Sterilising without Consent

Marion's Case (1992) 175 CLR 218.

Children and Young Persons (Care and Protection) Act 1998 (NSW); Guardianship Act 1987 (NSW).

Guardianship and Administration Act 2000 (Qld).

Guardianship and Administration Act 1995 (Tas).

Guardianship and Administration Act 1993 (SA).

Gillick v West Norfolk and Wisbech Area Health Authority (‘Gillick’) [1985] 3 All ER 402, 420, 423; Marion's Case (1992) 175 CLR 218, 232, 237.

Marion's Case (1992) 175 CLR 218, 250.

Ibid.

Ibid 253.

Re L and M (1993) 17 Fam LR 357; P and P and Legal Aid Commission of NSW (1995) 19 Fam LR 1; Re H [2004] FamCA 496; Re Angela [2010] 43 Fam LR 98.

While the Federal Magistrates' Court has jurisdiction to hear sterilisation applications, the FCA will ordinarily hear the matter.

In making this decision, the FCA must consider, inter alia, the viability or inadequacy of less invasive procedures, possible long-term social and psychological consequences and any positive effects expected on the welfare of the child, ‘Marion's Case’ (1992) 175 CLR 218, 259, 251.

The Committee on the Rights of the Child (‘CRC’) has confirmed that non-consensual sterilisation for reasons other than appropriate treatment for a disease or malfunction offends article 19 of the CROC. In mid-2011 the federal government was called on to respond to concerns about sterilisation law raised by the UN Human Rights Council following Australia's first UPR.

The CRC has urged the Australian government to ‘prohibit the sterilization of children, with or without disabilities’, UN Committee RC, Consideration of Reports Submitted by State Parties Under Art 44 of the Convention on the Rights of the Child, Concluding Observations: Australia, UN CRC, 40th sess, UN Doc CRC/C/15/Add.268 (20 October 2005) at [46].

In September 2011 the Australian Human Rights Commission re-publicised its appeal to ban the practice of sterilisation without the consent of the individual in Australia, Griffin Michelle , ‘Call for Ban on Sterilising Disabled’ The Age (Melbourne), 7 September 2011.

See Brady Susan and Grover Sonia , The Sterilisation of Girls and Young Women in Australia (December 1997) HREOC http://www.hreoc.gov.au/disability_rights/hr_disab/sterilization/sterilization.html; Brady Susan Britton John and Grover Sonia , The Sterilisation of Girls and Young Women: Issues and Progress (2001) HREOC http://www.hreoc.gov.au/disability_rights/hr_disab/sterilization/sterilization.html; Grover Sonia Brady Susan and Chondros Patty , ‘Sterilisations in Girls and Young Women: Is it Still Happening?’ (2002) 26(3) ANZ Journal of Public Health 273.

Brady and Grover , above n 16.

HIC data captures only sterilisations carried out in private hospitals, with a subsequent claim for a Medicare rebate for the procedure. The report also cited figures from the AIHW however the HIC data is more frequently cited.

Brady and Grover , above n 16.

Commonwealth Department of Family and Community Services, Report to the Senate: Sterilisation of Women and Young Girls with an Intellectual Disability (6 December 2000).

Grover Brady and Chondros , above n 16.

Ibid 274.

Ibid.

Ibid.

Griffin , above n 15.

Marion's Case (1992) 175 CLR 218, 249.

Ibid 261–262.

Raabe v The Brisbane North Regional Health Authority [2005] QSC 41, [52]–[53].

Farrar John , Legal Reasoning (Lawbook, 2010), 37, 39, 44–45.

Raabe v The Brisbane North Regional Health Authority [2005] QSC 41, [22], [52]; Rogers v Whitaker (1992) 175 CLR 479, 480; McIlwraith Janine , Health Care and the Law (Lawbook, 5th ed, 2010) 231. In contrast to negligence, an actionable claim for the tort of trespass to the person does not require detriment to be sustained by the child. A cause of action will subsist where medical treatment has been provided to the child without the provision of valid consent, Rogers v Whitaker (1992) 175 CLR 479, 490; Freckelton Ian & Petersen Kerry (eds) Disputes and Dilemmas in Health Law (Federation, 2006), 46.

Farrar , above n 29, 38–42.

McIlwraith , above n 30, 471.

For example, Criminal Code 1913 (WA) ss 317, 317A; Criminal Code Act 1983 (NT) ss 181, 188; Crimes Act 1900 (ACT) s 25; these being the states without purpose-specific legislation governing sterilisation.

Guardianship and Administration Act 1993 (SA) s 61(1) makes conducting ‘prescribed treatment’ without the consent of the State Guardianship Board punishable by up to two years imprisonment or a fine of up to $10 000.

Guardianship and Administration Act 1995 (Tas) s 38.

Steele Linda , ‘Making Sense of the Family Court's Decisions on the Non-Therapeutic Sterilisation of Girls with Intellectual Disability’ (2008) 22 Australian Family Law Journal 1, 1.

Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006. Reasons SCAG removed sterilisation from its agenda included its belief that doctors and hospitals had a ‘better appreciation of their legal obligations’ due to educational steps taken to target these groups, Standing Committee of Attorney's General, Parliament of Australia, Summary of Decisions (March 2008) <http://www.scag.gov.au/lawlink/SCAG/ll_scag.nsf/pages/scag_meetingoutcomes>, [6].

Clause 6 of the 2006 Bill, ibid, proposed that a hospital service provider be held liable for any unauthorised sterilisations carried out within their facility. A defence was to be made available where all reasonable steps had been taken to prevent the offence.