Home - Claire Moore - Labor Senator for Queensland

COMMITTEES: Community Affairs References Committee - Government Response to Report

Senator MOORE (Queensland) (16:13): by leave-We appreciate that the minister has tabled these responses today. It actually gives you faith that only one week ago in Senate estimates we asked a question about when these reports were going to be tabled and were told imminently. So, now, for the first time we actually seem to have a real reflection of what imminent means. We have been trying to get that. We could not get that a week ago but we now we have it.

This has been long-awaited. Only last week the Human Rights Commission brought down a very interesting report on issues around gender in Australia, and one of the key recommendations of that human rights report was that the particular issues raised in these two Community Affairs Committee inquiries-one on the involuntary or coerced sterilisation of intersex people in Australia and the other one on the issue around intersex in Australia-was that these recommendations be taken up and that there be consideration of these issues in our community, and it noted the work of the Senate committee.

In terms of the response we received from the minister today, we do appreciate that the government has acknowledged that it is really important that these issues, particularly to do with issues of discrimination around women-particularly women but not only women-and people with disabilities who have been subject to sterilisation without consent or against their wishes was wrong. We understand that we need to have some consideration in our community and in our governance about this process. One of the core things is that it is important that there is consistency around jurisdictions. This came out in a number of the recommendations in both reports. I will look at the involuntary or coerced sterilisation issues first.

I turn first to the report on involuntary or coerced sterilisation of people with disabilities. There were a number of recommendations put forward by the committee, but I am a little bit confused about the responses from the government to those recommendations. While the government consistently acknowledge the issues, they also consistently say that, largely, sterilisation, legal support and the health of people with disabilities-in particular, those who have been subject to sterilisation-are a state or territory responsibility. But our committee knew that. We consistently said that during the hearings we had, when we listened to the gut-wrenching evidence from people and families who have been subject to this medical process and abuse over the years.

What we were seeking from the government was not just an acknowledgement that something needs to be done about it, and they do say that. We wanted some leadership on this from the federal government-that, whilst it was not their primary responsibility, they would talk to the states and territories and they would put this on the agenda so that there could be real efforts towards consistency across things as straightforward as definitions and how people should be handled through the difficult process-and it is not easy area-of looking at whether a decision about sterilisation should be taken. We did not get that.

There were a range of verbs used in the government's response. There was 'noting'; the federal government 'noted' many of the recommendations. The high point of the responses, using 'raise', was:

The Australian Government will raise this issue with state and territory governments whose legislation does not create such an offence.

That was specifically around recommendation 6, which said:

The committee recommends that, for a person with a disability who has the capacity to consent, or to consent where provided with appropriate decision-making support, sterilisation should be banned unless undertaken with that consent.

It also concerned recommendation 28:

State and territory legislation should also make it an offence to take, attempt to take, or to knowingly assist a person to take, a child or an adult with a disability oversees for the purpose of obtaining a sterilisation procedure.

This is a horrifying action which we know, from the evidence we received, is not rare. With many people who currently cannot receive this particular medical intervention legally at the state level in Australia because of their needs, the decision by their families or carers is to take them overseas to where this procedure can be carried out.

Now, we know that does not meet any requirements of due care. We know it does not meet any requirements under international obligations. But what we have not been able to get from the federal government is a clear indication that they think this is something that should be taken up in serious discussions with the states and territories, and that permeates the government's response. There is acknowledgement of the issue, but then they say:

This is a matter for state and territory governments.

They say:

The Australian Government encourages state and territory governments to consider the level of assistance available for people with disability requiring legal representation in special medical procedure matters.

The federal government say they acknowledge it is important that they look at having wraparound services and multicultural teams taking into account the range of issues that are important in such decision making. They acknowledge that is important; they say states and territories should do something about it. But nowhere do we actually see agreement from the federal government that this is so important-despite the evidence of these people who have been brave enough to come to a Senate committee inquiry and expose the pain that they have experienced in the past, or the evidence from advocacy groups who fear what could continue to happen in the future-that they will take leadership on this issue and put on the agenda for any of their intergovernmental meetings the importance of getting standardisation of definitions, standardisation of support and encouragement of best practice both legally and medically. That is what our committee hoped would be the response from the government.

One of the valuable things, though, is that the government have said in their response:

the question of capacity is a threshold question in the regulation of sterilisation for people with disability.

Indeed, that applies to any decision making about people with disabilities or where there is concern about capacity to make decisions. The response also talks about the report put out by the Australian Law Reform Commission-a really good report-called Equality, capacity and disability in Commonwealth laws, which was tabled in this parliament in November 2014. The government response says:

The report examined Commonwealth laws that deny or diminish the equal recognition of people with disability as persons before the law and their ability to exercise legal capacity

The report-which is well worth reading, Madam Acting Deputy President O'Neill-made 55 recommendations about providing people with the best possible support to ensure they have the clear ability to make decisions in any situation that impacts on them. The government response says:

The Government is currently considering the recommendations in the report.

So we look forward to seeing the government report on that issue.

The second report, which was supplementary to our review of involuntary or coerced sterilisation of people with disabilities, was on the particular issues for the involuntary or coerced sterilisation of people who identify as intersex in our community. The government has made much the same kind of response to that report. They have acknowledged that this is a reality, they have acknowledged the importance of having services that respond effectively to intersex people, who are not great in number but who are very great in need. Our report actually looked at the history-quite a shameful history, in many ways-in our country and internationally of the desire for people to seem and be considered 'normal' rather than to meet their particular needs. There was strong evidence heard in our inquiry. Again, the government response is:

The Australian Government supports the principle of multidisciplinary and coordinated care for people who are intersex. However, service provision is generally a state and territory responsibility.

They say the Australian government 'cannot mandate the language used by health professionals and organisations' because this is a state and territory, and private sector, responsibility.

But we knew that when the recommendations were put to us by the people who gave evidence and when we wrote our report. Again, what we wanted was for the government to say, 'Yes, this is important; we know there is variation across the states and territories, and there should not be. No matter where you live, if you are seeking support, you should have an expectation of effective, professional and compassionate service.' That is what people who identify as intersex want in terms of service delivery from their professionals.

We would hope that the government would actually follow through on the acknowledgement they have made in their response that this is important-that they will not just say that this should be done and that the states and territories have prime responsibility but that they will engage with the state and territories proactively, put it on the agenda and have consultation meetings across governments to ensure that things such as definitions are standardised. (Time expired)