Australia won a seat on the UN Human Rights Council (UNHRC) on October 17. The Australian campaign for a position on the leading human rights body consisted of five pillars. These included a pledge to promote gender equality, as well as addressing human rights violations and abuses.
On the following day, the UNHRC win, the UN Human Rights Committee sat down in Geneva to review Australia’s compliance with the human rights standards set out under the International Covenant on Civil and Political Rights (ICCPR).
As part of its five year review of Australia, the ICCPR monitoring committee addressed the issue of the non-therapeutic sterilisation of people with disabilities.
On November 9, the committee released its concluding observations, which included the recommendation that Australia “should abolish the practice of involuntary non-therapeutic sterilisation of women and girls with intellectual disability and/or cognitive impairment.”
A practice long condemned
The permanent surgical sterilisation of people with disabilities in Australia is an ongoing practice, and the majority of cases involve girls with intellectual disabilities.
These procedures are not being sought for young men and boys. And there are no recorded instances of the procedure being requested for non-therapeutic reasons for girls without disabilities.
In 1992, the High Court of Australia clarified in Marion’s case that a court order must be sought via the Family Court or relevant state guardianship tribunals in order for a sterilisation to be carried out. And this can only be issued when it’s deemed to be in the girl’s best interest.
However, as Carolyn Frohmader, executive director of Women With Disabilities Australia (WWDA), points out the practice has long been condemned by United Nations bodies, as a violation of basic human rights and a form of torture.
Australia has ratified seven of the eight major international human rights treaties.
The Human Rights Committee “is now the sixth of the treaty monitoring bodies of those seven that have made very strong and serious recommendations to Australia around the sterilisation of girls and women with disabilities,” Ms Frohmader explained.
The justifications for sterilisation
The burden of care upon parents and guardians is often cited as a justification by Australian courts for authorising the procedure. In 2004, a court permitted the sterilisation of a 12-year-old girl to stop her menstruating, as caring for her would be “somewhat less onerous.”
According to Ms Frohmader, carrying out a procedure like a hysterectomy to stop menstruation is one of the major reasons the sterilisation of girls takes place. And preventing this “normal bodily function” raises issues, such as “early onset menopause and osteoporosis.”
Another rationale focuses on sexual abuse. Ninety percent of women with an intellectual disability are sexually assaulted during their lives, and 60 percent are before the age of 18. Sterilisation is seen as a method of stopping unwanted pregnancies, as well as preventing sexual abuse.
Not only does this reasoning lead to a situation where girls are being subjected to surgery as sexual assaults against them cannot be prevented, but, as Frohmader outlined, “it actually allows young women to be more of a target of sexual abuse, because there’s no evidence of pregnancy.”
The findings of the Senate inquiry
On July 17 2013, the Senate Community Affairs Reference Committee tabled its report into the involuntary or coerced sterilisation of people with disabilities in Australia. The inquiry was prompted after WWDA lodged formal complaints about the issue with four UN special rapporteurs in 2011.
The special rapporteurs wrote to the Australian government seeking a formal response on the practice of sterilisation. The government’s reply demonstrated that Australia has no national approach to the practice, and that it believed under certain circumstances it should be authorised.
The subsequent Senate inquiry did not recommend that the sterilisation of people with disabilities be banned. It called for the practice to be made illegal without court approval, as well as in cases where a person has the ability to give consent and they don’t agree to the procedure.
The committee also recommended that sterilisation procedures should not be used “as a means of managing pregnancy risks associated with sexual abuse,” and that it should be a criminal offence to take a person with a disability overseas to undergo sterilisation.
But, despite Australia having strict laws in place making it a criminal offence to take a girl overseas to undergo female genital mutilation, there are still no laws to prevent women and girls with disabilities being taken to another country to undergo irreversible sterilisation procedures.
WWDA is aware of situations “where parents have actually taken their child out of the country to have a hysterectomy,” Ms Frohmader told Sydney Criminal Lawyers®. And she further stated that there are instances in Australia where the procedure is being carried out illegally.
There’s no clear data available on how many sterilisations are carried out in Australia, and Frohmader puts this down to the lack of consistency between jurisdictions, as well as individuals being admitted into hospital for under various diagnoses that don’t specify the procedure will take place.
A 1997 Australian Human Rights Commission report found that 17 sterilisation procedures had been approved by the courts between 1992 and 1997. But, data collected by the Health Insurance Commission showed that at least 1,045 girls had been sterilised over that same period.
Upholding the rights of the marginalised
“Successive Australian governments have not listened to the voices of women with disabilities, who have been affected by this practice,” Ms Frohmader said, adding that what they actually want is the practice to be banned outright.
An Australian NGO coalition advised the UN Human Rights Committee on its Australian review. The coalition stated that “national uniform legislation” should be enacted “prohibiting the forced sterilisation of children with disability, and adults with disability” without their consent.
On whether Australia’s UNHRC seat will lead to improvements in this area, Frohmader is somewhat sceptical. Although, she believes a wealthy nation like Australia should be leading the international community on human rights.
“This particular government is very good at having a little bit of human rights,” Ms Frohmader concluded. “You can’t have a little bit of human rights. You’re either in or you’re out.”