Law Institute of Victoria (Administrative Law & Human Rights Section):
Submission on 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 Law Institute of Victoria. Copyright 2006.

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A Submission from the Administrative Law & Human Rights Section of the Law Institute of Victoria (ALHR23) to the Legal Officer, Civil law Policy Section, Victorian Department of Justice, on Sterilisation of Children with an Intellectual Disability. 8 November 2006. Copyright, Law Institute of Victoria.

Queries regarding this submission should be directed to:
Alison Brooks
Ph (03) 9607 9381
Email abrooks@liv.asn.au

1. Background

The non-therapeutic sterilisation of minors (children) with a decision-making disability has been on the agenda of the Standing Committee of Attorneys-General (SCAG) since the early 1990's.

In April 2004 an issues paper was prepared for the SCAG Working Group and Victorian Attorney-General Rob Hulls sought a response to the paper from the Law Institute of Victoria (LIV).

In June 2004 the LIV made submissions in relation to that paper. The submissions are available at https://www.liv.asn.au/members/sections/submissions/. The SCAG Working Group reviewed the submissions and developed a draft model Bill for adoption nationally.

In September 2006 the Department of Justice again sought a response from the LIV in relation to a draft model Bill. The draft model Bill provisions set out the criteria and procedures in authorizing the sterilisation of children who have an intellectual disability to the extent that the child is incapable of giving informed consent to sterilisation procedure.

The draft model Bill follows the High Court's decision in Re Marion (1992) 175 CLR 218 (Re Marion) and the 1997 Human Rights and Equal Opportunity Commission report on the sterilisation of minors.

The LIV has reviewed the draft model Bill and has consulted with its members on issues relating to the intended operation of the Bill. The LIV would appreciate the opportunity to make further oral or written submissions if required.

2. Summary

The LIV submits and proposes that:

the Bill should remove any reference to a disability type, i.e. intellectual disability and more correctly refer to what the Bill is intended to cover, that is, sterilisation of minors with a decision-making disability;

if a functional definition of disability were adopted the Bill should also by express intention provide that a sensory or physical impairment is not a disability that would fall within the legislation;

the maximum penalty for performing a special procedure should be set at two years imprisonment and a fine of 240 penalty units, an equivalent penalty to that under the Guardianship and Administration Act 1986 (as amended in 2006);

as well as a financial penalty, the Bill should include a provision that unauthorised non-therapeutic sterilisation performed by a medical practitioner should amount to professional misconduct to be investigated and considered by the relevant professional disciplinary board;

there must be codification of the law regarding therapeutic sterilisation so that it is certain that the same criteria apply to the exercise of authority by the Tribunal, the Supreme Court, the Family Court and the High Court;

the process by which the Tribunal is to establish what is in the person's best interests be codified and to give some guidance as to when a procedure is definitely not in a person's best interests;

the Bill include a statutory right of intervention by the Public Advocate where he/she has not appointed to investigate and report under clause 18;

the Bill should clarify the status of the intervener as a party to the proceedings;

the extent to which the Bill binds the Supreme and Family Courts is clarified; and

the development of guidelines under the regulatory making power is imperative to ensure national consistency.

3. Title

Clause 1 provides the title of the Bill "Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006".

As the Bill provides a test for establishing the capacity of a minor to make their own decisions, it is the LIV view that the Bill should remove any reference to a disability type i.e. intellectual disability, and more correctly refer to what the Bill is intended to cover, that is, sterilisation of minors with a decision-making disability.

The LIV is aware that the disability sector, being people with a disability, carers and advocates, has in recent years moved away from a diagnostic approach to a functional definition of disability. This change has occurred both in Victoria and nationally. In keeping with this change the Victorian Parliament has introduced the Disability Act 2006. The new Disability Act on its commencement in July 2007 will repeal the Intellectually Disabled Persons Services Act 1986 and the Disability Services Act 1991. The LIV considers that the title of the Bill specific for minors with an intellectual disability is not in accordance with the contemporary view of the disability sector or government policy.

We also refer to our earlier submissions on this issue.

4. Terms Used

Clause 4 of the Bill includes a definition of intellectual disability and notes that the precise wording is not yet settled across state jurisdictions.

It is the intention of the Bill that a sensory or physical impairment is not a disability that would fall within the legislation. The LIV view is that this is correct. Therefore, if a functional definition of disability were adopted, the LIV submits that the Bill should also by express intention clearly provide that such disabilities are not covered.

5. Sterilisation procedure prohibited

5.1. Clause 5(2) Penalties

The LIV notes that the Guardianship and Administration Act 1986 was amended in 2006 and set the maximum penalty for performing a special procedure under the Act at two years imprisonment and a fine of 240 penalty units [1]. It is submitted that it would be appropriate to set an equivalent penalty under the Bill.

The LIV also submits that as well as a financial penalty, the Bill should include a provision that unauthorised non-therapeutic sterilisation performed by a medical practitioner should amount to professional misconduct to be investigated and considered by the relevant professional disciplinary board.

5.2. Clause 5(5) Therapeutic sterilisation

The LIV notes that authorization does not have to be sought for a therapeutic sterilisation under the Bill. In relation to adults who are unable to provide consent to a procedure that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out" [2], the Guardianship and Administration Act 1986 requires an application be made to VCAT for consent.

The High Court, in the decision of Re Marion, concluded that a parent has authority to consent to a therapeutic sterilisation of their child. The LIV acknowledges that the interpretation of what constitutes a therapeutic as opposed to a non-therapeutic sterilisation is most often determined in the clinic rather than the court. The LIV welcomes the tight definition in clause 5(5) as to what constitutes a sterilisation to which a parent may consent on behalf of their child. The LIV believes that education across the disability sector and the medical profession will be required regarding this definition.

However, as the LIV understands the operation of this Bill, the common law definition of a therapeutic sterilisation as set out in Re Marion still operates for the Family Court and Supreme Court. In that decision the majority stated: "We hesitate to use the expressions 'therapeutic' and 'non-therapeutic', because of their uncertainty. But it is necessary to make the distinction, however unclear the dividing line may be" [3]. Thus the definitions set out in clause 5(5) will not be binding on the Family Court and the Supreme Court. The LIV is concerned there could evolve a common law position different from the Bill. It is not good law for there to be different criteria applying as this will lead to confusion for medical practitioners and parents in deciding whether a surgical procedure is authorized under the common law or under this Bill. Further, it may undermine any prosecution of an offence if it can be argued that while the consent of the parent may have been defective given the criteria in clause 5(5), the consent may have been permitted under the common law decision of Re Marion.

The LIV submits that there must be codification of the law so that it is certain that the same criteria apply to the exercise of authority by the Tribunal, the Supreme Court, the Family Court and the High Court.

If the LIV's understanding of the Bill is correct, the LIV is concerned that a failure to harmonise the criteria could result in applicants for sterilisation procedures 'forum shopping' to find the jurisdiction most likely to authorize the procedure.

6. Best Interests

The LIV supports the effort to codify the process by which the Tribunal is to establish what is in the person's best interests (clause 10(2)) and to give some guidance as to when a procedure is definitely not in a person's best interests (clause 10(4)).

The LIV understands that the policy behind the Bill is to outlaw a sterilisation that is for eugenic reasons (clause 10(4)(a)). However, as the Bill is currently drafted, this could be legal if it were not the sole reason for the procedure. The LIV submits that this inadvertent sanction of eugenics must be removed from the Bill.

The other matters set out in sub-section (4), namely sterilisation

to remove the risk of pregnancy resulting from sexual abuse
as a convenient contraceptive or menstrual management measure

are only proscribed as grounds for sterilisations where they (either singly or coupled together) constitute the purpose or purposes of the procedure. These matters would not be proscribed where the procedure was otherwise in the person's best interests.

While the Bill provides factors that must be taken into account by the Tribunal the only positive guidance provided in the Bill as to when a non-therapeutic sterilisation may be authorized is in clause 10(2)(e)(v), where:

The sterilisation procedure is necessary to enable the child to lead a life in keeping with the child's needs and capacities.

The italicised words derive from the majority decision in Re Marion. The LIV is concerned that situation may arise where a combination of grounds could be given to justify a sterilisation where:

sterilisation is to remove the risk of pregnancy to the minor resulting from sexual abuse but this is necessary to enable the child to lead a life in keeping with the child's needs and capacities; or
sterilisation is a convenient contraceptive but is necessary to enable the child to lead a life in keeping with the child's needs and capacities; or
sterilisation is for menstrual management but is necessary to enable the child to lead a life in keeping with the child's needs and capacities.

The LIV understands that, given the requirement that all alternatives must have been canvassed, it is unlikely such arguments could be successfully made out. However, the LIV submits that such sterilisations should be prohibited.

7. Intervention by Equal Opportunity Commissioner

Clause 16 provides for the intervention of the Equal Opportunity Commissioner. The LIV submits that it would be appropriate for the Bill to include a statutory right of intervention by the Public Advocate where he/she has not appointed to investigate and report under clause 18.

The LIV submits that the Bill should clarify the status of the intervener as a party to the proceedings.

8. Jurisdiction of Family Court and Supreme Court not affected

The LIV submits that the Bill is confusing in relation to the extent to which it binds the Supreme and Family Courts. Clause 5(3) prohibits any sterilisation of a minor unless it is authorized by a Court or Tribunal. "Court" is defined to include the Family and Supreme Courts. In section 19, the jurisdiction of these courts is not affected by this Bill and they retain the power to authorize a sterilisation procedure to be carried out on a child with an intellectual disability".

The LIV submits that clause 19 implies that the common law set out in Re Marion and subsequent decisions will still apply as providing grounds by which a child may be sterilized and that the criteria set out in this Bill will only apply to VCAT. The LIV submits that this confusion must be resolved and that there should operate only one set of laws establishing the criteria to be applied when determining whether a sterilisation is authorized.

9. Regulations

The Bill provides for the making of regulations required, permitted, necessary or convenient for giving effect to the legislation. The LIV suggests that the regulation making power should specifically include the power to issue guidelines by state Attorney-Generals.

Guidelines have been prepared by the Family Court in collaboration with key stakeholders [4]. To ensure national consistency, the LIV considers the development of guidelines under the regulatory making power is imperative.