality of decision-making or processes in administrative tribunals in this context by contrast with those in the Family Court. It is of the view that such research should underpin any proposed legislation which extends the jurisdiction of administartive tribunals in so important an area.

The Threshold

8. The “best interests” approach, while broad, risks a level of incompatibility with the current two-stage “best interests” formulation under the amendments to the Family Law Act 1975 (Cth). A hierarchy of matters relevant to a child’s best interests should be created, rather than simply listing a range of matters that a tribunal should take into account.

9. The Victorian Bar is also troubled by the breadth of cl 10(2)(e)(iv) which it regards as having the potential for matters such as menstrual management and risk of pregnancy to play a disproportionate role in decision-making about sterilisation of minors with intellectual disabilities. Further, it is of the view that it should be mandatory under cl 10(2)(e)(iv) for the tribunal not only to take into account whether all practicable alternatives to sterilisation have been considered but also whether, to the extent possible, they have been trialled. Certainly “consideration” and “trial” should not be in the disjunctive.

10. Further, cl 10(4)(a) appears to permit eugenic considerations to be taken into account, provided they do not constitute the sole consideration. This is unacceptable and inconsistent with current community standards.

Specific Issues

11. In terms of the architecture of the proposed legislation, cl 5(5) is important but terminology such as “organic malfunction” is so vague as to preclude clear interpretation. It is important that there be no possibility of menstrual pain falling within this category – importantly, the inquiry into the use of menstrual suppressants (including sterilisation) conducted by the Intellectual Disability Review Panel and published as a report to the Minister for Community Service Victoria in June 1992 found that one of the common reasons for suppressing menstruation was the experience of menstrual pain.

12. The procedure for applications for sterilisations under the proposed Bill requires some further consideration. For instance, under cl 13(2) the applicant need not give written notice of the application to a number of persons who arguably should receive such notification.

13. In addition, the role of entities such as the Public Advocate is circumscribed. The Victorian Bar identifies utility in the Public Advocate (at least in Victoria) providing an independent perspective and information for the tribunal in all cases. Further, should there be a report from the Public Advocate, it should be mandatory for the tribunal to take it into account.

14. The role and responsibilities of the independent child representative are poorly enunciated under the proposed legislation. Importing criteria articulated by the Full Court of the Family Court in In the Matter of P and P (1995) FLC 92-615 at 82, 157 (see also Re Jane (1988) 94 FLR 1 at 19-21) would be constructive improvement in this regard.

15. The mandatory publication of written reasons in all cases dealing with applications for sterilisation would further assist in enabling evaluation of the initiative in respect of administrative tribunals.

16. The constitution of unauthorized non-therapeutic sterilisation performed by a medical practitioner as unprofessional misconduct/ professional misconduct would provide a helpful additional disincentive to such conduct.

Monitoring

17. The Victorian Bar is of the view that should this legislation proceed, there should be a statutory requirement that it be independently monitored. The Equal Opportunity Commissioner, no doubt with input from the Office of the Public Advocate, and perhaps with assistance from the Family Law Council, would appear to be the appropriate body in this regard.

Michael Shand
Chairman
Victorian Bar Council
16 February 2007